P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)



ERD Case No. CR200602031

An administrative law judge for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the administrative law judge. Based on its review, the commission agrees with the decision of the administrative law judge, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:

1. Paragraph 17 of the administrative law judge's FINDINGS OF FACT is deleted.

2. The following paragraph is inserted after paragraph 2 of the administrative law judge's CONCLUSIONS OF LAW:

"The circumstances of the complainant's conviction for public assistance fraud were substantially related to the circumstances of her position as driver employer assistant for the respondent, within the meaning of Wis. Stat. § 111.335(1)(c)1."

3. The first five full paragraphs of the administrative law judge's MEMORANDUM OPINION, ending at the top of page 8 of the decision, are deleted.


The decision of the administrative law judge (copy attached), as modified, is affirmed.

Dated and mailed July 23, 2010
feathta . rmd : 164 : 9

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner


The Wisconsin Fair Employment Act (hereinafter "Act") prohibits an employer from engaging in any act of employment discrimination against any individual on the basis of arrest or conviction record. Wis. Stat. § § 111.321 and 111.322. However, the law contains the following exception:

Notwithstanding s. 111.322, it is not employment discrimination because of conviction record to refuse to employ or license or to bar or terminate from employment or licensing, any individual who:

1. Has been convicted of any felony, misdemeanor or other offense the circumstances of which substantially relate to the circumstances of the particular job or licensed activity. . . .

Wis. Stat. § Section 111.335(1)(c)1.

It is undisputed that the complainant was discharged because of her conviction for public assistance fraud. (1)   The question raised is whether the circumstances of the conviction record were substantially related to the circumstances of the job.

A determination as to whether the circumstances of a criminal offense are substantially related to a particular job requires assessing whether the tendencies and inclinations to behave in a certain way in a particular context are likely to reappear later in a related context, based on the traits revealed. It is the circumstances which foster criminal activity that are important, e.g., the opportunity for criminal behavior, the reaction to responsibility, or the character traits of the person. County of Milwaukee v. LIRC and Serebin, 139 Wis. 2d 805, 824, 407 N.W.2d 908 (1987).

In her brief to the commission the complainant argues that, unlike a sexual assault or armed robbery conviction, a public assistance fraud conviction requires a factual inquiry into the circumstances of the offense in order to properly apply the substantial relationship test. She contends that the administrative law judge erred by failing to conduct a specific factual inquiry into the circumstances of the offense. This argument is without merit. In County of Milwaukee, 139 Wis. 2d 823-825, the court specifically rejected the notion that a detailed inquiry into the facts of the offense was required and found that, as a general rule, the circumstances of the offense are to be gleaned based upon a review of the elements of the crime. While the court noted that there may be times when the fostering circumstances of the crime require some factual exposition, such as in "disorderly conduct" cases in which the type of offensive circumstances is not as explicit as in, for example, a sexual assault or a theft, the fostering circumstances of a conviction for public assistance fraud are fairly clear, and the complainant has provided no reason to believe otherwise.

The complainant was convicted under Wis. Stat. § 49.95, which sets forth, in relevant part:

49.95 Penalties; evidence. (1) Any person who, with intent to secure public assistance under this chapter, whether for himself or herself or for some other person, willfully makes any false representations is subject to the following penalties:

(c) If the value of the assistance exceeds $1,000 but does not exceed $2,000, the person may be fined not more than $10,000 or imprisoned for not more than 9 months or both.

The circumstances of the criminal offense of which the complainant was convicted are, basically, dishonesty and a willingness to engage in fraud for financial gain.

The complainant's job entailed checking the references, previous employment, and criminal backgrounds of applicants for driver positions. The complainant handled confidential driver information, including, but not limited to, the applicants' names, addresses, telephone numbers, birth dates, drivers' license numbers, and social security numbers.

The respondent expressed two separate concerns in conjunction with the public assistance fraud conviction. First, it indicated that it was concerned about identity theft. Second, the respondent stated that it was concerned it might hire an unsafe driver because the complainant failed to include information regarding the applicant. The respondent elaborated that if a driver failed a drug screen for a previous employer, and that information was not included in the file, the respondent might end up with a drug abuser driving one of its trucks. It intimated that the complainant might be willing to manipulate test results for financial gain.

The commission does not find the latter concern to be valid. It seems unlikely that driver applicants would attempt to bribe the respondent to disregard their drug test results, and the respondent did not demonstrate that this had ever occurred in the past. Moreover, even assuming an applicant was so inclined, the fact remains that the complainant had no direct contact with job applicants and, therefore, was not in a position to accept the type of payment the respondent describes.

The respondent's concern about identity theft is, however, a legitimate one. Access to social security numbers, birth dates, driver's license numbers, and other personal identification information is a circumstance that could facilitate criminal activity by someone predisposed to engage in fraud for economic gain.

The commission has found that a prior conviction for fraud or theft is substantially related to virtually any job providing an opportunity for new acts of fraud or theft. For instance, the commission has found that a previous conviction for welfare fraud was substantially related to a job at a department store, which could provide opportunities for theft. Mullikin v. Wal-Mart Stores, ERD Case No. 8901365 (LIRC Aug. 27, 1992). Similarly, in Young v. Wal-Mart Distribution Center, ERD Case No. 199705063 (LIRC Oct. 27, 2000), the commission found that a conviction for forgery was substantially related to employment at a merchandise distribution center, which offered a significant temptation or opportunity to steal the property of others. In Benna v. Wausau Insurance Companies, ERD Case No. 8401264 (LIRC July 10, 1989) the commission found that shoplifting was substantially related to the job of group medical claims technician, with responsibility for independently reviewing, processing, and authorizing medical payment insurance claims.

Although the complainant's job did not entail handling money, access to identity information is money in the hands of individuals who are inclined to engage in fraudulent activity. Consistent with prior commission decisions, the commission concludes that the circumstances of the complainant's conviction were substantially related to the circumstances of the job. 

Modifications to administrative law judge's decision

The commission has modified the administrative law judge's decision to delete the finding, "Conviction record was not a motivating factor in the termination of the complainant's employment by the Respondent." The evidence clearly indicates that the complainant was discharged because of her conviction record, and that point is not in dispute.

The commission also notes that the traditional McDonnell Douglas burden shifting analysis described on the first two pages of the administrative law judge's memorandum opinion does not apply in this case. The burden shifting analysis is intended to provide a framework to assist the decision-maker in determining the real reason for the employment action taken. Where, as here, the respondent has conceded that the complainant was discharged because of his conviction record, it is unnecessary to apply the McDonnell Douglas analysis. The commission has, therefore, deleted that portion of the memorandum opinion.


Attorney Jenifer D. Binder
Attorney Richard W. Pins

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(1)( Back ) Although a conviction for issuing a bad check was also referenced in the discharge letter, that matter appears to have played only a small and secondary part in the termination decision, and the parties have focused almost exclusively on the conviction for public assistance fraud.


uploaded 2010/08/02