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.
The Court's Holding:
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.
Underlying Facts:
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 inclusive; 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.
Legislative Intent and Policy Context:
The WFEA was enacted to ensure that individuals are evaluated for employment based on their qualifications rather than factors such as race, age, disability 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 it is necessary for employers to not discriminate against employees due to municipal citation records.
Implications for Employers and Employees:
This decision has significant implications for both employers and employees in Wisconsin. Employers must remain vigilant in their hiring and firing practices to ensure compliance with the WFEA. While the Court's decision provides clarity on the exclusion of municipal citations, employers must exercise caution when considering an individual's arrest record to avoid potential claims of discrimination. 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 to follow available and recognized defenses to arrest record discrimination.
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.
Conclusion:
The Wisconsin Supreme Court's decision marks an important clarification of the WFEA's scope. By clarifying that records relating to municipal citations are included in the definition of “arrest record,” the Court has provided valuable guidance for employers and employees alike. As the legal landscape continues to evolve, it remains essential for employers and employees alike to stay informed about their rights and responsibilities under the WFEA. If you are an employer or employee and have any questions about employment law please reach out to one of our skilled employment lawyers.