Wisconsin Conviction Record Bill Does Not Pass 2009 Legislative Session

The bills proposed in both the Senate and the Assembly for the State legislature in Wisconsin to prohibit employers from asking about conviction records before selecting a person for interview did not make it to the floor for vote this 2009 legislative session. The bills failed due mostly to timing. Wisconsin law still prohibits discrimination in employment based on both arrest records and conviction records, but the law does not prohibit an employer from requiring disclosure of conviction records in an employment application.

Gordon Leech Testifies to Wisconsin Senate on Conviction Record Discrimination

On April 8, 2010, Gordon Leech testified on behalf of the Individual Rights and Responsibilities Committee of the Wisconsin Bar, the Wisconsin Employment Lawyers Association and for the thousands of Wisconsin citizens that are subject to unfair and unlawful discrimination in the hiring process because they have to disclose the existence and nature of any prior convictions when applying for employment. The Senate Committee on Labor, Elections and Urban Affairs held a hearing to consider Senate Bill SB-612, which if passed into law, would prohibit employers in Wisconsin from asking about convictions prior to selecting a job applicant for interview. Unfortunately, the 2009 session of the Wisconsin legislature is coming to a close, so the prospect of this bill passing into law this session is doubtful.

Gordon Leech Testifies to Wisconsin Senate on Conviction Record Discrimination

On April 8, 2010, Gordon Leech testified on behalf of the Individual Rights and Responsibilities Committee of the Wisconsin Bar, the Wisconsin Employment Lawyers Association and for the thousands of Wisconsin citizens that are subject to unfair and unlawful discrimination in the hiring process because they have to disclose the existence and nature of any prior convictions when applying for employment. The Senate Committee on Labor, Elections and Urban Affairs held a hearing to consider Senate Bill SB-612, which if passed into law, would prohibit employers in Wisconsin from asking about convictions prior to selecting a job applicant for interview. Unfortunately, the 2009 session of the Wisconsin legislature is coming to a close, so the prospect of this bill passing into law this session is doubtful.

How An Employer Finds Conviction Records

Many employers are now obtaining and using background reports or investigations in the hiring process. These reports typcially contain information obtained from public records which includes criminal arrest and conviction records. If an employer obtains these reports without a proper disclosure of its intent to use such a report or does not obtain the prior written authorization of the consumer or employee to get the rep0rt, the employer may have violated that person’s rights under the Fair Credit Reporting Act, a Federal law. In Wisconsin, the law protects against arrest and conviction record discrimination in employment.

Wisconsin Assembly Introduces Companion Bill 854 Regarding Conviction Record Discrimination

On March 16, 2010, the Wisconsin State Assembly, lead by Representatives Parisi, Fields, Pasch, Grigsby, Sinicki, Turner, Roys and Kessler, and cosponsored by Senator Taylor, introduced Assembly Bill 854. Assembly Bill 854 is the Assembly version of Senate Bill 612, which would make it unlawful for an employer to ask about criminal convictions before selecting an applicant for an interview. The bill was sent to the committee on Corrections and the Courts. As I said in my post on SEnate Bill 612, This amendment is similar to the law on disability discrimination in employment, which prohibits inquiries into any disabilities until after an applicant is offered a job. So the disabilities law is a bit more protective than even this proposed amendment to WFEA on conviction record discrimination. Still, the proposed bill would be a significant step towards stopping unlawful discrimination because of a conviction record. It may also help employers hire good employees that they would not otherwise have considered. To view the history of this bill, go to http://www.legis.state.wi.us/2009/data/AB854hst.html. Talk to your representatives in the state legislature about this bill if you support it. They need to know. You can find your state representative by visiting http://www.legis.wisconsin.gov/w3asp/waml/waml.aspx.

Wisconsin Law Proposed to Prohibit Inquiry Into Conviction Record Before Gettting Interview

On March 11, 2010, Senator Taylor, with Representatives Parisi, Fields, Pasch, Gribsby, Sinicki, Turner, Roys and Kessler as co-sponsors, introduced Senate Bill 612 (2009-2010) to create an amendment to the Wisconsin Fair Employment Act (WFEA). The WFEA already prohibits discrimination based on an arrest or conviction record with certain exceptions when the conviction and job are substantially related, but the current version of the Act permits employers to make inquiries of applicants about convictions. Many applicants won’t know why they did not get an interview, and many times it can be due to a conviction record even though the job and the conviction are not substantially related. This bill would prohibit employers from asking applicants about a conviction record until after the employer selects an applicant for an initial interview. The proposal was sent to the Committee on Labor, Elections and Urban Affairs, and is still a long way from becoming law, if it can survive the legislative process. This amendment is similar to the law on disability discrimination in employment, which prohibits inquiries into any disabilities until after an applicant is offered a job. So the disabilities law is a bit more protective than even this proposed amendment to WFEA on conviction record discrimination. Still, the proposed bill would be a significant step towards stopping unlawful discrimination because of a conviction record. It may also help employers hire good employees that they would not otherwise have considered. To view the history of this bill, go to http://www.legis.state.wi.us/2009/data/SB612hst.html. Talk to your representatives in the state legislature about this bill if you support it. They need to know. You can find your state representative by visiting http://www.legis.wisconsin.gov/w3asp/waml/waml.aspx.

Fired or Not Hired Because of Conviction or Arrest Record

What if you have a conviction or arrest record and an employer in Wisconsin does not hire you because of it? Well, you have rights. In Wisconsin, employers may not discrimination against an employee or applicant because of an arrest or conviction record. The exception is when the conviction substantially relates to the job. Also, if an employer intends to pull a background check on an employee or applicant, it must give notice, disclosure, to the person that it intends to do so and also get written permission from the employee or applicant to do so. Failure to either disclose or get written permission is a violation of Federal law, the Fair Credit Reporting Act. If a background report, even though accurate, is the basis for termination, not getting hired or other adverse employment action, the employer must abide by other notice and disclosure requirements. Most importantly, the employer must give advance notice of the termination, non-hire or other adverse action that it is going to take the action and that a report was used as part of its decision. The advance notice is so the employee or applicant can get a copy of the report, review and correct it if necessary. An employer must give notice of certain rights under the Federal law, in writing, when advising the employee or applicant of the adverse action. Failing to perform any of these obligations may give rise to a claim for damages against the employer or the agency that provided the employer a background report. Damages can include lost income, emotional distress or, if actual damages do not exist, statutory damages as determiend by a judge. The law also provides for the potential recovery of attorney’s fees and the cost of litigation.