RICK JACKSON, Complainant

WH TRANSPORTATION, Respondent

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.

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

Dated and mailed November 30, 2012
jacksri2 . rsd : 164 : 5

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

In his brief to the commission the complainant argues that the respondent admitted that the house haul drivers do not go to Canada and states that he did apply for a house haul position.  Although it is not entirely clear from the brief, it appears that the complainant is arguing that his conviction record is not substantially related to the position of house haul driver because it did not require driving in Canada.  Assuming this is his argument, it is not a persuasive one.  While the respondent's house haul division does not go into Canada, the evidence in the record indicates that all of the respondent's drivers are required to haul valuable loads, without supervision, and that they are entrusted with a company charge card.  The commission has previously found a substantial relationship between the complainant's convictions, which include home invasion, armed robbery, and residential burglary, and the job of truck driver, where that job would give the complainant access to high value cargo and equipment.  See, Jackson v. Transport America, ERD Case No. 200002290 (LIRC May 6, 2002); Jackson v. Schneider Transport Inc., ERD Case No. 200002294 (LIRC Sept. 25, 2001).  The commission is satisfied that the complainant's conviction record is substantially related to the job of hauling freight for the respondent, either as an over-the-road driver or as a house haul driver.

In his brief the complainant also argues that the respondent violated Wis. Stat. § 111.322(2) by publishing what the complainant refers to as a "blanket no-felony policy."  This argument fails.  The advertisement for the job of over-the-road driver specified that an applicant must have "no record of offenses or criminal convictions that would preclude entry or travel in Canada."  The respondent included this wording because its over-the-road drivers sometimes drive into Canada and are subject to the legal requirements and/or restrictions imposed by the Canadian government.  The respondent did not include any language about criminal convictions in its advertisement for the job of house haul driver, which does not require drivers to go to Canada.  Because the Wisconsin Fair Employment Act ("Act") permits an employer to make employment decisions based upon an applicant's conviction record if the circumstances of the offense are substantially related to the circumstances of the particular job, it is implicit that it is not a violation of the Act to specify that an applicant may not have a record of criminal convictions that would prevent him from performing the job in question.  See, Lee v. Bed, Bath & Beyond, ERD Case No. CR200801805 (LIRC Aug. 14, 2009). The commission agrees with the administrative law judge that the complainant has not established probable cause to believe the respondent violated § 111.322(2) of the Act.

cc: Attorney Roger Pettit

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