Use CCAP for background checking? You might want to think twice …
In Wisconsin, over the last decade or so, ‘CCAPing’ (pronounced ‘see-capping’) has become a verb. It’s how many of us check someone out, whether it be a friend, that creepy neighbor, our boyfriend’s crazy ex-girlfriend, a potential suitor, or a potential employee. Stop right there. Did you say potential employee? If you’ve ever CCAPed a potential employee, or thought about it, then the warning in this article is for you.
What is CCAP?
First, for the few of you who aren’t on the CCAP bandwagon, what exactly is CCAP? It stands for Consolidated Court Automation Program, also known as Wisconsin Circuit Court Access (WCCA), and it is available to anyone with an Internet connection. Google CCAP or WCCA and you’ll get there quickly. Or go here: https://wcca.wicourts.gov.
Once you’re there, what do you do? You have to click “I Agree” to some terms for using the website. On this particular website, the terms are few and relate mainly to how the information in CCAP is kept. Click “I Agree” and you’re in.
Great, now it’s time to start digging! Not so fast. Did you see that? The Notice to Employers right under where you clicked “I Agree”? Maybe not. Go back and take a look. It’s there for a reason, and you, employer who is about to dig up dirt on an applicant for a job, are the reason.
Notice to employers: It may be a violation of state law to discriminate against a job applicant because of an arrest or conviction record. Generally speaking, an employer may refuse to hire an applicant on the basis of a conviction only if the circumstances of the conviction substantially relate to the particular job. For more information, see Wisconsin Statute 111.335 and the Department of Workforce Development’s Arrest and Conviction Records under the Law publication.
If you are an employer in Wisconsin you must be prepared to use CCAP within the parameters of the law — a very important law — that applies to you, called the Wisconsin Fair Employment Act (“WFEA”). The WFEA provides, as is summarized in the CCAP notice quoted above, that it is illegal discrimination for an employer to refuse to hire an applicant (or to terminate or otherwise take an adverse action against an employee) on the basis of an arrest or conviction record. The WFEA makes people with arrest and conviction records a protected class, just as is the case with things like race, sexual orientation, and religious affiliation.
Don’t fear; you are not locked into hiring every convict who otherwise qualifies for the job. The primary exception — what does not constitute discrimination — is when the employer bases its decision not to hire or to terminate based upon a conviction that is substantially related to the job. “Substantially related,” as you might imagine, does not carry with it a clear-cut definition in the statute. Like many criteria set forth in the law, it has been and continues to be developed through court decisions and rulings by administrative agencies.
What it generally boils down to is this: take the actual crime of which the person was convicted, and the facts and circumstances surrounding the charge and the actual conduct by the person that led to the charge, and then take the job position for which the person has applied. Do the two seem to be substantially related? Are there factors that are present on both sides of this analysis? Examples are perhaps the best way to flesh this out.
Drunk driving … substantially related?
Let’s take a common conviction and see if it likely substantially relates to a job, under the WFEA. Wisconsin wouldn’t be Wisconsin without the highest rate of drunk driving, or operating while intoxicated (“OWI”), otherwise known as DUI, in the nation. You CCAP an applicant and see that he has had three OWI convictions. It gives you pause, understandably so.
What job does this person want in your company? If the job is to perform work on a computer in an office all day, no, it almost certainly does not substantially relate. Which means you cannot refuse to hire him for the job based on the OWI history. What about if he has to run errands, which involve driving? Well, does he use his own vehicle? And have a valid driver’s license (including an occupational)? Then, no, it still does not substantially relate. His history of OWI does not relate to whether he can drive for the errands, as long as he can legally drive (which means being licensed, having a registered and insured vehicle, etc. — and you are entitled to confirm all of that, if it is a bona fide requirement of the job).
Let’s say that you would have this employee drive a company vehicle for the errands. In this case, it might substantially relate. The difference here is that your insurance carrier may refuse to insure an employee as a driver on your policy who has a history of OWI, depending on how long ago the OWI was and possibly other factors. If your carrier won’t insure him, then he won’t be able to perform those duties, if driving for errands are necessary duties. If you find yourself in this situation, don’t make the assumption that someone with an OWI on his or her record who you’d want to drive a company vehicle automatically substantially relates to the job. Check with your insurer to be sure before making a decision based upon the OWI convictions.
The OWI example is relatively clear cut. However, with many other crimes (likely, most), you will not know much about what constituted the crime from the CCAP record. It does not provide much detail. For that reason, CCAP should not be your background-checking tool. If you truly want to run criminal background checks, hire an agency that does just that — performs official checks with law enforcement agencies and courts. This will help you obtain additional information about convictions so that you can determine whether the conviction is substantially related to the job.
What’s the harm in looking?
The harm in looking at CCAP is that you can’t unsee what you’ve seen. You can’t put the toothpaste back into the tube. If knowing that a person was convicted of fourth-degree sexual assault will forever taint your view and judgment of them as a person and as a potential employee, and the job for which you are hiring them could not under any view be substantially related to the circumstances that may surround a conviction for fourth-degree sexual assault, think long and hard about whether you wish to even discover that information in the first place. It may be better to just not know.
If you don’t perform background checks as a routine part of your hiring process, and don’t wish to engage in the “substantially related” analysis for every conviction of which you become aware, the best thing you can do is stay off CCAP, at least when it comes to employees or applicants. But feel free to CCAP away that jerk who broke your friend’s heart.
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