Hiring with conviction

From the pages of In Business magazine.

With the current composition of the Wisconsin Legislature, it’s fair to say that so-called “ban-the-box” legislation will not soon be adopted statewide, but more than 100 cities (including Madison) and counties nationwide have adopted this policy with respect to their own hiring practices. That can only mean one thing: private-sector employers could be next.

Ban-the-box laws require employers to remove questions about conviction history on job applications, in effect delaying background checks until later in the hiring process so that a candidate’s qualifications, rather than the stigma of a criminal record, can be considered first. Since many public-sector employers have taken the lead in banning the box, and extending the requirement to the private sector is often the next step in the evolution of such policies, private employers should at least begin to discuss how such a requirement would impact their hiring processes, according to several experts.

Wherever ban-the-box has been enacted, elected officials deem that “history of conviction should not be used as a screening mechanism,” stated Jennifer Mirus, an attorney with Boardman & Clark. “Employers should be able to conduct full background checks later in the hiring process, but conviction is often used as a blanket ‘no-hire’ factor in too many circumstances.”

Boxed in

Ban-the-box laws are intended to remove barriers to employment for individuals who have an arrest or conviction, but they generally do not require employers to hire individuals with a criminal background.Ban-the-box laws gained momentum in 2012, when the U.S. Equal Employment Opportunity Commission (EEOC), noting that federal civil rights statutes regulate employment decisions based on arrests and convictions, issued best practice guidance endorsing the removal of the conviction question from job applications.

The Wisconsin Fair Employment Act is not technically a ban-the-box approach, but it does regulate what employers can do. The law prohibits job discrimination against people with conviction records, unless the crime is “substantially related” to the job or the work environment. However, the law contains several exceptions, including one for educational agencies, such as school districts, which can refuse to employ an individual who has been convicted of a felony and has not been pardoned for that felony.

Employers have rights if they find that an employee misled them about his or her conviction record, but when it comes to considering a job applicant with a conviction record, they have a heavy legal burden. Therefore, it’s best to proceed with caution and on a case-by-case basis to evaluate not only the substantial relationship, but also whether it’s consistent with the way administrative law judges and the courts have interpreted that test.

Some judgment calls are elementary, such as when a person who has been convicted of child abuse applies for a job to drive a school bus, or when a person once convicted of embezzlement applies for a cash-handling position. The circumstances of those crimes substantially relate to the job, but it’s not always that cut-and-dried.

One question an employer has to ask is whether the traits revealed by the crime indicate a tendency to become engaged in conflicts or other kinds of problems related to the job. Attorney Tom Godar, a shareholder with Whyte Hirschboeck Dudek, cited the example of disorderly conduct, which is a common conviction. The traits for disorderly conduct found by Wisconsin’s Labor and Industry Review Commission, an independent administrative agency, include the tendency to become engaged in conflicts, to become violent, to exhibit poor self-control, or refuse to follow orders. “You have to look at those traits and compare them to the circumstances of the job,” Godar noted, “because the job might be one where there is stress and conflict.”

Noting that 2012 EEOC guidance suggests employers not even ask about conviction records on job applications, Mirus doesn’t recommend that on a broad basis. What is critical under both the EEOC guidance and the state’s substantial relationship test is that employers conduct an individual assessment of the conviction, the circumstances surrounding it, and whether it’s substantially related to the job being offered.

Mirus offered an actual case sample, without naming names. An applicant for a factory job had a sexual assault conviction, which on the surface isn’t substantially related. When the employer dug a little bit deeper, he found the job candidate had assaulted a woman at night in a faintly lit parking lot. The job being offered was a second shift position with a majority female workforce, no supervisor on duty (just a lead worker), and employees parked their cars in a dimly lit parking lot across the street from the plant.

“Those are the kinds of factors that employers have to look at to determine whether the job being offered would present an opportunity for the recommission of a crime,” Mirus stated.

Mike Gotzler, vice president and general counsel of The QTI Group in Madison, explained why the EEOC weighed in on the conviction history of job candidates. It has to do with Title VII of the 1964 Civil Rights Act and the concept of disparate impact. “There are some reliable surveys, national surveys, that showed there is disparate impact on certain racial groups on having criminal background checks as part of the hiring process,” Gotzler said. “So when employers hear the EEOC has guidance out, they might scratch their heads. If they know federal employment law, they know there is not a federal law that says you can’t consider these types of criminal convictions. There is not a substantially related test like there is at the state level, so they might think, ‘Why does the EEOC care?’ That [disparate impact] is why.”

