August 08, 2018

The Hiring Process and At-Will Employment

A. Employment-At-Will Doctrine

1. The Wisconsin Supreme Court first implicitly recognized the atwill employment doctrine in 1871 in Prentiss v. Ledyard, 28 Wis. 131.

2. Generally, an "employee at will" is one who is employed for an unstated or indefinite period of time. The mere existence of a collective bargaining agreement which covers the employee does not alter the employee's status unless:

a. The agreement contains a limitation on the right of the employer to discharge the employee, or
b. The agreement provides specifically for the duration of employment for those individuals covered by it.

3. The result of an at-will relationship is that employment may be terminated for any reason at any time by the employer or the employee. “The prevailing general rule is that an at-will employee has no legal remedy for ‘an employer’s unjustified decision to terminate the employment relationship’” Bammert v. Don’s Super Valu, Inc., 254 Wis.2d 347 (2002).

4. Exceptions to the rule of at-will employment
a. Public policy exception
b. Statutory exceptions
c. Employment contracts
(1) Implied
(2) Express

B. Contractual Obligations from Unexpected Sources

1. Employee handbooks, personnel policies, other documents
2. Poorly worded policies or employee handbook provisions may create an employment contract, implied or express.

C. Employment Applications and Job Interviews - Do’s and Don’ts. To determine who is best qualified, employers usually and rightfully ask job applicants a number of questions via application forms or interviews. The key to lawful employment inquiries is to ask only about those areas which will provide information as to the person's ability to do the job with reasonable accommodation. DWD recommends against asking the following questions:

1. Age, date of birth.
The Wisconsin Fair Employment Law and the Federal Age Discrimination in Employment Act prohibit discrimination on the basis of age. This applies particularly to anyone age 40 or over.

2. Criminal background checks

a. Arrest records. An employer may not have a blanket policy or practice of excluding applicants due to arrest records. Questions regarding arrests are "suspect" because they may lead to adverse impact within protected classes. However, applicants may be asked to supply information regarding "pending" charges. Employees may be asked to identify "other" arrests when such information is necessary to determine bondability. Wis. Stats. §111.335.

b. Conviction records. Questions regarding criminal convictions are also suspect, since they tend to lead to adverse impact within protected classes. The EEOC's policy statement on pre-employment inquiries states that, if questions are asked regarding criminal convictions, they should be accompanied by a statement that a conviction record will not necessarily be a bar to employment and that other factors will also be taken into account.

c. What can an employer ask regarding arrest and conviction records?

(1) An employer may ask whether an applicant has any pending charges or convictions, as long as the employer makes it clear that they will only be given consideration if the offenses are substantially related to the particular job. Each job and record must be considered individually.
(2) An employer may not refuse to hire a person because of a record of arrests that did not lead to conviction. The employer can only inquire about convictions and pending charges.
(3) An employer cannot refuse to hire an applicant because of a lengthy record of convictions or conviction for a crime the employer finds upsetting, unless the offense is substantially related to a particular job.
(4) An employer should ask about the circumstances of a conviction during an interview in order to obtain enough information to determine if the conviction(s) is/are substantially related to the job.
(5) 2011 Wisconsin Act 83 – Employment of Convicted Felons by Educational Agencies. Effective December 9, 2011, it is not a violation of state employment discrimination laws for an educational agency in Wisconsin to refuse to employ or to terminate from employment an individual who has been convicted of a felony and who has not been pardoned for that felony.

3. Available for Saturday or Sunday work

a. This question may discourage applications from persons of certain religions which prohibit their adherents from working on Saturday or Sunday. On the other hand, employers may need to know whether an applicant can work on these days.
b. The Wisconsin Fair Employment Law and Title VII of the Civil Rights Act of 1964 both prohibit discrimination on the basis of religious beliefs and practices. Both laws exempt employers from compliance if they demonstrate they are unable to reasonably accommodate an employee's (or prospective employee's) religious observance or practice without undue hardship on the conduct of the business.
c. If a question about Saturday and Sunday work is asked, the employer should indicate that a reasonable effort is made to accommodate the religious needs of employees.

4. Children under age 18, number of children, age of children, what arrangements will you make for care of minor children.
The purpose of these questions is to explore what the employer believes to be a common source of absenteeism and tardiness. There are a number of common causes of absenteeism and tardiness which affect both men and women and which would be worthy of exploration if this is a matter of concern to the employer. In the absence of proof of business necessity, Title VII and Wisconsin law prohibit employers from having one hiring policy for women and another for men with preschool children.

5. Citizen of what country.

There are federal guidelines on discrimination because of national origin which contain the following statement: "Because discrimination on the basis of citizenship has the effect of discriminating on the basis of national origin, a lawfully immigrated alien who is domiciled or residing in this country may not be discriminated against on the basis of his citizenship" unless national security requirements mandated by a federal statute or executive order authorize otherwise.

6. Credit record (charge accounts, own your own home, own your own furniture, own a car).
Because minority persons, on the average, are poorer than whites, consideration of these factors by employers has an adverse effect on minorities. Answers are almost always irrelevant to performance of the job in question, so information requests of this nature could probably be shown to be unlawful unless clearly required by considerations of business necessity.

7. Intend to file for bankruptcy?
Recently a federal judge in Wisconsin analyzed the anti-discrimination provisions that apply to the private sector and ruled that an employer could not discharge an employee who intended to file for bankruptcy. Robinette v. WESTconsin Credit Union, 2010 WL 681406 (W.D. Wis. Feb. 25, 2010).

8. Garnishment record.
This question could have a tendency to exclude members of some groups. For example, courts have found that minorities have wages garnished substantially more often than whites, and that wage garnishments do not affect a worker's ability to effectively perform assigned work.

9. Educational background

a. While an employer may wish to inquire as to the applicant's educational history, care should be taken that only clearly job-related education is considered when a hiring decision is made. Rather than asking about a degree or diploma, consideration should be given to how the applicants can actually demonstrate that they have the skills necessary to function in the job.
b. Consideration of formal education in making hiring decisions may have a disparate impact on some minority groups or individuals with a disability if the employer is unable to show the degree or education is necessary for the performance of the job.
c. Generally, it is unlawful to ask for dates of attendance at an educational institution as such an inquiry raises an inference of age discrimination.

