Tuesday, May 15, 2012

Arrest & Conviction Record Discrimination at the Fore (Again)

A recent article in the Milwaukee Journal Sentinel profiles a woman, Yolanda Quesada, who was terminated from Wells Fargo Bank after three years with the company for a crime she was accused of 40 years ago but not convicted of.  The bank is citing a federal law, Section 19 of the Federal Deposit Insurance Act, as justification for firing Quesada and several other employees who were recently fired after years of service.  That law essentially says employers in certain industries, like the banking industry, cannot hire applicants or maintain employees convicted of any criminal offense involving dishonesty or a breach of trust or money laundering, even if they entered into pretrial diversion of the case.

Quesada has hired an attorney, Sandra G. Radtke, to go to bat for her as Wisconsin has arrest & conviction record discrimination protection under the Wisconsin Fair Employment Act (WFEA).  As Quesada's attorney has pointed out, the federal law has a waiver that employers could seek from the FDIC which asks permission for an employee or applicant to work for them despite the law.  "The employees also can ask for a waiver, but Radtke said it can take nine to 12 months to get a decision. Among the things considered are the nature of the offense, the offender's age at the time and evidence of rehabilitation since then."  

Last month, the Equal Employment Opportunity Commission (EEOC), by a vote of 4-1, approved new guidance on criminal background checks, which, similarly to the WFEA, discourages blanket exclusions of individuals who have been convicted of crimes and encourages the use of individualized assessments of whether an employer’s criminal conduct exclusion is job related and consistent with business necessity.  Specifically:

Job Related and Consistent with Business Necessity
The guidance provides that there are two circumstances in which the commission believes that employers will meet the “job related and consistent with business necessity defense” consistently:
  • The employer validates the criminal conduct screen for the position in question according to the Uniform Guidelines on Employee Selection Procedures standards if data about criminal conduct as related to subsequent work performance is available and such validation is possible.
  • The employer develops a targeted screen considering at least the nature of the crime, the time elapsed and the nature of the job and then provides 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.
The individualized assessment would consist of:
  • A notice to the person that he or she has been screened out because of a criminal conviction.
  • An opportunity for the individual to demonstrate that the exclusion should not be applied because of his or her particular circumstances.
  • The employer’s consideration as to whether the additional information provided by the person warrants an exception to the exclusion and shows that the policy as applied is not job related and consistent with business necessity.
  • Individual’s Showing:
    • The individual’s showing may include information that he or she was not identified correctly in the criminal or release from prison. (Recidivism rates tend to decline as ex-offenders’ ages increase.)
    • record Evidence that the individual performed the same type of work, post conviction, with the same or a different employer, with no known incident of criminal conduct.
    • The length and consistency of employment history before and after the offense or conduct.
    • Rehabilitation efforts, such as education and training.
    • Employment and character references and any other information regarding fitness for the particular position.
    • Whether the individual is bonded under a federal, state or local bonding program.
    • Undoubtedly, given the uncertainty and infancy of arrest & conviction record discrimination we can expect lots of litigation until courts provide better guidance employers can use in the hiring and firing of individuals with arrest & conviction records.  If you believe you have been unlawfully discriminated against, it's best to consult with an employment lawyer and go over the facts of your case.  

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