Caution for Employers Regarding Arrest Record Discrimination
By Brian P. Goodman, Storm B. Larson and Mai Chao Chang
In Oconomowoc Area School District v. Cota, the Wisconsin Supreme Court clarified that "arrest records" encompass not only criminal offenses but also non-criminal offenses, such as civil forfeitures punishable solely by fines. This decision overturned the lower court's ruling, which had limited "arrest record" protections only to criminal activity.
However, employers still retain the right to deny employment or terminate an employee who was arrested, provided that the employer conducts an independent investigation and determines that the underlying conduct violates company policy. The court emphasized that this exception applies only when the investigation is genuinely independent and does not rely solely on a police report or an officer’s assertion of guilt. Employers must engage in fact-finding, such as interviewing the employee or relevant witnesses, and then conclude whether misconduct occurred.
In Cota, the employer relied on communications with law enforcement and the district attorney’s office, because it was unable to reach a conclusion of misconduct from its own independent investigation. As a result, the employer discriminated based on arrest record by relying on the communications with law enforcement and the district attorney’s office in order to reach a conclusion that the misconduct occurred.
The Cota decision underscores the complexity of "arrest record" discrimination and the importance of employer due diligence in these situations. Consultation with legal counsel is advisable when addressing this complex area of the law.
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