10. Eyes, hair.
Eye color and hair color are not related to job performance and may serve to indicate an employee's race, religion or national origin.

11. Fidelity bond ever refused to you.
This question should only be asked when applicants are applying for a position requiring bonding. Even then the information should be used with care, taking into consideration facts such as the length of time since the refusal and the prospective applicant's current bondability.

12. Friends or relatives working for us

a. This question may reflect a preference for friends or relatives of present employees. Such a preference could be unlawful. This has the effect of reducing employment opportunities for women and minorities.

b. Nepotism policies which restrict the employment opportunities of relatives, other than spouses, are valid.

c. Under the current interpretations of discrimination on the basis of marital status, it is illegal to refuse to hire someone because that person's spouse works for the same employer. It would not be illegal to refuse to hire if one spouse would directly supervise the other, however.

13. Physical ability to perform

a. The Wisconsin Fair Employment Law defines a handicapped individual as someone who has, or is perceived to have, a physical or mental impairment which makes achievement unusually difficult, or limits the capacity to work.

b. Under this law, an employer is also required to accommodate a handicapped employee's special needs, unless it causes undue hardship to the employer's business.

c. If an employer makes an inquiry as to a person's health status, the inquiry should clearly be relevant to the work to be performed and employers should make known their willingness to accommodate.

14. Height, weight.
Some employers impose minimum height or weight requirements for employees that are not related to the job to be performed and which exclude above-average percentages of women and members of certain nationality groups. Height and weight may be a protected handicap under state law.

15. Honesty testing.
Are honesty tests required as part of the employment application process? Hiring decisions may not be based on the results of a polygraph test.

16. Lowest salary will accept.
Women generally have held poorer paying jobs than men, and have been paid less than men for the same work. It is unlawful to pay a woman less than a male employee who is or was performing the same or similar work.

17. Maiden name, prior name.
This is not relevant to a person's ability to perform a job. However, an employer might ask if a person has used a different name in previous employment so the employer can check references.

18. Marital status.
The Wisconsin Fair Employment Law specifically prohibits discrimination based on marital status. Marital status is defined as the state of being married, single, divorced, separated or widowed. It would violate both Wisconsin and federal law, for example, for an employer to refuse to hire a married woman or pay a married woman less than a married man for the same work.

19. Military records.
The EEOC's policy guidance on pre-employment inquiries states that employers should not, as a matter of policy, reject applicants with less than an honorable discharge from military service. The Department of Defense has found that minority service members receive a higher proportion of general and undesirable discharges than non-minority members. A requirement that a person be honorably discharged has a disparate effect on minorities and may violate Title VII. The EEOC recommends that questions regarding military service be accompanied by a statement that a dishonorable or general discharge will not be an absolute bar to employment and the applicant's qualifications will be considered as a whole.

20. Mr., Miss or Mrs.
This is simply another way of asking the applicant's sex and (for women only) marital status, both of which are usually irrelevant.

21. Pregnant, planning on having children.
An employer may not refuse to hire a woman, under both Wisconsin and federal employment laws, because she is, or might become, pregnant. To ask this question only increases the likelihood of the employer being charged with discrimination, even if a decision not to hire was made on some other basis.

22. Sex.
Wisconsin Fair Employment Law and United States Code (USC) Title VII of the Civil Rights Act of 1964 prohibit discrimination in employment on the basis of sex except in the very few instances in which sex may be a "bonafide occupational qualification reasonably necessary to the normal operation" of the employer's business. There are very few jobs which can be performed by only one sex.

23. Spouse's name.
To the extent that this question asks for marital status, the comments on marital status apply. A spouse's name may also be used as an indication of religion or national origin. This opens the door to a discrimination claim.

24. Spouse's work.
Some employers have been reluctant to hire a woman if that would make her the second breadwinner in the family, while there is seldom any objection to hiring a man if that would make him the second family breadwinner. Such a policy is unlawful under Wisconsin law and Title VII.

25. Genetic information.
Pursuant to the Genetic Information Nondiscrimination Act, an employer may not request or otherwise acquire a person’s genetic information, except, for example, where such information is needed for FMLA compliance, used for anemployer-sponsored genetic service or wellness program, or used to monitor the biological effects of a toxic substance. An employer may not discriminate against an employee due to the employee’s genetic information or family member’s genetic information. Wisconsin bars the use of genetic tests in any manner affecting

employment.

D. Giving and Getting References

1. Why should references be obtained?

a. The overall goal in conducting any pre-employment investigation is to obtain the greatest amount of information about the applicant as possible, while avoiding information that would identify the applicant as a member of a protected class, e.g., the applicant's race, marital status, age, etc. The employer must balance its desire to avoid potential discrimination claims against the goal of obtaining enough information to make a well-informed hiring decision.
b. To assist in prediction of applicant's future conduct/performance
c. To verify information contained in an employment application and/or interview

d. To provide a “safe place” to work (1) §101.11(1), Wis. Stats., requires employers to "... do every other thing reasonably necessary to protect the life, health, safety, and welfare of such employees ..."

(2) The Occupational Safety and Health Administration (OSHA) establishes an employer duty to "furnish to each of its employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or severe physical harm to its employees." 29 U.S.C. §654(a)(1).

e. To protect the employer from liability for negligently hiring (1) Negligent hiring lawsuits generally focus on the question of whether the employer conducted a sufficient inquiry regarding the background of the employee prior to offering employment. Would a more thorough inquiry have made the risk of injury “foreseeable”?

