If you have had an encounter with law enforcement, you may have an arrest record; and if you have been found or plead guilty to any arrest, you likely have a conviction record. While arrest or conviction records undoubtedly have many implications on your life, the good news is that Wisconsin law protects you from discrimination in the recruitment, hiring and firing, job assignments, pay, promotions, harassment, and other employment related actions.
Wisconsin’s laws regarding conviction record discrimination serve two important interests: (1) rehabilitating those convicted of crimes; and (2) protecting the public from the risk of criminal recidivism. This law affects not only private employers, but also public employers, and employment and licensing agencies in Wisconsin.
The arrest and conviction record protection generally applies to all employment situations unless the circumstances of the arrest or conviction record “substantially relate” to the circumstances of the particular job. A substantial relationship exists when the circumstances of the offense materially relate to circumstances of the job such that it creates a greater than usual opportunity for criminal behavior. For example, if an individual is convicted of an OWI and is employed or looking to be employed as a truck driver, there is likely to be a substantial relationship between the OWI and the truck driver position due to the correlation in the driving duties to the underlying criminal behavior of driving while in intoxicated. Because the substantially related test involves a highly intensive factual inquiry into the circumstances of both the offense and the job position at issue, cases require a fact-intensive review to determine whether unlawful discrimination has occurred.
When an employer can show that a substantial relationship exists, they are permitted to deny that individual employment opportunities due to their arrest or conviction record. For conviction records, this could include refusal to hire, or if already employed, termination of employment.
Arrest records, however, must be handled a bit differently. When anyone is arrested, under the Federal Constitution, that person is presumed innocent until proven guilty. Therefore, employers cannot terminate or refuse to hire. Instead, the most they can do is place the individual on unpaid leave, pending the outcome of the charge. If, however, there is no substantial relationship, then the employer cannot take any discriminatory action whatsoever and must treat the individual the same as all other employees or applicants.
Because the arret and conviction record law is a state law, cases to enforce claims of discrimination must be filed in the State of Wisconsin and are first handled via the channels of administrative law. If you believe you have been a victim of an adverse employment action due to your arrest or conviction record, you should speak to an experienced employment law attorney to discern your rights under Wisconsin law.
