This is the first in a two-part blog post series regarding Wisconsin employment law and the recent scandals with the National Football League and players in the justice system.
I think it is safe to say that everyone is now familiar with the Adrian Peterson scandal currently rocking the National Football League. Peterson was recently deactivated by the Minnesota Vikings (and then reactivated) following news that a warrant was issued for his arrest by a Texas court on charges of child abuse. Based on my personal observations, sports and news talk outlets seem to be divided on the role of Peterson’s employer, the Minnesota Vikings, in responding to these charges. Some have argued for Peterson to receive “due process” and let the legal system run its course before passing judgment on what the Minnesota Vikings should do about Peterson. Others have said that the Vikings should not let Peterson play because of the information already available to his employer.
Wisconsin presents some unique discussion on private sector, at will employment relationships under similar circumstances because the Wisconsin Fair Employment Act protects individuals from discrimination on the basis of the individual’s arrest record. That is, an employer cannot take an adverse action against an employee based on 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.
However, there is an important caveat to arrest record discrimination cases in Wisconsin known as the “Onalaska defense.” This defense developed out of the 1984 Wisconsin Court of Appeals case of City of Onalaska v. LIRC. The Onalaska court held that it is not arrest record discrimination for an employer to take an adverse action because it concludes from its own investigation and questioning that the individual committed an offense. That is, an employer does not have to wait for the justice system to run its course before determining how misconduct that occurs away from work may affect the employment relationship. Doing so may actually open the employer up to liability for the related protected class of conviction record discrimination. Rather, an employer can rely on its own investigation and conclusions to determine whether adverse action is appropriate under the Onalaska defense.
In the next post, we’ll focus on conviction record discrimination and the substantial relationship defense.