(2) Negligent hiring – general elements
(a) The existence of an employment relationship
(b) The employee's incompetence or unfitness
(c) The employer's actual or constructive knowledge of such incompetence or unfitness
(d) The employee's act or omission causing the plaintiff's injury
(e) The employer's negligence in hiring or retaining the employee as the proximate cause of plaintiff's injuries

(3) An employer’s duty to conduct a reasonable prescreening process, including a duty to perform a background check, will depend on the nature of the job being filled (including the work environment) and the foreseeable risks associated with the performance of the job (e.g., extent of unsupervised public contact). An employer may be negligent for:

(a) Failing to examine information provided on an employment application;
(b) Failing to check an applicant’s references, especially former employers;
(c) Failing to properly train interviewers and/or conduct proper interviews;
(d) Failing to follow established hiring policies, including reference policies.

2. Why should references be given?

a. An employer that gives only minimal information (name, rank and serial number) is likely to meet similar roadblocks when it seeks references.
b. Possibility of being sued for failing to give an accurate job reference (negligent referral).
c. Wisconsin exempts employment references from civil liability. §895.487, Wis. Stats., states:

(1)(c) "Reference" means a statement about an employee's job performance or qualifications for employment and includes a statement about an employee's job performance or qualifications for employment provided pursuant to the settlement of a dispute between the employer and employee or provided pursuant to an agreement between the employer and employee relating to the termination of the employee's employment.

(2) An employer who, on the request of an employee or a prospective employer of the employee, provides a reference to that prospective employer is presumed to be acting in good faith and, unless lack of good faith is shown by clear and convincing evidence, is immune from all civil liability that may result from providing that reference. The presumption of good faith under this subsection may be rebutted only upon a showing by clear and convincing evidence that the employer knowingly provided false information in the reference, that the employer made the reference maliciously or that the employer made the reference in violation of s. 111.322 [may not discriminate against any individual on the basis of age, race, creed, color, handicap, marital status, sex, national origin, ancestry, arrest record, conviction record....]

d. Duty to warn about a current or former employee who presents a foreseeable danger and duty to disclose true reason for terminating an employee to a subsequent employer (who likely is facing a negligent hiring lawsuit).

e. Blacklisting statute. Wis. Stat. §134.02(2) provides: 134.02 Blacklisting and coercion of employees. (1) Any 2 or more persons … , who are employers of labor, who shall combine or agree to combine for the purpose of preventing any person seeking employment from obtaining the same, … or who shall, after having discharged any employee, prevent or attempt to prevent such employee from obtaining employment with any other person, partnership, company or corporation by the means aforesaid, or shall authorize, permit or allow any of his or their agents to blacklist any discharged employee or any employee who has voluntarily left the service of his employer, or … shall be punished by fine of not more than $500 or less than $100, which fine shall be paid into the state treasury for the benefit of the school fund. (2) Nothing in this section shall prohibit any employer from giving any other such employer, to whom a discharged employee has applied for employment, … a truthful statement of the reasons for such discharge, when requested so to do by such employee, or the person to whom he has applied for employment; but it shall be a violation of this section to give such information with the intent to blacklist, hinder or prevent such employee from obtaining employment; …" (Emphasis added)

f. Privilege. The Wisconsin Supreme Court recognized a "common interest" privilege in Zinda v. Louisiana Pacific Corp., 149 Wis.2d 913 (1989) by holding that letters of reference to prospective employers are entitled to be treated as privileged. The Court stated, "A prospective employer has an interest in receiving honest information concerning the character and qualifications of a former employee, and the employer has an interest in giving such information in good faith in order to receive equally honest evaluations when it seeks to hire new employees." See also Wis. Stat. § 103.13(6)(b). (An employee has no right to inspect letters of reference contained in the employee’s personnel file.)

g. Conditional Privilege

(1) A conditional privilege is based upon public policy recognizing that it is necessary that true information be given where it is reasonably necessary to protect an individual's interest, the interests of third parties, or the interests of a group or the public in general.

(2) Conditional privilege applies to those situations where reasonable care is taken so that no more harm is done than is necessary to achieve the desired interest. The privilege cannot be abused. This implies that it must be exercised in good faith. Also, the privilege will be found to have been abused if the person making the statement did not believe the truth of the defamatory statement or, if they did believe the statement, they had no reasonable basis for believing that the statement was true. Gerol v. Arena, 127 Wis.2d 1, 8, 377 N.W.2d 618 (Ct. App. 1985).

h. Loss of the conditional privilege. A conditional privilege can be lost if it is abused. The privilege may be lost:
(1) If the employer acts knowingly or in reckless disregard of the falsity of the defamatory statement;

(2) If the defamatory statement is published for reasons other than the reason for which a conditional privilege is given;

(3) If the publication is made to a person not reasonably believed to be necessary for the accomplishment of the purpose of the particular privilege;

(4) If the publication includes defamatory material not reasonably believed to be necessary to accomplish the purpose for the privilege; or

(5) If the publication includes defamatory material that is not privileged. State v. Gilles, 173 Wis.2d 101, 112 (Ct. App. 1992).
i. How to avoid loss of the conditional privilege. The reference should contain only the information that has been requested, it should be truthful, relevant to the prospective employer's needs, and reach only the necessary party and not beyond.
j. Defamation aspects of reference

(1) When is a statement defamatory? A communication is defamatory if it tends to harm the reputation of a person so as to lower him or her in the estimation of the community or deter a third person from associating or dealing with them.

(2) Defenses

(a) TRUTH. If a statement is proven to be true, it is an absolute defense to a claim of defamation. This occurs because defamation requires an intentional false communication. A truthful statement, without regard to the injury it may cause, does not create a cause of action. CAVEAT: The determination as to whether or not a statement is true is one to be decided by a jury. Therefore, an employer must carefully weigh the risks and rewards of disclosing a negative statement about an individual, even if true, due to the potential for a cause of action being filed.

