Wisconsin Fair Employment Act & Criminal Background Checks

Employers in Wisconsin must be cognizant of the Wisconsin Fair Employment Act when conducting criminal background checks. A recent Wisconsin Labor and Industry Review Commission (Commission) highlights that particularly heinous crimes cannot always lead to employment disqualification.

 

Fair Employment Act Requirements

Let’s first start with an overview of what the Fair Employment Act requires of employers. The Act prohibits employers from discriminating against an individual on the basis of several protected classes including an arrest or conviction record.[1] Employers may also not print or circulate any job advertisement or solicitation which expresses or implies any limitation with respect to the protected classes including arrest and conviction records.[2]
 
The law further outlines that employment discrimination based on an arrest record includes, but is not limited to, requesting an applicant or employee supply information regarding any arrest record except for a pending charge (with limited exceptions). It is not employment discrimination to refuse employment for a pending criminal charge if the circumstances of the charge substantially relate to the circumstances of the particular job or licensed activity. With respect to criminal convictions, it is not employment discrimination to refuse to employ an individual if the circumstances of the conviction substantially relate to the circumstances of the particular job or licensed activity.[3]
 
For current employees, the Wisconsin Department of Workforce Development clearly establishes that an employer may not terminate an employee because of a pending criminal charge. However, the employer may suspend the employee if the offense is substantially related to the circumstances of the particular job or licensed activity.[4]

Recent Commission Ruling – A Must Read!

Case Background

In the Commission decision from December 2018, an employer found out the hard way that courts may strictly interpret the Fair Employment Act to the employer’s detriment. In Palmer v. Cree, Inc., the employer denied employment to an individual – who had been extended a conditional offer of employment – based on the results of a criminal background check.
 
The background check revealed numerous criminal convictions including misdemeanors for criminal damage to property, battery and 4^th degree sexual assault, and a felony conviction for strangulation and suffocation. There was an additional conviction from 2001 that was not included on the background report.
 
Following receipt of this information, the employer’s associate general counsel reviewed the report using an adjudication matrix from a previous employer which designated certain crimes as a “fail”. Based on the associate general counsel’s review, it was determined the individual did not meet the criteria for the job position.

Commission Decision

After the employer’s decision, the applicant filed an employment discrimination complaint under the Fair Employment Act. Before the Commission’s review, an administrative law judge ruled in favor of the company because the applicant would have an unsupervised working environment with close access to female coworkers.
 
Upon appeal, the Commission weighed whether the conviction history was “substantially related to the job” while considering past decisions on the issue. Ultimately the Commission determined that the mere fact females worked in the plant and that the individual would be unsupervised with customers in their homes was insufficient to meet the law’s requirements. Additionally, the Commission cited the FAQs published by the Equal Rights Division which cautioned that, “Whether the crime is an upsetting one may have nothing to do with whether it is substantially related to a particular job.”

Employer Next Steps

Employers hiring in Wisconsin would be wise to review this Commission decision with qualified legal counsel to determine if any changes are recommended to their hiring process or adjudication matrix.