Wisconsin’s Fair Employment Act (WFEA) contains protections against discrimination on the basis of certain employee characteristics, such as gender, national origin, or disability. The law also protects against discrimination on the basis of employee conduct, such as protections against discrimination for the use or nonuse of lawful products, or discrimination for one’s arrest and conviction record.

The following is a discussion of a recent Wisconsin Court of Appeals’ decision regarding the WFEA’s arrest and conviction record discrimination provisions.

Arrest and Conviction Record Discrimination

The WFEA’s arrest and conviction record discrimination law prohibits employers from taking adverse employment action based on an employee’s or job applicant’s conviction record. An exception to this is if the circumstances of the conviction are substantially related to the circumstances of the job, or if another exemption applies. For example, educational agencies are permitted to exclude any person convicted of a felony from employment, regardless of whether the circumstances of the conviction substantially relate to the employment position.  

Wisconsin law also restricts employers’ ability to refuse to employ an employee or job applicant based on their arrest record. Similar to the law’s conviction record provisions, an employer may refuse to employ, or may suspend a current employee, during any period during which criminal charges are pending, if the circumstances of the charges substantially relate to the employment circumstances.

Court of Appeals Decision

The Wisconsin Court of Appeals recently addressed whether the arrest record portion of the law applies to circumstances in which a current employee has been issued a municipal code violation, classified as a civil forfeiture and not a criminal charge. Oconomowoc Area School District v. Cota, 2024 WL 111098.

In Cota, the District believed that two employees stole scrap metal from the District, sold it, and retained the proceeds. The District had not, however, reached this determination based on its own independent investigation, and the District’s own investigation was inconclusive. The District terminated their employment. They filed suit alleging a violation of Wisconsin’s arrest record discrimination law, Wisconsin Statute section 111.335(2). The employees contended that the District terminated their employment because they had been cited for theft; the prosecutor advised the District that he could prevail at trial; and the employees agreed to pay a fine to resolve the citation. The employees prevailed at hearing, and on appeal. The District appealed to the Wisconsin Court of Appeals.

For purposes of appeal, the Court accepted the employees’ version of the District’s motivation for termination, namely the issuance of the citation.

Even accepting that the facts established that the District terminated the employees’ employment due to the citation, the Court nonetheless reversed the prior decisions, determining that a civil, municipal offense did not qualify as an arrest as that term is defined by statute. Wisconsin Statute section 111.32(1) defines the term “arrest record” as follows:

“Arrest record” includes, but is not limited to, information indicating that an individual 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 pursuant to any law enforcement or military authority.

The Court concluded that the statute was only intended to cover crimes classified as misdemeanors or felonies in Wisconsin, or similar level of offenses in a different jurisdiction that may not use those same categories, such as a military authority or foreign criminal justice system.

Independent Investigation and Substantial Relationship

While the decision appears to clarify a longstanding question, namely whether a civil, municipal offense is covered within the definition of “arrest”, it also reminds employers of several key considerations in this area of employment law. First, an employer may act on determinations reached through its own independent investigation, including questioning of the employee. City of Onalaska v. LIRC, 120 Wis.2d 363 (Ct. App 1984). Circumstances may not always permit, however, it is ideal to investigate potential employee criminal conduct, such as theft in the workplace, and rely on the determinations reached in that investigation. This can often occur simultaneously with, but independent of, any law enforcement agency’s investigation.

Second, it is important to note that a conviction for theft from one’s employer is most certainly a conviction for conduct the circumstances of which substantially relate to the circumstances of the employment. The problem in this case was that the findings of fact following hearing determined that the District’s decision to terminate employment occurred based on the issuance of the citation and the representation by the prosecutor that he would be able to support the citation at trial. This is a good reminder that a current employee may not be terminated from employment based on a pending charge, even if that pending charge is for conduct that meets the substantial relationship test. The employer may suspend the individual’s employment pending resolution of the charges, but may not terminate employment until the charges result in a conviction.

For questions regarding this article, please contact the author,

or your Renning, Lewis & Lacy attorney.

Geoffrey A. Lacy

Geoffrey A. Lacy

glacy@law-rll.com | 920.283.0704

Our legal updates provide general information only and are not intended to provide legal advice or create an attorney-client relationship.