(b) CONSENT. If the past or present employee consents to the publication of a defamatory statement about the employee, that action can be a complete defense to a cause of action for defamation. i) The issue of consent can arise when an employee is terminated and demands that the employer disclose the reasons for the termination to third parties. This means that the employee has consented to the publication, even if defamatory. Basically, the law is framed in terms of not allowing a person to knowingly create damages which could have been prevented had the employee not demanded disclosure of the alleged defamatory facts.

ii) Consent as a defense can also be problematic in that it raises a jury question as to whether or not consent was actually given or if consent was procured by fraud or other illegal means.

iii) If an employee consents to the publication of a defamatory statement, the employer can generally use that as a defense. The defense is limited to the scope of the consent. However, even if a consent is given, the employer must act "reasonably and prudently" (the employer should not lie), or an employee may still be able to maintain an action notwithstanding the consent or release.

(c) How to document consent:
i) Notice on application
ii) Authorization at time of application submittal
iii) Authorization/release at time of separation

3. Practical tips for making reference inquiries
a. Document the fact that “name, rank and serial number” is all that you received from a former employer when seeking a reference.
b. At a minimum, confirm the general accuracy of an applicant’s past employment and education.
c. Ask former employers whether they know of any reason why the employee might be unfit for a job or pose any danger to other persons or property.
d. Ask open-ended questions that permit an employer providing a reference to give narrative answers.
e. Do not ask for personal references.
f. Always check on professional licenses, degrees, or academic credentials.
g. As a prospective employer, do not confine employment inquiries to written exchanges (thorough reference checking involves using the telephone, because it permits you to listen to the way in which responses are given or to document that other party refused to answer specific questions).
h. Do not bind yourself to checking only the employee’s proposed references (e.g., if the prior employer is not on the employee’s list of references.)
i. Do not delegate the job of interviewing or reference checking to untrained personnel.
j. Always ask for references for an employee you are considering hiring; be aware that a claim for negligent hiring or retention is now possible in Wisconsin.

E. Electronic Due Diligence – Extending the Reference Check

1. Prevalence of searching social media and “E-due diligence”

a. E-due diligence is a term used to describe employer searches on the Internet to find information about a job applicant. Such searches normally involve social networking sites (Facebook, MySpace) and Google.

b. According a Microsoft study, 70% of employers in the U.S. reject potential employees because of information discovered about potential employees online.

c. The Microsoft study found 89% of recruiters and HR professionals believe it is appropriate to consider professional online data, and 85% think it is proper to consider personal online data in assessing an applicant.

2. Tool and benefit for employers

a. Social media can be used as a tool for eliminating applicants who display poor grammar, work ethic, judgment, and communication skills. Employers may also discover lies about employee qualifications and criticisms of co-workers or employers. Social media may also assist employers in “weeding out” applicants who engage in illegal conduct.

3. What do potential employers assess online?

a. According to the Microsoft study, the following results demonstrate the type of online information that influenced decisions to reject an applicant. Concerns about the candidate’s lifestyle 58% Inappropriate comments and text written by the candidate 56% Unsuitable photos, videos, and information 55% Inappropriate comments or text written by friends and relatives 43% Comments criticizing previous employers, co-workers, or clients 40% Membership in certain groups and networks 35% Discovered that information the candidate shared was false 30% Poor communication skills displayed online 27% Concern about the candidate’s financial background 16%

4. Traps of E-due diligence

a. Discrimination claims under federal and state law

(1) Title VII
(a) Race
(b) Color
(c) Religion
(d) Sex
(e) National origin

(2) Age Discrimination in Employment Act (ADEA)

(3) Americans with Disabilities Act (including the Amendments Act of 2008)

(4) Federal Bankruptcy Code Protection

(5) Wisconsin Fair Employment Act
(a) Sexual orientation
(b) Use or nonuse of lawful products
(c) Arrest or conviction record
(d) Marital status

(6) National Labor Relations Act
(a) Union membership
(b) Protected concerted activity

b. Invasion of privacy (potential application to both applicants and current employees)

(1) Wisconsin recognizes a statutory right of privacy for individuals. Wis. Stat § 995.50. An “invasion of privacy” includes an “intrusion upon the privacy of another of a nature highly offensive to a reasonable person in a place that a reasonable person would consider private. . .” Wis. Stat. § 995.50(2)(a).

(2) Courts, however, have repeatedly held that there is no reasonable expectation of privacy with respect to e-mail communications. By extension, the same can apply to social networking.

(3) Public vs. password-protected social networking sites

(a) Generally, if the applicant’s or employee’s blog, website, or social networking profile is open to the public, an employer is free to review it without worrying about an invasion of privacy claim.
(b) However, if the site is password-protected, employers have the following options:

i) Obtain a copy of the materials from someone with access to the protected site (caution strongly advised).
ii) If the computer being used is the employer’s property, the employer may be able to review the communications on the employer’s server.

iii) Do not ask the applicant or employee for his or her username and password. Also, accessing social media sites through false pretenses would likely invade a right to privacy.

5. Practical steps to limit liability if an employer conducts E-due diligence - Develop a policy and procedure for E-due diligence.

a. Uniformity

(1) Selectively choosing to conduct online screening of applicants could trigger a discrimination claim if only females get screened, for example. The same type of online search should occur for each applicant.
(2) A more efficient approach might be to conduct online screening for finalists or conditional hires, not all applicants
(3) Another approach might be to conduct online screening only after the applicant signs a form authorizing such screening

b. Who conducts the online search?

(1) Confidential or managerial employees that can be trusted, but not the person who will make or add input into the hiring decision should conduct the search.
(2) After developing an E-due diligence policy, only have persons trained under the policy conduct the online screening.
(3) The employee conducting the online search should screen the information so all of the information regarding protected statuses (e.g., disabled, sexual orientation) or activities (e.g., off-duty use of legal products) does not reach the decision-maker(s). For example, if a Facebook page displays a disparaging remark about a former employer, but the individual also lists his or her sexual orientation on the Facebook page, the sexual orientation status should be excised before the decision-maker sees the document.

(4) The employee conducting the search should comply with all applicable laws and regulations (e.g., no hacking into profiles, invading privacy, violating terms of service).

c. What will the searcher examine?

