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Published: November 1, 2007
Author: Gesina (Ena) Seiler
Joachim Vetter was employed as a certified nursing assistant at the Brown County Mental Health Center. Brown County, which was subject to a collective bargaining agreement, terminated Vetter for committing a crime that it determined was substantially related to the care of mental health center clients. The Wisconsin Employment Relations Commission ("WERC") disagreed with Brown County's decision and reinstated Vetter. The trial court, which reviews commission decisions, upheld WERC's decision. Brown County then initiated this appeal. The court of appeals concluded that Brown County's discretion was limited by its collective bargaining agreement which allowed Vetter to be terminated only for "just cause."
Relevant Facts
In June 2004, Vetter was convicted of disorderly conduct - domestic abuse. Vetter was accused of pulling out a clump of his wife's hair and locking her outside for several minutes without all of her clothing. At the time, Vetter worked as a certified nursing assistant for the Brown County Mental Health Center. When Brown County learned of Vetter's conviction, it conducted an investigation and concluded that the conviction was "substantially related" to Vetter's work. As a result, the County terminated Vetter's employment.
Vetter's union filed a grievance challenging the termination. The County refused to arbitrate and the Union filed a complaint with WERC. WERC decided that Vetter's criminal act did not exhibit a sufficient nexus with his ability to perform his duties as a certified nursing assistant to warrant his discharge. Vetter was convicted of only one incident which did not involve clients. Additionally, the conviction garnered no publicity which would tarnish the County's reputation and Vetter had worked for several years as a certified nursing assistant with no problems.
WERC ultimately determined that Vetter's one conviction was not characteristic of his temperament and was not an indicator of how he may treat the mental health center clients. WERC ultimately concluded that Vetter had been terminated without just cause in violation of the collective bargaining agreement. It ordered Brown County to reinstate Vetter and make him whole. Brown County appealed to the trial court which upheld WERC's decision. This appeal followed.
Decision of the Court of Appeals
Brown County claimed that it had discretion, despite the collective bargaining just cause provision, to terminate Vetter based on Wis. Stat. § 50.065(5m) which allows an entity to refuse to employ or contract with a caregiver who has been convicted of an offense that is not a serious crime but is substantially related to the care of a client.
The County argued that this statute supersedes the collective bargaining agreement stating that "No employee shall be discharged except for 'just cause.'" Alternatively, the Union and WERC claimed that the just cause provision is consistent with Wis. Stat. § 50.065(5m) and therefore controls.
The law provides that collective bargaining agreements and employment must work in harmony whenever possible, which means that the courts will enforce the rights the parties have bargained for unless their agreement is in direct conflict with a state statute. The court of appeals ruled that Wisconsin Stat. § 50.065(5m) and the collective bargaining agreement at issue was not in conflict and could be harmonized. Wis. Stat. § 50.065(5m) is discretionary, not mandatory, meaning that Brown County "may refuse" to employ Vetter but is not required to take any specific action. The collective bargaining agreement placed additional limitations on the County's discretion - specifically, a requirement that the crime must amount to just cause for termination.
This same statute does not provide a hospital or similar entity with discretion to employ a caregiver convicted of a "serious crime." However, Vetter was not convicted of a serious crime as defined by statute so Brown County was not required to terminate Vetter. The court noted that since Brown County had the authority to retain Vetter despite his conviction, it could certainly do so in a manner consistent with the collective bargaining agreement.
The court held that Wis. Stat. § 50.065(5m) and the collective bargaining just cause provision were not in direct conflict. The just cause provision did nothing more than place restrictions on Brown County's discretion to terminate Vetter. Instead, the statute gave the County the discretion to continue to employ Vetter.
Brown County also argued that involuntarily committed patients have a due process right to safety and personal security and Brown County would be violating these patients' rights if it were to retain Vetter. The court of appeals examined the patient safeguards contained in the collective bargaining agreement and determined that Brown County had the opportunity to prove that Vetter was terminated for just cause. WERC carefully considered patient safety in its just cause determination and determined that Vetter's actions did not demonstrate a sufficient nexus with his ability to perform his duties and did not appear to be characteristic of his temperament or interaction with clients. Brown County v. Wisconsin Employment Relations Commission, 2007 WL 2935843 (Wis. Ct. App. Oct. 10, 2007.)
Bottom Line
Employers must exercise caution whenever making a decision to terminate an employee based on a criminal conviction. It is important to note that non-union employees enjoy protection from termination based on criminal convictions. Under the Wisconsin Fair Employment Act, it is illegal to discriminate against an employee because of the individual's criminal conviction record, unless the underlying criminal offense bears a substantial relation to the job duties under consideration. Before terminating an employee, it is prudent to consult with legal counsel to determine whether a criminal convection bears a substantial relation to employment.
Gesina (Ena) M. Seiler is an attorney in the areas of general civil litigation, insurance defense, medical malpractice defense, legal malpractice defense, municipal and school district defense, personal injury and employment law. For more information, contact Ms. Seiler at 608.283.6787 or gseiler@axley.com.
This article was featured in the November 2007 issue of the Wisconsin Employment Law Letter, which is edited by Axley Brynelson Attorney Saul C. Glazer and published by M. Lee Smith Publishers LLC. Reproduced here with the permission of M. Lee Smith Publishers, LLC.
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