News & Insights

“Ban the box” legislation has become popular throughout the country. Fifteen states and a number of local jurisdictions have adopted legislation that involves arrest and conviction record discrimination and specifically “bans the box” that must be checked on an employment application if an applicant has been arrested or convicted of a crime. Many employers have a question on their application form that requires an employee to indicate whether they have been arrested for a crime or have been convicted of a crime; usually reference is made to crimes other than traffic violations. Various jurisdictions are passing legislation that requires an employer to eliminate this question from an employment application in order to help applicants that may have been convicted of a crime in the past from being summarily removed from employment consideration. This legislation does not mean an employer must hire an employee that has been convicted of a crime but rather changes the process to determine whether or not an applicant has a criminal record that must be considered. 

Wisconsin has yet to consider legislation of this nature. Wisconsin does, however, have a rigid non-discrimination statute relating to arrest and conviction record discrimination.  An employer may not discriminate against an employee who has been arrested for a criminal violation but rather may defer the consideration of that applicant until a time after the criminal proceedings have been completed. A Wisconsin company may not refuse to hire an applicant who has been convicted of a crime unless the circumstances of the crime substantially relate to the job duties that would be performed in the position being filled. This requires the employer to have a clear understanding of the circumstances relating to the conviction and assess whether those circumstances substantially relate to the job duties that would be performed by someone in the position. The focus should be on whether the job duties of the position would afford an opportunity for the applicant to engage in conduct that is similar to the conduct which resulted in the criminal conviction. Cases relating to arrest and conviction record discrimination are very dependent upon the facts involved; however, the employer must be very careful to avoid making a decision that is solely based upon some type of arrest or conviction in order to avoid the risk of a discrimination complaint. 

Wisconsin has not adopted the “ban the box” legislation as other jurisdictions have. It is still acceptable for a Wisconsin employer to ask a question on the employment application that would disclose whether or not an applicant has been arrested or convicted of a crime. The employer must make it clear, however, that the mere arrest or conviction will not result in the applicant being summarily removed from consideration for the vacant position. Employers must be careful that their employment application is in compliance with Wisconsin discrimination law.