Oct. 2, 2019 – In Wisconsin, over the last decade or so, ‘CCAPing’ (pronounced ‘see-capping’) has become a verb. CCAP allows us to explore someone’s criminal background, from potential tenants to job applicants. But beware of discrimination laws.

What is CCAP?

CCAP (Consolidated Court Automation Program), also known as Wisconsin Circuit Court Access (WCCA), is available to anyone with an internet connection.

The database is publicly available. CCAP users must agree to terms and conditions of using the website, and CCAP has a specific notice just for employers:

Notice to employers: It may be a violation of state law to discriminate against a job applicant because of an arrest or conviction record. Generally speaking, an employer may refuse to hire an applicant based on a conviction only if the circumstances of the conviction substantially relate to the particular job. For more information, see Wisconsin Statute 111.335 and the Department of Workforce Development’s Arrest and Conviction Records under the Law publication.

Illegal Discrimination

Employers, and the lawyers who advise them, must be prepared to use CCAP within the parameters of the Wisconsin Fair Employment Act (WFEA).

The WFEA provides, as is summarized in the CCAP notice quoted above, that it is illegal discrimination for an employer to refuse to hire an applicant (or to terminate or otherwise take adverse action against an employee) based on an arrest or conviction record. The WFEA makes people with arrest and conviction records a protected class, just as is the case with things like race, sexual orientation, and religious affiliation.

However, there’s an exception to the rule. Unlawful discrimination does not occur if an employer bases its decision not to hire or to terminate based upon a conviction that is “substantially related” to the job.

As you might imagine, there is no clear-cut statutory definition of what it means to be “substantially related” to the job; as with much of the law, interpretations develop through court and administrative decisions, which apply different facts.

To perform the analysis of whether the conviction is substantially related to the job, courts analyze the actual crime of which the person was convicted, and the facts and circumstances surrounding the charge, as well as the actual conduct by the person that led to the charge. With this information in mind, courts review whether similar facts and circumstances may present themselves during the course of employment for the job for which the person has applied. Let’s take a look at a common example: drunk driving.

Drunk Driving … Substantially Related?

What job does this potential employee want in your client’s company? If the job is to perform work on a computer in an office all day, a drunk driving conviction (commonly referred to as operating while intoxicated, or OWI) almost certainly does not substantially relate.

That means the employer cannot refuse to hire the job applicant for the job based on OWI history. What if the job requires driving? If the applicant must use his or her own vehicle and has a valid driver’s license, it may not substantially relate to the job.

The OWI history does not relate to whether he or she can run work errands, as long as he or she can legally drive.

“Legally drive” means being licensed (including an occupational license) and having a registered and insured vehicle, etc. Employers are entitled to confirm all this if driving is a bona fide requirement of the job.

But wait. Let’s say the employer would have this employee drive a company vehicle for errands that are a necessary part of the job. In this case, the conviction might substantially relate to the job. The difference is that the insurance carrier may refuse to insure an employee as a driver on the company’s policy who has a history of OWI, depending on a variety of factors. Without insurance, he or she won’t be able to perform those duties.

Here, where the driving duties are a necessary part of his or her job, a court may find that the OWI convictions are substantially related to the job. Keep in mind, this is just an example, and every situation is different. It would be dangerous to assume that an OWI conviction on someone’s record will always substantially relate to a job that requires driving a company vehicle. Employers, or their attorneys, should check with the employer’s insurer before making a decision based upon the OWI convictions.

An OWI is a rather straightforward crime, however, with many other crimes (likely, most), you will not know much about what conduct constituted the crime from the CCAP record.

For that reason, CCAP should not be an employer’s background checking tool. Rather, they should consider running criminal background checks through an agency that does just that – performs official, comprehensive background checks with law enforcement and the courts.

This will help employers obtain additional information about convictions to determine whether the conviction is substantially related to the job.

What’s the Harm in Looking at CCAP?

The harm in looking at CCAP is that employers cannot “unsee” what they’ve seen. Knowing that a person was convicted of fourth-degree sexual assault may forever taint the employer’s view and judgment of the applicant as a person and potential employee, regardless of whether that crime substantially relates to the job.

If the job is not substantially related to the circumstances that may surround a conviction for fourth-degree sexual assault, employers must think about whether they wish to even discover that information in the first place. Attorneys can help advise them of this.

If employers don’t perform background checks as a routine part of their hiring process and don’t wish to engage in the “substantially related” analysis for every conviction of which they become aware, the best advice may be to stay off CCAP.

An original version of this article was posted on the KEW blog, a publication of Kramer, Elkins & Watt, LLC. This article is republished with permission.