(1) Pictures? Status updates?
(2) Develop specific lists of concerns/red flags for employment
(a) Illegal drug use
(b) Abusive behavior
(c) Disparaging remarks about co-workers, employers, or towards other protected classes of employees
(d) Job skills and employment history listed in an applicant’s online profile
(e) Irresponsible behavior (not discriminating based on legal, off-duty conduct, of course)

d. Where will the searcher look for information? List the specific sites

(1) Google
(2) Social media/networking sites
(3) Blogs
(4) CCAP (subject to written verification from DOJ)

e. How will such information be recorded, reported, and used?

(1) Document the search and results of the search. The online information should be downloaded and/or printed to maintain the information as it originally appeared to the searcher, and then a copy should be made of the information as presented to the decisionmaker(s).
(2) Standard report forms provided to decisionmaker(s)
(3) Reported only to decisionmaker(s) to protect applicant’s privacy, to the extent it exists online
(4) Use information consistently— if disparaging remarks about one employer alone disqualify an applicant, the same standard should apply to all applicants. The danger occurs when a disparaging remark by a male gets a free pass, but the same disparaging comment from a female is the reason for elimination of consideration from a position.
(5) Develop procedures verifying the truth or accuracy of the information discovered
(6) Obviously, persons conducting or using information from the search must not broadcast applicant information on their own social networking sites or through other avenues of communication

f. Will the applicant have a chance to respond to online information?

(1) Is this something an employer should do?
(2) If so, provide specifics.

g. Disclosure to applicants

F. Background Investigations. If a prospective employer can’t ask, or the prior employer won’t answer, how do we get the information needed to avoid a negligent hiring suit?

1. The nature and extent of any pre-employment screening or background check will depend on the nature of the position. Positions that involve unsupervised contact with the employer's customers, public, or employees may warrant a higher degree of background investigation.

2. A number of resources are available to assist employers in verifying the accuracy of information provided by applicants for employment.

a. Military records. An employer may verify discharge status by requesting a "DD214" from the National Records Center. The applicant must authorize the release of this information. The request should be sent to: National Personnel Records Center, Military Personnel Records, 9700 Page Avenue, St. Louis, MO 63132-5100. The request must be on a Standard Form 180 or otherwise in writing. Requests must be signed and dated. http://www.archives.gov/st-louis/military-personnel/standard-form-180.html provides further guidance on requests.

b. Educational records. Beware that inquiries into the applicable educational background can create discriminatory inferences. However, for purposes of conducting a background investigation, it is important to verify degrees obtained and attendance, especially if a particular job requires a certain academic degree. It is also as important to ascertain and have the applicant explain any "gaps" in their educational history as it is their job history.

c. Driving records. An employer should obtain information about an applicant's driving record if the person will be operating a company vehicle as part of his/her job responsibilities. The Wisconsin Department of Transportation will provide information regarding individual driving records. However, a Vehicle/Driver Record Information Request Form MV2896 must be completed before information about a Wisconsin vehicle/driver record will be released. The fee is $5.00 per request. http://www.dot.wisconsin.gov/drivers/records.htm provides further information and a link for downloading the MV2896 form.

d. Professional licenses. If a professional license is required for a position, the prospective employer should confirm that the license is valid prior to hiring the individual. The employer should verify with the appropriate licensing authority that the license is in good standing, that it has not been revoked, and that other compliance requirements have been met.

3. Where appropriate, employers may want to consider using a third party to conduct background checks on prospective employees.

G. Fair Credit Reporting Act

1. If an employer uses a consumer reporting agency to gather information about an applicant’s personal and credit characteristics, character, general reputation or lifestyle, the employer must comply with the Fair Credit Reporting Act (FCRA).

2. The FCRA requires written notification and authorization before requesting a consumer report. The FCRA also contains adverse action procedures that must be followed if information in a consumer report is a factor in denying a job application.

H. Criminal Records Checks

1. Public records request. Under Wisconsin law, arrest and conviction records are subject to the public records law. Employers have a right to access to such information.

a. An arrest and conviction inquiry may be made by submitting a written request to the Wisconsin Department of Justice, Crime Information Bureau, Attn: Record Check Unit, P.O. Box 2688, Madison, WI 53701-2688. The agency requires the name, sex, race, and date of birth of the individual subject to the request. A $12.00 fee (plus additional $3.00 for caregiver or daycare requests) is required for mail or fax requests. A request may also be made online at: http://wi-recordcheck.org/ for a fee of $7.00 (plus $3 for caregiver/ daycare requests) per request. A user may also set up an account if multiple checks will be made. Forms for requesting a criminal background check and instructions for reading a criminal record are also available on this website. A Crime Information Bureau inquiry will only reveal Wisconsin arrests and convictions and outstanding warrants from other states – not convictions outside of Wisconsin.

b. A separate inquiry must also be made to the Wisconsin Division of Probation and Parole. Such an inquiry may be made by telephone to the Milwaukee Regional Office, at (414) 227-4546. DPP will inform the employer as to whether the applicant/employee is on probation/parole and the nature of the conviction(s). The probation/parole officer is under a duty to notify an employer where he or she deems that the circumstances of an individual's conviction "substantially relates" to the circumstances of the offered employment.

c. Wisconsin’s Circuit Court Access website: ccap.courts.state.wi.us.

2. Wisconsin law. The Wisconsin Fair Employment Act protects applicants and employees from discrimination based on the person’s arrest record or conviction.

3. Definition of “arrest record”
a. “Arrest record” is defined as information that a person has been:

(1) Questioned;
(2) Apprehended;
(3) Taken into custody or detention;
(4) Held for investigation;
(5) Arrested;
(6) Charged with; or
(7) Indicted or tried for any felony, misdemeanor or other offense by any law enforcement or military authority. §111.335, Wis. Stats.

b. An employer may not have a blanket policy or practice of excluding applicants due to arrest records. Questions regarding arrests are “suspect” because they may lead to adverse impact within protected classes. However, applicants may be asked to supply information regarding “pending” charges.

c. Wisconsin law prohibits inquiries about past arrest records but permits consideration of a current “pending” arrest/charge. If an applicant is under arrest for an offense that is substantially related to the job, an employer may suspend judgment until the case is resolved, advise the applicant to reapply when the charge is resolved or refuse to employ the applicant. A current employee who is arrested may be suspended if the charge is substantially related to the job.

