Thursday, September 16, 2010

Arrest and Conviction Record Discrimination in Employment Law

Federal anti-discrimination law does not cover every form of discrimination. However, states are able, under the Constitution, to enact laws that provide for more protections for its residents. One such protection Wisconsin affords its residents that legislation at the federal level does not is protection against discrimination in employment based upon arrest and conviction record.

Section 111.335 of the Wisconsin Statutes states:

Arrest or conviction record; exceptions and special cases. (1) (a) Employment discrimination because of arrest record includes, but is not limited to, requesting an applicant, employee, member, licensee or any other individual, on an application form or otherwise, to supply information regarding any arrest record of the individual except a record of a pending charge, except that it is not employment discrimination to request such information when employment depends on the bondability of the individual under a standard fidelity bond or when an equivalent bond is required by state or federal law, administrative regulation or established business practice of the employer and the individual may not be bondable due to an arrest record.
However, as can be reasonably expected, there are defenses for certain denials of employment and adverse employment actions under this statute. Section 11.335 also states:

(b) Notwithstanding s. 111.322, it is not employment discrimination
because of arrest record to refuse to employ or license, or to suspend from employment or licensing, any individual who is subject to a pending criminal charge if the circumstances of the charge substantially relate to the circumstances of the particular job or licensed activity.
(c) Notwithstanding s. 111.322, it is not employment discrimination
because of conviction record to refuse to employ or license,
or to bar or terminate from employment or licensing, any individual
who:
1. Has been convicted of any felony, misdemeanor or other offense the circumstances of which substantially relate to the circumstances of the particular job or licensed activity; or
2. Is not bondable under a standard fidelity bond or an equivalent bond where such bondability is required by state or federal law, administrative regulation or established business practice of the employer.
(cg) 1. Notwithstanding s. 111.322, it is not employment discrimination
because of conviction record to deny or refuse to renew a license or permit under s. 440.26 to a person who has been convicted of a felony and has not been pardoned for that felony.
2. Notwithstanding s. 111.322, it is not employment discrimination because of conviction record to revoke a license or permit under s. 440.26 (6) (b) if the person holding the license or permit has been convicted of a felony and has not been pardoned for that felony.
3. Notwithstanding s. 111.322, it is not employment discrimination because of conviction record to refuse to employ a person in a business licensed under s. 440.26or as an employee specified in s. 440.26 (5) (b) if the person has been convicted of a felony and has not been pardoned for that felony.
(cm) Notwithstanding s. 111.322, it is not employment discrimination because of conviction record to refuse to employ as an installer of burglar alarms a person who has been convicted of a felony and has not been pardoned.
(cs) Notwithstanding s. 111.322, it is not employment discrimination because of conviction record to revoke, suspend or refuse to renew a license or permit under ch. 125 if the person holding or applying for the license or permit has been convicted of one or more of the following:
1. Manufacturing, distributing or delivering a controlled substance or controlled substance analog under s. 961.41 (1).
2. Possessing, with intent to manufacture, distribute or deliver, a controlled substance or controlled substance analog under s. 961.41 (1m).
3. Possessing, with intent to manufacture, distribute or deliver, or manufacturing, distributing or delivering a controlled substance or controlled substance analog under a federal law that is substantially similar to s. 961.41 (1) or (1m).
4. Possessing, with intent to manufacture, distribute or deliver, or manufacturing, distributing or delivering a controlled substance or controlled substance analog under the law of another state that is substantially similar to s. 961.41 (1) or (1m).
5. Possessing any of the materials listed in s. 961.65 with intent to manufacture methamphetamine under that section or under a federal law or a law of another state that is substantially similar to s. 961.65.
(cv) Notwithstanding s. 111.322, it is not employment discrimination because of conviction record to refuse to employ in a position in the classified service or in a position described in s. 230.08
(2) (k) a person who has been convicted under 50 USC, Appendix, section 462 for refusing to register with the selective service system and who has not been pardoned.
(cx) Notwithstanding s. 111.322, it is not employment discrimination because of conviction record to refuse to employ or license, or to bar or terminate from employment or licensure, any individual who has been convicted of any offense under s. 38.50 (13) (c).
That is quite the list of exceptions to the general rule against discrimination based upon arrest and conviction record but it basically states that an employer may only refuse to hire a qualified applicant because of a conviction record for an offense that is "substantially related" to the circumstances of a particular job. Whether an arrest or conviction is "substantially related" is often the focus of litigation and defined by judges. A more obvious case of an offense being substantially related is, for example, a position in a child care center and an applicant who has a prior offense involving a minor.

