DEALING WITH EMPLOYEES ( AND APPLICANTS ) WHO GET ARRESTED
Dealing With Employees ( And Applicants ) Who Get Arrested
BY : STEVE WELD ATTORNEY AT WELD RILEY
In late 2015 , President Obama , as part of a criminal justice reform initiative aimed at reducing recidivism , proposed that federal contractors be prohibited from asking applicants about their arrest and conviction records . A number of states and municipalities , including Minnesota , have recently adopted or considered adopting similar “ ban the box ” legislation .
For better or for worse , Wisconsin has been ahead of the curve in this area . Since 1981 , it has protected from employment discrimination those employees ( and job applicants ) who have a pending arrest or conviction . It is not employment discrimination in Wisconsin , however , to suspend an employee due to a “ pending criminal ” charge . Furthermore , it is not employment discrimination to take an adverse employment action based on a conviction ” . . of any felony , misdemeanor or other offense [,] the circumstances of which substantially relate to the circumstances of a particular job .”
The Wisconsin Supreme Court observed that “ the legislature sought to balance society ’ s competing interests in rehabilitating convicted criminals and protecting them from employment discrimination , with society ’ s interests in protecting its citizens .”
What does this mean for Wisconsin employers ? It means that an applicant or employee who was arrested but found not guilty ( or charges were never filed , or if filed , they were subsequently dropped ) cannot suffer adverse employment consequences unless the employer conducts an independent investigation into the actions which led to the arrest and charges , and the employer concludes that the underlying actions , not the arrest , justify discipline .
For example , a Milwaukee County employee was recently arrested for allegedly sexually and physically abusing a minor and having child pornography on his work computer ; however , no criminal charges were ever filed . The employee was ultimately terminated for violating the County ’ s “ use of technology ” policies . The Court of Appeals upheld the termination observing that , while there was evidence supporting the argument that the employee ’ s termination was partially motivated by his arrest , the employee could and would still have been terminated for violating the County ’ s “ use of technology ” policy .
Pending arrests , though , can be factored into a decision to suspend , with or without pay , an employee who has a “ pending criminal ” charge . The question is , what is a criminal charge ? The Wisconsin Supreme Court has said , “ It is clear that conduct punishable only by a forfeiture is not a crime .” Citing that Supreme Court decision , the Wisconsin Labor & Industry Review Commission ( LIRC ) has said , “ It is well established law that a municipal ordinance violation that can only result in a forfeiture is not criminal .” Thus , for those applicants and employees charged with municipal ordinance or state statute violations for which forfeiture , as compared to fines and imprisonment , is the remedy and who do not have criminal charges pending , those non-criminal pending charges cannot be factored into an employment decision .
Wisconsin is , we believe , the only state in the country in which a first-offense operating-while-intoxicated ( OWI ) ticket is not punishable by fines or imprisonment . Because it is punishable only by a forfeiture ( albeit a loss of driving privileges ), an employer who suspends an employee while a first-offense OWI charge is pending is unlawfully discriminating .
If an employee who is ticketed for a firstoffense OWI , or is charged with a felony or a misdemeanour , is ultimately convicted , the question becomes whether that employee ( or job applicant ) can suffer adverse employment consequences arising out of the conviction . The answer is yes , but only if the circumstances of the offense substantially relate to the circumstances of a particular job .
So , is a first-conviction OWI substantially related to an applicant ’ s or employee ’ s job duties ? That depends :
1 . Does the job require a commercial driver ’ s license ( CDL )?
2 . Does the job require driving ? An applicant or employee convicted of a first-offense OWI will lose driving privileges for six to nine months . But he or she would also have access to an occupational license . Can the applicant or employee meet his or her driving obligations with an occupational license ?
3 . Does the employer require use of its vehicle or fleet for travel ? If so , is the employer willing to install an ignition lock system , if required ?
4 . Does the fleet insurer treat anyone with an OWI as a high-risk driver and prohibit such person ’ s access to fleet vehicles ? Just as failure to be bondable is a basis for termination if bondability is required , so too would an inability to be insurable .
5 . What if the convicted applicant or employee says , “ I will pay for the ignition lock system on a fleet vehicle .”?
6 . What if the convicted applicant or employee says , “ I will hire a driver who is insurable out of my own pocket .”?
7 . What if the convicted applicant or employee says , “ I won ’ t use the fleet . I will use my personal vehicle , install the ignition lock system , and absorb the travel costs .”?
Clearly , a case-by-case factual analysis is required to determine whether the offense , felony , or misdemeanor is “ substantially related to the job duties of the position .” +
This article should not be construed as legal advice and is intended for general information purposes only . If you have any questions regarding this article , you should consult your legal counsel .
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