STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
ROBERT L. MOTEL, Complainant
LAKE SHORE BUSES, INC., Respondent
FAIR EMPLOYMENT DECISION
ERD Case No. 9101191
An administrative law judge (ALJ) for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on July 3, 1992. Complainant filed a timely petition for commission review of the matter, and both parties submitted written arguments to the commission.
Based upon a review of the record in its entirety, the Labor and Industry Review Commission hereby issues the following:
The decision of the administrative law judge (copy attached) is affirmed and shall stand as the FINAL ORDER herein.
Dated and mailed October 21, 1993
/s/ Pamela I. Anderson, Chairman
/s/ Richard T. Kreul, Commissioner
/s/ James R. Meier, Commissioner
The complainant in this case claims that the respondent's refusal to hire him as a bus driver constituted arrest record discrimination. The respondent, a company which provides transportation services, contracts with school districts to transport children by bus. Complainant completed an application for employment as a school bus driver with the respondent on July 16, 1990. Shortly after the complainant's application, the respondent learned from one of its employes that complainant had been arrested for possession of drugs. The respondent was unwilling to hire complainant pending the resolution of the criminal charge for possession of drugs. Complainant was subsequently convicted of said charge on February 6, 1991. The ALJ concluded that a criminal charge of possession of a controlled substance is substantially related to the circumstances of the job of school bus driver and dismissed the complainant's complaint.
On appeal, complainant apparently takes issue with the ALJ's decision because at the time he applied to become a bus driver he was "only charged" with possession of a controlled substance and had not been convicted. However, sec. 111.335(1)(b), Stats., permits an employer to refuse to employ an individual prior to conviction. Section 111.335(1)(b) provides that "It is not employment discrimination because of arrest record to refuse to employ . . . any individual who is subject to a pending criminal charge if the circumstances of the charge substantially relate to the circumstances of the particular job . . ."
Complainant further argues, however, that the circumstances of his charge did not substantially relate to the circumstances of the particular job in question. However, a criminal charge for possession of a controlled substance does indeed substantially relate to the job of school bus driver. In County of Milwaukee v. LIRC, 139 Wis. 2d 805, 407 N.W.2d 908 (1987), the court stated that the purpose of the substantially related test is in "assessing whether the tendencies and inclinations to behave in certain ways in a particular context are likely to reappear 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." Id. at 824. A criminal charge of possession of a controlled substance indicates, at a minimum, unlawful drug use. Its use when driving a school bus would pose an enormous safety concern for the children on the school bus, as well as a concern for the driver himself and others on public highways. Moreover, as is shown in s. Trans 12.05(3)(b)4 (Dept. of Transportation administrative rule regarding alcohol or other drug use), no person may be issued a school bus license where it is shown that the person evidenced any chemical abuse or dependency within the last two years, unless the abuse or dependency occurred prior to the past year and is controlled by treatment.
Complainant also apparently contends that one Marvin Nelson was working for respondent although "arrested for drugs" and that this is relevant to the question of whether there was a substantial relationship between his criminal charge and the circumstances of the particular job. There is nothing in the synopsis of testimony on this subject beyond the complainant's statement that "I noticed that Marvin Nelson was working and he had been arrested for drugs." Complainant indicates in his reply brief to the commission that "Marvin Nelson's criminal charge took place June, 1986," and apparently, that Nelson was hired as a bus driver. Even considering the information outside the record, the complainant's claim here fails. Assuming Nelson was hired as a school bus driver it was not established that Nelson was hired by respondent while subject to a pending criminal charge, or that the respondent was aware of Nelson's "arrest for drugs" when hired. In fact, there is nothing in the record at all regarding when Nelson was hired by the respondent.. Further, there is nothing in the record to establish that Nelson was, in fact, convicted based on his "arrest for drugs," or that respondent knew of such conviction.
The evidence of record simply fails to establish that the respondent unlawfully discriminated against the complainant based on his arrest record when it refused to hire him. Furthermore, it would appear that complainant could have been prepared to present testimony and evidence regarding Nelson at the hearing since his complaint filed with ERD on April 24, 1991, had included the allegation that respondent had "hired" Nelson and that Nelson had an "arrest/conviction record."
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