122.13 Employer’s investigation of underlying act as reason for employment action

The employer engaged in an "independent investigation" within the meaning of Onalaska v. LIRC, 120 Wis. 2d 363, 354 N.W.2d 223 (Ct. App. 1984), when it presented the Complainant with documents from his two criminal cases, including the complaints and deferred prosecution agreements, and asked the Complainant if the statements and allegations in the documents were true. Vega v. LIRC, 2022 WI App 21, 402 Wis. 2d 233, 957 N.W.2d 249.

The employer’s questions to the Complainant were intended to elicit, and did elicit, statements from him admitting conduct he was charged with in investigative reports related to felony prosecutions. The Complainant’s argument that the questioning was unnecessary because he had already been convicted of misdemeanor sexual assault failed, because the convictions were not based on the same specific conduct as the felony charges under investigation. The Complainant’s argument that the employer’s questioning was unnecessary because the felony charges were subject to deferred prosecution agreements in which he had pleaded guilty also failed. The Complainant’s admission of guilt to the employer could reasonably be taken by the employer as a more credible indication of the Complainant’s guilt than the fact that he entered into a plea agreement as part of a deferred prosecution agreement. Vega v. Preferred Sands of WI, LLC (LIRC, 01/17/20),), rev'd sub nom. Vega v. LIRC (Dunn Co. Cir. Ct., 11/19/20), rev'd Vega v. LIRC, 2022 WI App 21, 402 Wis. 3d 233, 975 N.W.2d 249.

The Onalaska defense was rejected where, although the Respondent conducted its own investigation, the decision to discharge the Complainants was made only after the D.A. cited the Complainants for municipal theft and told the Respondent that he believed the Complainants were guilty and that they would be entering into a plea agreement and paying restitution. This amounted to arrest record information, and the decision to discharge the Complainants based upon that information was in violation of the WFEA. Cota v. Oconomowoc Area Sch. Dist. (LIRC, 07/30/21), aff'd Oconomowoc Area School District v. Cota and LIRC, No. 2021CV1232 (Wis. Cir. Ct. Waukesha Cnty. June 14, 2022), rev'd Oconomowoc Area School District v. Cota and LIRC, No. 2022AP1158, slip op. (Wis. Ct. App. Jan. 10, 2024), petition for cert. filed Feb. 9, 2024.

The Onalaska defense was rejected where, although the employer determined the employee engaged in certain conduct based upon its own investigation, the decision to discharge him was not because of that conduct. Smith v. State of Wis. Dep't of Workforce Dev. (LIRC, 01/04/19).

Onalaska requirements were satisfied where the employer used a police report as a basis for questioning the employee but based the ultimate decision to discharge the employee on his own statement, including an admission that he was driving while under the influence of alcohol, which the employer regarded as unacceptable behavior. Cisewski v. City of Marshfield (LIRC, 02/13/18).

The “Onalaska defense” applies if an employer takes an action because it believes, based on its own investigation, that the employee has engaged in an illegal or unacceptable activity. Police reports are a component of an employee’s arrest record and may not be relied upon by the employer as a part of an independent investigation as to whether an adverse action should be taken against the employee. Where the employer’s investigation consisted almost entirely of attempting to collect arrest record information, the Onalaska defense could not be used. Marcin v. Charter Commc'ns, LLC (LIRC, 07/14/15).

An employee’s arrest does not prohibit his or her employer from taking a subsequent adverse employment action if that action is not taken because of the arrest. Here, the employer terminated the Complainant based on a belief that she engaged in unacceptable conduct, which was formed independently of the Complainant’s arrest record. The arrest record corroborated the employer’s belief that the employee had engaged in shoplifting, but the belief arose from the employer’s own investigation. The corroborative fact of the Complainant’s arrest was not significant enough to create liability even under a mixed-motive theory. In order for an illegal factor to create liability it must by a determining factor. Foley v. Cost Cutters (LIRC, 01/15/15).

Arrest record discrimination discharge was within the rule of the Onalaska case where it was not because of the fact of the Complainant’s arrest but rather because the Respondent believed the Complainant had engaged in sexual harassment at the workplace based upon interviews with employees. The WFEA does not require that an employer conduct any specific type of investigation; it requires only that no employment decision be based solely upon the fact of the employee's arrest. In this case, the Respondent interviewed the two female employees who complained about the Complainant in the first instance and spoke with the Complainant to get his version of events. The Respondent then interviewed the two female employees who came forward with additional allegations. The Respondent also attempted to contact two former employees whom it had some reason to believe were subjected to similar conduct on the part of the Complainant but was unable to locate these individuals. While the Respondent did not re-interview the Complainant after the second set of allegations was brought to its attention, it reasonably believed at that point that it had sufficient information to warrant a conclusion that the Complainant had engaged in sexual harassment. Decker v. Biewer Wis. Sawmill, Inc. (LIRC, 09/16/13).

