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Arrest and Conviction Record Discrimination

Currently there is no federal law making it unlawful for employers to discriminate against employees and applicants on the basis of arrest and conviction records and only a minor number of states provide such protection with Wisconsin being one such state.  Arrest and conviction record discrimination is unlawful under the Wisconsin Fair Employment Act (WFEA) and can be fairly complicated given the relatively undeveloped nature of the claim.

An employer may not fire an employee because of a pending criminal charge but an employer may, however, suspend an employee, if the offense-giving rise to the pending criminal charge is substantially related to the circumstances of the particular job or licensed activity.  An employer may not refuse to hire an applicant because of a record of arrests that did not lead to conviction but may ask about it on an application and during the interview process.  An employer may only refuse to hire a qualified applicant because of a conviction record for an offense that is substantially related to the circumstances of a particular job.

The issue of whether a conviction is “substantially related” to a job or position is often the subject of litigation and not always obvious and clear.  Even if it seems somewhat obvious a conviction ‘may’ substantially relate individuals are still encouraged to discuss the matter with an employment attorney.