The Wisconsin Fair Employment Act (Wis. Stat. § 111.321) prohibits employers from discriminating against prospective or current employees because of their arrest and/or conviction records. That seems simple enough. But the reality is a lot more complicated. Below are some frequently asked questions concerning employment actions in relation to arrest and conviction records.
Can my current employer suspend me because I got arrested?
It depends. If an employee is arrested while also employed, but has not been charged with or convicted of anything, the employer cannot simply send them home. Rather, the employer must conduct its own investigation into what allegedly happened, typically interviewing the employee in question, as well as other individuals or materials that may provide insight. If the employer then reasonably concludes that (a) the conduct occurred (regardless of the arrest) and (b) that conduct is ‘substantially related’ to the employee’s job duties, the employer can typically take action. This is known as the Onalaska rule. But it is not OK for an employer to suspend an employee just because they are aware the employee got arrested. This is true even if the criminal offense related to the arrest would seem to be substantially related to the job duties. The employer must conduct an internal investigation first.
Do I have to talk to my employer about my arrest?
Typically, yes, or at least they have to try to talk to you. This is also part of the Onalaska analysis, and specifically what constitutes a sufficient internal investigation. There are some instances where the employer never talks to the employee about the arrest and is still found to have conducted a sufficient investigation. But in most cases, if you’ve been arrested and your employer wants to ask about what happened, refusing to answer may be considered insubordination. If there is time, it is usually a good idea to talk to an attorney first as well.
I didn’t get arrested. Nobody handcuffed me. I never got put in a police car. But my employer still wants to talk to me. What now?
State statute defines an arrest record 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.” In other words, what we have come to consider an ‘arrest’ based on TV and movies and the like is a lot narrower than the law defines it.
I have a pending charge and the case is taking forever. My employer has suspended me until it’s cleared up. Is that legal?
Again, it depends. Unlike in the case of an arrest that does not lead to a charge (or where the charge has been dismissed), if there is a pending charge the employer is not required to conduct its own investigation. Instead, if the criminal offense in question is substantially related to the job duties, a suspension is permissible until the charge is cleared up.
What does substantially related mean?
Good question! In fact, this is the question over which most arrest and conviction record cases are argued. Some cases are easy: An arrest or conviction for drunk driving is typically considered substantially related to a job that requires driving, even if the offense did not occur during work hours. An arrest or conviction for fraud is typically considered substantially related to a job that involves handling money. An arrest or conviction for child abuse is typically considered substantially related to a job that requires working around kids. But other cases are much more difficult to call. This is where the expertise of an attorney may be especially helpful.
How is a conviction different from an arrest for this law?
As noted above, if there is just an arrest, the employer must conduct its own investigation to determine that the conduct occurred, including usually to give the employee a chance to explain themselves. However, if there is a conviction – or a pending charge – the employer has much more leeway to rely on what the authorities have created – police reports, criminal complaints, records of conviction, and even trial transcripts. The ‘substantially related’ test concerns the “circumstances” of an offense, and the Wisconsin Supreme Court has defined that pretty broadly over time. Even if the conviction felt unjust, or you didn’t understand exactly what you were pleading guilty to, once the conviction is entered employers are permitted to conclude that the crime occurred.
I have a conviction from 20 years ago, when I was a totally different person. They can’t rely on that, can they?
The employer can consider any conviction(s), no matter how far back in time. However, the Wisconsin Supreme Court has recently ruled that the amount of time that has passed between a conviction and the present does matter for the substantial relationship analysis. In short, the older in time the conviction, the better for the employee, but there is no cut-off point.
My old employer knew about my conviction and didn’t care. Why can a new employer hold it against me?
The law does not require employers to exclude or fire employees with arrests or convictions that are substantially related to their job duties. It just permits employers to do that. This is important to keep in mind, including for people with convictions who may be thinking about leaving one job to go to another.
An employer let me work for a month while they were waiting on my background check, and then they fired me when they found out about my conviction. That can’t be legal, can it?
Believe it or not, it can be, and is. This is – understandably – an extremely frustrating scenario for many employees. However, the Wisconsin courts have concluded that employers may provisionally hire somebody and then fire them upon learning about a conviction.
I totally forgot about an old conviction that doesn’t even have anything to do with the job in question, so I didn’t put it on my application. Now corporate is saying I lied and they won’t hire me. But I just made a mistake. What now?
One of the most common ways people with convictions miss out on jobs is by failing to be totally truthful on their applications. Whether they forget, or figure nobody will check, or maybe even are told by the person interviewing them not to bother, the bottom line is that failure to disclose a conviction rarely ends well. Most large employers hire background check services these days, which conduct extensive, nationwide screenings, and basically dig up everything. If you are not truthful on your application, the substantial relationship test doesn’t even come into play.
The employer won’t hire me and I know it’s because of my conviction, but they just said it was a business decision. Is that illegal?
Proving that an employer relied upon an arrest or conviction in making a negative employment decision is not always easy. If you cannot prove that, then any case against the employer gets much more difficult. If you know that the arrest or conviction is why you were not hired (or were fired), do your best to get some sort of written proof of that – without the employer knowing what you need it for. Many employers these days know it’s illegal to discriminate based on arrest or conviction but do it anyway, then come up with some different reason when challenged. You do not want to find yourself in that position if it can be avoided.
I told the truth, my arrest or conviction is not substantially related to the job duties in question, the employer still won’t let me work for them, and they told me flat-out it’s because of my record. What now?
The Wisconsin Equal Rights Division enforces the prohibition on arrest and conviction record discrimination, and the attorneys here at Hawks Quindel are well versed in that process. If you feel that you’ve been unlawfully discriminated against based on your arrest or conviction, we are glad to set a time to discuss in order to see if we can help you. Our Milwaukee office can be reached at (414) 271-8650 and our Madison office can be reached at (608) 257-0040.
