STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

MICHEAL L ROWSER, Complainant

UPPER LAKES FOODS, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 200300509


An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:

Paragraph 4. of the Order section of the administrative law judge's decision is deleted.

Paragraph 6. of the Order section of the administrative law judge's decision is deleted and the following substituted:

Within 30 days of the expiration of time within which an appeal may be taken herein, Respondent shall submit a compliance report detailing the specific action it has taken to comply with the commission's decision. The compliance report shall be directed to the attention of Kendra DePrey, Labor and Industry Review Commission, P. O. Box 8126, Madison, Wisconsin 53708. The statutes provide that every day during which an employer fails to observe and comply with any order of the commission shall constitute a separate and distinct violation of the order and that, for each such violation, the employer shall forfeit not less than $10 nor more than $100 for each offense. See Wis. Stats., § § 111.395, 103.005(11) and (12).

The Conclusion section of the administrative law judge's Memorandum Opinion is deleted.

DECISION

The decision of the administrative law judge (copy attached), as modified, is affirmed.

Dated and mailed October 29, 2004
rowsemi . rmd : 115 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The commission notes that no post-hearing briefs, or briefs to the commission, were filed by the parties.

Merits

The proper inquiry is what actually motivated the employer's decision not to hire the complainant. Miles v. Regency Janitorial Service, ERD Case No. 199803666 (LIRC Sept. 26, 2002). The respondent effectively articulated four bases for its decision, i.e., the complainant's criminal record demonstrated a tendency to engage in violence which was substantially related to the duties of the subject driver position; respondent required that its drivers be bonded and the complainant's criminal record rendered him unbondable; the appearance on complainant's criminal record of different spellings of his first name and different middle names demonstrated he was dishonest and not trustworthy; and the complainant had a history of short-term jobs.

Pursuant to Wis. Stat. § § 111.321 and 111.322, it is an act of employment discrimination to refuse to hire or employ any individual because of arrest record or conviction record.

Wisconsin Statutes § 111.335 states as follows in this regard, as relevant here:

111.335 Arrest or conviction record; exceptions and special cases..

(1)(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.

Substantial relationship

The substantial relationship affirmative defense as it relates to allegations of arrest record discrimination is only available to respondent employers when a charge is pending at the time the subject action was taken. The record does not establish that there were charges pending in regard to any of the complainant's arrests when the subject hiring decision was made in May of 2002.

Respondent was aware in May of 2002 that the only criminal offense for which the complainant had been convicted was misdemeanor disorderly conduct/domestic abuse. Whether or not an offense is substantially related to the circumstances of a particular job requires "assessing whether the tendencies and inclinations to behave 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, 407 N.W.2d 908 (1987). The commission agrees with the administrative law judge that the employer has failed to show how engaging in a violent act during a domestic dispute would bear any relationship to the duties and responsibilities of the subject driver position. Although drivers have unsupervised access to the employer's assets and customers, the elements of the offense for which the complainant was convicted do not include theft or destruction of property, or violence toward individuals with whom the complainant has no personal relationship. See, e.g., McKnight v. Silver Spring Health and Rehabilitation, ERD Case No. 199903556 (LIRC Feb. 6, 2002) (disorderly conduct/domestic abuse conviction not substantially related to duties and responsibilities of certified nursing assistant position involving generally independent direct care of vulnerable but unrelated individuals).

Bondability

The commission agrees with the administrative law judge that the respondent failed to prove that bondability was a factor which actually motivated the respondent to refuse to hire the complainant in May of 2002. First of all, the administrative law judge credited the complainant's testimony that this was not a reason offered to him in May of 2002 when he asked for an explanation of the respondent's hiring decision (Finding of Fact #13), and there is no persuasive reason to overturn this credibility determination. In addition, the basis respondent offers for drawing the conclusion that complainant was not bondable, i.e., that individuals are not bondable by the entity with whom the respondent contracts for this service (Zurich American) if they have committed "dishonest acts," does not actually explain the decision not to hire the complainant because his conviction record does not support a conclusion that he ever engaged in a dishonest act. Dishonesty is not an element of the crime of disorderly conduct/domestic abuse.

It should also be noted in this regard that the respondent may not rely on the affirmative defense articulated in Wis. Stat. § 111.335(1)(c)2. to avoid a conclusion of discrimination here, because it failed to prove that the complainant was "not bondable under a standard fidelity bond or an equivalent bond." Even accepting respondent's assertion that Zurich American will not accept for coverage those individuals with a record of committing "dishonest acts," the respondent has failed, as concluded above, to show that complainant's conviction record establishes that he ever committed such an act. Moreover, the respondent failed to prove that Zurich American would have concluded that the complainant was not bondable under its standard fidelity bond or that, if it had, no other equivalent bond would have been available from Zurich American or some other bonding entity.

