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Employment Blog

Are Employment Application Questions About Convictions and Arrests Taboo?

Authored by Ruder Ware Attorneys
Posted on June 16, 2014
Filed under Employment

Recently, several businesses have asked me to carefully scrutinize their employment application forms for compliance with state and federal law. Interestingly, one question that consistently arises is whether employers in Wisconsin are permitted to ask questions about convictions and arrests within employment application forms. I have found that there is a great deal of confusion surrounding this issue.

First, unlike federal law (and most other states, for that matter), Wisconsin law generally prohibits employers from discriminating against applicants (and employees) on the basis of "conviction record" status and "arrest record" status, absent certain narrow exceptions. Generally, a Wisconsin employer may reject a candidate for employment who has been convicted of a felony, misdemeanor or other offense, or who has been arrested and has a pending criminal charge filed against him or her, when the nature of the offense/pending criminal charge is "substantially related" to the circumstances of the job sought (e.g., an applicant convicted of embezzlement who applies for a bank teller position). This exception to the rule generates a great deal of confusion (I've talked to HR representatives who, prior to talking to me, believed any conviction supported termination of employment with impunity, or who believed an arrest automatically disqualifies an applicant). Understandably, then, there is also a great deal of apprehension about what questions employers are permitted to ask on employment applications. There have been discrimination complaints filed with the Department of Workforce Development concerning allegedly illegal and discriminatory questions about convictions and arrests on employment applications. One such case is Lee v. Milwaukee County (LIRC, Sept. 26, 2008).

In Lee v. Milwaukee County, an applicant who was rejected for a position of employment filed a discrimination complaint against the County, alleging that questions on the application form constituted conviction/arrest record discrimination. The questions on the application form read as follows:

Have you ever been convicted of a felony or misdemeanor?

Have you ever been found in violation of an ordinance?

Do you have any pending charges for a felony, a misdemeanor, or a pending ordinance violation (other than a minor traffic violation)?

In Lee v. Milwaukee County, the Labor and Industry Review Commission concluded that these questions are not discriminatory. Why? Because the Fair Employment Act permits employers to request conviction record information from applicants, and because the question about arrests only asked about pending charges. It should be noted here, however, that questions about pending charges should be limited to pending criminal charges. Also, if this were my client, I would recommend adding language about how a conviction or pending criminal charge is not an absolute bar to employment, and is only considered if substantially related to the position sought.

Now, hopefully, there is less confusion out there.