United States: Wisconsin Commission Finds Employers Cannot Consider Expunged Convictions—Even If Substantially Related To The Job

The Wisconsin Fair Employment Act prohibits employers from taking adverse employment action against an applicant or employee because of the individual's conviction record, unless the conviction is "substantially related" to the position sought or held. Wisconsin law permits certain offenders who commit crimes before they reach the age of 25 to have their convictions expunged. The Wisconsin Labor and Industry Review Commission recently decided that employers cannot rely on expunged convictions when arguing that an individual's conviction record is substantially related to a job. 

Background

In Staten v. Holton Manor (January 30, 2018), an applicant applied for a job as a certified nursing assistant at a skilled nursing facility. She filled out a background check form disclosing that she had been convicted multiple times but that one of the convictions had been expunged. After the skilled nursing facility decided not to hire the applicant because of her criminal background, the individual filed a charge of discrimination alleging the employer had violated the Wisconsin Fair Employment Act by discriminating against her because of her conviction record. The employer defended against the claim by asserting the affirmative defense that the individual's conviction record was substantially related to the position of skilled nursing assistant.  

The Commission's Decision

The Wisconsin Labor and Industry Review Commission concluded that the employer could not rely on the expunged conviction when arguing that the individual's conviction record was substantially related to the job. The commission concluded that permitting the employer to do so would conflict with the purpose of the statute permitting expungement, which is to permit certain offenders to "wipe the slate clean of their offenses and to present themselves to the world—including future employers—unmarked by past wrongdoing." 

Fortunately for the skilled nursing facility, the commission concluded that one of the other convictions in the applicant's background was substantially related to the job, and therefore the commission held the employer did not violate the Wisconsin Fair Employment Act.

Takeaways

When a conviction is expunged in Wisconsin, a court's records regarding the case are sealed and a search for the case on the online Wisconsin Circuit Court Access program will not return the case. But the conviction will not disappear from other records, such as the records of the Crime Information Bureau of the Wisconsin Department of Justice, which many employers use as a source for background checks. Additionally, applicants may disclose expunged convictions during interviews or on forms when applying for a job. Wisconsin employers will now need to take care not to consider such expunged convictions when making adverse employment decisions. 

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