RICK JACKSON, Complainant

KLEMM TANK LINES, Respondent

An administrative law judge (ALJ) 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 ALJ. Based on its review of this matter, the commission issues the following:

Insofar as the decision of the administrative law judge (copy attached) finds no probable cause to believe the respondent has published any sort of statement that indicates an intent to discriminate against any person on any of the bases enumerated in the Wisconsin Fair Employment Act, and dismisses that claim of the complainant, the administrative law judge's decision is affirmed. Insofar as the decision of the administrative law judge finds no probable cause to believe the respondent violated the Act by refusing to hire the complainant because of his conviction record or in retaliation for his earlier complaint, and dismisses those claims, the administrative law judge's decision is set aside and remanded to the Equal Rights Division for further investigation of those claims.

Dated and mailed April 29, 2005
jacksri2 . rpr : 125 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

In his written arguments on appeal, Rick Jackson has essentially asked that the commission review every procedural and evidentiary adverse ruling that was made by the ALJ with respect to him, from those made regarding discovery through the hearing, as well as his arguments submitted in support of his claim of conviction record discrimination. The commission has conducted a review of this matter as requested.

With respect to Jackson's claims that the respondent violated the WFEA by refusing to hire him because of his conviction record or in retaliation for his earlier complaint, the commission concludes that the fact that Jackson's December 3, 2003 complaint allegations were not fully investigated and must be remanded for further investigation is dispositive of the adverse procedural and evidentiary rulings about which Jackson complains.

Jackson's complaint alleges that he was refused employment because of his conviction record. In his discrimination statement, Jackson asserted that he believed the respondent discriminated against him on the basis of conviction record because the respondent has a blanket policy not to hire felons and because he filed a prior complaint, which was now pending in circuit court. Jackson also asserted that the respondent publishes a pamphlet contrary to the WFEA.

Jackson goes on to assert that "I recently sent an application certified mail and now the company is saying I don't qualify. In a prior ERD Hearing the respondent's recruiter testified to the contrary."

In response to the question about when the above action(s) first happened, however, Jackson wrote "new case effective 5/16/02". (Emphasis added.) In response to the question about the date it last happened, Jackson wrote "12-02-02".

While Jackson's complaint references the date, May 16, 2002, as the date when the discriminatory action was first taken against him, his claim regarding alleged discrimination occurring on this date was apparently never investigated. After the filing of Jackson's discrimination complaint, an equal rights officer sent a letter to Jackson asking for a response to some specific additional questions. However, there is no indication that any inquiry was ever made about any alleged discrimination occurring on May 16. Clearly, the initial determination made no findings regarding the alleged discriminatory action taken against Jackson on May 16. Jackson's complaint allegations were not fully investigated and therefore his refusal to hire and retaliation claims must be remanded for further investigation.

The commission also notes that the respondent has repeatedly argued that Jackson is attempting to re-litigate in the instant action claims already judicially disposed of  (i.e., ERD Case No. 20003179) by virtue of the Wisconsin Supreme Court's order of October 1, 2003, and that he should be barred from doing so. Jackson's prior claim in ERD Case No. 20003179 centered on the allegation that he was refused hire on the basis of conviction record due to company policy, and this claim was decided adversely to him. To the extent that Jackson's December 3, 2003 complaint alleges that the respondent refused to hire him because the "company has a blanket policy to not hire felons", the commission agrees with the respondent. Jackson's complaint in ERD Case No. 20003179 has been finally determined by virtue of the supreme court's order of October 1, 2003. Jackson is therefore barred from raising the claim that the respondent has a blanket policy to not hire felons.

The commission has affirmed the decision of the ALJ, however, insofar as it dismisses Jackson's complaint allegation that the respondent publishes a pamphlet contrary to the WFEA.

Wisconsin Statute § 111.322(2) makes it an act of employment discrimination:

"To print or circulate or cause to be printed or circulated any statement, advertisement or publication, or to use any form of application for employment or to make any inquiry in connection with prospective employment, which implies or expresses any limitation, specification or discrimination with respect to an individual or any intent to make such limitation, specification or discrimination because of any basis enumerated in s. 111.321."

By letter dated December 12, 2003, Jackson informed the equal rights officer to "disregard the pamphlet issue", but then went on to state that the respondent does ask if an applicant has been convicted of a felony in the last five years, that drivers have to account for all jobs held for the past 10 years and that the respondent conducts other background checks. Thereafter, by letter dated January 22, 2004, to the respondent's counsel, Robert Burns, Jackson indicated that he would like a stipulation from Burns to amend his complaint to allege that the respondent violated the Act by "publishing an application contrary to W.F.E.A." The ALJ deemed Jackson's stipulation request as a motion to amend his complaint but denied this request.

Jackson's assertions, even assuming he had been permitted to amend his complaint, fail. First of all, with respect to the respondent's application question asking if the applicant has been convicted of a felony in the last five years, this question is not prohibited by the WFEA. Section 111.335(1)(c)1 provides that it is not employment discrimination because of conviction record to refuse to employ any individual who has been convicted of any felony, misdemeanor or other offense the circumstances of which substantially relate to the circumstances of the particular job. The WFEA presupposes that an applicant's criminal record is known to the employer and does not prohibit an employer from asking questions about criminal records. Miller Brewing Co. v. IHLR Dept., 103 Wis. 2d 496, 504, 308 N.W.2d 922 (Ct. App. 1981). Jackson's other assertions about having to account for all jobs held for the past 10 years and that the respondent conducts "other background checks" fare no better. Clearly, a question asking for a list of all jobs held in the past 10 years, in addition to being a perfectly legitimate question, has no implication whatsoever with respect to an individual's conviction record. Also, nothing in the Act prohibits an employer from conducting background checks. Moreover, the record shows by way of the respondent's January 20, 2004 letter response to the ALJ's rulings regarding discovery, and testimony given at the hearing, that at the time of Jackson's November 2002 complaint the respondent's conducting of a background check consisted of nothing more than receiving a report regarding the applicant's driving record from DAC Services.

cc: Attorney Robert W. Burns

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