At present, 9 in 10 employers use background checks to screen applicants.1  The Center for American Progress estimates that “our nation’s poverty rate would have dropped 20% between 1980 and 2004 if not for mass incarceration and the subsequent criminal records that haunt people for years after they have paid their debt to society.”2 Criminal records create a catch-22 for many individuals: they cannot find employment due to their criminal records, but because they are unemployed or underemployed, they cannot afford the cost of expungement. 

Louisiana has made some progress toward reducing the impact of criminal records on hiring. In August 2021, La. R.S. 23:291.2 went into effect. This statute prohibits a prospective employer from considering arrest records or records of charges that did not result in a conviction when making hiring decisions. 

In the case of conviction records, the new law also requires an employer to make an individualized assessment of a person’s background before denying employment. The employer must determine if there is a direct and adverse relationship between the criminal record and the specific duties of the job being sought by considering:

• The nature and gravity of the offense or conduct;
• The time that has elapsed since the offense, conduct, or conviction; and,
• The nature of the job sought.

These criteria are similar to those suggested by the Equal Employment Opportunity Commission in 2012.3  

Applicants may also request, in writing, a copy of the background check information used by the employer. If any records are arrest-only or if the records are inaccurate or incomplete for dispute purposes under the Fair Credit Reporting Act, an individual may be able to use that to challenge an adverse decision. Unfortunately, La. R.S. 23:291.2 does not explicitly provide a legal remedy or recourse if an employer improperly denies employment based on consideration of prohibited records. A person may, however, consider bringing an alternative legal argument, such as a tort claim for failure to hire. Remedies under the Fair Credit Reporting Act may also provide for potential damages against either the credit reporting company or the furnisher of the incorrect or inaccurate criminal record information, but do require the unsuccessful applicant to start the process with a dispute against the credit reporting company.

• 1Expunging and Sealing Criminal Records: Fact Sheet, Ctr. for Am. Progress (Apr. 15, 2020).
• 2Rebecca Vallas & Sharon Dietrich, One Strike and You’re Out: How We Can Eliminate Barriers to Economic Security and Mobility for People with Criminal Records, Ctr. for Am. Progress (Dec. 2, 2014).
• 3Equal Emp. Opportunity Comm’n, EEOC-CVG-2012-1, Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act (2012).

According to the Institute for Justice, Louisiana is the sixth “most broadly and onerously licensed state,” with 77 of 102 lower-income occupations studied requiring licensure.1  Many licensing boards and organizations have some form of administrative rules or regulations that limit licensing based on criminal records.

In 2022, Louisiana amended La. R.S. 37:33–36 to allow individuals with criminal records to request a “pre-application eligibility determination” at any time prior to applying for a license. This should let individuals know whether a criminal record may eventually disqualify them from licensure before they spend significant time and money on schooling or other training.

At the same time, the legislature also amended La. R.S. 37:2950 to require that a denial of licensure or occupation on the grounds of a criminal conviction be directly related to the employment, occupation, trade, or profession for which the license is sought and that the agency or board consider the following criteria:

• The nature and seriousness of the offense
• The nature of the specific duties and responsibilities for which the license, permit, or certificate is required
• The amount of time that has passed since the conviction
• Facts relevant to the circumstances of the offense, including any aggravating or mitigating circumstances or social conditions surrounding the commission of the offense
• Evidence of rehabilitation or treatment undertaken by the person since the conviction

While specific licensing agencies may still refuse a license based on a criminal conviction, many agencies, due to their administrative rules or policies, also rely on a generic and “moral turpitude” standard in their written decisions. Attorneys should evaluate any licensure denials on a case-by-case basis to ensure board or agency compliance and consider requesting rehearing before the board or a judicial appeal of board decisions if evidence would support granting a license to an eligible individual.

• 1License to Work: Louisiana State Profile, Inst. for Just.