Ban the Box Laws in Louisiana: Criminal History in Hiring

Federal law does not establish a comprehensive ban-the-box requirement for private employers at the national level. However, the Equal Employment Opportunity Commission (EEOC) has issued guidance stating that blanket exclusions based on criminal history without individualized assessment may violate Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e) if they have a disparate impact on protected classes, particularly African American and Hispanic workers.

Some federal contractors are subject to Executive Order 11935, which prohibits the federal government from inquiring about criminal history in federal hiring until after a conditional offer. Federal agencies themselves must comply with this standard.

The FCRA (Fair Credit Reporting Act, 15 U.S.C. § 1681) does not prohibit criminal background checks but requires employers to disclose that they are obtaining consumer reports and to provide accurate information. The EEOC's enforcement focuses on discriminatory use of criminal history rather than timing of inquiries.

Without state law, employers in most of the United States can ask about criminal history at any point, including applications and interviews. Louisiana's state law is therefore more protective than the federal floor.

Louisiana Revised Statutes § 23:301–323 (Fair Chance for Employment Act) prohibits private employers with 5 or more employees from inquiring about criminal history on job applications, in job interviews, or through third parties before making a conditional job offer.

Louis­iana's law is significantly stronger than federal protections. While the EEOC addresses criminal history only through disparate impact analysis under Title VII, Louisiana creates an affirmative timing requirement independent of discriminatory intent. Employers covered by Louisiana law cannot ask about convictions at all until after a conditional offer is extended, regardless of whether the early inquiry would have disparate impact.

Covered employers include private sector employers with 5 or more employees working in Louisiana. Government employers and employers with fewer than 5 employees are excluded from the ban-the-box requirement, though government employers may be subject to separate restrictions.

Unique to Louisiana is that once a conditional offer is made, the employer must provide the applicant with a written form listing the specific criminal history questions. The applicant then has 5 business days to respond. The employer must consider the applicant's response and any mitigating factors, consistency with job duties, and the time elapsed since conviction before withdrawing the offer.

Louisiana does not limit which convictions employers can ask about post-offer, but employers must limit questions to those reasonably related to the job. Remedies for violations include compensatory damages, attorney's fees, and statutory penalties up to $500 per violation for intentional or reckless violations. The law is enforced by the Louisiana Department of Labor.

Louisiana's ban-the-box law excludes employers with fewer than 4 employees—only businesses with 5 or more are covered. Government employers and public sector agencies are not subject to the law, though some may have separate restrictions.

Employers may ask about criminal history at any time if the applicant initiated the disclosure or if the employer has a legitimate business reason to conduct a criminal background check unrelated to the hiring decision itself (such as background checks required by law for certain positions, though the applicant must still be informed).

The law does not prohibit employers from conducting background checks; it only delays when direct questions about criminal history can be posed. Employers may use consumer reporting agencies to obtain criminal records after the conditional offer, provided FCRA requirements are met.

A key defense for employers is that the question was not asked before the conditional offer. If the employer made the conditional offer before asking about criminal history, and the applicant had an opportunity to respond in writing, the employer has likely complied. Additionally, if a conviction is directly related to essential job functions and poses a genuine safety or security risk, the employer may have grounds to withdraw the offer if the applicant does not adequately address the concern.

Employers may also ask about pending charges or arrests, as the law specifically applies to convictions. Some courts have suggested that asking about arrests without convictions may fall outside the ban-the-box scope, though best practice is to avoid such questions until post-offer.

The law does not require employers to hire applicants with criminal records, only to delay the conversation and consider mitigating factors. Private employers retain discretion to reject applicants based on criminal history if properly documented and related to job duties.

Step 1: Document the violation. Keep records of when the employer asked about criminal history—save the job application, email screenshots, interview notes with timestamps, or testimony from witnesses present during the interview. Document what specific questions were asked ('Have you ever been convicted of a felony?' or 'Do you have any criminal record?'). Note the date of the conditional job offer, if one was made, and compare it to when the question was posed. Record any communication where the employer indicated criminal history was relevant to the decision. These records are essential to proving the violation occurred before the conditional offer.

Step 2: Attempt internal complaint if practical. Contact the employer's human resources department in writing (email is best for documentation) and state clearly that the employer violated the Fair Chance for Employment Act by asking about criminal history before making a conditional offer. Describe the specific question, when it was asked, and in what context. Request a written response. While this step is not required and the employer may be defensive, it creates a paper trail and sometimes results in corrective action or settlement. Keep copies of all correspondence. Do not sign anything that waives your right to file with the state.

Step 3: File a complaint with the Louisiana Department of Labor, Fair Employment Practices Division (FEPD). Visit the FEPD website at www.labor.louisiana.gov or contact the office by phone at (225) 342-3111. Provide the employer's name, address, and size (number of employees); the job position applied for; the date of the alleged violation; a detailed description of the criminal history question; the date and method the question was asked (application, phone, in-person interview); and any documentation (screenshots, emails, witness contact information). The FEPD will assign a complaint number and schedule an investigation. The complaint must be filed within a reasonable timeframe—while Louisiana law does not specify an exact statute of limitations for ban-the-box violations, federal Fair Chance guidance suggests acting within one year.

Step 4: The investigation process. The FEPD will contact the employer to obtain their response and any documentation related to the hiring decision. The employer may claim the conditional offer was made before the question, that the question was about pending charges rather than convictions, or that the applicant raised the issue themselves. The investigator will interview witnesses, review hiring records, and assess whether the employer is covered (5+ employees) and whether the violation occurred. This process typically takes 30–90 days. You may be asked for additional information. Once the investigation concludes, the FEPD will issue a determination. If the employer violated the law, the FEPD may issue a Notice of Violation and require the employer to cease the practice. If the violation was intentional or reckless, damages and penalties up to $500 per violation may be assessed.

Step 5: Consult an employment law attorney if the employer retaliates, if the FEPD's investigation is delayed, or if you wish to pursue private damages. A Louisiana employment attorney can file a civil lawsuit in district court seeking compensatory damages (such as wages lost from non-hire, emotional distress, and reputational harm), statutory penalties, and attorney's fees. The attorney can also advise whether the question was truly in violation or whether defenses apply. Most consultations are free or low-cost, and attorneys may work on contingency if damages are likely.