Proving Arrest and Conviction Record Discrimination

I often receive phone calls from people who do not have direct evidence that they have been discriminated against because of their prior conviction record, which does show up on the Wisconsin Consolidated Court Automation Programs (CCAP), but they simply believe that there is no other explanation for their constant rejections in employment or other adverse employment actions, such as receiving a termination out of the blue with no explanation given by the employer. It is often very difficult to prove an employer's intent in most discrimination actions in employment law, especially in arrest and conviction record discrimination cases. However, this does not mean it is impossible to prove such and courts recognize the highly circumstantial nature of employment law matters. And, even if it can be proven that an employer discriminated against someone because of their arrest and/or conviction record, there are still defenses and exceptions available to employers.

If you believe that you have been discriminated against because of your arrest and/or conviction record, feel free to contact me.

1 comment:

  1. "It is often very difficult to prove an employer's intent in most discrimination actions in employment law, especially in arrest and conviction record discrimination cases."

    "often difficult", are you kidding me!!??? It's (no pun intended) 'IMPOSSIBLE' TO PROVE IT!!

    WAKE UP WISCONSIN! THE CCAP WEBSITE IS UNCONSTITUTIONAL BECAUSE IT PLACES A WI CITIZEN BELOW ALL OTHER CITIZENS IN OTHER STATES IN COMPARISON TO THE RIGHT TO PRIVACY.

    CCAP'S EXISTENCE IS DISCRIMINATORY AND TOTALLY OBLITERATES WI CITIZEN'S RIGHT TO DUE PROCESS IN THIS STATE. IT SIMPLY DOESN'T EXIST BECAUSE OF THE EXISTENCE OF CCAP.

    IT IS ALSO USED BY OTHER STATES COMPANIES/CORPORATION TO DISCRIMINATE IN HIRING PRACTICES, ETC.

    IF YOU JUST SIMPLY TAKE A MOMENT TO THINK ABOUT IT WHAT I AM SAYING IS TRUE. THE EXISTENCE OF THE WEBSITE ALSO TOTALLY WIPES OUT THE FORMER PRESIDENT'S LAW, 'THE SECOND CHANCE ACT'. THIS LAW SIMPLY DOESN'T EXIST IN THIS STATE.

    OK, SAY A PERSON CANNOT FIND A JOB BECAUSE OF A FELONY CONVICTION ON HIS/HER RECORD THAT IS POSTED ON THE CCAP WEBSITE.

    OK, NOW IN THIS ARTICLE YOU'RE SAYING OVER THE PAST NINETEEN YEARS SINCE THE WEBSITE'S EXISTENCE AND ALL THE DAMAGE IT HAS DONE TO PEOPLE'S LIVES IT'S ALL GOING TO BE SOLVED OR REMEDIED BY SOME BOGUS EMPLOYMENT LAWS WHICH CAN'T BE ENFORCED ANYWAY?? DA!!

    OK, I'M GOING TO GO OUT AND HIRE A LAWYER TO REPRESENT ME TO FILE A COMPLAINT AGAINST THE PAST TWO EMPLOYERS THAT WRONGFULLY DISCHARGED ME, A FORTUNE 200 & 100 COMPANY. YEAH, RIGHT. WHAT MONEY DO I HAVE TO PAY FOR A RETAINER FEE IF I CAN'T FIND A JOB??

    DOES ANY OF THIS MAKE SENSE TO ANYONE YET!!!

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