Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Effective August 1, 2014, Louisiana became another state to regulate employer use of criminal record information for employment purposes.
Under the new law, expunged records of arrests of convictions are now considered confidential and no longer part of the public record. Those records also cannot be made available to any person or entity except:
- To members of law enforcement or criminal justice agencies or prosecutors investigating, prosecuting or enforcing criminal law or for other statutory purposes;
- Upon entry of a court order;
- To the person whose record has been expunged, or his or her counsel; and
- To members of law enforcement or criminal justice agencies, prosecutors or judges for the purpose of defending against civil litigation resulting from wrongful arrest or other civil litigation, and the expunged record is necessary to the defense.
The law also lists numerous state agencies that may receive information about an expunged record, such as the Office of Financial Institutions, the Louisiana State Board of Nursing and the Louisiana Department of Insurance. Additional exceptions exist when the expunged records are used for other law enforcement purposes.
In addition to providing for confidentiality of expunged records, the new law expressly states that “no person whose record of arrest or conviction that has been expunged shall be required to disclose to any person that he was arrested or convicted of the subject offenses, or that the record of the arrest of conviction has been expunged.” As a result, job applicants with expunged records may legally answer “no” in response to employment application questions concerning expunged arrests or convictions.
Action Steps for Employers
How and when employers can request and use a person’s criminal record information during the hiring process and for other employment purposes has become a hot topic over the last few years at the federal, state and local level. In the last 18 months, various states and cities have enacted legislation regulating when an employer can seek criminal record information in the hiring process, what information can be sought and how the information can be used. Moreover, so-called “ban-the-box” legislation has been enacted in Illinois, New Jersey and District of Columbia, and similar legislation is pending in New York City and Chicago.1
Employers must stay abreast of changes in these ex-offender protection laws and make sure that they adhere to any restrictions being mandated. Employers also must be mindful of separate state laws restricting the use of credit information and compliance with federal and state fair credit reporting laws, including the Fair Credit Reporting Act. Employers should consider a privileged review of their hiring and background screening practices, including their employment applications, job advertisements and announcements, background screening consent forms, and training and guidelines applicable to those responsible for conducting job interviews and making or influencing hiring or other personnel decisions.
1 See Rod Fliegel, Jennifer Mora, Joseph Harkins and Melanie Augustin, Private Sector Employers in the District of Columbia Will Soon Be Required to Comply with a New Law Restricting Their Ability to Rely on Criminal Records for Employment Purposes, Littler ASAP (Aug. 22, 2014); Adam Wit, Darren Mungerson and Jennifer Mora, Illinois Enacts New Law Impacting Inquiries on Criminal Background Checks, Littler ASAP (Jul. 20, 2014); Rod Fliegel and Jennifer Mora, "Ban-the-Box" and Beyond: Employers That Do Business In or Contract with the City of San Francisco Should Review Sweeping Restrictions Regarding Inquiries Into, and the Use of, Criminal Records, Littler ASAP (Feb. 14, 2014).