Many people are unable to get jobs and occupational licenses due to pervasive discrimination against those with arrest or conviction records. It is often not illegal for employers to ask about or consider someone’s criminal record, even if it’s old or unrelated to the job.1  It is not illegal to fire even a good employee for lying on an application and failing to disclose a record. Some employers are affirmatively required by law to deny jobs or licenses to people with certain criminal records. Given the state’s punishment practices, huge numbers of able-bodied formerly incarcerated annually join the ranks of the unemployed. These systemic practices have a disproportionate impact on people of color. You may be able to help.

• 1See La. R.S. 23:291.

Laws on some occupations may explicitly exclude those with certain records, or agencies might unfairly use a general “morality” or “suitability” provision. Depending on the facts of your client’s case, the law or its use against your client may be subject to challenge. La. R.S. 37:2950(A) provides some relief by stating that disqualifications from any licensed (and non-exempt) occupation cannot be based solely on prior criminal record, except for a felony conviction “directly” related to the job. La. R.S. 23:291.2 sets some limits in hiring decisions, mandating that, unless otherwise provided by law, a prospective employer should not consider criminal history that does not end in conviction and, for convictions, make an individual assessment of the relationship between the specific job duties and the criminal record. These might help you find some relief. Occupational restrictions may also be subject to challenge on statutory or constitutional grounds. The Equal Employment Opportunity Commission has recognized that denial of employment solely on the basis of a criminal history has a disparate impact on African Americans and Latinos and may thus be actionable under Title VII of the Civil Rights Act of 1964.

La. R.S. 15:588 gives a right to access and seek correction of state criminal history information retained by the Louisiana Department of Public Safety’s Bureau of Criminal Identification and Information. Tools for helping clients with these problems may also be found in the Fair Credit Reporting Act1  and applicable state law. If the information provider is not a consumer reporting agency or governmental body, you may have to be creative in seeking relief in other ways, e.g., under tort provisions or anti-discrimination laws. Your assistance in correcting reports can help clients find or keep jobs.

• 115 U.S.C. § 1681, et seq.

In Louisiana, expungement generally only removes public access to a criminal record, although the record may also be destroyed in some cases. After expungement, most private employers will no longer have access to the record from official sources. However, it usually stays available to law enforcement and criminal justice agencies, as well as to many state boards and agencies. Also, expungement does not automatically remove data available on the internet or maintained by private data collection companies, who must be individually approached to have a record removed. For these reasons, expungement is a limited remedy. Still, it can help some clients get or keep jobs.1

• 1For further discussion, see the chapter on Expungements in Louisiana.

Clients with criminal records may ask you what to say on an application or may come to you with problems resulting from their answers. Louisiana currently has no general state law (although there may be local laws) preventing questions about expunged criminal records. Lying about a criminal record may lead to criminal prosecution (e.g., if made to a federal employer) or other adverse consequences, such as denial of unemployment compensation. La. R.S. 44:9(I) provides that a person whose arrest or conviction has been expunged under that law is generally not required to disclose the record or the fact that it has been expunged. However, whether a person may properly decline to disclose the record or the expungement is not always clear, and other laws may be held to take precedence.1

• 1See, e.g., In re Gavin, 2008-OB-2082 (La. 5/15/09), 8 So. 3d 556 (attorney applicant’s failure to disclose arrests a factor in denying LA license); Twin B. Casinos v. State, 2000 CA 1681 (La. App. 1 Cir. 9/28/01), 809 So. 2d 995 (license denied due to applicant’s failure to answer honestly question about expunged arrest record).