Wrongful Termination Due to Arrest or Conviction Records in Wisconsin: The 'Substantially Related' Test
In Wisconsin, it is illegal to fire an employee strictly because of an arrest or conviction record unless the specific offense is 'substantially related' to the exact duties of their job.
Wisconsin is one of the few states that strongly protects workers from employment discrimination based on their criminal history. Under the Wis. Stat. § 111.31, an employer cannot simply adopt a blanket policy of firing anyone who gets arrested or convicted of a crime. Instead, the state enforces a strict legal standard known as the 'substantially related' test.
If you have been fired, suspended, or denied a promotion due to a past mistake or a recent arrest, your employer may have violated state law. Consulting a knowledgeable employment lawyer from our directory can help you understand your rights and fight back against unlawful discrimination.
The 'Substantially Related' Test Explained
According to Wis. Stat. § 111.321 and Wis. Stat. § 111.335, employers are prohibited from discriminating on the basis of arrest or conviction records. The major exception is if the circumstances of the crime are substantially related to the circumstances of the particular job. This standard was heavily shaped by the precedent set in County of Milwaukee v. Labor and Industry Review Commission, 139 Wis. 2d 805 (WI Supreme Court 1987).
The courts look at the traits required for the job and the traits demonstrated by the crime. If an employer fires you, they must prove that allowing you to continue working would create an unreasonable risk to their business or the public.
Daycare Workers and Teachers
In professions involving vulnerable populations, the 'substantially related' test is strict. If a daycare teacher in Madison is convicted of child abuse, domestic violence, or drug distribution, the employer has a clear legal right to terminate them. The circumstances of the crime (harming others) directly relate to the job duties (caring for children safely).
Bank Tellers and Retail Cashiers
Financial crimes have a direct impact on money-handling roles. If a bank teller in Milwaukee or a retail cashier in Appleton is convicted of embezzlement, theft, or forgery, the employer can legally fire them. The trait shown by the crime (dishonesty with money) is substantially related to the job (managing money). However, if that same bank teller is convicted of a minor off-duty noise violation or a hunting infraction, firing them would likely be illegal.
Delivery Drivers and CDL Holders
For employees whose primary job is driving, traffic offenses matter. If a delivery driver in Green Bay gets a DUI (Operating While Intoxicated in Wisconsin) or is convicted of reckless driving, the offense is substantially related to their job. Conversely, if an office worker who never drives for work gets an OWI over the weekend, the employer generally cannot use that arrest as grounds for termination.
Step-by-Step Process to Challenge a Termination
If you believe your arrest or conviction was not substantially related to your job, you must take action through the state's administrative system.
Step 1: Request the Reason in Writing
Ask your employer to put the reason for your termination in writing. If they explicitly state you were fired due to a background check or a recent arrest, this serves as powerful evidence for your claim.
Step 2: File a Complaint with the ERD
You cannot go straight to a judge. You must file a formal complaint with the Equal Rights Division. You will need to complete and submit Form ERD-4206-E, Wisconsin, Department of Workforce Development, Discrimination Complaint - Fair Employment Law. You can file this by mail or in person at the Wisconsin Department of Workforce Development, Equal Rights Division, Milwaukee or the Wisconsin Department of Workforce Development, Equal Rights Division, Madison.
Step 3: Prove the Disconnect
During the ERD investigation, your lawyer will help demonstrate that the elements of your offense do not intersect with your daily job duties. For example, proving that a decades-old shoplifting conviction has no bearing on your current job as a landscaper.
How Much Does it Cost in Wisconsin?
Filing the initial ERD complaint is free of charge. However, because employers often fight these claims vigorously to protect their hiring policies, retaining an attorney is advised. Lawyers usually charge an hourly rate of $200 to $450. In some strong cases, attorneys will take the case on contingency, meaning they only get paid if they recover back wages for you. If you win, the administrative judge can order the employer to pay your reasonable attorney fees.
How Long Does the Process Take?
Time is critical. You only have 300 days from the date of your termination to file your complaint with the ERD. Once the complaint is filed, the initial investigation can take 6 to 12 months. If the investigator finds probable cause, scheduling an administrative hearing can take an additional 6 to 8 months.
Frequently Asked Questions (FAQ)
What is the difference between an arrest and a conviction?
An arrest means you have been accused, but not proven guilty. Wisconsin law strongly protects against discrimination based purely on arrests. If you are merely arrested, an employer generally can only suspend you without pay if the alleged crime is substantially related to the job. They usually cannot terminate you until a conviction occurs.
Can an employer fire me for an expunged record?
No. If a Wisconsin judge has legally expunged your record, it is as if the conviction never happened for employment purposes. Firing an employee based on an expunged record is a violation of state law.
Does the law protect me if I lie on my job application?
No. If you are asked about relevant convictions on an application and you lie, the employer can legally fire you for falsifying company documents, regardless of whether the underlying crime was substantially related to the job.
Can they fire me for a crime committed 20 years ago?
It depends on the job. While older convictions are generally harder for employers to prove as a current unreasonable risk, if the crime is highly severe and directly related to the role, they might still use it. However, long periods of good behavior work heavily in the employee's favor during an ERD evaluation.
Are domestic violence convictions always substantially related?
Not necessarily in every scenario, but Wisconsin courts apply the substantial relationship test broadly to violent crimes. In Cree, Inc. v. LIRC, 400 Wis. 2d 827 (WI Supreme Court 2022), the Wisconsin Supreme Court rejected the idea that domestic violence is purely a private matter unrelated to workplace settings. Under Wis. Stat. § 111.335(3)(a)1, an employer may legally refuse to hire or terminate an employee even in a standard commercial or office role with coworkers, because domestic violence offenses demonstrate a willingness to use physical force and disregard the law, establishing a substantial relationship to workplace safety.
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