Wis.LIRC ER Decision: Herdahl - February 20, 1997 - Conviction record discrimination -- 'substantially related' -- possession of marijuana / retail store stocker

STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

PAULA M HERDAHL, Complainant

WAL-MART DISTRIBUTION CENTER #6025, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 9500713

An administrative law judge for the Equal Rights Division of the Department of Workforce Development (Department of Industry, Labor and Human Relations prior to July 1, 1996) 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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT

1. On December 1, 1992 the complainant was arrested and charged with possession of a controlled substance with intent to deliver, possession of drug paraphernalia, and possession, as a dealer, of a controlled substance that did not bear evidence of a tax paid. The charges stemmed from the seizure of approximately 1000 grams of marijuana from the complainant's property. The complainant pleaded not guilty to all three charges.

2. On April 11, 1994, with the charges against her still pending, the complainant applied for a job with the respondent. On her employment application the complainant was asked whether she had ever been convicted of a felony, to which she accurately and truthfully responded that she had not.

3. On May 23, 1994, the complainant was hired by the respondent to work as a stocker. Prior to beginning her work for the respondent the complainant was required to undergo a drug screen, which she passed.

4. The complainant's job duties as a stocker consisted entirely of opening boxes and stocking the contents on shelves. Other than a small "Exacto"-type knife used to open boxes, the complainant did not operate any equipment or machinery.

5. The respondent employed approximately ten stockers and, depending upon the volume of material to be unloaded, anywhere from one to several stockers would work together. The stockers were not closely supervised and did not normally work within the view of their supervisors. The building in which the complainant worked was in excess of 1,000,000 square feet. While, in theory, the complainant and other stockers were free to move around the building at will, in fact, they had very little opportunity in which to do so. The stockers were required to work fairly constantly and at a rapid pace, and aside from three scheduled breaks, they had little free time during the work day.

6. The employes working in the distribution center were given breaks once in the morning, once in the afternoon, and at lunch, and could take their breaks anywhere they chose, including one of three designated break areas. The complainant and her co-workers normally took their breaks together in the respondent's cafeteria, and the supervisors were generally aware of when the employes were taking a break.

7. The respondent's employes were required to pass a security check upon reporting to work, and again upon leaving at the end of the day. Employes' purses and parcels were searched on the way out of the building, as a means of deterring employe theft.

8. The respondent's handbook contains a "Drug-Free" policy, under which any worker who has consumed, possesses, or is under the influence of illegal drugs while performing company business or in a company facility is subject to immediate discharge. The policy also provides for drug testing based upon suspected violations of the policy.

9. Effective June 1, 1994, the respondent also adopted an "Alcohol And Drug Abuse Policy," which provides, among other things, that the conviction under any criminal drug statute, or failure to notify the company of any arrest or conviction under any criminal drug statute within five days after the arrest or conviction will result in termination of employment.

10. On or shortly prior to September 9, 1994, the respondent learned that the complainant had been charged with a drug- related felony. On September 9, 1994, the respondent's general manager and its "personnel coach" met with the complainant in order to verify this information. The respondent then suspended the complainant's employment pending the resolution of the charges against her.

11. On December 30, 1994, the complainant pleaded guilty to and was convicted of one count of possession of marijuana, a misdemeanor offense.

12. On or about February 7, 1995, at which point the complainant was still suspended from her employment, the respondent learned that the complainant had pleaded guilty to and been convicted of a drug-related charge. The respondent discharged the complainant based upon her conviction, dating the discharge retroactive to September 9, 1994.

Based on the FINDINGS OF FACT made above, the commission makes the following:

CONCLUSIONS OF LAW

1. The respondent is an employer within the meaning of the Wisconsin Fair Employment Act (hereinafter "Act.")

2. The complainant is a member of a protected classification, within the meaning of the Act.

3. The circumstances of the complainant's arrest are not substantially related to her duties as a stocker for the respondent.

4. The circumstances of the complainant's conviction are not substantially related to her duties as a stocker for the respondent.

5. The respondent unlawfully suspended the complainant's employment based upon her arrest record, in violation of the Act.

6. The respondent unlawfully terminated the complainant's employment based upon her conviction record, in violation of the Act.

Based on the FINDINGS OF FACT and CONCLUSIONS OF LAW made above, the commission issues the following:

ORDER

1. That the respondent shall cease and desist from discriminating against the complainant because of her arrest and conviction record.

2. That the respondent shall offer the complainant reinstatement to a position substantially equivalent to the position she held prior to her discharge. This offer shall be tendered by the respondent or an authorized agent and shall allow the complainant a reasonable time to respond. Upon the complainant's acceptance of such position, the respondent shall afford her all seniority and benefits, if any, to which she would be entitled but for the respondent's unlawful discrimination, including sick leave and vacation credits.

