1 Criminal Background Checks Attorney Michael J. Westcott Axley Brynelson, LLP Sources of Law Federal law Title VII of the Civil Rights Act of 1964 U.S. Equal Employment Opportunity Commission Fair Credit Reporting Act Federal Trade Commission State law Wisconsin Fair Employment Act Wisconsin DWD Equal Rights Division Local law Madison Equal Opportunities Ordinance Madison Equal Opportunities Commission
2 Sources of Law Federal law Title VII No express prohibition against discrimination on the basis of arrest or conviction record Prohibits employment policies and practices which have a disparate impact on members of a protected class if not justified by business necessity Applicants and employees periodically allege race and color discrimination Remains an EEOC area of focus» EEOC Strategic Enforcement Plan (FY )» OFCCP Directive Number 306 (January 29, 2013) Sources of Law Federal law FCRA When an employer uses consumer reports to make employment decisions, including hiring, retention, promotions, etc., it must comply with the Fair Credit Reporting Act. Before obtaining a consumer report, an employer must: Tell the applicant or employee that the employer might use information contained in their consumer report for decisions related to their employment.» Must be in writing;» Must be in a stand-alone format
3 Sources of Law Federal law FCRA Obtain written permission from the applicant or employee Certify compliance to the company from whom you are obtaining the information that you have: Notified the applicant or employee and obtained their written permission; Complied with all of the requirements of FCRA; and Will not discriminate against the applicant or employee or otherwise misuse the information. Sources of Law Federal law FCRA Before an employer takes adverse action, it must provide the applicant or employee with: A notice that includes a copy of the consumer report relied upon by the employer to make the decision; and A copy of A Summary of Your Rights Under the Fair Credit Reporting Act After taking an adverse action based upon information in a consumer report, the employer must give the applicant or employee a notice of that fact (either orally or in writing). The notice must include: The name, address and telephone number of the consumer reporting company
4 Sources of Law Federal law (continued) A statement that the company that supplied the consumer report did not make the decision to take the adverse action and cannot give specific reasons for it; and A notice of the applicant or employee s right to dispute the accuracy or completeness of any information the consumer reporting company furnished and to get a an additional free report from the company if requested within 60 days. Sources of Law State law Wisconsin Fair Employment Act Generally prohibits discrimination on the basis of arrest and conviction record
5 Sources of Law Local law Madison Equal Opportunities Ordinance Generally prohibits discrimination on the basis of arrest and conviction record Federal Law Concerns On April 25, 2012 the EEOC issued EEOC Enforcement Guidance Number Enforcement guidance describes the position the EEOC will take on certain subjects that are covered by federal laws enforced by the EEOC. The EEOC is of the opinion that the use of an individual s criminal history may, in some instances, violate Title VII of the Civil Rights Act of 1964.
6 Arrest Record Defined Arrest record includes information indicating that an individual has been questioned, apprehended, taken into custody or detention, held for investigation, arrested, charged with, indicted or tried for any felony, misdemeanor or other offense pursuant to any law enforcement or military authority EEOC Enforcement Guidance The Enforcement Guidance is available at cfm It explains that employment actions taken based upon an individual s criminal history may constitute: Disparate Treatment; or Disparate Impact
7 EEOC Enforcement Guidance Disparate Treatment analysis is a simple one don t treat individuals differently who are similarly situated from a criminal history standpoint. Disparate Impact analysis is based upon the idea that a neutral policy may disproportionately impact some individual s protected under Title VII. Conviction Record Defined Conviction record includes information indicating that an individual has been convicted of any felony, misdemeanor or other offense, adjudicated delinquent, has been less than honorably discharged or has been placed on probation, fined, imprisoned, or placed on extended supervision or parole by any law enforcement or military authority
8 Disparate Impact Analysis An employer violates Title VII when an employee demonstrates that a neutral policy or practice disproportionately impacts a Title VII-protected group and the employer fails to demonstrate that the policy or practice is job-related for the position in question and consistent with business necessity. Employer Defenses Two methods to demonstrate that the use of criminal history was job-related and consistent with business necessity: Formal validation of the relationship between the criminal conduct and the duties of the position in question Use of targeted exclusions
9 Formal Validation Use of the Uniform Guidelines on Employee Selection Procedures Three different approaches to validate employment screens Targeted Exclusions The employer develops a targeted screen considering the nature of the crime, the time elapsed, and the nature of the job. The employer must provide an opportunity for an individualized assessment for people excluded by the screen to determine whether the policy as applied is job-related and consistent with business necessity.
