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Last week, hackers dumped 9.7 gigabytes of account information from the Ashley Madison website. For those of you who don’t know what Ashley Madison is – bless you – it is a dating website that serves would-be adulterers. Perhaps the most highly publicized account holder from the scandal was reality TV star Josh Duggar of TLC’s show “19 Kids and Counting.”

Of course, we’re interested in the employment law link on this blog. This leads to the important question of this post – what are the implications if an employee is terminated because the employer finds his or her name among the gigabytes of account information from Ashley Madison?

The Wisconsin Fair Employment Act creates two protected classes not found in federal law relevant to this discussion: (1) arrest or conviction record; and (2) use or nonuse of lawful products off the employer’s premises during nonworking hours.

The protected class of arrest or conviction record is raised here because adultery is a crime in Wisconsin. Wisconsin Statutes Chapter 944 addresses Crimes Against Sexual Morality, and Wisconsin Statute § 944.16 prohibits adultery. Specifically,

Whoever does either of the following is guilty of a Class I felony:

  • A married person who has sexual intercourse with a person not the married person’s spouse; or
  • A person who has sexual intercourse with a person who is married to another.

So an employer who makes an adverse employment decision based on an individual’s arrest or conviction for adultery may face liability under the Wisconsin Fair Employment Act. However, this would really only be relevant if a person was actually arrested or convicted for adultery. Moreover, under the Onalaska defense of Wisconsin law, an employer can take an adverse action when it is not based on an arrest or conviction but rather based on the employer’s own investigation and questioning that the individual committed an offense. Thus, if an employee is not arrested or convicted or if the employer is strictly relying on its own investigation, the employer probably is not facing liability under this protected class.

Perhaps the more interesting protected class to this discussion is the protection for use or nonuse of lawful products off the employer’s premises during nonworking hours. Most of the decisions dealing with this protected class address use of alcohol or drugs, so there is not clear precedent to go by. However, Ashley Madison seems to fit the bill of a lawful product, as morally offensive as it may be. If the employee’s use of the Ashley Madison website is strictly during nonworking hours, then the employee is likely protected from an adverse decision based on that conduct. But if the employee is using the site during working hours, then an adverse decision based on that use is not protected. The best policy for employers in these circumstances is to have a clear, well-articulated policy that prohibits the use of company devices for purposes not related to work.

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