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: