122.12 Definition of arrest record and conviction record

A deferred judgment of conviction agreement, like a deferred prosecution agreement, is an "arrest record," and not a "conviction record," within the meaning of the WFEA. Vega v. LIRC, 2022 WI App 21, 402 Wis. 2d 233, 957 N.W.2d 249.

The fact that the Complainant pleaded guilty to a crime in a deferred prosecution agreement does not make his record on the offense a conviction record instead of an arrest record. The agreement required the withdrawal of the guilty pleas at the successful conclusion of the agreement. The purpose of the deferred prosecution agreement is to provide a negotiated path for a charged party to avoid having a conviction and for the prosecution to efficiently obtain corrective conduct from the charged party. Vega v. Preferred Sands of WI, LLC (LIRC, 01/17/20), aff’d sub nom. Vega v. LIRC (Dunn Co. Cir. Ct., 11/19/20), reversed sub nom. Vega v. LIRC (Dunn Co. Cir. Ct., 11/19/20), reversed Vega v. LIRC, 2022 WI App 21, 402 Wis. 3d 233, 975 N.W.2d 249.

A domestic temporary restraining order against the Complainant resulting from an action brought by a private party, is not a record of an offense “pursuant to a law enforcement authority” under the definition of conviction record; likewise, a record of an action to obtain such an order is not an arrest record. The employer rejected the Complainant’s application for employment based in part on its perception that the Complainant was not honest when he failed to fully disclose his temporary restraining orders, and in part on the fact of the orders themselves. The Respondent was not motivated by any actual arrests or convictions of the Complainant. Immel v. Arbor Vitae Woodruff Sch. Dist. (LIRC, 06/27/19), aff'd sub. nom, Immel v. LIRC (Marathon Co. Cir. Ct., 07/31/20).

The Complainant, a truck driver, was issued a warning ticket for following too close to another vehicle and was assessed points for unsafe driving. This constituted an arrest record under the WFEA, but not a conviction record. The Complainant was not convicted of any offense, and was not adjudicated to be delinquent, assessed a fine, or subject to any other statutory penalties. A warning is not a conviction, even though it resulted in points on the Department of Transportation’s CSA system. Hunter v. WEL Companies, Inc. (LIRC, 05/21/15).

With respect to arrest record discrimination, the legislature’s primary concern was about employment decisions being made on the basis of an assumption about an individual’s guilt merely on the basis of an individual’s contact with law enforcement or military authorities. With respect to the term conviction record, however, the question of whether the individual convicted of an offense was actually guilty of committing the offense for which he or she was convicted would never arise. It appears that the legislature’s concern in conviction record cases is whether or not the individual has been convicted of an offense that is substantially related to the job that an employer has to offer. Swanson v. Kelly Servs. (LIRC, 10/13/04).

The definition of conviction record suggests that there is coverage against discrimination on the basis of perceived conviction record. Stroede v. Federal Express (LIRC, 08/14/96).

The affirmative defense set forth in sec. 111.335(1)(b), Stats., provides that it is not employment discrimination because of arrest record to suspend from employment any individual who is subject to a pending criminal charge if the circumstances of the charge substantially relate to the circumstances of the job. That section is not applicable where the charge for which the Complainant was arrested is not a “criminal charge.” In this case, the Complainant was charged with driving while under the influence of alcohol, as defined by sec. 346.63, Stats. Case law provides that a first offense under that section is not a criminal offense. Gustafson v. C.J.W., Inc. (LIRC, 03/21/89).

Being questioned by police and then issued a civil citation charging damage to property in violation of a municipal code constituted an arrest record within the meaning of the Wisconsin Fair Employment Act. Levanduski v. Visiting Nurse Ass’n of Sheboygan (LIRC, 02/10/88).

The affirmative defense contained in sec. 111.335(1)(b), Stats., allowing employment decisions where the individual is subject to a pending criminal charge which is substantially related to the job, is not available where the charge in question is not a criminal charge. Springer v. Town of Madison (LIRC, 09/22/87).

The affirmative defense set forth in sec. 111.335(1)(b), Stats., allowing suspension from employment of any individual who is subject to a pending criminal charge if the circumstances of the charge substantially relate to the circumstances of the particular job or licensed activity, is not available to a Respondent in a case in which the employee in question is subject to a charge of a municipal ordinance violation, since such a violation is not criminal. Hart v. Wausau Ins. Co. (LIRC, 04/10/87).

An employee discharged because of the employer's belief that he was stealing from the company had not been “arrested” within the meaning of the Act where the employer questioned the employee on its own as part of an internal investigation. Holliday v. Trane Co. (LIRC, 04/21/83).