The Wisconsin Fair Employment Act (WFEA) is a cornerstone for various rights of employees, including protection from a range of unlawful discrimination actions that apply to the employment relationship.
For example, the WFEA prohibits employment discrimination based on an individual’s arrest record. In a recent Wisconsin Supreme Court decision, the Court clarified that the scope of this protection extends to arrest records for noncriminal forfeiture offenses, not
just criminal wrongdoing. In other words, the Court concluded that the definition of “arrest record” includes non-criminal offenses like municipal theft citations.
In Oconomowoc Schools v. Cota (2025), the Court concluded that the term “arrest record,” applies to arrest records relating to non-criminal and criminal offenses alike. Municipal citations, which are non-criminal in nature, fall within the Wisconsin definition of arrest record. This decision broadens the scope of the WFEA’s protections available to employees and candidates for employment. It requires that employers be more vigilant in complying with the law to avoid successful suits that allege arrest record discrimination.
The Oconomowoc School District launched an internal investigation when a co-worker accused two fellow District employees of stealing money from the District. That investigation was inconclusive. The District determined that it was missing cash but could not identify who was responsible. The District turned the case over to the local police department for further review. After further investigation, two employees were cited by the municipality for municipal theft, a non-criminal offense.
Approximately one year later, the Assistant City Attorney for the municipality told the District that he believed he could obtain a conviction against the two suspected employees. The next day, the District terminated the employees’ employment. The employees then filed suit, alleging arrest
record discrimination under the WFEA.
The WFEA was enacted to ensure that individuals are evaluated for employment based on their qualifications rather than factors such as race, age, disability, religion, or arrest record. The legislature’s intent was to protect individuals from stigmatization and to promote equal access to employment
opportunities. By clarifying that municipal citations are covered under the WFEA’s definition of “arrest record,” the Court has underscored that employers must not discriminate against employees or applicants based on municipal citation records, subject to certain exceptions.
This decision has significant implications for both employers and employees. There are several approaches that employers may lawfully follow to avoid arrest record discrimination. An employer’s attorney will be of assistance in helping the employer in such situations
For employees, the decision underscores the importance of understanding their rights under the WFEA. Employees should be aware that arrest records pertaining to non-criminal municipal citations are a protected category under the WFEA.
Relevant legislation is pending in the Wisconsin legislature concerning this matter.
If you are an employer or employee and have any questions about employment law please reach out to one of our skilled employment lawyers.