Background Check (Procedure #340.A)

Office of Human Resources

A. Hiring

UW-Whitewater incorporates the following steps into its hiring process. This applies to all vacancies:

1. Announcing A Vacancy
   1. All vacancy announcements (including ads) should contain the following statement: "Employment will require a criminal background check."
   2. The following language also may be added to vacancy announcements and ads: "A pending criminal charge or conviction will not necessarily disqualify an applicant. In compliance with the Wisconsin Fair Employment Act, the University does not discriminate on the basis of arrest or conviction record." 
2. Offering a Position
   1. Criminal background checks may be completed prior to making an offer of employment. If a check is not completed before an offer is made, the check must be completed prior to commencement of employment, except in special cases approved by the Chief Human Resources Officer or designee. In most cases, only the applicant being offered the position will be checked. However, there may be circumstances where more than one applicant is checked. 
3. Appointment Letters
   1.  If an appointment is offered contingent on the successful completion of a criminal background check, or an employee is permitted upon approval of the Chief Human Resources Officer or designee to commence employment pending completion of a check, the appointment letter must state the appointment will be withdrawn or terminated if the individual's criminal background check results are unacceptable. The following statement may be used in the appointment letter. 
      1. "This appointment is conditional pending the results of a criminal background check. The appointment will be withdrawn or terminated if the results are unacceptable."
4. Consent Form
   1. Prior to conducting a criminal background check, the University will have the candidate sign a consent form. Individuals who decline to sign the consent form will no longer be considered a candidate for the vacancy. A candidate will submit the consent form directly to Human Resources where it will be maintained in confidence to the extent permitted by the Wisconsin Public Records Act and other applicable laws.

B. Conducting Criminal Background Checks

Criminal background checks will be performed by the Office of Human Resources to include checks of records in all jurisdictions deemed prudent. The following process will be used: 

1. Human Resources will identify at least one employee to manage criminal background checks. This individual(s) will be responsible for all activities involved with the checks including determining the scope, conducting checks, referring checks to outside vendors, and making recommendations on results. A key component of this role involves keeping information confidential except on a need-to-know basis or as required by the Public Records Act. A breach of confidentiality, or the inappropriate use of criminal background check information, may constitute a work rule violation and may be grounds for disciplinary action.
2. The employing unit or department is responsible for notifying Human Resources that a check needs to be conducted. Human Resources will obtain the completed consent form directly from the candidate. Any available resume/vita/employment application also should be provided to Human Resources. Human Resources will take the information, initiate a criminal background check through the Wisconsin Department of Justice, Crime Information Bureau electronic database and provide the necessary information to the appropriate vendor for completion of the criminal background check. All costs associated with conducting the background check will be incurred within the Office of Human Resources, and program revenue departments will be charged back.
   
   University officials will have certain additional duties under the federal Fair Credit Reporting Act when retaining a vendor to perform criminal background checks. Please see Addendum 1 regarding importaant procedures to follow in the case of an address discrepancy.
   
   Additional criminal and non-criminal checks (e.g, motor vehicle, etc.) may be run when appropriate in relation to the position.
   
   UW institutions must conduct an appropriate U.S. criminal background check on an applicant for employment, current employee, or volunteer who is a foreign national and subject to this policy. A criminal background check in the individual's prior county(ies) of residence will also be conducted if his/her country(ies) of residence provides a criminal background check for the time period during which the individual was a resident. A media search is not considered an appropriate criminal background check and, therefore, institutions are not required to conduct media searches.
   
   The standard package for criminal background checks conducted through a vendor shall include:
   1. Social Security Number Trace
      1. Authenticates the individual's information and generates a list of addresses the individual has lived at for the last seven years; as part of the trace, the University may verify that the social security number is valid and appropriately assigned to the individual.
   2. Criminal Felony/Misdemeanor by County of Residence
      1. superior and municipal court records search in any county in the U.S. in which the individual has resided in the last seven years.
   3. Sex Offender Registry
      1. sex offender search by state.
   4. National Criminal Background Database
      1. search of the vendor's proprietary national criminal background check database. 

Additional criminal and non-criminal checks (e.g. motor vehicle, etc.) may be run when appropriate in relation to the position.

The University is required to comply with the federal Fair Credit Reporting Act ("FCRA") if it uses a private vendor. Please see Addendum 1 regarding important procedures to follow in the case of an address discrepancy. 