4. Definition of “conviction record”

a. “Conviction record” is defined as information indicating that a person has been convicted of any felony, misdemeanor or other offense, has been judged delinquent, has been less than honorably discharged, or has been placed on probation, fined, imprisoned, or paroled by any law enforcement or military authority.
b. An employer may not ask about or consider information about arrests or detentions that did not result in convictions. Only convictions and pending cases can be considered.

c. An employer may not consider convictions that have been sealed or expunged or where the applicant participated in a special pretrial alternative program.

d. Courts have found that a policy automatically denying employment based on conviction record can result in discrimination against certain protected groups.

e. An employer may not refuse to employ, or discharge a person with a conviction record unless the circumstances of the conviction substantially relate to the circumstances of the job.

5. The “substantially related” requirement

a. In Wisconsin, current employees and applicants may only be terminated or refused employment where the circumstances of the arrest and/or conviction “substantially relate” to the circumstances of the job in question.

b. The inquiry which must be made is whether the essential functions of the job in question present the employee/applicant with the opportunity to engage in criminal behavior similar to the crime that was the subject of the previous conviction or pending arrest. Goerl v. Appleton Papers, (LIRC, 10/5/92).

c. The employer should consider personality traits revealed by the previous  conviction(s)/pending arrest, e.g., propensity toward violent behavior, dishonesty, reaction to responsibilities, inability to function in an unsupervised environment, etc.

d. If an employer believes a pending charge or conviction is substantially related but the employee or applicant believes it is not, the employee or applicant may file a complaint and the Equal Rights Division will make a determination as to whether there is a substantial relationship, with either party having the right to appeal the decision.

6. Post-hire issues

a. Co-worker preferences. Can an employer discharge a person with a pending charge or conviction because other workers or customers don’t want the person with a conviction record there? Answer: No. The employer must show that the conviction record is substantially related to the particular job. Co-worker or customer preference is not a consideration.

b. Misrepresentation in application process. Can an employer terminate an employee who falsifies his or her employment application with respect to a prior conviction? Answer:

Yes. An employer is entitled to know whether an applicant has a conviction record, so that the employer can determine if the conviction is substantially related to the employee’s job duties. An employer may lawfully refuse to hire an applicant, or terminate a current employee, who falsifies an employment application with respect to a conviction record. Haynes v. National School Bus Service, (LIRC, 1/31/92).

7. “Substantially related” analysis

a. The “substantial relationship” test does not require that the context of the offense and the job duties be identical. Benna v. Wausau Insurance, (LIRC, 7/10/89).

b. In determining whether the “substantially related” standard is met, society’s interest in rehabilitating a criminal must be balanced against its interest in protecting its citizens from an unreasonable risk that the convicted person will commit a similar offense if placed in an employment situation offering temptations or opportunities for criminal activity similar to that for which he was convicted. Halverson v. LIRC, (Ct. App, Dist. III, unpublished decision, 8/9/88).

8. Circumstances NOT “substantially related”

9. Circumstances found to be “substantially related”

10. Remedies/miscellaneous

a. An employer found to have violated the WFEA by discharging the complainant because of arrest record ordered to reinstate the employee to “suspended” status pending outcome of criminal proceedings. Maline v. Wisconsin Bell, (LIRC, 10/30/89).

b. The fact that an employer may choose to retain one individual with a conviction record, the circumstances of which substantially relate to a particular job, but to discharge another does not violate the Act’s prohibition against arrest or conviction record discrimination. Milliken v. Wal-Mart Stores, (LIRC, 8/27/92).

11. EEOC Enforcement Guidance on Arrest and Conviction Records. Since 1985, the Equal Employment Opportunity Commission has maintained its position that an employer’s policy or practice of excluding individuals from employment on the basis of their conviction record has an adverse impact on minority groups. (A similar disparate treatment or disparate impact claim has been recognized under the WFEA). On April 25, 2012, the EEOC published a 35-page revised enforcement guidance on the consideration of arrest and conviction records in employment actions under Title VII.

a. The guidance discusses the differences between arrest and conviction records:

(1) The fact of an arrest does not establish that criminal conduct has occurred, and an exclusion based on an arrest, in itself, is not job related and consistent with business necessity. However, an employer may make an employment decision based on the conduct underlying an arrest if the conduct makes the individual unfit for the position in question.

(2) In contrast, a conviction record will usually serve as sufficient evidence that a person engaged in particular conduct. In certain circumstances, however, there may be reasons for an employer not to rely on the conviction record alone when making an employment decision.

b. The guidance also discuss disparate treatment and disparate impact analysis under Title VII:

(1) A violation may occur when an employer treats criminal history information differently for different applicants or employees, based on their race or national origin (disparate treatment liability).
(2) An employer’s neutral policy (e.g., excluding applicants from employment based on certain criminal conduct) may disproportionately impact some individuals protected under Title VII and may violate the law if not job related and consistent with business necessity (disparate impact liability).

c. Where an employer is faced with such a charge, the employer must show that its hiring decision was job related and based on business necessity, by considering (1) the nature and gravity of the offense or offenses; (2) the time that has passed since the conviction and/or completion of the sentence; and (3) the nature of the job held or sought.

d. Note: In December of 2011, the Wisconsin legislature passed a long awaited bill which allows educational agencies to refuse to employ, or to terminate from employment, an individual who has been convicted of a felony and who has not been pardoned for that felony, without the risk of violating state law. When making hiring decisions, employers should carefully review whether their situation fits within any exceptions to Wisconsin’s discrimination laws, as well as evaluate whether their decision will pass muster under federal law.

