April 20, 2023 - Introduced by Joint Legislative Council. Referred to Committee on Regulatory Licensing Reform.
AB202,,22An Act to create 440.03 (13) (bp), (bt) and (bx) of the statutes; relating to: investigations of conviction records by the Department of Safety and Professional Services for purposes of determining eligibility for credentials and granting rule-making authority. AB202,,33Analysis by the Legislative Reference Bureau This bill is explained in the Notes provided by the Joint Legislative Council in the bill.
For further information see the state fiscal estimate, which will be printed as an appendix to this bill.
AB202,,44The people of the state of Wisconsin, represented in senate and assembly, do enact as follows: Joint Legislative Council prefatory note: This bill was prepared for the Joint Legislative Council’s Study Committee on Occupational Licenses.
Current law prohibits employment discrimination on the basis of a conviction record. This prohibition applies to the Department of Safety and Professional Services (DSPS) and the credentialing boards in granting credentials. However, current law also allows DSPS or a credentialing board to refuse, bar, or terminate an occupational credential due to a prior conviction if the circumstances of the offense are substantially related to circumstances of the licensed activity.
The bill allows DSPS to complete its investigation as to whether the circumstances of an arrest, conviction, or other offense are substantially related to the circumstances of the licensed activity without reviewing certain types of violations. Those violations include the following:
• A first conviction, which occurred more than five years before the credential application date, for a violation of a law or local ordinance that prohibits driving or operating a motor vehicle while intoxicated or under the influence of alcohol, a controlled substance, a controlled substance analog, or a combination of those, or of any drug that renders the person incapable of safely driving.
• A violation of a law or local ordinance that prohibits underage procurement, possession, or consumption of alcohol.
• A minor, nonviolent ordinance violation, as determined by DSPS.
Additionally, the bill creates an alternative method to complete an investigation of an arrest, conviction, or other offense. Under this method, DSPS may accept a determination made by the applicant’s employer, or by a contracted entity on behalf of the employer, that the applicant does not have an arrest, conviction, or other offense record or that the circumstances related to an arrest, conviction, or other offense are not substantially related to the licensed activity.
An employer, or contracted entity on behalf of the employer, must attest that the determination was made to the best of the employer’s or entity’s knowledge and with a reasonable degree of certainty. DSPS must accept or reject a determination within 30 days of its receipt, and within that period may review a determination or request additional information from the applicant. DSPS and the credentialing boards are not subject to suit and are not liable for damages resulting from acceptance of an employer’s or entity’s determination.
DSPS must implement both provisions of the bill by administrative rule.
AB202,15Section 1. 440.03 (13) (bp), (bt) and (bx) of the statutes are created to read: AB202,,66440.03 (13) (bp) When conducting an investigation of an arrest or conviction record under par. (a) or (bm), or of any other offense if the offense is reviewable by the department or credentialing board that issues the credential, the department shall review information provided by the applicant to determine the circumstances of each case or offense, except that the department may, in its discretion, complete its investigation without reviewing the circumstances of any of the following types of violations: AB202,,771. If the violation occurred more than 5 years before the application date, a first conviction for a violation of s. 346.63 (1) (a), (am), or (b) or a local ordinance in conformity therewith or a law of a federally recognized American Indian tribe or band in this state in conformity with s. 346.63 (1) (a), (am), or (b) or the law of another jurisdiction prohibiting driving or operating a motor vehicle while intoxicated or under the influence of alcohol, a controlled substance, a controlled substance analog, or a combination thereof or under the influence of any drug that renders the person incapable of safely driving, as those or substantially similar terms are used in that jurisdiction’s laws. AB202,,882. A violation of s. 125.07 (4) (a) or (b) or a local ordinance that strictly conforms to s. 125.07 (4) (a) or (b) or of a substantially similar law of another jurisdiction. AB202,,993. A minor, nonviolent ordinance violation, as determined by the department. AB202,,1010(bt) 1. As an alternative to conducting an investigation of an arrest or conviction record under par. (a) or (bm), or of any other offense if the offense is reviewable by the department or credentialing board that issues the credential, the department may accept a determination made by the applicant’s employer, or by a contracted entity on behalf of the applicant’s employer, that the applicant does not have an arrest or conviction record and that the applicant has not committed any other offense that is reviewable by the department or credentialing board that issues the credential, or that the circumstances related to the arrest or conviction record or of any other offense if the offense is reviewable by the department or credentialing board that issues the credential are not substantially related to the licensed activity pursuant to s. 111.335. AB202,,11112. An applicant’s employer or a contracted entity on behalf of an applicant’s employer that submits a determination under this paragraph shall attest that the determination was made to the best of the employer’s or entity’s knowledge and with a reasonable degree of certainty. AB202,,12123. Prior to accepting a determination made under this paragraph, the department may review the determination made by the employer or the entity contracted by the employer and may request additional information from the applicant. AB202,,13134. The department shall either accept or reject a determination made under this paragraph within 30 days from the day that the department receives the determination. AB202,,14145. Neither the department nor any credentialing board shall be subject to suit or liable for damages resulting from its acceptance of or reliance on a determination made under this paragraph. AB202,,1515(bx) The department shall promulgate rules to implement pars. (bp) and (bt).