The Respondent decided not to hire the Complainant in this case because he pleaded guilty to a charge of having received stolen property, notwithstanding the fact that the charge was later dismissed, and no conviction ever resulted. The Respondent argued that it did not make its decision based upon the Complainant’s arrest record, but that it independently concluded that he had knowingly received stolen property and that he had been dishonest with the Respondent about the matter. This is the so-called “Onalaska defense,” articulated in City of Onalaska v. LIRC, 120 Wis. 2d 363 (Ct. App. 1984), in which the court held that it is not arrest record discrimination for an employer to decide not to hire an applicant because it concludes from its own investigation and questioning of the individual that he or she has committed an offense. However, in this case the Respondent did not really conduct an independent investigation. The only information the Respondent reviewed prior to deciding not to hire the Complainant was the CCAP report, which merely confirmed the procedural facts about the Complainant’s arrest record. When the fact of the arrest is the only source for the Respondent’s belief in the employee’s guilt, Onalaska does not apply. Lovejoy v. Auto-Wares Wis. (LIRC, 02/24/11).

The Respondent decided to terminate the Complainant’s employment after receiving verification from the Complainant’s wife that he had engaged in a violent assault upon her and a co-worker. The Complainant’s termination was not because of his arrest record. The “Onalaska defense” does not require that the Respondent have no knowledge or familiarity with an employee’s arrest record, but instead requires that this not be the sole or primary basis upon which the Respondent formed its belief that the Complainant had engaged in the conduct underlying the arrest. The employer’s reliance upon the alleged victims’ verification of certain details set forth in the criminal complaint in this case did not constitute reliance upon the Complainant’s arrest record per se. Sanford v. Luther Midelfort (LIRC, 10/01/10).

In applying the Onalaska defense, the question is whether the belief formed by the employer after its investigation that the Complainant had in fact engaged in the underlying conduct had a factual basis other than the arrest record itself, and whether that belief was reasonably consistent with the information the employer obtained during its investigation. Sanford v. Luther Midelfort (LIRC, 10/01/10).

Under the “Onalaska defense,” the employer’s investigation is not required to be optimal or exhaustive. Although the Complainant is one possible source of independent information, it is not a required source. Sanford v. Luther Midelfort (LIRC, 10/01/10).

The evidence in this case failed to establish that the Respondent obtained a significant amount of information through its own investigation independent of the arresting authorities which led it to conclude that the Complainant had engaged in the conduct with which he was charged. The Complainant was discharged from his position as a supervising officer at the Milwaukee Secure Detention Facility of the Department of Corrections after he was arrested and charged with the sexual assault of a child. After the Complainant was discharged, the criminal charges against the Complainant were dismissed. The warden decided to terminate the Complainant based upon looking at everything that he could, which included matters defined as part of the Complainant’s arrest record. Given that the warden could not identify what was more or less important in his decision to discharge the Complainant, it is impossible to conclude that the decision would have taken place in the absence of the impermissible motivating factor of the Complainant’s arrest. Suttle v. Dept. of Corrections (LIRC, 05/22/09), aff’d sub nom Dept. of Corrections and Suttle v. LIRC (Dane Co. Cir. Ct., 06/02/10).

Under the “Onalaska defense,” there is no discrimination on the basis of arrest record if an employer refuses to hire an individual because the employer concludes from its own investigation and questioning of the individual that he has committed an offense. In short, the employer has not acted on the basis of the individual’s arrest record. On the other hand, where an employer has acted on the basis of an individual’s arrest record, the employer may avoid liability if the circumstances of the individual’s pending criminal charge substantially relate to the circumstances of the job. It was error for an Administrative Law Judge to hold both that: (1) the employer did not act on the basis of the Complainant’s arrest record, and (2) the employer did act on the basis of his arrest record but that such action fell under the exception to the prohibition against discrimination on the basis of arrest record. Johnson v. Kelly Servs. (LIRC, 04/21/09), aff’d sub nom Johnson v. LIRC (Milwaukee Co. Cir. Ct., 04/06/10).

