Wisconsin’s Fair Employment Act (FEA) prohibits employers from discriminating against individuals based on a number of protected classes including, but not limited to, age, disability, military service and arrest and/or conviction record. Employers cannot refuse to hire individuals due to an arrest record unless the charges are still pending. Just what exactly constitutes an arrest record? The Wisconsin Supreme Court recently weighed in.
On April 10, 2025, the Wisconsin Supreme Court issued an opinion that analyzed the definition of arrest record under the FEA. For background, the school district conducted an internal investigation after an employee accused two other employees of stealing money. The district also turned over the matter to police for a criminal investigation. The accused employees were cited for municipal theft, which is a non-criminal offense. However, these municipal citations were ultimately dismissed. Following this, the district terminated their employment.
Following termination, the fired employees sued the school district alleging violations of the FEA given they were terminated for their arrest records. Under the FEA, arrest record is defined to include “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 looked at two key issues: (1) does the phrase “any…other offense” include non-criminal offenses and (2) if so, did the Labor and Industry Review Commission (LIRC) correctly conclude the district engaged in arrest record discrimination by terminating the employees.
For the first issue, the court agreed that the phrase “any…other offense” includes violations of both criminal and non-criminal laws, particularly since “Wisconsin law expressly authorizes arrests in connection with non-criminal offenses.” Thus, the terminated employees municipal theft citations were considered to be covered under the arrest record definition.
For the second issue, the court further agreed that the LIRC properly drew its conclusion finding the school district terminated the employees because of the arrest records in violation of the FEA. In support of this finding, the court pointed to evidence that the district was not motivated to act by its own internal investigation. Additionally, testimony highlighted that information such as the citation, the fact that the assistant city attorney felt he could obtain a conviction and that the assistant city attorney told the district he anticipated reaching a settlement with the employees that included restitution, were substantial factors that influenced the decision to terminate.
Employers hiring in Wisconsin need to be aware of the FEA and understand the law’s implications as it relates to the use of arrest record and conviction record information in employment decisions. While arrest record information cannot be used, conviction records may only be used if substantially related to the particular job, with each job and record being considered on an individual basis. Impacted employers should work with qualified legal counsel to ensure their hiring and employment policies are in alignment with the FEA.