Tag: employment

Employment Law – New Statute Changes the Rules on Hiring

10.22.2021

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.

Workers’ Compensation: A Recent Louisiana Decision Revisits a Fundamental Issue

04.16.2018

Historians call it “The Grand Bargain.” At its heart, the workers’ compensation law is a bargain, an exchange between the employer and the employee. In this bargain, the employee without having to prove his employer’s negligence receives the benefit of continued income and medical treatment. In return, the employer, even if it is at fault, receives protection from tort suits. However, for this bargain to apply, the accident must have occurred within the “course and scope” of employment. But the question of when an accident is considered to have occurred in the “course and scope” is not always as simple to answer as it might otherwise appear.

The issue of course and scope has been litigated many times, in many forums. The recent decision in Jackie Holden v. Mike’s Catfish Inn, Inc. and Massachusetts Bay Insurance Company, 2017 CA 1056 (La. App. 1 Cir. 2/27/18) explores course and scope in the context of an employee who was on break.

In Holden, the plaintiff was “clocked in” and on the premises of her employer. When her daughter called and asked to meet her outside, the plaintiff took an employer-sanctioned work break, walked outside, and fell on the steps, causing injury to her left knee. She filed a tort suit against her employer alleging negligence for failing to remove a foreign substance which allegedly caused her to fall. The employer sought to dismiss the suit under the contention that the plaintiff’s exclusive remedy for the fall was workers’ compensation.

The trial court dismissed the suit as barred by the employer’s workers’ compensation protections and plaintiff appealed. The sole issue before the appellate court was whether the plaintiff was in the course and scope. Plaintiff argued that she was on break and had left her designated work duties to speak with her daughter such that her activities at the time of the fall were not work-related. The employer countered that plaintiff remained on the clock during her break and was on the employer’s premises when she fell.

In assessing course and scope, courts consider the time of the accident, the place where the accident occurred, and the employee’s activities at the time of the accident. “An accident occurs in the course and scope of employment when the employee sustains an injury while actively engaged in the performance of her duties during work hours, either on the employer’s premises or at other places where employment activities take the employee.” Holden at p. 6, citing, McLin v. Industrial Specialty Contractors, Inc., 02-1539 (La. 7/2/03), 851 So. 2d 1135.

In ruling against the plaintiff, the Holden court colorfully concluded:

“An employee who is getting paid, is on her employer’s premises, and is on an approved work break is in the course and scope of her employment whether she is visiting her daughter, getting a breath of fresh air, smoking a cigarette, or walking outside to drink a diet coke.”

While workers’ compensation is a bargain, Holden reminds that it is a bargain workers will continue to try to escape.

 

Virginia “Jenny” McLin is a partner at Keogh Cox who practices in the fields of corporate litigation, insurance defense, and workers’ compensation defense. When she is not practicing law, Jenny can be found volunteering with the Junior League of Baton Rouge; cheering for the LSU Tigers with her husband, Ryan; or shuffling her two kids to and from dance practice.