122.5 Falisfication of employment application with respect to prior conviction

The Complainant failed to disclose a disorderly conduct conviction on his background check form. He denied that his failure to do so was intentional. The critical question, however, is the employer’s motivation. Did it sincerely believe that the Complainant gave a false answer on his disclosure form, and did that belief motivate the decision not to hire him? The employer maintained that a belief that the Complainant falsified his application motivated the decision not to hire him. The Complainant failed to show this was a pretext for conviction record discrimination. The employer appears to have treated the Complainant like others who failed to disclose information requested in their application materials. Foston v. Time Warner Cable (LIRC, 01/30/20).

Where the employer genuinely believed that the Complainant was dishonest in stating on her application that no criminal charges were pending against her, the fact that this belief was mistaken and no criminal charges were actually pending does not make that motive unlawful. The focus of a pretext inquiry is whether the employer’s stated reason is honest, not whether it is accurate, wise or well-considered. Although the employer’s termination decision was unlawful because it was based partly on the Complainant’s arrest record, the only remedy was a cease-and-desist order where the employer would have discharged the Complainant anyway because of the genuine, albeit mistaken, belief that the Complainant had been dishonest on her application. Rase v. Interim Health Care (LIRC, 07/16/13).

There was probable cause to believe that the Respondent had violated the Wisconsin Fair Employment Act where it failed to hire the Complainant after he provided credible evidence that he reasonably understood that having his conviction expunged meant that it had been removed. There was reason to believe that the Respondent violated the Act by basing its decision not to hire the Complainant on his criminal record and not on his lack of candor in filling out his employment application. Hogans v. Milwaukee Bd. of Sch. Dir. (LIRC, 06/19/12) (unavailable online).

The employment application that the Complainant filled out specified that failure to honestly, completely and accurately provide the information requested would result in a denial of employment. The Complainant checked the box “no” when asked if she had been convicted of a misdemeanor in the last ten years, although in fact she had been convicted of a misdemeanor four years earlier. It was not credible that the Complainant was unaware of her conviction record, particularly given her testimony that she served ten days in jail for unpaid traffic citations and driving without a license. Moreover, even if it could be found that the Complainant did not deliberately lie on her application, the fact that the Respondent genuinely believed that she had done so provided a legitimate, non-discriminatory reason for its refusal to hire her. The Complainant’s complaint was appropriately dismissed. Bonds v. Roundy’s Supermarkets (LIRC, 09/30/11) (unavailable online).

Falsification of an employment application by failing to disclose one’s criminal history constitutes misconduct sufficient for discharge from employment. As explained in Miller Brewing Co. v. DILHR, 103 Wis. 2d 496, 308 N.W.2d 922 (Ct. App. 1981), the Wisconsin Fair Employment Act does not prohibit an employer from asking questions about criminal records. Nor does it create a license in the employee to lie about those records. Lee v. LIRC (Ct. App., Dist. I, unpublished opinion, 05/25/10).

The Wisconsin Fair Employment Act allows discrimination on the basis of conviction record or pending criminal charges which substantially relate to the position. An employer must legally be able to ascertain information on an applicant’s conviction record, or pending charges, in order to determine whether that conviction, or pending charge, substantially relates to the position sought by the applicant. The Wisconsin Supreme Court has stated that, “the WFEA prohibits arbitrary discrimination. It does not prohibit an employer from asking questions about criminal records; it does not create a license in the employee to lie about those records.” (Citing Miller Brewing Co. v. DILHR, 103 Wis. 2d 496, 504, 308 N.W.2d 922 (Ct. App. 1981)). Lee v. LIRC (Milwaukee Co. Cir. Ct., 03/02/09).

There was enough evidence in the record to support a finding that the Complainant provided misleading information about the circumstances surrounding his conviction, or that the Respondent believed in good faith that he had done so, and that he was discharged for that reason. However, there was also evidence that, even in the absence of misleading information from the Complainant, the Complainant’s employment would nonetheless have ended when the Respondent learned about his conviction. The Respondent began its investigation of the Complainant based solely on the knowledge of his conviction record, before it was aware of any issue involving the Complainant’s honesty. Thus, it was clear that the fact of the conviction record alone was of concern to the Respondent. Therefore, the Complainant’s criminal conviction record played a part in the decision to discharge the Complainant. Because the decision to discharge the Complainant was made “in part” because of a discriminatory motive (and because the Respondent did not establish that the circumstances of the crimes for which the Complainant was convicted were substantially related to the circumstances of his job) a finding of discrimination was made in this case. Fink v. Sears Roebuck & Co. (LIRC, 03/01/07), aff’d sub nom. Fink v. LIRC (Sheboygan Co. Cir. Ct., 02/29/08).

Where it is the Respondent’s policy to terminate an individual for falsification of their employment application, it does not matter whether the Complainant actually falsely stated that he had no conviction record on the application. The Complainant cannot prevail if the Respondent had a good faith belief that the Complainant had a conviction record. Miles v. Regency Janitorial Serv. (LIRC, 09/26/02).

If the Respondent genuinely believed that the Complainant had concealed his criminal convictions, this would be a legitimate non-discriminatory reason for the Complainant’s discharge. Even if the Complainant had no crimes on his record, the critical question is whether the Respondent believed that he did. Turner v. Manifold Servs. (LIRC, 01/31/02).

The Complainant was discharged because he failed to report all of his convictions in response to a question on his employment application asking whether he had ever been convicted of a crime. The Complainant argued that he did disclose his criminal convictions, but that he was not required to report other civil adjudications for disorderly conduct because they are not considered to be crimes. Yet, disorderly conduct is a Class B misdemeanor, and a misdemeanor is considered to be a crime. The Complainant also failed to indicate his motor vehicle convictions for speeding, operating a motor vehicle while a license was suspended, failure to return suspended license plates, and improper use of vehicle registration. Sec. 343.44, Wis. Stats., which addresses driving after license suspension or revocation, provides for penalties for habitual traffic offenders which include fines and imprisonment. This suggests that in certain circumstances this offense is considered to be a crime. Accordingly, the Respondent did not violate the Wisconsin Fair Employment Act when it discharged the Complainant because he failed to truthfully complete his employment application. Turner v. Manifold Servs. (LIRC, 01/31/02).

An employer is entitled to know whether an applicant has a conviction record, so that the employer can determine if the conviction record is substantially related to the applicant's prospective job duties. An employer may lawfully refuse to hire an applicant who falsifies an employment application with respect to a conviction record. Haynes v. Nat’l School Bus Serv. (LIRC, 01/31/92).

The Complainant failed to establish that he had been discharged by the Respondent because of conviction record where the evidence showed that the Respondent believed that the Complainant had falsified his employment application by indicating that he had no prior convictions when it received reliable evidence that he did in fact have prior convictions. Luckman v. Western-Southern Life (LIRC, 02/16/90), aff’d sub nom. Luckman v. LIRC (Milwaukee Co. Cir. Ct., 09/04/90).