January 31, 2023

Volume XIII, Number 31


January 30, 2023

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What Happens at Home Stays at Home?

Labor and Industry Review Commission Concludes That Crimes Committed at Home Aren’t Likely to be Repeated at Work

Recently, the Wisconsin Labor and Industry Review Commission (LIRC) concluded that an employer discriminated against one of its employees when it fired him after discovering that he had pleaded guilty to sexual assault, first degree reckless endangerment of safety and false imprisonment. LIRC’s decision in Knight v. Wal-Mart Stores East LP represents an aggressively pro-employee stance by LIRC in conviction record cases, and rests on puzzling reasoning by LIRC as to when an employee’s domestic crimes are substantially related to the circumstances of his employment.

The employee, Nathan Knight, was convicted in 1995 of several crimes stemming from a violent incident with his then-girlfriend. While at Knight’s home, his girlfriend attempted to break up with him. Knight then threatened her with a gun and a knife; threatened to kill himself; and then had sex with her against her will. Knight eventually pleaded guilty to sexual assault, reckless endangerment, and false imprisonment. After learning of these convictions, Wal-Mart fired Knight from his position as a forklift driver in one of its warehouses.

Knight filed a charge of discrimination, alleging Wal-Mart illegally fired him because of his conviction record. Generally, under Wisconsin law, an employer may not discriminate against an employee because of that employee’s conviction record. But if the circumstances of the employee’s crimes are substantially related to the circumstances of his job, the employer may terminate the employee because of his conviction record. In Knight, there was no dispute that Wal-Mart fired Knight because of his conviction record. The issue was whether the circumstances of those three convictions were substantially related to the circumstances of Knight’s job as a warehouse forklift driver.

LIRC concluded that the circumstances of Knight’s convictions were not substantially related to the circumstances of his job for several reasons. First, LIRC concluded that the crimes were not related to the job because Knight committed his crimes at home and in response to problems with a dating relationship, and neither of these circumstances was present in his workplace. Second, LIRC concluded that because Wal-Mart strictly regulated its warehouse, Knight would be deterred from committing crimes there for fear of being caught. Accordingly, LIRC concluded that there was no substantial relationship between the circumstances of Knight’s crimes and his job.

Knight is a troubling decision because LIRC does not explain how the facts of the case support its key conclusions. First, LIRC asserts that an individual who commits crimes against someone he or she is dating is not likely to commit those same crimes against individuals at work. LIRC, however, does not explain why this is so. (Even more interesting is LIRC’s assumption that dating and the workplace are mutually exclusive.) Knight is another case in a disturbing trend of cases standing for the preposition that people who will commit crimes against their domestic partners are no threat to others. Employers need to know that this is LIRC’s position, whether that position is sound, or not.

Second, Wal-Mart presented evidence that showed Knight would be unsupervised for substantial periods of time, which would increase the risk that Knight would have the opportunity to commit a crime at work. But LIRC brushed this evidence aside in concluding that Wal-Mart’s security measures would deter Knight from criminal conduct on the job. Normally, employers need to show that an employee will have periods of no live supervision at work in order to show substantial relationship between violent crimes or theft crimes and many jobs. Here, Wal-Mart presented this evidence, and it was not enough. The only take-away for employers is that, in showing that employees will have the opportunity to commit crimes at work, the amount of record evidence needed at a hearing is "more."

Although employers may find many reasons to criticize LIRC’s decision in Knight, it is the law until successfully challenged in court. Wisconsin employers that are considering taking an adverse employment action based on an individual’s conviction record need to be able to connect the dots between the circumstances of an employee’s crime and the circumstances of the job. Given LIRC’s narrow interpretation of the substantially-related defense in Knight, employers should undertake this analysis with the assistance of counsel.

©2023 MICHAEL BEST & FRIEDRICH LLPNational Law Review, Volume III, Number 63

About this Author

Eric Rumbaugh, Michael Best Law Firm, Labor and Employment Attorney

Eric advises clients in all areas of labor and employment law. With a practice that is national in scope, he is particularly active in litigating matters involving trade secrets, non-competition agreements and related disputes.

Eric has a nationally recognized practice in the area of contingent labor and regularly prepares and reviews policies, procedures and contracts and litigates contested matters for users and providers of temporary employees, consultants, independent contractors and other contingent talent.  Eric also counsels public...