Where the Respondent elected to await a court’s determination on the Complainant’s pending criminal charges before it made a hiring decision on his application for employment, there was no basis to support a conclusion that the action the Respondent had taken was because it had determined from its own investigation and questioning of the Complainant that he had committed an offense. Johnson v. Kelly Servs. (LIRC, 04/21/09), aff’d sub nom. Johnson v. LIRC (Milwaukee Co. Cir. Ct., 04/06/10).

A plant manager saw the Complainant operating a vehicle and reported him to the police for not having a valid driver’s license, resulting in an officer pulling the Complainant over and fining him for operating a vehicle after his license had been revoked. The Complainant’s subsequent discharge was based on his underlying conduct, rather than his arrest record. Where the information an employer relies on to draw its conclusion that an employee engaged in unacceptable conduct was information independent from that of the arresting authority, the employer does not rely on the employee’s arrest record. Ardell v. Alliant Energy (LIRC, 01/31/08).

The Respondent in this case had some information that the Complainant had been arrested. The Respondent also had a copy of an arrest report containing what purported to be information provided by a law enforcement officer to the effect that the Complainant had made certain admissions in the jail. Such information coming from an arresting authority would not constitute information independent of the arrest and of the arresting authorities but would be part and parcel of the Complainant’s “arrest record.” However, the fact that the Respondent had this information did not in and of itself prove that there was a violation of the prohibition against discrimination because of arrest record. The evidence showed that the Respondent had obtained a significant amount of information through its own investigation, independent of the arresting authorities, which led it to conclude that the Complainant had used illegal drugs and had been dishonest with the Respondent in a number of respects relating to or arising out of that drug use. The Respondent’s beliefs and conclusions regarding this conduct by the Complainant were the result of the information the Respondent had obtained independent of the arresting authorities and the fact of the arrest. The actions the Respondent took because of its beliefs and conclusions, including its discharge of the Complainant, were thus not “because of” the Complainant’s arrest record. Betters v. Kimberly Area Sch. (LIRC, 11/28/07).

The underlying rationale in City of Onalaska v. LIRC, 120 Wis. 2d 363, 354 N.W.2d 22 (Ct. App. 1984), regarding employment actions which are based upon an employer’s independent investigation, does not extend beyond arrest record cases to conviction record cases. Sheridan v. United Parcel Serv. (LIRC, 07/11/05).

The Respondent failed to show that it discharged the Complainant because it concluded from its own investigation and questioning of him that he had committed an offense. The evidence indicated that the Respondent’s “own investigation” primarily consisted of consideration of the criminal complaint against the Complainant, and that the limited questioning it undertook of him was insufficient to support a conclusion that he had committed the offense of marijuana possession. Evidence of the Respondent’s primary reliance on the criminal complaint was apparent, based upon its repeated requests for the Complainant to furnish it with the paperwork documenting what he was arrested for. It was also apparent based on the statement in the termination letter that the Complainant had admitted to the possession of marijuana, which was a conclusion which could only be drawn from the criminal complaint against the Complainant. During the investigation conducted by the Respondent, the Complainant was never asked if the marijuana in question was his, and he never admitted to possession of marijuana on the date in question. None of the Complainant’s statements constituted an admission that he had committed the offense of possession of marijuana. The Respondent, therefore, violated the prohibition against termination on the basis of arrest record. However, the employee (who ultimately pleaded guilty to the charge) was still not entitled to any remedy for that violation because the circumstances of the charged offense were substantially related to his employment as a youth counselor such that his suspension would have been legal. Blunt v. DOC (LIRC, 02/04/05).

In arrest record cases it can be concluded that an employer “does not rely on information indicating the individual has an arrest record” because the employer has concluded from its own investigation and questioning of the individual that the individual has committed an offense. In all but the most unusual case, in a conviction record case the question of whether an individual that has been convicted of an offense was actually guilty of committing the offense for which he has been convicted would never arise. Even if such a case were to arise, an employer that learned through its own investigation and questioning of the individual that the individual was convicted of some offense would not properly be held to have made an unwarranted assumption regarding the individual’s guilt. An employer cannot escape liability under the Wisconsin Fair Employment Act merely by undertaking its own investigation and by questioning the individual if he has committed the offense for which he was convicted. An employer that had the unfettered authority to decide for itself that an individual’s conviction is substantially related to the particular job just because it concluded from its investigation and questioning of the individual that the individual committed the offense for which the individual was convicted would be to subject such individuals to the very arbitrary treatment the WFEA was enacted to prevent. Swanson v. Kelly Servs. (LIRC, 10/13/04).

Where the information upon which the employer relied to draw its conclusion that the employee engaged in unacceptable conduct was information that came from the arresting authority, this does not constitute information independent of the arrest and of the arresting authorities. Things such as police reports from the arresting authority, the criminal complaint, and statements made by or other information provided by the arresting or prosecuting authority, are all part and parcel of an “arrest record” itself. “Independent” sources of information which an employer may use to form a belief that an employee engaged in an offense of some kind which is also the subject of an employee’s arrest include: (1) an admission by the employee; (2) statements to the employer by others who witnessed the conduct; (3) direct observations made by the employer while joining in a police search; or (4) an investigation by the employer that made use of information obtained from a contemporaneous police investigation. The Labor and Industry Review Commission no longer chooses to be guided by its prior decisions in Ponto v. Grand Geneva Resort & Spa (LIRC, 08/22/96), or Springer v. Town of Madison (LIRC, 09/22/87), where it concluded that the employer had not violated the WFEA when it made employment decisions based upon information that the employee engaged in unacceptable conduct that came from the arresting authority. Rather, the question to be resolved is whether the employer’s conclusion that the employee had engaged in unacceptable behaviors was based on information “independent of the arrest and of the arresting authorities.” Betters v. Kimberly Area Sch. (LIRC, 07/30/04).

The critical question which needs to be answered to properly apply the Onalaska principle in a case where an employer has both learned about an employee’s arrest from the arresting authorities and learned things about the employee’s conduct independently of the arresting authorities, is the question of the employer’s motivation. The question is whether the employer made the decision to discharge the employee because of the information it acquired from the arrest and the arresting authorities, or because of the information it acquired through its own investigation independent of the arresting authorities. The employer’s subjective intent and motivation in arriving at the challenged decision is a question of ultimate fact. Betters v. Kimberly Area Sch. (LIRC, 07/30/04).

It is not arrest record discrimination if an employer undertakes its own investigation and bases the subject employment decision on the results of that investigation. In this case, it was not until the employer received a final investigative report concluding that the Complainant had used his work computer to access and download pornography that he was terminated. There was no probable cause to believe that the Complainant was discriminated against based on arrest record. Speltz v. Trane Div. of Am. Standard (LIRC, 05/25/04) (unavailable online).

The Respondent failed to establish that it discharged the Complainant because she violated its alcohol and drug abuse policy, rather than because she was arrested for knowingly keeping and maintaining a dwelling which is resorted to by persons manufacturing controlled substances, contrary to sec. 961.42(1), Stats. The Complainant informed management that she had been arrested, and that she had known that an individual living in her home was growing hallucinatory mushrooms in his room. The Complainant’s statements to management did not constitute an admission that the Complainant had violated the Respondent’s alcohol and drug abuse policy, which provided, in part, that “the use, possession, sale, transfer, acceptance, or purchase of illegal drugs at any time is strictly prohibited.” The Respondent simply assumed that the Complainant was guilty of possessing illegal drugs in violation of company policy, and that assumption was based entirely on the fact of her arrest record. Garton v. Wal-mart Stores (LIRC, 01/27/00), aff’d sub nom. Wal-mart Stores v. LIRC (Dane Co. Cir. Ct., 08/21/00).

The Respondent suspended the Complainant when it learned through the newspaper that he had been charged with second degree sexual assault of a child and exposing a child to harmful materials. It then discharged the Complainant when it learned through another newspaper article that the employee had been charged with sexually assaulting his “little brother” in the “Big Brother” program. The second newspaper article stated that the criminal complaint indicated that “[the employee] allegedly admitted to police” that he had sexual contact with the boy. The suspension was not unlawful arrest record discrimination, because the Wisconsin Fair Employment Act allows an employer to suspend an employee based on an arrest for an offense which is substantially related to the employee’s job, and the offense charged here was substantially related to the employee’s job as director of the fitness center at a resort. With respect to the discharge, while the WFEA does not provide a “substantially related” exception for discharge because of arrest, the discharge here was not unlawful since the reason that the employer discharged the employee was that it believed, based on what it read in the newspaper articles, that the employee had confessed to the conduct involved. Ponto v. Grand Geneva Resort & Spa (LIRC, 08/22/96). [Ed. note: LIRC expressly stated that it no longer chooses to be guided by this decision in Betters v. Kimberly Area Sch. (LIRC, 07/30/04).]

