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Wisconsin Court of Appeals Clarifies Definition of “Arrest” Under the WFEA
By Storm Larson, Associate Attorney
The Wisconsin Fair Employment Act (WFEA) generally prohibits employment discrimination on the basis of an employee/applicant’s arrest/conviction record, subject to certain exceptions. A recent decision from the Wisconsin Court of Appeals clarifies the distinction between what qualifies as an “arrest” versus a “conviction.” In Vega v. LIRC (citation pending), the court held that deferred entries of judgment and deferred prosecution agreements constitute part of an employee’s arrest record and do not qualify as convictions under the WFEA. Thus, employers may avail themselves of the investigative procedure which the court of appeals previously outlined in Onalaska v. LIRC, 120 Wis. 2d 363.

In Vega, an employer terminated an employee who had pleaded guilty to multiple counts of misdemeanor sexual assault and entered into deferred entries of judgment agreements on additional felony counts of sexual assault. The employee had been required to register as a sex offender. When the employer learned about the employee’s guilty pleas and deferred entries of judgment, it scheduled a meeting with the employee to get the exact details.

The employer was careful during the interview to only solicit information about the deferred entries of judgment and not the guilty pleas for the misdemeanor charges which qualified as convictions. Generally speaking, convictions cannot be the basis for terminating an employee unless the employer can show that the circumstances of the offense substantially relate to the job in question. Thus, the employer may have wanted to avoid that conviction discussion and focus the investigation solely on the pending charges which it was permitted to do under Onalaska. During the meeting, the employee admitted that all alleged conduct was true, and thereafter the employer terminated the employee.

The employee filed a complaint with the Wisconsin Equal Rights Division and alleged that he had been unlawfully terminated based on his record of conviction. An administrative law judge agreed with him, but LIRC reversed that decision. LIRC applied a “mixed motive” analysis and concluded that the employer had relied on lawful and unlawful reasons in deciding to terminate the employee. LIRC applied that analysis because a human resources official had made negative comments about sexually violent people being unfit members of society. In LIRC’s view, those comments also implicated the employee’s conviction record as well as his arrest record.

A circuit court reversed LIRC’s decision, but the court of appeals then reversed the circuit court and reinstated LIRC’s original ruling. According to the court of appeals, the deferred judgments were a part of the employee’s arrest record because there had been no final determination as to guilt. Therefore, it was lawful for the employer to investigate these felony charges pursuant to the court of appeals’ decision in Onalaska v. LIRC and to terminate the employee based on the results of that independent investigation. The court also reaffirmed that the Onalaska defense applies to arrest records only and it determined that the employer’s interview with the employee was a sufficient independent investigation for the purposes of the Onalaska defense.

Vega thus illustrates how complex and technical arrest/conviction discrimination claims are. We encourage employers to reach out to a member of the Boardman Clark Labor & Employment Practice Group with questions.

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