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Wisconsin Employment Law Watch: Legislature to Consider Conviction Record Discrimination Bill

  • October 12, 2011

A new bill arguably aimed at making life easier for employers dealing with employees’ conviction records has been introduced in Wisconsin’s Assembly. Assembly Bill 286, which made its appearance on September 29, 2011, would ease the oft-confounding “substantially related” standard for felony convictions.  The current law limits employers’ ability to deny employment or terminate from employment only where the ex-offender’s felony conviction is deemed relevant in substantial measure to the position being sought or, in the case of an existing employee, to the current position held. 

Wisconsin law defines a “conviction record” to include, but not be limited to, information indicating that an individual has been convicted of any felony, misdemeanor or other offense, has been adjudicated delinquent, has been less-than-honorably discharged, or has been placed on probation, fined, imprisoned, placed on extended supervision or paroled pursuant to any law enforcement or military authority.  Wis. Stat. §111.32(3).

Current Law

Under Wisconsin’s Fair Employment Act, a conviction record is a protected characteristic in Wisconsin.  An employer may refuse to hire a qualified applicant due to his or her conviction record only if the offense is substantially related to the circumstances of the particular job the applicant seeks.  Likewise, an employer can terminate an employee only if he or she receives a conviction record during the course of employment for which such conviction record is substantially related to the circumstances of the particular job the employee holds.

Employers must review each individual’s facts and circumstances as they relate to the job in question, as well as keep abreast of current case law on the topic.  However, the answer in any case often proves elusive.  The circumstances in one case that, at one time, were acceptable to the enforcement agency as substantially related may not satisfy it in a later case.

If Assembly Bill 286 Becomes Law

This bill seeks to add a provision to the Fair Employment Act that will allow an employer to bypass the “substantially related” analysis for felonies that have not been pardoned.  An employer would be able to refuse employment to an individual who has been convicted of a felony (and who has not been pardoned), as well as terminate an employee who has been convicted of a felony (who has not been pardoned).  The proposed provision states:
 
It is not employment discrimination because of a conviction record to refuse to employ or terminate from employment:

  1. An individual who has been convicted of a felony and who has not been pardoned for that felony;
  2. An individual who has been convicted of a felony, the circumstances of which substantially relate to the circumstances of the particular job, and who has been pardoned for that felony;
  3. An individual who has been convicted of a misdemeanor or other offense, the circumstances of which substantially relate to the circumstances of the particular job; and
  4. An individual who is not bondable under a standard fidelity bond or an equivalent bond which such bondability is required by state or federal law, administrative regulation, or established business practice of the employer.

Additionally, the bill would forbid cities, villages, towns and counties from adopting provisions concerning employment discrimination based upon an arrest or conviction record that would prohibit any activity allowed by the Act.

Jackson Lewis attorneys are available to discuss the bill and other workplace developments.

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