Fired for Drinking or Smoking Off the Clock? Wisconsin's Lawful Products Statute Explained
Under Wisconsin law, employers generally cannot fire you for consuming lawful products like alcohol or tobacco off the company premises during nonworking hours. However, exceptions exist if the use impairs your job performance.
Unlike many other states, Wisconsin has specific legal protections for employees' private lives. If you enjoy a beer at a weekend festival or smoke cigarettes on your own time, your employer cannot legally fire you simply because they disagree with your lifestyle. This protection is enshrined in the state's lawful products statute.
However, this protection is not absolute. Employers still have the right to enforce workplace safety and ensure that employees are not impaired while on the clock. If you believe you were unfairly terminated for off-duty conduct, browsing our directory to consult with a local employment lawyer can help you protect your career.
Understanding Wis. Stat. § 111.321
The core of this protection comes from Wis. Stat. § 111.321 and Wis. Stat. § 111.322, which prohibit employment discrimination based on the use or nonuse of lawful products off the employer's premises during nonworking hours. This law was primarily designed to protect smokers and casual drinkers from discriminatory corporate wellness policies.
Consuming Alcohol at Public Events
Imagine you work in a bank in Madison, and your manager sees you having a few drinks at a Saturday afternoon football tailgate. On Monday, they fire you, claiming your behavior does not align with the company's 'professional image.' Under Wisconsin law, as long as the alcohol consumption was legal, off company property, and during your nonworking hours, this termination would likely be considered unlawful discrimination. The employer cannot police your off-duty consumption of legal beverages.
Smoking Tobacco
The lawful products law is frequently applied to tobacco users. An employer in Milwaukee cannot refuse to hire you or decide to fire you simply because you are a smoker outside of work. They can, of course, enforce strict smoke-free policies on their own property, but what you do on your own time is legally protected.
Legal CBD Products vs. Marijuana
The rise of CBD products has complicated the landscape. While hemp-derived CBD with less than 0.3% THC is federally and state legal, marijuana remains illegal for recreational use in Wisconsin. If you are fired for using legal CBD off the clock, you may be protected. However, if that CBD product causes you to fail a drug test for THC, the situation becomes highly complex. Because marijuana is not a 'lawful product' in Wisconsin, failing a THC drug test can still be legally used as grounds for termination, even if you claim it was from legal CBD.
The 'Impairment' Exceptions
The lawful products protection vanishes if your off-duty consumption directly impairs your ability to do your job safely and effectively.
| CDL Drivers | Commercial drivers are subject to strict federal DOT regulations. If off-duty alcohol use results in a DUI or a failed random alcohol screening before a shift, the termination is legal because it relates to safety and licensing requirements. |
| Heavy Machinery Operators | Factory workers operating dangerous equipment in Green Bay or Kenosha can be fired if they arrive at work hungover or impaired, as this violates workplace safety standards. |
| Conflict of Interest | An employer can prohibit the use of a lawful product if it creates a direct conflict of interest with the employer's business mission (e.g., an anti-tobacco advocacy group firing an employee for smoking). |
Step-by-Step Process for Filing a Claim
If you were wrongfully terminated for off-duty lawful product use, you must file a complaint with the state rather than going directly to court.
Step 1: File an ERD Complaint
You must file a discrimination complaint with the Equal Rights Division (ERD) of the Department of Workforce Development. You will need to complete Form ERD-4206-E, Wisconsin, Department of Workforce Development, Discrimination Complaint - Fair Employment Law. You can submit this to the Wisconsin Department of Workforce Development, Equal Rights Division, Milwaukee or the Wisconsin Department of Workforce Development, Equal Rights Division, Madison.
Step 2: The Investigation Phase
An ERD investigator will review your claim and ask your employer for a response. The investigator will then issue a determination of whether there is 'Probable Cause' to believe discrimination occurred.
Step 3: Administrative Hearing
If probable cause is found, your case will move to a hearing before an Administrative Law Judge (ALJ). This functions much like a trial, where you and your lawyer will present evidence, such as text messages, termination letters, or witness testimony, proving you were fired strictly for your off-duty conduct.
How Much Does it Cost in Wisconsin?
Filing a discrimination complaint with the Wisconsin ERD is completely free. There are no state filing fees to initiate the investigation. However, hiring an attorney to guide you through the complex ERD process is highly recommended. Lawyers typically charge an hourly rate (between $200 and $450) or may take the case on a contingency basis if the potential back pay award is significant.
How Long Does the Process Take?
You have a strict statute of limitations to act: you must file your ERD complaint within 300 days of the date you were terminated. Once filed, the ERD investigation phase generally takes 6 to 12 months. If the case goes to an administrative hearing, the entire process can take over a year to resolve.
Frequently Asked Questions (FAQ)
Does the lawful products law protect me if I post pictures of myself drinking on social media?
Generally, yes. If the consumption of alcohol was legal and off-duty, simply posting a picture of it shouldn't be grounds for termination. However, if you are wearing a company uniform in the photo, the employer might argue it violates their branding or professional conduct policies.
Can my employer ban me from drinking during my unpaid lunch break?
Yes. The law protects consumption off the employer's premises during nonworking hours. An unpaid lunch break in the middle of your shift is usually not considered protected nonworking time because you are expected to return to duty completely sober.
What if I have a medical marijuana card from another state?
Wisconsin does not recognize medical marijuana. Because marijuana remains illegal under Wisconsin state law and federal law, it is not considered a 'lawful product,' and you can be fired for using it, regardless of out-of-state cards.
Can an employer refuse to hire me because I smoke?
No. Wisconsin's law explicitly prohibits refusing to hire an applicant simply because they use a lawful product like tobacco off the premises.
What compensation can I receive if the ERD rules in my favor?
If you win your ERD hearing, you may be awarded back pay (wages lost since termination), reinstatement to your former job, and the employer may be forced to pay your attorney's fees. Wisconsin law does not generally allow for large emotional distress damages in these specific ERD administrative claims.
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