The Consolidated Court Automation Program (known as “CCAP”) is a searchable website operated by the Wisconsin Courts that contains docket information on Wisconsin state court cases (most states have similar programs). Because it is searchable by name, employers may be tempted to run the names of job applicants through CCAP as a quick and free check on whether potential employees have a criminal background. But beware! The Wisconsin Fair Employment Act (“WFEA”) bars employers from discriminating against applicants based on an arrest or conviction record, unless the circumstances of a conviction substantially relate to the job in question.
If an employer becomes aware through CCAP of an arrest, or a conviction that is not substantially related to the particular job being offered, that knowledge could open up the employer to a claim of discrimination under the WFEA. Thus, a quick-peek CCAP check on applicants’ criminal backgrounds could expose the employer to liability.
To compound the problem, whether a conviction is “substantially related” to the job is not an easy question. Consider a conviction for drunk driving (OWI). You might think that such a conviction substantially relates to any job that requires driving, but that is not always the case. For instance, if an employee holds a legal license and drives their own personal car, an argument can be made that the OWI conviction is not substantially related to the job.
If, on the other hand, the employee must be insured through the employer and drive a company-owned vehicle, an argument can be made the OWI conviction is substantially related to the job. However, because the statute creating the prohibition on discrimination due to a conviction does not define what “substantially related” means, and because discrimination cases are usually decided in the first instance by state and federal agencies (not courts) who are less concerned with establishing clear precedent, the line between what does and does not count as substantially related is usually fact-specific and anything but clear. Whenever the law provides a fuzzy boundary like this, both sides will argue about it and the result will not be certain until the case is fully adjudicated.
Of course, an employer can argue that its review of CCAP played no role in any employment decision, but it’s hard to prove a negative, and it begs the question of why the employer consulted CCAP in the first place. Once a CCAP search reveals an arrest or conviction record, any employment decision that follows is tainted.
That is not to say that employers should never run background checks. In many cases, doing so is absolutely necessary. In such cases, it may be preferable to perform background checks through a third-party agency that does a comprehensive review of available information (including probing applicable circumstances of any conviction), and carefully screens the results before providing a sanitized report to the employer.
Yes, employers must pay for these kinds of services, while CCAP is free, but taking the cheap route at the hiring stage could be costly in the long run if the employer becomes the subject of a discrimination claim. If you are in doubt about whether to conduct background checks, and the manner of doing so, the safest bet is always to consult with a competent attorney before discovering information that cannot be unlearned.
If you have any questions about background checks or other means of screening employees or would like a review of which method best meets your particular circumstances, please contact Ryan M. Billings at (414) 962-5110 or firstname.lastname@example.org.
Founded in 1937, Kohner, Mann & Kailas, S.C. (KMK) is a leading law firm with a global reputation for success and a rich tradition of results, providing legal expertise in business and financial services, business litigation, and commercial collections. Recognized by U.S. News & World Report as one of the nation’s Best Law Firms, KMK is headquartered in Milwaukee, WI. For more information, visit www.kmksc.com.