HR professionals that conduct criminal background checks on prospective employees are well aware of (or should be) the Wisconsin Fair Employment Act’s prohibition against discrimination on the basis of an individual’s arrest or conviction record. Under the WFEA, an employer may not discriminate against an employee or prospective employee on the basis of a pending arrest or conviction, unless the circumstances of the arrest/conviction are substantially related to the circumstances of the proposed employment. Easy enough? Not really.

For example, what if a conviction, even if substantially related to the individual’s proposed employment, has been expunged from his record? Under the Wisconsin expungement statute, Wis. Stat. Sec. 973.015(2m)(g), individuals who commit crimes before the age of 25 may request expungement of the offense from their record if it is determined that “the person will benefit and society will not be harmed.” Once an offense has been expunged, all references to the individual’s name and identity are to be obliterated from the record, which allows certain offenders to “wipe the slate clean of their offenses and present themselves to the world – including future employers – unmarked by their past wrongdoing.” State v. Hemp, 353 Wis.2d 146, 157 (Wis. App. 2014).

In Staten v. Holton Manor, ERD Case No. 2013030311 (LIRC, Jan. 30, 2018), the Wisconsin Labor and Industry Review Commission considered the relation between the expungement statute and a “conviction record” under the WFEA, finding that a conviction that has been expunged cannot be considered by an employer under any circumstances, even if the underlying expunged offense was “substantially related” to the employment. The Commission also found that non-criminal ordinance violations (e.g., municipal citations) constitute “other offenses” under the statute and may be considered when reviewing an individual’s record. Thus, a municipal conviction for disorderly conduct arising out of a confrontation between a prospective employee and her boyfriend (in which she lost her temper and stuck him several times) was found “substantially related” to her proposed employment as a certified nursing assistant, since the character traits revealed by the conviction include a tendency to lose control and commit acts of violence against someone who angered or displeased her – such as a vulnerable, elderly resident of a nursing home.

Attempting to discern the relation between a prospective employee’s pending arrest (you can NEVER consider an arrest that did not result in a conviction) or conviction and his/her proposed employment can be very tricky and not nearly as obvious as you may think. Employers must take special caution when making these decisions, fully cognizant of the prohibitions of the Wisconsin Fair Employment Act and how it has been interpreted.

If you have any questions feel free to contact Attorney Alan E. Seneczko at (262) 560-9696, or alseneczko@wesselssherman.com.