I. Pre-Employment Testing

1. Skill/aptitude tests.

Includes any test used to determine whether an applicant/employee has the current ability to perform a particular job. The test must pass a job-related validation study and not disproportionately screen out minorities.

a. Validation Studies – See, generally, 29 C.F.R. 1607
(1) Content validity study – A test will have content validity if there is a direct relationship between the test contents and the job contents. Content validity may be demonstrated by data showing that the skills tested are representative of skills important to the job for which the applicants are being evaluated.

Content validity is most appropriate when test items directly measure abilities that are prerequisites to entry-level job performance. Content validity studies must include a thorough job analysis identifying the most important skills, knowledge and abilities necessary to successful job performance. It is not appropriate for an employer to test for those skills that can readily be learned on the job.

(2) Construct validity study – Evaluates procedures that test for abstract qualities which may be important characteristics for proper job performance but are challenging to test, for example, creativity.

Construct validity is a more complex strategy than either criterion-related or content validity. Construct validation is a relatively new and developing procedure in the employment field, and there is at present a lack of substantial literature extending the concept to employment practices. The user should be aware that the effort to obtain sufficient empirical support for construct validity is both an extensive and arduous effort involving a series of research studies, which include criterion related validity studies and which may include content validity studies. 29 C.F.R. 1607.14 (D)(1), et seq.

(3) Criterion-related study – Evaluates whether performance on the test adequately correlates with performance of the job. An employment test has criterion-related validity when the data demonstrates a significant positive correlation between degree of success on the test and degree of success in some measure of job performance.

(4) All types of validation studies must conform to the requirements of 29 C.F.R. 1607.14. Anecdotal evidence about selection procedures or outcomes will not suffice. 29 C.F.R. 1607.9(A).

b. Disparate impact
(1) Occurs where members of a race, sex, or ethnic group have been denied the same employment, promotion, membership, or other employment opportunities as have been available to other employees or applicants. 29 C.F.R. 1607.11
(2) Adverse impact is assumed if the pass rate of a protected group is less than 80% (4/5) of the most favored group on a given pre-employment test. 29 C.F.R. 1607.4(D)
(3) Once a prima facie case of discrimination through disparate impact has been made, the burden shifts to the employer, who may continue to use the test if can prove that the test utilized has a “manifest relationship to the employment in question.” Griggs v. Duke Power Co., 401 U.S. 424 (1971). See also, Williams v. Ford Motor Company, 187 F.3d 533 (C.A.6 1999) (allowing use of a validated test that had a disparate impact on African-Americans).

c. The key issue is whether the test actually measures the employee’s ability to perform the job.

d. Cut-off scores – “Where cut-off scores are used, they should normally be set so as to be reasonable and consistent with normal expectations of acceptable proficiency within the work force.” EEOC guidelines, used by 7th Circuit in Bew v. City of Chicago, 252 F.3d 891(7th cir. 2001) (Cutoff of 66% for written certification exam of probationary officers not discriminatory).

(1) Tests “must be scored so that it properly discriminates against whose who can and cannot perform the job well.”
(2) Cut-off scores will pass muster, if for example, they are based on ‘a professional estimate of the requisite ability levels, or, at the very least by analyzing the test results to locate a logical “break point” in the distribution.
(3) “However, we do not hold cut-off scores to standards so strict that they must select all good job performers and reject all bad.”

e. Skills tests can be used with an obviously disabled candidate who is seeking a position to demonstrate how he or she would perform the essential functions of the job.

f. EEOC Fact Sheet on Employment Tests and Selection Procedures. On December 20, 2007, the EEOC issued a fact sheet to provide employers with technical assistance on some common issues related to federal anti-discrimination laws and the use of tests and other selection procedures. The fact sheet contains “Employee Best Practices for Tests and Selection.” http://www.eeoc.gov/policy/docs/factemployment_procedures.html

2. Polygraph and honesty testing

a. Legal challenges include:

(1) Violation of ADA (medical examination);
(2) Invasion of individual’s expectation of privacy;
(3) Discriminatory if validation studies do not support that test is accurate predictor of good job performance

b. Severely restricted by both federal (EPPA) and state (Wis. Stat. § 111.37) law.
c. Employee Polygraph Protection Act of 1988 (EPPA)(29 USC §2001 et seq.; 29 C.F.R. Part 801)

(1) Who is covered
(2) Basic provisions/requirements
(3) Employee rights
(4) Penalties/sanctions
(5) Relation to state, local, and other federal laws
(6) The law does not preempt any provision of any state or local law or any collective bargaining agreement that is more restrictive with respect to lie detector tests.

d. Wis. Stat. § 111.37(2) – Prohibitions on lie detector use. Except as provided, no employer may do any of the following:
(1) Directly or indirectly require, request, suggest or cause an employee or prospective employee to take or submit to a lie detector test.
(2) Use, accept, refer to or inquire about the results of a lie detector test of an employee or prospective employee.
(3) Discharge, discipline, discriminate against or deny employment or promotion to, or threaten to take any such action against, any of the following: (a) An employee or prospective employee who refuses, declines or fails to take or submit to a lie detector test. (b) An employee or prospective employee on the basis of the results of a lie detector test.
(4) Discharge, discipline, discriminate against or deny employment or promotion to, or threaten to take any such action against, an employee or prospective employee for any of the following reasons:  (a) The employee or prospective employee has filed a complaint or instituted or caused to be instituted a proceeding under this section.  (b) The employee or prospective employee has testified or is about to testify in a proceeding under this section. (c) The employee or prospective employee, on behalf of that employee, prospective employee or another person, has exercised any right under this section.

e. In Wisconsin, an employer may request that an employee take a polygraph test in connection with an investigation involving economic loss or injury to a business if the employee is a reasonable suspect.

f. Polygraph tests can be used by law enforcement agencies and certain businesses engaged in providing security services, alarm systems, and who manufacture, distribute or sell controlled substances.

g. Any legally permitted lie detector or polygraph test is subject to strict safeguards, including an examinee’s right to proper notice, the right to discontinue a test at any time and the right to advance written notice of the questions tobe asked.

h. Practice point: Release of information from an honesty test may trigger defamation issues.

