Louisiana Fair Chance Law: Key Takeaways for Employers

Employers who hire in Louisiana should review their procedures to ensure compliance

On August 1, 2021, Louisiana’s Act No. 406, commonly referred to as the “Fair Chance” law, came into effect, imposing new obligations on employers regarding the use of criminal background checks during hiring processes. This law is designed to reduce employment barriers for individuals with criminal histories by ensuring that hiring decisions are more equitable and that individuals are not automatically excluded based on past arrests or charges that did not lead to convictions. Below is a summary of the key provisions of Act 406 and the associated employer obligations.

Employer Coverage

The law applies to private employers with 20 or more employees. This includes both full-time and part-time staff. Public employers are also covered by the law, ensuring that a broad range of Louisiana employers must adhere to the new guidelines.

Prohibition on Certain Inquiries

One of the central provisions of Act 406 is the prohibition on employers asking job applicants about arrests, charges, or criminal accusations that did not result in a conviction. This restriction applies both to initial application forms and interviews. Employers are only permitted to inquire about, or base employment decisions on, convictions or pleas of guilty or no contest.

This provision prevents employers from disqualifying candidates due to arrests or charges that may never have been substantiated, thereby allowing individuals to be judged on their skills and qualifications rather than their past interactions with the criminal justice system.

The Individualized Assessment Process

For employers that choose to consider a candidate’s criminal history, Act 406 requires an individualized assessment of the circumstances surrounding any conviction. This means that employers cannot use a blanket policy of rejecting any candidate with a criminal record. Instead, the employer must evaluate the conviction in relation to the specific job and determine whether it would directly impact the individual’s ability to perform the duties of the position.

Key factors employers should consider in the individualized assessment include:

  1. The nature and severity of the offense.
  2. The time elapsed since the conviction or sentence completion.
  3. The specific duties of the position the candidate is applying for.
  4. The relationship between the conviction and the responsibilities of the job.

This process is intended to ensure that employers only disqualify candidates when there is a reasonable connection between the offense and the job requirements, making decisions more thoughtful and less discriminatory.

Requirement to Provide Copies of Reports

When employers rely on background check information to make employment decisions, Act 406 mandates that they provide the applicant with a copy of the background check report used in the hiring process. This is in line with federal Fair Credit Reporting Act (FCRA) requirements but adds an extra layer of protection for Louisiana job seekers.

In addition to the report, employers must give applicants a reasonable opportunity to respond or dispute the information found in the report. This allows individuals to correct any inaccuracies or provide context that may mitigate the negative implications of their criminal history.

Penalties for Non-Compliance

Failure to comply with the provisions of Act 406 can lead to penalties for employers. While the law does not specify the exact penalties, it does open the door for administrative action or lawsuits by affected candidates. Potential penalties could include fines, damages, or other enforcement actions by regulatory agencies. Additionally, non-compliant employers risk damage to their reputation and could face public scrutiny for discriminatory hiring practices.

Best Practices for Employers

To ensure compliance with Act 406, Louisiana employers should:

  • Review and update hiring policies and job application forms to remove any inquiries about arrest records or charges that did not result in convictions.
  • Train HR personnel and hiring managers on the individualized assessment process and the new legal obligations under the Fair Chance law.
  • Ensure that any background check reports used in hiring decisions are shared with candidates, along with an opportunity for them to respond or dispute the findings.

By implementing these best practices, employers can avoid potential penalties while fostering a fair and inclusive hiring process that promotes equal opportunity for all candidates, regardless of their past criminal history.

Conclusion

Louisiana’s Act 406 represents a significant shift in how criminal background checks can be used during the hiring process. Employers covered by the law must adjust their hiring practices to ensure they do not unlawfully inquire about arrests or charges that did not result in convictions, conduct an individualized assessment of criminal records, and provide candidates with copies of any reports used in employment decisions. Embracing these changes not only ensures compliance but also opens the door to a broader, more diverse talent pool.

 

 

Fair Screen is a background screening company dedicated to helping employers fairly use criminal records in the hiring process. Contact Us to learn more about how a well-tuned screening process can speed the time to hire, include more job applicants, and help ensure your consistency and compliance. Help us make a difference!

 

 

The foregoing content is not given as legal advice but is instead offered for informational purposes only. Fair Screen is not a law firm and therefore cannot offer legal advice. We always recommend speaking with an attorney who is knowledgeable about your company’s individual circumstances prior to making any hiring decisions or policy changes. Fair Screen makes no assurances regarding the accuracy or completeness of this content.