ABCs of Employment Law: Conviction Record Discrimination
Having a conviction record can make it difficult to find a job no matter where you live. There are, however, certain rights that current or prospective employees have regardless of whether they have a conviction record. These rights can vary by state. In Wisconsin, The Wisconsin Fair Employment Act makes it unlawful to discriminate against employees and job applicants for certain protected traits. The professionals at Walcheske & Luzi are here to help you understand what it means to have a conviction record, and what rights employers maintain when considering to hire or continue to employ a person with a conviction record.
What is a Conviction Record?
A conviction record indicates that a person has been “convicted of any felony, misdemeanor or other offense, been judged delinquent, has been less than honorably discharged, or has been placed on probation, fined, imprisoned or paroled by any law enforcement or military authority.” A conviction record differs from an arrest record. An arrest record refers to “information that a person 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.” So, having a conviction record means that a person has been found guilty of committing a crime. A person can have an arrest record without having a conviction record.
What is the Wisconsin Fair Employment Act?
The Wisconsin Fair Employment Act (WFEA) provides 14 specific traits that employers are prohibited from discriminating against with current or prospective employees. One of these includes arrests or convictions, and this law applies to employment agencies, labor unions, and licensing agencies. However, though arrests and convictions are included on this list, a history of arrests or convictions is something employers are able to use as consideration for hiring or continuing to employ someone.
Understanding your rights if you have a Conviction Record
Employers can consider conviction records as a factor in the choice to offer or continue employment. Typically, “substantial relationship” to the position in question makes a difference in whether or not an employer can legally refuse to employ someone with a conviction record. If a substantial relationship exists, an employer can take the conviction record into account and use it as a basis for refusing to hire or terminating someone. Conversely, if a substantial relationship does not exist, that employer may be liable for conviction record discrimination if it refuses to hire or terminates someone on the basis of his or her conviction record.
As an example, somebody convicted of a DUI may find it hard to be hired for a delivery driver or truck driver position. The case Cree v. Labor and Industry Review Commission set important precendents with employment and conviction records. This case used the substantial relationship test to find that a substantial relationship existed between the individual’s convicition record and the position at issue. Accordingly, the employer, Cree, was found not to be liable for conviction record discrimination.
Regardless of whether someone has an arrest or conviction record, we believe in fighting for the rights granted to individuals by the law. If you believe a violation of your rights may have occurred, contact Walcheske & Luzi, LLC today.