3. Psychological examinations and personality testing

a. Purpose: To measure an individual’s emotional adjustment or motivation or interests so that employers can determine whether applicant/employee is adapted to a particular job or can handle job-related stress.

b. Legal challenges include:

(1) Not job-related/disproportionate impact on minority candidates vs. white candidates
(2) Invasion of individual’s expectation of privacy
(3) Violation of ADA (medical examination)

4. Drug and alcohol testing

a. Testing should be conducted pursuant to a written drug and alcohol use policy/program.

(1) Every organization’s policy should be unique and tailored to meet its specific needs. At a minimum, a policy should contain:

(a) Why the policy is being implemented. The rationale can be as simple as a company being committed to protecting the safety, health and well-being of its employees and patrons and recognizing that abuse of alcohol and other drugs compromises this dedication.

(b) A clear description of prohibited behaviors. At a minimum, this should include the following statement: “The use, possession, transfer or sale of illegal drugs by employees is prohibited.”

(c) An explanation of the consequences for violating the policy. They may include discipline up to and including termination and/or referral for assistance. Consequences should be consistent with existing personnel policies and procedures and any applicable state laws.

b. Drug/alcohol testing is more or less likely to be lawful, depending upon the criterion, as follows:

(1) Testing of applicants upon conditional offer
(2) Testing based upon probable cause
(3) Testing based upon reasonable suspicion
(4) Testing post-incident, with reasonable suspicion
(5) Testing post-incident, irrespective of any reasonable suspicion
(6) Testing at a routine physical or upon a return to work
(7) Random testing

c. An employer may benefit by having both an employee drug testing program and an “Employee Assistance Program”  (EAP). For basic information on EAP’s, see: http://www.dol.gov/elaws/asp/drugfree/drugs/assistance/screen89.asp

d. Wisconsin does not have a statute regulating employer drug and alcohol testing of applicants/employees. Thus, Wisconsin employers have flexibility in adopting and implementing drug testing policies. However, if an employer does not currently have a drug testing policy and has a unionized work force, the employer may be obligated to bargain over the adoption of such a policy. The Union will likely argue that implementing such a policy constitutes a change in "conditions" of employment.
e. While tests for illegal drugs are often part of a medical examination, the test alone is not a “medical examination” (i.e., an employer can test for illegal drugs to the extent such a test would otherwise be lawful). Tests to determine whether or how much alcohol an individual has consumed are considered medical examinations.

2. Post-offer medical examination – The Americans with Disabilities Acts prevents an employer from requiring job applicants to take medical examinations or respond to medical inquiries prior to making a conditional job offer.

a. Under the ADA a job offer can be contingent upon successfully passing a medical examination.
(1) A job offer may be conditioned on the results of a medical examination, but only if the examination is required for all entering employees in the same job category.

(2) The examination may be conducted only after an offer of employment is made. One case found that when an offer was conditional on passing a physical fitness exam, a reference check, and a medical examination, the medical exam was not really “post-offer.” Buchanan v. City of San Antonio, 85 F.3d 196 (5th Cir. 1996).

(3) Medical examinations of employees must be job related and consistent with business necessity.

(4) Basically, the post-offer medical examination can only disqualify the individual if the medical condition poses a "direct threat" to health or safety. The disqualification must be job-related and consistent with the business necessity of the employer.

b. Confidentiality. The ADA infers that the medical information must be confidential with few exceptions such as supervisors and managers on a need-to-know basis concerning restrictions of an employee; first aid and safety personnel on a need-to-know basis; disclosure is allowed to government officials investigating compliance with the ADA and other anti-discrimination laws; information may be provided to state worker’s compensation administrators for statistical purposes; information may be provided to insurance companies when the insurers require medical examinations prior to providing health or life insurance benefits.

(1) The ADA requires that all medical information gathered must be kept separate from general personnel files and must be kept as a confidential medical record. The Technical Assistance Manual indicates that employers should keep medical information in locked cabinets and designate only a specific person or persons to have access to medical files.

(2) Disclosure of medical information could result in claims of public disclosure of private facts and subject the employer to a cause of action for invasion of privacy pursuant to §995.50, Wis. Stats.

c. Under Wisconsin law, it is unlawful to require an employee to pay for the cost of medical examinations that are required by the employer as a condition of employment. Wis. Stat. § 103.37.

5. Genetic testing

a. Wisconsin bars the use of genetic tests in any manner affecting employment. Wis. Stat. §111.372.

b. In 2008, the Genetic Information Nondiscrimination Act of 2008 (“GINA”) was signed into law. Final Regulations were published on November 9, 2010. It generally prohibits group health plans and health insurance insurers from requesting or requiring an individual to take a genetic test. The law also expands Title VII to:
(1) Prohibit discrimination based on an individual’s genetic information;
(2) Prohibit retaliation against an employee who opposes genetic discrimination; and
(3) Prohibit an employer from collecting genetic information about an employee, except for specific purposes which include where:
(a) Such information is requested or required to comply with certification requirements of FMLA;
(b) The information involved is to be used for genetic monitoring of the biological effects of toxic substances in the workplace;
(c) An employer provides health or genetic services through a wellness program offeredas an employee benefit, provided certain  conditions are met.

c. GINA defines “genetic information” to include information about an individual’s genetic tests, genetic tests of a family member, and family medical history.

(1) An employer is not liable for “inadvertent” disclosures as long as it does not utilize the information gained for an unlawful purpose.

(2) If an employer conducts post-offer pre-employment medical examinations, the employer should instruct the physician conducting the examination not to seek or disclose to the employer any genetic information.

(3) The regulations provide that if an employer uses language such as the following, any receipt of genetic information in response to the request for medical information will be deemed inadvertent: “The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. `Genetic information' as defined by GINA, includes an individual's family medical history, the results of an individual's or family member's genetic tests, the fact that an individual or an individual's family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual's family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.” 29 C.F.R. § 1635.8(b)(1)(i)(B).