Although the Complainant’s general manager and the area supervisor were aware of her arrest, the Complainant had also admitted to the Respondent during its investigation that she had been involved with the conduct of selling controlled substances. It was this admission of unacceptable conduct that led to the Complainant’s discharge. Since the Respondent discharged the Complainant because she admitted to having engaged in conduct unacceptable to the employer, and not because of her arrest record, the question of whether the Complainant’s actions were substantially related to her employment did not have to be addressed. Lamb v. Happy Chef of Sparta (LIRC, 09/29/95).

The employer did not discharge the Complainant because of arrest record where its belief as to the Complainant’s guilt was based on its own investigation and was independent of the mere fact of his arrest. When the employer interviewed the Complainant, he admitted that he had marijuana in his car (which was the offense for which he was arrested). Additionally, when the Complainant was arrested he told the employer that he would not be able to get to work on time due to “car problems.” The Respondent subsequently learned that the Complainant had been untruthful and that the real reason that he was unable to report to work on time was because he was incarcerated. Both of these contacts were independent of the arrest and of the arresting authorities because they were communications directly from the employee to the employer. Greene v. Air Wisconsin (LIRC, 02/02/95), aff’d sub nom. Greene v. LIRC (Monroe Co. Cir. Ct., 08/25/95).

The Respondent continued to employ the Complainant long after his manager learned of his conviction record, and even after other employees began complaining that the Complainant was stealing tips from them. The eventual discharge decision was made by a regional manager who was unaware of the Complainant’s conviction record. That decision was based on the Respondent’s belief, formed after investigation, that the Complainant was indeed stealing tips from other employees. Thus, the Complainant failed to demonstrate that his conviction record played any role in the Respondent’s decision to discharge him. Bradley v. Exel Inn of America (LIRC, 02/02/95).

Where a Complainant was discharged because of the Respondent’s reasonable, good faith belief (based upon its own investigation) that he had engaged in conduct for which he was arrested, it is immaterial whether the Complainant in fact engaged in that behavior. What matters is the question of the employer's motivation, not whether the employer was objectively correct. Here, the Complainant was eventually acquitted of the charges against him however this has no bearing on the question of whether there was unlawful arrest record discrimination. The employer came to a good faith belief based on its investigation that the Complainant had committed some type of sexual assault against a co-worker. It is irrelevant that a jury, which may have heard different evidence, and which was required to apply a stringent burden of proof, arrived at a different conclusion. Paxton v. Aurora Health Care (LIRC, 10/21/93).

An employer's decision to discharge an employee is not because of an arrest when it is motivated by the employer's belief that the employee has in fact engaged in certain unacceptable conduct and when that belief arises from some source other than the mere fact of the arrest. Delapast v. Northwoods Beach Home Caring Homes (LIRC, 02/17/93).

The Complainant was arrested on charges of aggravated battery for throwing acid in a woman’s face. The day after the arrest, the Respondent received information from a brother of the victim that the Complainant had claimed that he got the acid from his workplace. The employer spoke to both the victim and her brother in investigating the matter. Through its own investigation, the Respondent concluded that the Complainant had committed the offense, using materials obtained from the workplace, and it discharged him. Since the Respondent made its decision based upon what it came to believe about the facts of the incidents through its own investigation, there was no violation of the prohibition on arrest record discrimination. Redmon v. Dept. of City Dev. (LIRC, 02/22/90).

The Respondent violated the Act when a significant and determining factor in its decision to discharge the Complainant was its belief that the employee had sold illegal drugs out of a company vehicle, a belief that was based solely on the Complainant's arrest on those charges. Maline v. Wis. Bell (LIRC, 10/30/89).

Where an employee has told the employer that he engaged in the conduct for which he was arrested or convicted, the situation must be analyzed to determine whether the subsequent action taken by the employer was taken because of the employer’s belief about the conduct or because of the arrest or conviction itself. Here, the termination of the Complainant’s employment was based on his arrest record, despite the Complainant's admission of the underlying conduct, because the Respondent’s general manager stated that the Complainant was being discharged because the employer did not want anyone working for it who had a “driving while intoxicated” offense on his record. Gustafson v. C.J.W., Inc. (LIRC, 03/21/89).

Employers are not prohibited from taking an adverse employment action against an employee for improper actions on the job simply because the employee has also been arrested as a result of those actions. However, if the employer is motivated even in part by the arrest itself (as opposed to the underlying job-related misconduct) this should result in a finding of liability. Ames v. UW-Milwaukee (Wis. Pers. Comm’n, 12/23/88).