10 Targeted Exclusions Nature and gravity of the offense: May be assessed with reference to the harm caused by the crime; The legal elements of the crime may be of assistance; Whether the crime is a misdemeanor versus a felony relates to the gravity of the crime Targeted Exclusions Time that has passed since the offense, conduct and/or completion of sentence EEOC is of the belief that permanent exclusions from all employment based on any and all offenses is not consistent with business necessity. In making this assessment, studies regarding how much the rate of recidivism declines over a specified time would be instructive.
11 Targeted Exclusions The nature of the job held or sought Job title Nature of the job s duties Identification of the job s essential functions Circumstances under which the job is performed Environment in which the job s duties are performed Individualized Assessment Employer informs the individual that he/she may be excluded because of past criminal conduct; Provides an opportunity to the individual to demonstrate that the exclusion does not properly apply to him/her; and Considers whether the individual s additional information shows that the policy as applied is not job-related and consistent with business necessity.
12 Individualized Assessment Examples: Record is inaccurate Wrong person Facts/circumstances surrounding the offense Individualized Assessment Examples Number of offenses of which he/she was convicted Age at time of conviction or release from incarceration Evidence of similar work performed post-conviction Employment history before and after conviction Rehabilitation efforts Whether the individual is bonded
13 Individualized Assessment If the individual does not respond to the employer s attempt to gather additional information about his/her background, then the employer may proceed to make its employment decision without the information. Recent Cases Initiated by EEOC BMW Case EEOC initiated lawsuit in June 2013 alleging criminal background check screened out African Americans BMW considered no time limit Had no individualized assessment
14 Recent Cases Initiated by EEOC Dollar General Case EEOC again initiated lawsuit in June 2013 alleging criminal background check screened out African Americans Dollar General used a 10-year time limit Conducted no individualized assessment and did not consider employee allegation that the report was inaccurate Arrest Record Past Arrest Record The WFEA and MEOO prohibit an employer from making any inquiries regarding an applicant s past arrest record during the interview process (except when bondability is required for the job).
15 State & Local Prohibitions/Restrictions State and local laws may be pre-empted by Title VII if they require/permit an act that would be an unlawful employment practice under Title VII. If an employer s policy is not job-related and consistent with business necessity, the fact that it was adopted to comply with a state or local law does not protect an employer against liability. Arrest Record Pending Charges An employer may inquire about a pending charge, but such charge cannot be considered unless the circumstances of the pending charge substantially relate to the circumstances of the particular job at issue (substantial relationship analysis). If the circumstances of the pending charge substantially relate to the particular job at issue, the employer may suspend its hiring decision or the individual s employment until the pending charge is resolved. If the charge is dismissed, it s a past arrest record that cannot be considered. If a conviction occurs, the employer can perform another substantial relationship analysis.
16 Conviction Record The WFEA and MEOO do not expressly restrict inquiries about an applicant s conviction record. However, inquiries about conviction record are subject to the general prohibition against making any inquiry in connection with prospective employment, which implies or expresses... discrimination on the basis of any protected class enumerated under the law, including conviction record. Conviction Record An employer may inquire about past conviction record, but a conviction cannot be considered unless the circumstances of the conviction substantially relate to the circumstances of the particular job at issue (substantial relationship analysis). If the circumstances of the conviction substantially relate to the particular job at issue, the employer may decline to hire an applicant or terminate an individual s employment.
17 Substantial Relationship Analysis The determination of whether the circumstances of a particular crime substantially relate to the circumstances of a particular job requires:... assessing whether the tendencies and inclinations to behave in a certain way in a particular context are likely to reappear later in a related context, based on the traits revealed.... It is the circumstances which foster criminal activity that are important, e.g., the opportunity for criminal behavior, the reaction to responsibility, or the character traits of the person. County of Milwaukee v. LIRC, 139 Wis. 2d 805, 824 (1987) The Labor and Industry Review Commission also looks at the elements of the underlying offense Substantial Relationship Analysis In developing the substantial relationship exception, the legislature sought to strike a balance between society s interest in rehabilitating criminals and its interest in protecting citizens. In County of Milwaukee v. LIRC, the Wisconsin Supreme Court explained: This law should be liberally construed to effect its purpose of providing jobs for those who have been convicted of crime and at the same time not forcing employers to assume risks of repeat conduct by those whose conviction records show them to have the propensity to commit similar crimes long recognized by courts, legislatures and social experience In balancing the competing interests, and structuring the [statutory] exception, the legislature has had to determine how to assess when the risk of recidivism becomes too great to ask the citizenry to bear. The test is when the circumstances, of the offense and the particular job, are substantially related
18 Substantial Relationship Analysis Under the WFEA, the substantial relationship analysis is evaluated on an objective basis. This means that it can be performed after the adverse employment decision has been made, as for example, after a discrimination claim has been filed. Under the WFEA, the analysis is not based upon the employer s subjective intent. Substantial Relationship Analysis Under the MEOO, there is an expectation that the employer perform the substantial relationship analysis before the adverse employment decision is made. The employer s subjective intent matters. Under the MEOC, a criminal conviction cannot be substantially related unless the individual was within the last three years placed on probation, paroled, released from incarceration, or paid a fine, for a felony, misdemeanor, or other offense, the circumstances of which substantially relate to the circumstances of the particular job.
