Dear Atty., Do I Legally Have To Hire This Criminal?

  • May 12, 2016
  • Written by webadmin

Handcuffs CCO

Dear Attorney:

Our company recently extended a job offer to a woman to fill our vacant accounting/bookkeeper position. She is highly qualified and comes with great references. She is scheduled to start next week. After we extended the job offer to her, however, her future supervisor went on the internet and discovered that she has a criminal conviction for battery. Upon discovering this, the supervisor came to me (because I am the HR Manager) and said that he wants to withdraw the job offer. He said that he is not comfortable working with a “criminal.” Something in my gut tells me this is not right. What should I do?

Signed,

Conflicted by Convictions

Dear Conflicted:

Listen to your gut. Wisconsin is one of a handful of states that has a law prohibiting discrimination based on an individual’s arrest or conviction record.

The Law: The Wisconsin Fair Employment Act prohibits discrimination based on an individual’s arrest or conviction record, unless the employer can show that the circumstances of the crime substantially relate to the circumstances of the job in question. The law also makes distinctions between criminal convictions and arrest and distinguishes between the treatment of existing employees and applicants. For job applicants, if the crime that led to the arrest or conviction is substantially related to the job, the employer can refuse to hire the individual. For existing employees, if the crime that led to the conviction is substantially related to the job, the employer may terminate the individual’s employment. If an existing employee is arrested for a crime that is substantially related to the job, the employer’s recourse is to suspend (without pay) the employee pending resolution of the criminal charge. If, however, the nature of the crime leading to either an arrest or a conviction is not substantially related to the job, an employer can take no adverse action against either a job applicant or an existing employee.

At this point you are probably saying to yourself, “that all makes sense, sort of, but how do I know if a crime is “substantially related” to the job?” Therein lies the rub: the substantial relationship test can be dicey. Sure, there are some easy examples. For instance, the crime of theft certainly would be substantially related to the job of a bank teller or some other job that involves access to money. But, consider some examples of crimes that have not been found to be substantially related to the job:

  • Battery/Custodian
  • Sexual assault, possession of a firearm, false imprisonment/Forklift Driver in a warehouse
  • Sexual assault, bail-jumping/Assistant Store Manager
  • Disorderly conduct/Certified Nursing Assistant
  • Sexual assault of a child/Machine Operator

The key in these cases is whether the job in question somehow would make it more likely that the traits that caused the crime could be repeated. In the example that you presented, it is unlikely that a conviction for battery is substantially related to the job of bookkeeper; there is nothing about being a bookkeeper that would increase the likelihood that the woman you hired would engage in another act of battery.

The most important lesson to take from all of this is that Wisconsin employers cannot have a blanket policy of refusing to hire or terminating individuals simply because of a criminal arrest or conviction. Employers must first assess whether there is a substantial relationship between the nature of the crime and the nature of the job.

So, Conflicted, my advice is that you not rescind the job offer. The woman to whom you extended the offer obviously was qualified or you would not have made the offer. She should not be denied employment simply because her future supervisor has, based on unwarranted stereotypes, decided that no one with a criminal record should work for your company. This, after all, is the type of bias that the Wisconsin law was intended to address.

Signed,

Attorney

The “Dear Atty.” column is aimed at answering employers’ legal questions that surround issues in human resources. Attorney Pete Albrecht of Albrecht Backer Labor & Employment Law, S.C. welcomes you to submit questions here for future editions of “Dear Atty.”

If you would like additional information about this topic, please contact Pete Albrecht. He is the president and a shareholder at Albrecht Backer Labor and Employment Law. Pete has represented employers for over 28 years and his law office is located in Madison, Wisconsin.

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