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Tuesday, 29 January 2013 14:28

Arrest and Conviction Record Discrimination

While an employer has an interest in the type of individuals it employs, the Wisconsin legislature has determined that employees with arrest and criminal records are a protected class of citizens that must be treated fairly.  The purpose is to prevent employment decisions from being made based on the stigma of an arrest or conviction record.  Or, in the case of arrest records, the concern was about employment decisions being made on the basis of an assumption about an individual's guilt merely on the basis of an individual's contact with law enforcement or military authorities.

 

The WFEA prohibits arrest and conviction record discrimination

 

The Wisconsin Fair Employment Act ("WFEA") generally prohibits an employer from relying upon a person's arrest and/or conviction record when deciding whether to hire, employ, compensate, promote, discipline, or terminate, or in deciding other terms and conditions of employment.

 

Arrest and convictions are broadly defined

 

The WFEA defines arrest record broadly to include information indicating an employee has been questioned, taken into custody, or tried for a felony, misdemeanor, or any offense pursuant to any law enforcement or military authority. “Arrest” also includes the issuance of a civil citation for a municipal code violation.

 

Conviction record is also defined broadly and includes information that a person has been convicted of a felony, misdemeanor, or other offense, or has been placed on probation, fined, imprisoned, or paroled by any legal or military authority.

 

The "Substantial Relationship" Exception

 

As with most laws, there are exceptions to the broad prohibition.  One exception is called the “substantial relationship” defense.  The WFEA permits an employer to make employment decisions based upon an applicant's or employee’s arrest or conviction record if the circumstances of the offense (where, when, how, etc.)  are substantially related to the circumstances of the particular job.  The best example is where a person was convicted of theft of money while working as a teller and that person subsequently applies for a cashier’s position.  In that situation, an employer could decide not to hire the person based upon his conviction record.

 

"Onalaska" Defense

 

Another exception is called the “Onalaska” defense. It is not arrest or conviction record discrimination for an employer to decide not to hire an applicant because it concludes from its own investigation and questioning of the individual that he or she has committed an offense. This defense does not require that an employer have no knowledge or familiarity with an employee's arrest or conviction record, but instead requires that this not be the sole or primary basis upon which the employer formed its belief that the a person had engaged in the conduct underlying the arrest.

 

Despite these two defenses, an area often confusing is the extent of action an employer may take in response to an employee who has been arrested. The WFEA allows employers to suspend the employment of workers who are charged with, but not yet convicted of, certain offenses; however, it is illegal to discharge an employee because of an arrest. In that situation, an employer could suspend the employee pending the outcome of the criminal proceeding, and then conduct and rely on its own independent investigation in deciding what appropriate employment action should be taken.

 

This is a very tricky and sensitive area of law. One of the area sheriff’s departments terminated a recent hire based upon his subsequently discovered arrest record and wound up being a respondent in an arrest record discrimination case. Another local business was a target of a career discrimination complaint filer who had an extensive criminal record, but who worked the system based upon his knowledge and experience. Even those employers who prevail pay a significant price to defend themselves.

If you need assistance, please contact Attorney Peter Culp.

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