Where the employee, after having been arrested for unlawful damage to property in connection with a domestic disturbance at her home, admitted to her employer that she had engaged in the violent conduct in question, and the employer thereafter terminated her, the termination was not because of “arrest record,” but was because of the employer’s beliefs about the Complainant’s conduct. Levanduski v. LIRC (Sheboygan Co. Cir. Ct., 09/15/88).

The purpose of the prohibition on discrimination because of arrest record is to prevent an employer from making an employment decision solely on the basis of an employee’s contact with the criminal justice system, not to prevent an employer from acting on the employee’s own admission of conduct inimical to the employer’s interests. Therefore, where, as here, the evidence showed that the employer discharged the employee, not because of the fact that he had been charged with an offense, but because of the employee’s subsequent direct admission to the Respondent that he had engaged in the conduct with which he had been charged, there was no violation on the prohibition against discrimination because of arrest record. Mielke v. Orkin Exterminator Co. (LIRC, 04/11/88).

The Complainant, a nuclear plant security guard, was charged with misdemeanor possession of marijuana for having five marijuana plants growing near his residence. He pled guilty and was convicted and fined. Upon learning of this through the newspaper, the Respondent began an investigation, obtaining written and oral statements from the Complainant. Under the Respondent’s policies, which called for discharge of employees convicted of a felony, the Complainant’s conviction for misdemeanor possession would not necessarily require his discharge. In his initial statements to the Respondent, the Complainant admitted that he had marijuana plants growing near his home. He was not discharged at that time. In a subsequent interview with the Respondent, the Complainant disclosed that in addition to having grown marijuana plants at his residence, he used marijuana during off-duty hours and had done so for some time. He was then discharged. It was the Complainant’s admitted possession and use of marijuana, rather than his conviction record, which caused his discharge. The Complainant was discharged only after the Respondent’s investigation disclosed that he had been using marijuana for a number of years. Even if the discharge was considered to have been “because of” the Complainant’s conviction record, the offense was substantially related to the job, considering the nature of the Complainant’s duties as a guard at a nuclear power plant. McClellan v. Burns Int’l Sec. (LIRC, 03/31/88).

The employer did not base its employment decision on the Complainant’s arrest record where it based its action on its conclusion, based on its own investigation and questioning of the employee, that the employee committed an offense. Springer v. Town of Madison (LIRC, 09/22/87); aff’d sub nom. Springer v. LIRC (Jefferson Co. Cir. Ct., 06/13/88). [Ed. note: LIRC expressly stated that it no longer chooses to be guided by this decision in Betters v. Kimberly Area Sch. (LIRC, 07/30/04)].

If an employer discharges an employee because it concludes from its own investigation and questioning of the employee that the employee had committed an offense, the employer does not discriminate because of an arrest record within the meaning of the Wisconsin Fair Employment Act. In this case, the Respondent learned of certain conduct the Complainant had been involved in (stealing a vehicle and stealing a flag) through information provided to it by a co-worker of the Complainant who had also been involved. The Respondent learned more about the incident by questioning the Complainant himself, who admitted to the conduct. It also eventually came to learn through the Complainant that he had been arrested and charged in connection with the incident. The Complainant was not discharged because of the arrest but was discharged only because the Respondent believed on the basis of what it learned from the admissions of the involved co-employee and the Complainant himself during its investigation, that the Complainant had engaged in acts of theft which the Respondent equated with dishonesty. Himmel v. Copps Corp. (LIRC, 10/29/86).

To discharge an employee because of information indicating that the employee has been questioned by a law enforcement or military authority is to rely on an assertion by another person or entity. If the employer discharges an employee because the employer concludes from its own investigation and questioning of the employee that he has committed an offense, the employer does not rely on information indicating that the employee has been questioned, and therefore does not rely on an arrest record. In this case, the Complainant was a police trainee. The Complainant’s brother-in-law was arrested for speeding, eluding a police officer, and racing. In response to a question by an officer, the Complainant said that he supposed he was the person with whom his brother-in-law was racing. The police chief told the Complainant that if he did not agree to resign, he would be fired immediately. The Complainant was subsequently charged with racing and was found not guilty. The Complainant’s discharge was not discrimination. City of Onalaska v. LIRC 120 Wis. 2d 363, 354 N.W.2d 223 (Ct. App. 1984).

An employee was not terminated on the basis of his “arrest” where his employer discharged him because he brought a concealed weapon to work, not because he was arrested at work based on the employer’s call to police. Buller v. Univ. of Wis. (Wis. Pers. Comm’n, 10/14/82).