Title 23. Labor and Workers’ Compensation

Chapter 3. Employment Standards and Conditions

Part IV. Disclosure of Employment Information

23:291     Disclosure of employment related information; liability for hiring certain employees; presumptions; causes of action; definitions

A. Any employer that, upon request by a prospective employer or a current or former employee, provides accurate information about a current or former employee’s job performance or reasons for separation shall be immune from civil liability and other consequences of such disclosure provided such employer is not acting in bad faith. An employer shall be considered to be acting in bad faith only if it can be shown by a preponderance of the evidence that the information disclosed was knowingly false and deliberately misleading.

B. Any prospective employer who reasonably relies on information pertaining to an employee’s job performance or reasons for separation, disclosed by a former employer, shall be immune from civil liability including liability for negligent hiring, negligent retention, and other causes of action related to the hiring of said employee, based upon such reasonable reliance, unless further investigation, including but not limited to a criminal background check, is required by law.

C. As used in this Section, the following words and phrases shall have the meanings contained herein unless the context clearly requires otherwise:

(1) “Employee” means any person, paid or unpaid, in the service of an employer.

(2) “Employer” means any person, firm, or corporation, including the state and its political subdivisions, and their agents, that has one or more employees, or individuals performing services under any contract of hire or service, expressed or implied, oral or written.

(3) “Job performance” includes, but is not limited to, attendance, attitude, awards, demotions, duties, effort, evaluations, knowledge, skills, promotions, and disciplinary actions.

(4) “Prospective employee” means any person who has made an application, either oral or written, or has sent a resume or other correspondence indicating an interest in employment.

(5) “Prospective employer” means any “employer”, as defined herein, to which a prospective employee has made application, either oral or written, or forwarded a resume or other correspondence expressing an interest in employment.

D. (1) Any employer who has conducted a background check of an employee or prospective employee after having obtained written consent from the employee or prospective employee or at the request of the owner or operator of any facility where the employer performs or may perform all or part of its work shall be immune from civil liability for any and all claims arising out of the disclosure of the background information obtained. This limitation of liability shall extend to all claims of the employee based upon a failure to hire, wrongful termination, and invasion of privacy, as well as all claims of any owner, operator, or any third person for claims of negligent hiring or negligent retention.

(2) The term “background check” shall mean research by any lawful means, including electronic means, into the background of a “prospective employee” or “employee” as defined in Section C of this Subsection, including research into state or federal criminal history repositories, social security status or verification, and research conducted pursuant to the U.S.A. Patriot Act, 31 U.S.C. § 5318l, regarding politically exposed persons, including known or suspected terrorists, money launderers, drug kingpins, and persons debarred from conducting business with the United States government, as well as any permissible purposes under the Fair Credit Reporting Act, 15 U.S.C. § 1681.

(3) The term “owner” shall mean any person, firm, or legal entity that is engaged in the production of goods or services and who may engage in contractual relations with contractors to perform any type of work on any leased or owned premises of the owner.

E. (1) Any employer, general contractor, premises owner, or other third party shall not be subject to a cause of action for negligent hiring of or failing to adequately supervise an employee or independent contractor due to damages or injury caused by that employee or independent contractor solely because that employee or independent contractor has been previously convicted of a criminal offense.

(2) The provisions of Paragraph (1) of this Subsection shall not apply to any of the following:

(a) Acts of the employee arising out of the course and scope of his employment that give rise to damages or injury when the act is substantially related to the nature of the crime for which the employee was convicted and the employer, general contractor, premises owner, or other third party knew or should have known of the conviction.

(b) Acts of an employee who has been previously convicted of any crime of violence as enumerated in R.S. 14:2(B) or any sex offense as enumerated in R.S. 15:541 and the employer, general contractor, premises owner, or other third party knew or should have known of the conviction.

(3) Nothing in this Subsection shall be construed to prohibit or create a cause of action for negligent hiring or inadequate supervision in situations not covered by this Subsection. Furthermore, nothing in this Subsection shall be construed to supplant the immunity from civil liability provided for in R.S. 23:1032.

(4) Nothing in this Subsection shall affect the employer’s vicarious liability pursuant to Civil Code Article 2320.

Added by Acts 1995, No. 632, § 1. Amended by Acts 2003, No. 853, § 1; Acts 2014, No. 335, § 1.