On background

While ban-the-box legislation could eventually prohibit this, attorney Lori Lubinsky, a partner with Axley Brynelson, noted that most job applications in Wisconsin require prospective employees to state whether they have ever been convicted of a crime. They could choose not to answer the question, in which case the employer would have the right not to consider the application.

They also can choose to answer it honestly or dishonestly; if they choose the latter, they have falsified an application and that by itself is grounds for not hiring somebody or for termination. If they answer it truthfully, the substantial relationship test comes into play.

According to Lubinsky, having the right qualifiers on the employment application can save employers some trouble. On the employment application, she advises employers to state the following: If we, the employer, at any time find any information that you provide on this application is false, that is grounds for your immediate termination.

“It’s not always for a ‘catch-you,’” Lubinsky added. “The real reason is that you want to encourage people to be truthful. It really does force people to be forthright.”

Private employers conduct background checks using sources like the Consolidated Court Automation Program (CCAP) for criminal and civil activity at the circuit court level, Public Access to Electronic Records (PACER) searches from federal appellate, district, and bankruptcy courts, or Department of Motor Vehicles checks. Some private employers who have federal obligations to conduct drug testing have better access to background information, but most employers typically do some fundamental background check.

Employers must make a realistic assessment of safety for their workforce, but balance that against providing people with opportunities to regain footing in life, Mirus said. Since criminal convictions are a matter of public record, people with felony conviction records have no confidentiality when it comes to job applications, but some discretion is advised regarding how much other members of the company’s workforce should know. Employers should talk through who has access to background check information and whether it should be limited to human resources or hiring managers.

Employers are under no legal obligation to inform their existing workforce that someone with a conviction record has been hired, but hiring people with criminal records can affect workforce culture in a state where anyone can conduct Internet research on the backgrounds of newly hired employees. Criminal backgrounds can be uncovered through online sources like CCAP, and word can spread quickly through an Internet-savvy organization.

“It can be disconcerting,” Gotzler says. “Wisconsin is unique in many ways with how easily accessible Wisconsin criminal history is with CCAP. Employers have to be prepared to handle that because there is nothing they can do to stop it.”

In addition, employers might want different job applications for different jobs; some applications should include the conviction question. “In the financial services industry, certain types of employees like mortgage loan officers have to undergo certain background checks that others don’t,” Mirus noted. “There might need to be some customization.”

If a job application does contain the conviction question, it might include wording to the effect that a “yes” answer is not an automatic bar to employment, or that an individual assessment will be done, or that facts and circumstances will be considered. “Something that sends the proper message that you will comply with the law,” Mirus stated.

According to Gotzler, the timing of the background check in the hiring process is a decision every employer has to make on its own. It should be based on factors like industry and risk tolerance. “The most important thing from the EEOC’s perspective is that process is consistent,” he noted. “So you’ve got to document for whom and for which position you are going to conduct criminal background checks. In the EEOC’s eyes, it needs to be job-related and consistent with business necessity.”

A related issue pertains to the use of third parties to conduct background checks. Employers who use third parties for this purpose must comply with a federal statute called the Fair Credit Reporting Act, which requires that applicants sign authorizations for the background check. The law has been a minefield for employers and has led to a surge in class-action lawsuits against non-compliant employers.

In addition, convictions are treated differently than mere arrests. As a rule, arrests cannot result in termination, Godar says, because people are presumed innocent until proven guilty. Employees are eligible to retain their positions, even if there is a suspension while the employer reviews the circumstances of the arrest and the substantial relationship. “If it seems they are substantially related, the employee may be suspended for a long time as the case works its way through the process,” he noted.

If an arrest is made at work because somebody had illegal drugs in his or her locker, an employer can make a determination based on an eyewitness evaluation of what took place in the workplace. The same applies to witnessing disorderly conduct or battery of another employee at the workplace. “You can make your decisions based on that,” Godar explained, “but if you just read about the arrest or just hear rumors of it, or if you base it on a newspaper account or the arrest report of the officer, that would not be sufficient.”

Release them

Even with the inherent risks, hiring individuals with conviction records is more common than most people think, in part because of the altruism involved. “I’ve always admired companies who say, ‘Hey, we’ve got to give people a shot,’” Mirus said. “If people [with conviction records] can’t get a fair shot, you’re not only inviting, you’re almost forcing recidivism or reliance on the government. If they can’t get a job, what do we expect them to do?”