Respondent asserts in its petition for commission review that the administrative law judge erred in excluding from the record the single page of a document which the respondent's witness represented was part of the standard bond issued by Zurich American to cover the respondent's drivers. The commission agrees with the administrative law judge that the respondent failed to properly authenticate this document or to lay a proper foundation for it. As a result, it was not error to exclude it. However, even if this document had been received into the hearing record and its contents recognized as bonding requirements for respondent's drivers, it would not have changed, or even influenced in any way, the result here since the only relevant requirement set forth in this exhibit is that coverage is not available to individuals who have committed dishonest acts, and, as discussed above, the record does not show, through the complainant's conviction record or otherwise, that he ever committed such an act.

Different spellings/names

Respondent contends that it refused to hire the complainant in part because it noted discrepancies, including different spellings of his first name and different middle names, in his criminal record. The respondent, however, failed to prove that this played any part in the subject hiring decision. Moreover, as the administrative law judge found, the record does not support a conclusion that these discrepancies resulted from any intentional acts on the part of the complainant.

Deficient employment history

Respondent contends that an additional reason for not hiring the complainant was the fact that his employment application revealed that he "had a number of 'short term' (less than 6 months) positions/jobs in the past." However, the hearing record does not support a conclusion that this was one of the respondent's actual reasons for rejecting complainant. Specifically, for example, in response to questions seeking to identify the reason for the complainant's rejection (e.g., page 9 and page 18 of transcript), respondent's witness Karen Andresen cites the complainant's criminal background check, not his employment history. Although Ms. Andresen makes passing reference in her testimony to "red flags," including "short-time jobs" (e.g., pages 69-72), she emphasizes that it was the complainant's arrest/conviction record and the violent nature of the offenses for which he was arrested/convicted that led to his rejection by the respondent.

It should also be noted in regard to the merits of the complaint that the respondent, in its petition for commission review, contends that there was insufficient evidence in the record to support a finding "that Upper Lakes Foods has a general policy not to hire people who have any type of conviction record." However, this finding is consistent, for example, with the testimony of Ms. Andresen (see pages 20-21 of transcript) to the effect that it was fair to say that it was respondent's policy not to hire drivers if it was aware that they had criminal convictions because all drivers needed to be bonded.

Attorney's Fees

The administrative law judge concluded that the amount of fees requested by counsel for complainant was excessive and awarded a reduced amount as a result. The commission agrees that the amount was excessive and notes that the respondent has not raised this issue before the commission. It is also noted that counsel for complainant has not updated his fee request here.

Order

The commission has ordered deletion of  4 of the administrative law judge's Order, which required the respondent to promulgate a new hiring policy for its Wisconsin employees, because it exceeds the department's and commission's scope of authority here.

The issue noticed for hearing is whether the respondent, as alleged in the complaint, violated the Wisconsin Fair Employment Act (WFEA) by refusing to hire or employ the complainant because of arrest or conviction record.

As the supreme court held in Chicago, Milwaukee, St. Paul & Pacific Railroad Co. v. DILHR, 62 Wis. 2d 392, 215 N.W.2d 443, 8 FEP Cases 938 (1974), an order under the WFEA must not be broader in its scope than the issue noticed for hearing. In Chicago, Milwaukee & St. Paul, supra., the department, after concluding that the record supported a conclusion of handicap discrimination, ordered that the respondent "cease and desist its discriminatory employment practices against the complainant and like situated employees or applicants for employment" (emphasis added). The issue noticed for hearing was whether there had been "an act of discrimination due to handicap." The court concluded that the department's order was overbroad in its application to "like situated employees or applicants for employment," because the issue noticed for hearing failed to specify any ongoing acts of discrimination other than that perpetrated in the complaint.

In addition, although this part of the administrative law judge's order may be appropriate in regard to an action brought by or on behalf of a class of persons, the department and the commission do not have authority under the WFEA to entertain a class action. See, Jones v. Central Regional Dental Testing Service, et al., ERD Case No. 9352630 (LIRC Feb. 29, 1996) (the class action procedure is not available in the administrative processes provided for in the WFEA).

cc:
Attorney Matthew Ricci
Attorney Karry A. Aspinwall


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