C. Making the Decision Regarding Substantial Relationship

Once the criminal background check is completed, the University will need to make a decision based on the information gathered. Wisconsin's Fair Employment Act states that employers cannot discriminate against prospective or current employees based on past or pending arrests or convictions. There are exceptions to this requirement if a "pending criminal charge" or "conviction record" is determined to be "substantially" related to the "circumstances of the particular job." To determine if there is a relationship, the University needs to review the circumstances of an offense, where it happened, when, etc. - compared to the circumstances of a job - where is the job typically done, when, etc. The more similar the circumstance, the more likely a "substantial" relationship exists.

Accordingly, if the check uncovers a pending criminal charge or a criminal conviction, the University's provost (or designee) or the University's assistant chancellor for business and finance (or designee), as appropriate, will consult with Human Resources, the University's legal counsel, and the University's affirmative action officer, to determine whether the criminal activity is substantially related to the functions of the position. The University's provost or designee shall be the decision-maker for all faculty positions, as well as all academic staff positions or other positions that are within divisions, departments or other administrative structures that ultimately report to the provost. The University's assistant chancellor for business and finance or designee shall be the decision-maker for all university staff positions, as well as academic staff positions or other positions that are within divisions, departments or other administrative structures that ultimately report to the assistant chancellor. On behalf of the provost or the assistant chancellor for business and finance, Human Resources may consult with other offices and individuals, inside and outside of the University (including the University police department), as appropriate to determine whether a substantial relationship exists while maintaining strict confidentiality.

In reviewing the results of a criminal history background check on an individual applicant, the University will review each applicant on a case-by-case basis and consider the following factors in order to determine whether there is a substantial relationship between the pending charge or conviction and the position and whether the applicant should be further considered for the position:

1. The Offense
   1. The nature, severity and intentionality of the offense(s) including but not limited to:
      
      1. The statutory elements of the offense (rather than the individual's account of the facts of the offense);
      2. The individual's age at the time of the offense(s);
      3. Number and type of offenses (felony, misdemeanor, traffic, other);
      4. Time elapsed since the last offense;
      5. The individual's probation or parole status;
      6. Whether the circumstances arose out of an employment situation; and
      7. Whether there is a pattern of offenses. 
2. The Position
   1. The duties, responsibilities and circumstances of the position applied for, including but not limited to: 
      
      1. The nature and scope of the position, including key access to residential facilities, key access to other facilities, access to cash and access to vulnerable populations, including minor children;
      2. The nature and scope of the position's student, public or other interpersonal contact;
      3. The nature and scope of the position's autonomy and discretionary authority;
      4. The amount and type of supervision received in the position or provided to subordinate staff;
      5. The sensitive nature of the data or records maintained or to which the position has access;
      6. The opportunity presented for the commission of additional offenses; and
      7. The extent to which acceptable job performance requires the trust and confidence of the employer, the University or the public.
   2. Using these and other appropriate factors, the provost or the assistant chancellor for business and finance (or their respective designees) in consultation with Human Resources, legal counsel and affirmative action will make the final determination on whether to appoint or reject the candidate on the basis of a criminal background check. Human Resources will be responsible for documenting the basis for the decision to appoint or to refuse to appoint a candidate based on the criminal background check review. 

D.  Candidate Notification of Negative Results

If a candidate is not selected based on the criminal background check results, the results will be provided and the candidate will be given a three working day time period to refute the information. Additional time extensions may be provided to the candidate at the sole discretion of the University. If a private, commercial background check vendor is used, the University and the vendor will need to ensure compliance with the federal FCRA. 

E. Keeping Records

Records gathered as a result of a criminal background check will be kept by Human Resources in separate, sealed files segmented by the applicant/employee's name. The files will be maintained separately from an applicant/employee's general personnel records. These records should include: 

• Consent Form
• Information collected from the check
• Analysis and decision whether criminal activity (if any) was substantially related to position
• Correspondence related to criminal background check

The records will be securely maintained for a period of seven years after the position has been filled, and may be accessed only on a need-to-know basis or as required by applicable law.

F. Other Background Checks/Evaluations

As noted previously, other types of background checks and/or evaluations may be utilized due to the nature of particular positions. Examples include checks required under: Wisconsin's Caregiver Law (Wisconsin Statutes, Chapters 48 and 50) and Fiduciary Responsibility Law (Wisconsin Statutes, Section 230.17(3)). Additionally, the nature of certain positions could involve the need to conduct non-criminal background checks such as drug analyses, psychological evaluations, and credit checks. Nothing in this policy precludes the University from conducting position specific checks (criminal and non-criminal) on an as-needed basis. 

Background Check (Policy #340)

First approved: May 26, 2021