Arrest and Conviction Record DiscriminationYour Arrest or Conviction Record Should Not Prevent Fair Workplace Treatment
The Wisconsin Fair Employment Act (“WFEA”) protects individuals from adverse employment actions on the basis of their arrest or conviction records and provides rights to enforce these protections should such unlawful actions take place. Specifically, the WFEA makes it unlawful for any employer, labor organization, employment agency, licensing agency, or other person to engage in any act of employment discrimination against any individual on the basis of his or her arrest or conviction record. Wis. Stat. § 111.321. These prohibitions include such actions as terminating an employee who has been recently arrested or refusing to hire an applicant after asking about his or her arrests. Individuals who have been subject to such unlawful actions may be able to recover damages including back pay, reinstatement, attorney’s fees and, in some cases, compensatory damages.
How does the law (Wisconsin Fair Employment Law, Wisconsin Statutes. 111.31-111.395) define “arrest record”?
Arrest record is defined as information that a person has been questioned, apprehended, taken into custody or detention, held for investigation, arrested, charged with, indicted or tried for any felony, misdemeanor or other offense by any law enforcement or military authority.
How does the law define “conviction record”?
Conviction record is defined as information indicating that a person has been convicted of any felony, misdemeanor or other offense, has been judged delinquent, has been less than honorably discharged, or has been placed on probation, fined, imprisoned or paroled by any law enforcement or military authority.
Can an employer discharge a current employee because of a pending criminal charge?
No. An employer may, however, suspend an employee, if the offense-giving rise to the pending criminal charge is substantially related to the circumstances of the particular job or licensed activity.
Can an employer refuse to hire a person because of a record of arrests that did not lead to conviction?
No. An employer is not allowed to ask about arrests, other than pending charges.
What can an employer ask regarding arrest and conviction records?
An employer may ask whether an applicant has any pending charges or convictions, as long as the employer makes it clear that these will only be given consideration if the offenses are substantially related to the particular job. An employer cannot legally make a blanket rule that no persons with conviction records will be employed. Each job and record must be considered individually.
Can an employer refuse to hire an applicant because of a lengthy record of convictions or conviction for a crime the employer finds upsetting?
An employer may only refuse to hire a qualified applicant because of a conviction record for an offense that is substantially related to the circumstances of a particular job. Whether the crime is an upsetting one may have nothing to do with whether it is substantially related to a particular job.
What is meant by substantially related?
The law does not specifically define it. The “substantially related” test looks at the circumstances of an offense, where it happened, when, etc. – compared to the circumstances of a job – where is this job typically done, when, etc. The more similar the circumstances, the more likely it is that a substantial relationship will be found. The legislature has determined that certain convictions are substantially related to employment in child and adult care giving programs regulated by the Department of Health and Family Services.
What if an employer believes a pending charge or conviction is substantially related but the employee or applicant believes it is not?
In this situation, the employee or applicant may file a complaint and the Equal Rights Division will make a determination as to whether there is a substantial relationship, with either party having the right to appeal the decision.
Can an employer refuse to hire or discharge a person with a pending charge or conviction because other workers or customers don’t want the person with a conviction there?
No. The law makes no provision for this type of problem. The employer must show that the conviction record is substantially related to the particular job. Co-worker or customer preference is not a consideration.
Is it a violation of the law if the applicant’s conviction record is a part of the reason for not being hired, but not the whole reason?
Yes. A conviction record that is not substantially related to the particular job should be given no consideration in the hiring process.
How should an applicant answer questions on an application regarding conviction record?
It is best to answer all questions on an application as honestly and fully as possible, and to offer to explain the circumstances of the conviction to the employer.
Should an employer ask about the circumstances of a conviction during an interview?
Yes. An employer must obtain enough information to determine if the conviction record is substantially related to the job. If the employer decides there is a substantial relationship, employment may be refused but the employer must be prepared to defend the decision if the applicant believes there is not a substantial relationship and files a complaint.
The City of Madison provides special protections.
Individuals with arrest and conviction records residing in the City of Madison have even greater rights against arrest and conviction record discrimination. The Madison General Ordinances prevent employers from even considering arrest and conviction claims which occurred more than three years earlier in their hiring and firing decisions and provide access to compensatory damages for litigants.
If you believe your employment rights have been violated with regard to your arrest or conviction record, please contact the our employment attorneys to discuss your case.
Attorneys and staff returned calls promptly and got answers for me when I had a lot of questions. They made me feel relaxed and comfortable in a really difficult situation and made me realize that I was doing the right thing for myself. I was able to stand up for my own rights knowing they were there to help.Theresa Wawrzyniak