Employment Law - New Statute Changes the Rules on Hiring

“Jury: A group of 12 people, who, having lied to the judge about their health, hearing, and business engagements, have failed to fool him.” - Henry Louis MenckenCongratulations, you have been selected for jury duty. As American as baseball, jury duty is a pillar of the American system of justice, and you can step right up and participate-if you are qualified. In this two-part series, we outline the qualifications and exemptions for potential jurors in Louisiana.In Louisiana, “all qualified citizens shall have the opportunity to be considered for jury service in the district courts of Louisiana and shall have an obligation to serve as jurors when summoned for that purpose, and that no citizen shall be excluded from jury service in the district courts of Louisiana on account of race, color, religion, sex, national origin or economic status.” La. Sup. Ct. R. 25To serve as a juror for a civil or criminal case, you must meet the following criteria:

1. Be both a citizen of the United States and Louisiana who has resided within the parish in which he or she is to serve for at least one year immediately preceding his jury service.
2. Be at least eighteen years of age.
3. Be able to read, write, and speak the English language and be possessed of sufficient knowledge of the English language.
4. Not be under interdiction or incapable of serving as a juror because of a mental or physical infirmity, provided that no person shall be deemed incompetent solely because of the loss of hearing in any degree.
5. Not be under indictment for a felony nor have been convicted of a felony for which he has not been pardoned by the governor. C.Cr.P. art. 401, La. Rev. Stat. Ann. § 13:3041.

If you receive a jury duty notice and do not meet one of the above requirements, you are encouraged to contact the jury commissioner’s office. Who knows, you may be free in time for the first pitch.

The Louisiana legislature recently enacted laws that set new prescription periods for most delictual/tort actions and claims for damage caused to immovable property. Civil Code articles 3492 and 3493 previously established a prescription period of one year for these types of claims. The legislature repealed these articles and enacted Louisiana Code Articles 3493.1 and 3493.2 in their place.

Louisiana Code Article 3493.1 now establishes a prescriptive period of two (2) years for delictual actions/tort claims that runs from the day injury occurred or damage is sustained. It contains language previously included in Louisiana Civil Code Article 3492, which states that prescriptive period does not run against minors or interdicts in actions involving permanent disability and brought pursuant to the Louisiana Products Liability Act or state law governing product liability actions in effect at the time of the injury or damage.

Louisiana Civil Code Article 3493.2 also establishes a prescriptive period of two (2) years when damage is caused to immovable property. This prescriptive period runs from the day the owner of the immovable acquired, or should have acquired, knowledge of the damage.

These changes went into effect of July 1, 2024. Louisiana Civil Code Articles 3493.1 and 3493.2 apply prospectively only and apply to delictual actions arising after July 1, 2024.

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.