3. That the respondent shall make the complainant whole for all losses in pay the complainant suffered by reason of its unlawful conduct by paying the complainant the amount she would have earned as an employe from the date of suspension until such time as the complainant resumes employment with the respondent or would resume such employment but for her refusal of a valid offer of a substantially equivalent position. The back pay for the period shall be computed on a calendar quarterly basis with an offset for any interim earnings during each calendar quarter. Any unemployment compensation or welfare benefits received by the complainant during the above period shall not reduce the amount of back pay otherwise allowable, but shall be withheld by the respondent and paid to the Unemployment Compensation Reserve Fund or the applicable welfare agency. Additionally, the amount payable to the complainant after all statutory set- offs have been deducted shall be increased by interest at the rate of 12 percent simple. For each calendar quarter, interest on the net amount of back pay due (i.e., the amount of back pay due after set-off) shall be computed from the last day of each such calendar quarter to the day of payment. Pending any and all appeals from this Order, the total back pay will be the total of all such amounts.

4. That the respondent shall pay the complainant's reasonable attorney's fees and costs associated with this matter.

5. Within 30 days of the expiration of time within which an appeal may be taken herein, the respondent shall submit a compliance report detailing the specific action taken to comply with the commission's Order. The compliance report shall be directed to the attention of Kendra DePrey, Labor and Industry Review Commission, P.O. Box 8126, Madison, Wisconsin.

Dated and mailed February 20, 1997
herdapa.rrr : 164 : 9

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

David B. Falstad, Commissioner

MEMORANDUM OPINION

The Wisconsin Fair Employment Act prohibits an employer from engaging in any act of employment discrimination against any individual on the basis of arrest or conviction record. Sections 111.321 and 111.322, Stats. However, the law contains the following two relevant exceptions:

"Notwithstanding s. 111.322, it is not employment discrimination because of arrest record to refuse to employ or license, or to suspend from employment or licensing, 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 or licensed activity."

Section 111.335(1)(b), Stats. and,

"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. . . ."

Section 111.335(1)(c)1., Stats.

In drafting the above-cited exceptions, the legislature sought to strike a balance between society's interest in rehabilitating those who have been convicted of crime and its interest in protecting citizens. See County of Milwaukee v. LIRC, 139 Wis. 2d 805, 821, 407 N.W.2d 908 (1987). In County of Milwaukee the Wisconsin Supreme Court opined, in relevant part:

"This law should be liberally construed to effect its purpose of providing jobs for those who have been convicted of crime and at the same time not forcing employers to assume risks of repeat conduct by those whose conviction records show them to have the `propensity' to commit similar crimes long recognized by courts, legislatures and social experience.

"In balancing the competing interests, and structuring the [statutory] exception, the legislature has had to determine how to assess when the risk of recidivism becomes too great to ask the citizenry to bear. The test is when the circumstances, of the offense and the particular job, are substantially related."

Id. at 823.

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. Id. at 824.

The circumstances of the complainant's arrest, which resulted in the suspension of her employment in September of 1994, indicate a propensity to unlawfully use, distribute and sell drugs and, further, to disregard the legal requirement that a tax stamp be obtained. The complainant was ultimately convicted of a lesser offense, possession of marijuana, and was discharged from her job with the respondent as a result. The circumstances of the complainant's conviction indicate, at minimum, a demonstrated tendency to possess illegal drugs and, presumably, to engage in unlawful drug use. After considering all of the evidence in the record, the commission is unable to see any relationship, let alone a substantial relationship, between these circumstances and the circumstances of the stocker job at the respondent's facility.

When asked by the respondent's counsel to explain what risk the respondent would be undertaking if the complainant were to remain in its employ, the respondent's witness, James Swanson, indicated that the respondent was concerned about safety issues and about the potential to distribute drugs at the work place. (1 ) In subsequent testimony, Mr. Swanson also indicated that the respondent was concerned about "the potential use" of drugs. Mr. Swanson did not elaborate upon the connection between these stated concerns and the complainant's specific situation and, after a careful review of the record, the commission is unable to see any relationship between the two.

With respect to safety issues, the evidence established that the complainant's job consisted entirely of opening boxes and stocking the merchandise on shelves, and the commission is unable to imagine what safety concerns could be implicated by such tasks. Although Mr. Swanson did indicate that the complainant worked in the proximity of conveyor belts and forklifts, it is undisputed that she was not expected to actually operate any of this equipment and that the only conceivably "dangerous" piece of equipment the complainant was called upon to utilize was a box cutter. While the commission has held that an individual's arrest or conviction record indicating a propensity to use illegal drugs is substantially related to work requiring that person to operate dangerous equipment, the mere fact that an employe works somewhere in the vicinity of potentially dangerous equipment or machinery is insufficient to warrant a finding that a drug- related arrest or conviction record is substantially related to the circumstances of the job, absent other evidence establishing an actual safety risk. To find otherwise would be to conclude that individuals with drug-related arrest or conviction records can be legally barred from employment in virtually any industrial, warehouse, or agricultural setting, as well as in restaurant kitchens, dry-cleaning establishments, and other enterprises where there are employes who work with potentially dangerous equipment.

