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Gesina Seiler

Felony Drug Conviction Substantially Related to Unsupervised Position

October 11, 2011

On August 22, 2011, the Wisconsin Labor and Industry Review Commission (LIRC) decided that an employer was justified in denying employment to an applicant who had been convicted of felony possession of marijuana with intent to deliver. The applicant, who also had two separate convictions for driving while intoxicated (DWI), was denied employment because the position for which he applied involved largely unsupervised activities. The decision is somewhat unusual in that the LIRC generally has taken a narrow approach to determining whether convictions are substantially related to a job.

Facts
Theodore Mamayek applied for a position as relationship manager with Heartland Payment Systems, which supplies credit card processing and payroll services to merchants. The position required no direct supervision and primarily involved traveling to various business locations.

Mamayek had previously been convicted of felony possession of marijuana with intent to deliver and two separate incidents of DWI. When Heartland didn’t extend a job offer to Mamayek, he filed a complaint with the Equal Rights Division asserting that he was discriminated against based on his criminal record. The administrative law judge dismissed his complaint, and Mamayek appealed to the LIRC.

LIRC’s decision
The Wisconsin Fair Employment Act (WFEA) prohibits employment discrimination based on arrest and conviction records. The Act defines “arrest record” as “information indicating that a person has been questioned, apprehended, taken into custody or detention, held for investigation, arrested, charged with, indicted or tried for any felony, misdemeanor or other offense pursuant to any law enforcement or military authority.” “Conviction record” is defined as “information indicating that a person has been convicted of any felony, misdemeanor or other offense, has been adjudicated delinquent, has been less than honorably discharged, or has been placed on probation, fined, imprisoned, placed on extended supervision or paroled pursuant to any law enforcement or military authority.”

The WFEA prohibits you from taking an employment action that is motivated, even in part, by an arrest or conviction record. However, you aren’t liable for discrimination based on an applicant’s arrest and conviction records if you can show that the circumstances of the candidate’s arrest or conviction “substantially relate to the circumstances of the particular job.”

The LIRC found that Mamayek’s drug conviction and two DWI convictions substantially pertained to the relationship manager job. The position allowed the employee to exercise a high degree of freedom and movement that is relatively uncommon in most jobs, including a lot of unsupervised time and a significant amount of personal contact with numerous people.

That kind of independent work environment would present Mamayek (if hired) with the opportunity to engage in questionable conduct — specifically, selling illegal drugs to members of the public. Additionally, he would be required to spend a substantial amount of his workday driving a motor vehicle from his home to meetings with various clients and prospective clients. The enormous amount of unsupervised and unstructured time spent driving from business to business would provide a greater than usual opportunity to drink alcohol, become intoxicated, and drive while intoxicated.

The LIRC found that a substantial connection existed between the relationship manager position and Mamayek’s convictions. As a result, the employer was justified in refusing to hire him. Mamayek v. Heartland Payment Systems, ERD Case No. 200701206 (8/22/11).

Bottom line
Complaints about arrest and conviction records are becoming more prevalent. For this reason, you should exercise caution when making decisions about hiring or firing an applicant or employee — particularly if your decision is based (even partially) on an arrest or conviction record. When in doubt, consult legal counsel.

Each employment decision relating to arrest and conviction records must be made on a case-by-case basis. It’s also important to note that the city of Madison allows you to use conviction records only when the person was placed on probation, paroled, released from incarceration, or paid a fine for a felony, misdemeanor, or other offense within the past three years.

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