By Kramer, Elkins & Watt
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 wacky ex-girlfriend, a potential suitor, or a potential employee. Stop right there. Did you say, potential employee? If you have ever CCAPed a potential employee or thought about it, the warning in this article is for you.
What is CCAP?
CCAP stands for Consolidated Court Automation Program, also known as Wisconsin Circuit Court Access (WCCA), and is available to anyone with an internet connection, and can be accessed here. Before you can start digging, you have to click “I Agree” to some terms of using the website. Beware, CCAP has a specific notice just for employers:
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 based on 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, you must be prepared to use CCAP within the parameters of 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 adverse action against an employee) based on 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.
An exception to the rule, ie – 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.
To perform the analysis of whether the conviction is substantially related to the job, courts analyze the actual crime of which the person was convicted, and the facts and circumstances surrounding the charge as well as the actual conduct by the person that led to the charge. With this information in mind, courts look to see whether similar facts and circumstances may present themselves during the course of employment for the job for which the person has applied. Let’s take a look at a common example, drunk driving.
Drunk driving… substantially related?
What job does this potential employee want in your company? If the job is to perform work on a computer in an office all day, no, a drunk driving conviction almost certainly does not substantially relate. Which means you cannot refuse to hire him for the job based on 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. Legally drive means being licensed and having a registered and insured vehicle, etc. You are entitled to confirm all of this if driving is a bona fide requirement of the job.
Let’s say that you would have this employee drive a company vehicle for errands that are a necessary part of the job. In this case, the conviction might substantially relate his employment. 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 a variety of factors. If your carrier won’t insure him, then he won’t be able to perform those duties. Here, where the driving duties are a necessary part of his job, a court may find that the OWI convictions are substantially related to the job. Keep in mind, this is just an example, and every situation is different. It would be dangerous to assume that an OWI conviction on someone’s record will always substantially relate to a job that requires driving a company vehicle. Check with your insurer before making a decision based upon the OWI convictions.
An OWI is a rather straightforward crime, however, with many other crimes (likely, most), you will not know much about what constituted the crime from the CCAP record. 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 at CCAP?
The harm in looking at CCAP is that you can’s 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.
The majority of employment background check situations are far more complicated than the OWI scenario above. Contact Kramer, Elkins & Watt, LLC at (608) 709-7115 for assistance in making a difficult employment decision relating to someone’s background.