19 ERD Cases Moran v. State of Wisconsin, University of WI Madison ERD Case No. CR , (LIRC, 09/16/13) Complainant was terminated from employment based on various convictions. LIRC found that: the circumstances of complainant's drug-related convictions were not substantially related to the circumstances of the job of cleanup worker/custodian; the circumstances of complainant's battery conviction were not substantially related to the circumstances of the job of cleanup worker/custodian; Moran v. State of Wisconsin, University of WI Madison ERD Case No. CR , (LIRC, 09/16/13) the circumstances of complainant's conviction for taking and driving a vehicle without consent were substantially related to the circumstances of the job of cleanup worker/custodian. So holding, LIRC noted that: The presence of college students was not such a vulnerable population that it would be substantially related with respect to drug use. The fact that complainant would have occasional contact with students or other workers is not, standing alone, considered to be a circumstance that would foster criminal activity.
20 Moran v. State of Wisconsin, University of WI Madison ERD Case No. CR , (LIRC, 09/16/13) With regard to the battery conviction, there is a substantial relationship between an employee working in a position of trust and vulnerable people in jobs in which patience or calmness are necessary attributes. In this case, complainant did not work directly with people; rather her job was primarily to clean bathrooms and floors. There was no reason to presume that the custodial job would pose opportunities for criminality for a person with anger management issues or a tendency to solve problems through violence. Moran v. State of Wisconsin, University of WI Madison ERD Case No. CR , (LIRC, 09/16/13) The conviction for taking and driving a vehicle without consent was substantially related because complainant had access to supply closets containing cleaning supplies and other materials and would sometimes clean offices of coaches and their secretaries which have lounges associated with them. The offices and lounges contain expensive equipment, including security cameras, and personal items. Unsupervised access to private offices and lounges could pose a significant opportunity for criminal behavior to someone already involved in theft.
21 ERD Cases Flick v. Ryder Truck Rental & Leasing ERD Case No , (LIRC, 10/03/13) Complainant was terminated from employment because of his conviction for misappropriation of identifying information and theft by false representation LIRC found that a substantial relationship existed: At times complainant worked alone in the workplace and handled rental transactions for retail customers during those times Flick v. Ryder Truck Rental & Leasing ERD Case No , (LIRC, 10/03/13) Complainant had a key to the employer s facility that allowed him access to a room where personal identification documents and personal identifying information were stored. LIRC concluded that: The circumstances of complainant s arrest record were substantially related to the circumstances of his job as were the circumstances of his conviction record. An individual with an inclination to obtain information through misrepresentation would have substantial opportunity, during times when he was unsupervised, to use that information dishonestly in order to acquire money or property.
22 ERD Cases Decker v. Biewer Wisconsin Sawmill ERD Case No. CR , (LIRC, 09/16/2013) Arrest record case where complainant had been questioned by police. Respondent disciplined and put him on a six-month probationary period based upon allegations by two female employees that he had exposed himself to them in the workplace. Shortly thereafter, two additional female employees came forward to report similar conduct. The respondent therefore decided to terminate the employment relationship. ERD Cases Decker v. Biewer Wisconsin Sawmill ERD Case No. CR , (LIRC, 09/16/2013) Respondent would not have discharged the complainant, notwithstanding the investigation by the sheriff's department, had it not learned of the additional allegations against him.
23 ERD Cases Decker v. Biewer Wisconsin Sawmill ERD Case No. CR , (LIRC, 09/16/2013) Respondent's policy calls for discharge for sexual harassment and that the complainant was discharged because the respondent concluded sexual harassment had occurred. Held that the Onalaska defense applied and no discrimination occurred. Questions? Attorney Michael J. Westcott Axley Brynelson, LLP