Conviction Record Discrimination under the Wisconsin Fair Employment Act

Conviction record discrimination is a natural follow-up to our previous post regarding arrest record discrimination.  Like arrest record discrimination, conviction record claims are not under federal law, but rather only under the Wisconsin Fair Employment Act.  Also like arrest record discrimination, the same “substantial relationship” exception can be applicable.

Under the WFEA, the term “conviction record” includes, but is not limited to information indicating that an individual has been:

  • convicted of any felony, misdemeanor or other offense
  • adjudicated delinquent
  • less than honorably discharged
  • placed on probation, fined, imprisoned, placed on extended supervision or paroled pursuant to any law enforcement or military authority

That’s all great, but more often than not, this issue arises during the hiring process and relates to convictions listed in an applicant’s background check.

What Do I Have to Disclose On an Application?

We have heard this question quite possibly a million times and our answer is always the same: everything that is asked for.  When it comes to applications, you have to be as truthful as possible.  If you aren’t, the employer can use that as a legitimate reason not to hire you.

If the application asks if you have ever been convicted of any offense and, usually, asks you to list any convictions, list all of your convictions.  Do not leave anything out.  If you need to take a list with you because your record is that extensive, fine.  If you leave something off, whether intentionally or not, the employer will claim that you falsified your application and can legally refuse to hire you.  Furthermore, and particularly in this economy, the last thing you want to do is be seen as someone with something to hide.

What Can & Can’t Be Used Against an Employee?

Oddly enough, the answer to both is “everything.”  If you’re thinking, “But the application only asked if I had been convicted of a felony within the last seven years!”  That’s all fine and good, but that means absolutely nothing.  The fact of the matter is that while the application only asked about the last seven years, everything in your record is fair game.

That conviction from 20 years ago? Relevant. The municipal fine for shoplifting you got when you were 19?  Relevant.  All of it can and will be reviewed and analyzed.  That doesn’t necessarily mean it can be held against you, it just means that it can be reviewed and analyzed.

Whether or not a conviction can be used against an applicant or employee is dependent on whether or not the conviction is substantially related to the position applied for or held.  As we discussed in our last post, this is a case-by-case analysis that analyzes what the conviction is, what character traits can be linked to the conviction (think of “theft” translating into “general dishonesty”), the job duties of the position applied for or held, and the workplace environment.  These analyses can be, and in most cases are, very fact specific.

Recommendations for Employers & Employees

If you are an employer and you have a job applicant with a conviction record, call an employment law attorney (hi there!) with any questions.  As we have said, but cannot say enough, do not ask the attorney who handles your contracts, taxes, etc.  This is particularly true if you are a company outside of Wisconsin!

If you are an individual with a conviction record applying for a job and you are rejected for the job based on your conviction(s): call an employment law attorney.  You owe it to yourself to get advice and answers, positive or negative.

For more information, as always, check out our conviction record discrimination page and/or go to the Wisconsin Equal Rights Division website. Wisconsin has more information on conviction record discrimination, including the applicable Wisconsin statutes.

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