Bully for you

Gary Namie talks about the three “levels of hurt” from workplace bullying. As director of the Workplace Bullying Institute, Namie is sounding the alarm about the personal and organizational damage caused by workplace bullying.

He cited the psychological realm of debilitating anxiety, clinical depression, trauma, and despair that drives uncounted numbers of people to suicide due to the loss of a job, income, and identity. Then there’s the collateral harm done to coworkers who witness bullying but, due to organizational dynamics, also feel powerless to stop it, and the organizational harm from negative outcomes such as high staff turnover.

“The biggest predictor of trauma is the toxic relationship between perpetrator and target, without a doubt,” Namie said.

According to Namie, the dynamic often unfolds as follows: The bully is typically a mid-level manager who is rough on underlings, but turns on the charm before his own supervisors. This gives him the protection he needs to beat back the inevitable complaints, and as long as the employees under his charge are producing, and knowing that some workers can construe even constructive criticism as bullying, management overlooks the downsides.

The victims of workplace bullying are not a protected class, and despite the Institute’s best efforts to address the problem in state legislatures, applicable statutes are either weak or few in number. Therefore, the problem has to be addressed culturally within organizations. “It has to come from the top down,” stated attorney Jennifer Mirus of Boardman & Clark. “If leaders engage people productively, appropriately, and respectfully, and do not tolerate bullying behavior from those who report to them, that helps immensely.”

If the organization doesn’t take charge, bullying targets have to practice calm ways to stand up for themselves, and they must document instances of bullying. The former can soften the bully’s behavior; the latter can make the case to superiors.

Fresh start for life

Whether you see them building houses or recreational trails, troubled young people can get their lives back on track via constructive ways made possible by Operation Fresh Start, often in partnership with local employers.

One of the ways young people get a fresh start is by building affordable houses.

The organization, led by Executive Director Gregory Markle, has a simple mission: to provide disconnected youth, typically older youth ages 16-24, with a path to self-sufficiency. Since they generally have not completed high school, Operation Fresh Start helps them take those initial steps to gain employable skills.

So far, OFS has prevented more than 8,000 young people from falling through the cracks. “They are able to graduate from high school and successfully build a little bit of a resumé so they can move forward,” Markle said.

While employment is the end goal, local school districts and employers are enablers in OFS’s employment training. Its Pathways program includes partnerships with local school districts to help people earn a high school diploma and gain job skills. About 30% of the program is in-class work with registered teachers; another 70% is education on a work site where they are building affordable housing or completing a conservation project.

In addition to donations of direct cash, local businesses have contributed in several ways. The program has established partnerships with employers, including the likes of J.H. Findorff & Son, which hires OFS graduates. Other companies have done mock interviews and provided feedback to graduates as they develop their resumés.

“We’ve completed over 230 affordable houses and over 100 significant conservation projects,” Markle noted, “so we’ve also gotten a lot of work done.”

Security bells and whistles

When it comes to modern security systems, you might be surprised how companies with few budgetary constraints are shooting the works.

James Mankowski, president of JBM Patrol & Protection Corp., said very few new products have been introduced recently, but existing product iterations have been nonstop. The various components — alarms, access control systems, surveillance cameras, and smartphone monitoring — enable active engagement by building owners.

Newer security systems not only trigger an alarm, they provide video surveillance and building automation controls for managing heat and A/C, controlling lighting, or automatically powering down small office equipment. “You can monitor the system from any computer, tablet, or smartphone with Internet access,” Mankowski noted. “I could be at home, watch the cameras in my office building, and know exactly what’s going on.”

For more constrained budgets, businesses can spend as little as $300 for the control panel and sensors, or as much as $2,000 with building automation and some type of response dictated by service contracts. “The sky is the limit as far as how much you’d like to spend,” Mankowski noted. “A lot of businesses should have an alarm system to alert authorities or private security patrols, but they don’t want to pay for either, and that’s the key component to it. You could have all the bells and whistles, but when the alarm goes off, it’s what happens after the fact that matters.”

Shawn Smith, president and CEO of MPI Protective Services, noted that people mistake access control for security. “A camera system is a little bit of a deterrent, but it’s basically an investigative tool after the crime is committed,” he stated. “The numbers on that are all over the mat, but asking what a security system would cost is like going to a car dealer and asking, ‘How much for that car?’ It all depends on what you need.”

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