State May Move to Bar Employment of Felons in Schools and Prisons

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Background checks at schools

A new bill that was recently introduced and is currently being considered by the Wisconsin Assembly Committee on Education (AB 122) may resonate with employers nationwide who are wrestling with issues of hiring or continuing to employ those with conviction records.

Wisconsin has one of the most employee-friendly employment laws prohibiting discrimination based on arrest or conviction records unless the circumstances of the crime are “substantially related” to the circumstances of the particular job. Being “substantially related” is not an arbitrary condition that can be set by employers. It is an affirmative defense that the employer must prove.

The Wisconsin Supreme Court stated that employers must look at whether the job provides a context within which an arrested or convicted person will commit a similar crime by being placed in an employment situation offering temptations or opportunities for criminal activity similar to those present in the crimes for which the individual was previously arrested or convicted.

Actual examples include if an employee is arrested or convicted while on duty for the employer, the circumstances are per se substantially related. Other examples relate to employees who are not bondable as a result of their arrests or convictions while the position they hold or for which they are applying requires such a bond. Security positions may also apply to the “substantially related” category.

While current labor laws in Wisconsin provide narrow guidelines for when employers may fire or refuse to hire a person based on their arrest or conviction record. The new bill, AB 122, would remove the burden from educational institutions and other institutions such as prisons and correctional facilities to prove an individual’s conviction is substantially related to the position.

This bill specifies that it would not be discriminatory for an educational agency or correctional facility to terminate or refuse to hire an individual who has been convicted of a felony and hasn’t been pardoned, regardless of whether that felony substantially relates to the circumstances of the particular job. The bill doesn’t limit application to future circumstances meaning that current employees could be fired under these provisions.

The new bill, if passed, would pertain only to felonies and only to educational and correctional institutions as referenced in the bill. All other employers would still need to abide by the existing law. AB 122 is just one of many new bills and laws in process at the State and Federal level relating to employment. Some reflect a tightening of background screening requirements while others show a strong sensitivity to issues of discrimination among protected classes.

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