In our post about Pepsi, we noted that arrest record discrimination is not a recognized claim under federal law, but it is under Wisconsin’s anti-discrimination law, the Wisconsin Fair Employment Act (WFEA). The WFEA makes it illegal for an employer to deny or terminate employment based on an arrest record. But, as with most things, there is a catch, or rather in this case, catches.
Arrest record claims are full of twists and turns, loopholes, and caveats. For this reason, they can easily get screwed up if you are not careful. We recommend that you always, always talk to an attorney about these situations.
What is an Arrest Record?
First, it is important to note that arrest record may encompass more than you’d think. Under the WFEA, the term ‘arrest record’ includes, but is not limited to information indicating that an individual has been:
- Taken into custody or detention
- Held for investigation
For any felony, misdemeanor or other offense pursuant to any law enforcement or military authority. Whew. To summarize, an ‘arrest record’ is anything relating to a charge/arrest.
What’s the Catch?
Now, as we were saying, there are exceptions to the law. For example, if a current employee is arrested, and the charge is “substantially related” to their job, an employer can suspend their employment, pending the outcome of the charge. Whether or not a charge is substantially related to a job is never a cut and dried. It depends on what the charge was for, what kind of job the employee has, and what the employee’s work environment is like. Due to the great number of variables involved, each situation needs to be analyzed on a case-by-case basis.
Similarly, an employer can refuse to hire an applicant who has a pending arrest or charge that would be substantially related to the position for which they have applied.
The critical word in both arrest record discrimination exceptions is pending. Employers can make these decisions if the charge is pending, not if it has been resolved. So, lets say you were charged with a felony, misdemeanor or other offense. When you apply for a job, the employer runs a background check. The employer cannot use the charge as a reason to deny you the job if you were never actually convicted.
What about Firing an Employee Who was Arrested?
An employer or company can suspend an employee who has been arrested for a charge that’s substantially related to the position. However, they can’t fire the employee because of the arrest. BUT an employer can fire an employee if it learns through its own, independent investigation (apart from the arresting authorities), that they did commit the offense for which they were arrested. Assuming, of course, the charge is substantially related to the position. We warned you… arrest record discrimination cases have a lot of ins and outs that can be very confusing.
So, at the end of the day, here’s what you need to know about arrest record discrimination in Wisconsin:
1. If you are an employer and you either have a job applicant with a pending charge or a current employee who’s been arrested, call an employment law attorney (may we suggest the fine attorneys at Walcheske & Luzi? Just did). Do not ask the guy who has been doing your contracts and acquisitions work for the last 15 years. While he may say he can help, do yourself a favor and get someone who doesn’t have to research the subject to answer your questions. You’ll thank us in the long run. This is even more important if you are an out of state employer, as chances are you haven’t encountered a state law like this one!
2. If you are a current employee and you’ve been arrested (for anything) tell your employer about the charge, but do not admit to being guilty. Allow the Wisconsin court system to determine your guilt or innocence in the case.
Next, call an attorney – you’ll want a criminal attorney to sort out the charge and an employment law attorney to sort out the matter at work with your employer. The attorneys will (hopefully) answer any questions you have and give you an idea of what to expect going forward. If your employer fired you after learning of the arrest it is especially important to call an employment law attorney (hey, you’re on the website of an employment law firm now!).
3. If you are applying for a job, have a pending charge against you, and have been rejected for the job based on your charge: call an employment law attorney. Simple as that.
Confused, scratching your head…hungry? Leave a comment!