The commission also rejects the respondent's professed concerns regarding the potential to distribute or use drugs at the work place, as the evidence failed to demonstrate that the job would provide any substantial opportunity to engage in such activities. (2 ) While it is true that the complainant worked in a large building with little direct supervision, factors which may have a bearing on the determination of whether a particular job presents a greater than usual opportunity for criminal behavior, these factors are not, in and of themselves, evidence that the job presents a risk of recidivism for the complainant. To the contrary, when considering all of the circumstances of the stocker job, it appears to present, if anything, an unusually limited opportunity for the distribution or use of drugs at the work place. In the first place, the complainant and her co-workers were required to successfully pass a drug test as a condition of their employment, and were subject to the continuing possibility of drug testing and immediate termination based upon any suspected violation of the respondent's "Drug-Free" policy. Second, the complainant and her co-workers were subjected to daily security checks of their purses and bags when exiting the respondent's facility which, while not specifically designed to ferret out illegal drugs, also did not create an atmosphere conducive to bringing contraband into the workplace. Third, even presuming that the security checks and threat of drug testing would not act as a deterrent to an employe who wished to bring marijuana into the work place, the record established that the complainant's work day was highly regimented and structured so as to afford her with little free time to either ingest marijuana herself or to engage in illicit entrepreneurial activities.

This is not to suggest, of course, that the complainant would have had absolutely no opportunity to engage in illegal conduct if she were so inclined, as essentially any job in which workers come into contact with other employes or members of the public will potentially present such opportunities. However, in prior cases in which the commission has found a substantial relationship based upon an individual's opportunity to distribute illegal drugs to others, the commission has done so only after making an assessment that the circumstances of the job presented a particular and significant opportunity for such criminal behavior. See Goerl v. Appleton Papers, Inc. (LIRC, October 5, 1992); Black v. Warner Cable Communications Co. of Milwaukee (LIRC, July 10, 1989). In the instant case, while the commission is willing to assume that the complainant could manage to distribute marijuana at the work place if she were so inclined, there is simply no reason to believe that the stocker job provided her with a particular or significant opportunity to do so.

Indeed, if the complainant is considered unsuitable for the position in question based upon the potential to distribute drugs, then it would appear that she can be lawfully excluded from essentially every job which places her in contact with other workers or with the public, and which does not provide constant over-the-shoulder supervision. Such a result would be inconsistent with the goals of the Act, which are, in part, to foster rehabilitation and employment of individuals with criminal arrest and conviction records, and would have the effect of eviscerating a portion of the statute. On this point, the commission has specifically noted:

"Certainly, any such person whose job involved any degree of contact with any other persons could conceivably attempt to sell illegal drugs to them, if they were so inclined. The mere possibility that this could happen because of some contact with other persons, however, seems to the Commission inadequate in the absence of other facts to justify a finding of `substantial relation.' Such a broad approach could conceivably result in a finding that offenses such as those involved here would be substantially related to virtually all jobs, since virtually all jobs entail some degree of contact with other persons. The overwhelming breadth of this conclusion is in itself a suggestion that it is not what the statute anticipates."

Black v. Warner Cable Communications Co. of Milwaukee (LIRC, July 10, 1989).

When weighing all of the relevant factors in this case and considering the goals of the Act, as articulated by the Wisconsin Supreme Court in County of Milwaukee v. LIRC, supra, the commission arrives at the conclusion that the circumstances of the stocker position are not substantially related to the circumstances of the complainant's criminal offense. In addition to the factors mentioned above--the lack of safety concerns, drug testing requirements, presence of security measures, and the regimented nature of the job--this is a job which does not afford any access to prescription drugs or medication and which, overall, appears to present no particular opportunity for repeat criminal behavior. Given these circumstances, the respondent's decision to suspend the complainant's employment and to ultimately discharge her as a result of her criminal arrest and conviction record was without legal justification and, thus, a violation of the Act.

NOTE: The commission did not consult with the administrative law judge regarding witness credibility and demeanor. The commission's reversal is not based on a differing credibility assessment, but is as a matter of law.

cc:
WILLIAM R. LAMB
WILLIAM J. HOLLOWAY

Appealed to Circuit Court. Affirmed July 22, 1997. The Circuit Court decision was affirmed by the Court of Appeals in an unpublished per curiam decision on June 4, 1998.

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Footnotes:

(1)( Back ) Q: "Have you explained to the Court what you want with respect to explaining why Wal-Mart does not want to rehire Miss Herdahl?" A: "I guess again, almost kind of a zero tolerance for drug related, whether they're offenses or activities, based on the fact of the potential for safety related issues, the potential to distribute, the potential to get other people involved, whether I'm trying to distribute or whether or not I'm forming a friendship network that now gets more folks involved in my social activities, which may have a negative bearing on, again, the safety sake and/or just the ability for that person to be, I guess, a healthy, reliable associate is certainly a reason why we're very, I guess, intolerant of drug related issues." (TR, at 129.)

(2)( Back ) The commission notes that, while the complainant was arrested for possession of a controlled substance with intent to deliver, suggesting a propensity to sell illegal drugs, she was ultimately convicted of possession of marijuana. It is not entirely clear under these facts whether, even presuming the complainant had an opportunity to sell drugs, she had the propensity to do so.