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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