Individuals with arrest or conviction records in Wisconsin face unique challenges in the job market, but fortunately, state law provides strong protections against discrimination under the Wisconsin Fair Employment Act (WFEA).
According to the WFEA, employers, employment agencies, labor organizations, and licensing agencies are prohibited from discriminating based on an arrest or conviction record in nearly every aspect of employment such as hiring, promotions, pay, training, and termination. Limited exceptions for job-related risks aside, the WFEA allows for more job opportunities for those reentering the workforce following a brush with the law.
Key Protections for Employees Regarding Arrest and Conviction Records
Wisconsin law defines an arrest record broadly as any information indicating a person has been questioned, apprehended, detained, held for investigation, arrested, charged, indicted, or tried for a felony, misdemeanor, or other offense by law enforcement. Employers cannot ask about arrests on job applications or during interviews, except for pending charges, and must clarify that any such information will only be considered if “substantially related” to the job. Blanket policies like “no hires with records” are illegal.
If an employer discovers a record post-hiring, they can only act if the circumstances of the arrest or conviction are substantially related to job performance or safety. This takes into account the nature of the charge against the applicant, the time elapsed since the incident, and any rehabilitation evidence that directly relates to the duties of an employee’s job. For example, a job applicant or employee working as a direct care worker at a residential facility with a ‘recent’ arrest record or pending charges involving physical abuse of a child may be turned down or terminated from a job because the charge/arrest is substantially related to the performance of the job which includes caring for vulnerable populations.
For arrests, discrimination occurs if the record motivates the decision, even partially, unless it’s a pending charge substantially related to the employment role. Convictions follow a similar test: An employer may refuse to hire or terminate only if the offense “substantially relates” to the job’s duties.
Federal Laws Related to Arrests and Convictions in Employment
Federal laws bolsters protections under WFEA: Title VII of the Civil Rights Act of 1964 prohibits policies that disproportionately exclude protected groups (e.g., racial disparities in incarceration rates) and the Fair Credit Reporting Act (FCRA) mandates accurate background checks and requires notice to applicants if records enter into the employment decision.
Recent Developments and Exceptions
A 2025 Wisconsin Supreme Court case, Oconomowoc Area School District v. Cota, expanded “arrest record” to include non-criminal citations and clarified that even minor reliance on such records can violate the WFEA—unless based solely on an independent employer investigation. Exceptions also allow refusals for dishonesty on applications or bondability requirements for certain roles.
Filing a Complaint and Seeking Remedies
If you suspect discrimination based on an arrest or conviction record, it is important to discuss your concerns with an experienced employment law attorney. Violations of state and federal law may apply and remedies include damages for back pay, reinstatement, and attorney fees. Contact the employment law attorneys of Alan C. Olson & Associates for immediate assistance at 262-785-9606.
