Saturday, July 01, 2006

Court records can't be used to discriminate - CORPORATE REPORT WISCONSIN

By Arendt, Laurie

THOUGH THEY MAY NOT ADMIT IT IN POLITE company, many employers do a little sleuthing on the Internet as part of the hiring process.

"It just makes sense to me," said Dave, a small business owner in suburban Milwaukee who logs on to the Wisconsin Circuit Court Access Web site as well as the Wisconsin

Sex Offender Registry to check every application that comes across his desk.

Dave said he's not concerned about the occasional speeding ticket, or a minor, youthful infraction.

"What I am concerned about is protecting my business, because while employees are an asset, sometimes they can be a liability," he said. "I don't want someone with a drunk driving conviction in any of my vehicles."

If you count yourself among those businesses that use Internet resources as part of your own due diligence, here is a quick refresher on how you can legally use that information in your hiring decisions.

While it is legal, if you accept the terms listed on the front page of the circuit court Web site, to access the public records, what you do with them as a potential employer is an entirely different story.

According to the Wisconsin Department of Workforce Development's Equal Rights Division, Civil Rights Bureau, while an employer can ask if an applicant has any convictions or pending charges, that information can only be given consideration if the offenses are "substantially related to the circumstances of the particular job or licensed activity."

"The legislation's intent was to protect by law the ability to have gainful employment," explained attorney Erik R. Guenther of Hurley, Burish & Stanton SC in Madison.

As for what is or is not "substantially related," Guenther said employers need to focus on making an inquiry as fact-based as possible to avoid potentially discriminating against an individual.

"This is most clear in situations where an individual's record prohibits him or her from obtaining licensing or bonding," he said. "For example, a pharmacy technician [who] cannot obtain or renew his or her license after a drug conviction."

Should you come across an individual listed on Wisconsin's Sex Offender Registry, Guenther suggested two points to remember.

"First of all, not every registered sex offender is a sexual predator," he said. "secondly, these offenders are already on probation and have significant curtailments in place to integrate them back into society in a safe way."

Not everything about public access to information is always clear, either. Guenther is concerned with the interpretation that can occur when accessing such Web sites.

"Certain important information is not always part of the accessible record," he explained, citing a case where a woman faced felony and misdemeanor charges while defending herself against an abusive fiance. Guenther was able to show that the fiance had a history of abuse in prior relationships and the charges were dismissed, though they remain on her record.

"With a criminal charge, the presumption tends to be guilt" he said. "And because the online records aren't detailed, someone accessing the record wouldn't necessarily understand what had happened."

The circuit court Web site is also not complete. Not all Wisconsin counties put their cases there, and some use it on a limited basis.

And if you've done a search on your own name and can't figure out why that stray parking or speeding ticket didn't seem to show up, there's a good reason for it.

"The Web site is also far more likely to show county cases and not municipal citations," said Guenther. "If a citation was issued by a city or village, it may not even show up even though it occurred."

Next month, we will cover blogs and other online information that can affect hiring practices.


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