• Domestic Violence in the Louisiana Workplace, Part 6: Hiring Aggressors
  • November 3, 2016 | Author: Rachael M. Coe
  • Law Firm: Breazeale, Sachse & Wilson, L.L.P. - New Orleans Office
  • It is not a matter of if, but when an employer will be confronted with a challenging domestic violence-related issue in the workplace. Domestic violence not only causes lost productivity and increased costs for employers, but also raises a host of potential legal obligations and liabilities that employers cannot afford to overlook. In this monthly series, Labor and Employment attorney Rachael Coe will discuss the various ways that domestic violence impacts the Louisiana workplace and what employers need to know in order to protect their employees, their customers, and themselves.

    So far, this series has focused on employers’ obligations to employees who are victims of domestic violence, as well as potential legal risks related to domestic violence in the workplace. But what if you have an applicant or employee who is a convicted domestic violence aggressor? Many employers are familiar with the tension between workplace safety and complying with anti-discrimination laws, as well as the desire to help former criminals by giving them a “second chance.” This month’s article sensitizes Louisiana employers to several state and federal laws that could impact employment decisions involving convicted domestic violence aggressors. These laws are very complex in practice, and employers should consult with an experienced employment attorney or human resources professional before making any employment decisions.

    Ignoring an employee’s criminal domestic violence convictions could subject an employer to a negligent hiring or negligent supervision claim if that employee is involved in a violent act at work. After learning that an applicant or employee has been convicted of a crime, many employers wonder if they can be liable for negligent hiring or negligent supervision if that individual causes damages or injury to another while working. Louisiana law provides some relief to employers by protecting employers from liability “solely because that employee...has been previously convicted of a criminal offense,” but with a significant caveat. The law goes on to remove this protection for “acts of an employee who has been previously convicted of any crime of violence... and the employer...knew or should have known of the conviction.” La. R.S. § 23:291(E). Several domestic violence-related crimes are covered under the “crime of violence” exception, including domestic abuse aggravated assault, stalking, aggravated battery, second degree battery, aggravated assault, and aggravated criminal damage to property. La R.S. § 14:2(B).

    Employers may learn about an applicant’s conviction for a domestic violence-related offense from a criminal background check—which has been a hot topic in employment law lately. It could be unlawful to deny employment based solely on the fact that an employee has a criminal conviction. In 2012, the EEOC published guidance on employers’ use of job applicants’ criminal history information because this practice can disproportionately impact protected classes of employees, namely race and natural origin, in violation of Title VII of the Civil Rights Act. There are two types of discriminatory impacts that could result from using criminal records in employment decisions: (1) treating two employees or applicants differently despite having the same criminal records based on a protected status, or (2) if the criminal conviction policy affects one protected group more negatively than others. Even neutral policies excluding applicants with criminal records from consideration can implicate Title VII. Of course, the employer can refute allegations of discrimination by proving that it must exclude certain criminal convictions because it is “job related and consistent with necessity.” This means that the employer must consider the seriousness of the offense, time since the offense, and nature of the job sought will be considered.

    Of course, an employer should not have a blanket policy to automatically fire or refuse to hire somebody because of a conviction. Such a policy can expose the employer to serious legal risks. The facts of each situation will vary widely, and there are many factors to consider in making hiring or firing decisions. An employer should discuss any questions it has with its employment law attorney or human resources professional.