Effective August 1, 2021, La. R.S. 23:291.2 will impact the hiring practices used by many employers. Under the new statute, unless otherwise allowed by law, “when making a hiring decision, an employer shall not request or consider an arrest record or charge that did not result in a conviction, if such information is received in the course of a background check.” This is a dramatic change for employers who consider arrest histories in the hiring process. But the statute does not stop with arrest records.
When considering “other” types of criminal history records, i.e., convictions or pleas, an employer “shall make an individual assessment of whether an applicant’s criminal history record has a direct and adverse relationship with the specific duties of the job that may justify denying the applicant the position.” In this assessment, the employer is to consider:
(1) The nature and gravity of the offense or conduct;
(2) The time that has elapsed since the offense, conduct, or conviction; and,
(3) The nature of the job sought.
Upon written request, an employer shall also make available to the applicant any background check information used during the hiring process. While an arrest is not proof an applicant engaged in criminal conduct, a conviction record is usually sufficient to show criminal conduct. See EEOC guidance at https://www.eeoc.gov/pre-employment-inquiries-and-arrest-conviction.
With convictions, the new Louisiana statute places a burden on the employer to make an assessment as to whether the criminal offense has a direct relationship to the specific job duties of the applicant. The statute gives little guidance as to how employers are to reach a conclusion.
At its core, the statute prohibits requests for arrests records and requires an employer to conduct an analysis as to whether a conviction is relevant to the job function before refusing to hire an employee on the basis of a conviction. The statute minimizes administrative burdens when it bars a consideration of arrests. Yet, it sets forth three factors employers must now weigh and measure for other criminal records. One reasonably asks how this statute- which appears designed to limit discretion in rejecting applicants with documented criminal records- will impact “negligent hiring” claims and other areas of the law.