What Wisconsin Employers Still Can't Ask About Arrest and Conviction Records

Wisconsin is one of a small number of states that treats arrest record and conviction record as their own protected categories under state law, separate from race, sex, age, or disability. Most employers know that in general terms. Fewer know that the protection just got broader, and that a recent attempt to narrow it back down was blocked.

The Existing Rule

Under the Wisconsin Fair Employment Act, employers cannot make hiring, discipline, or termination decisions based on an arrest record alone, and can only consider a conviction record when it is substantially related to the specific job. This applies to virtually every employer in Wisconsin, regardless of size. Unlike federal discrimination law, which generally kicks in at fifteen employees, the Wisconsin Fair Employment Act does not have that carve-out. A five-person business is covered the same way a five-hundred-person business is.

What Changed in 2025 and 2026

In April 2025, the Wisconsin Supreme Court ruled in Oconomowoc v. Cota that these protections extend to municipal citations, not just arrests and criminal convictions. That is a meaningful expansion. A background check or hiring conversation that flags a citation, not a criminal charge, now falls under the same analysis that applies to arrest records.

A bill introduced to narrow these protections, Senate Bill 431, was vetoed by the Governor in March 2026. The broad version of the law stayed exactly as it was. This was not a quiet legislative update. It was an active attempt to roll back the protection that did not succeed.

Why This Keeps Showing Up in Enforcement

Arrest and conviction record claims remain among the most commonly filed discrimination complaints with Wisconsin's Equal Rights Division. That is not a coincidence. Background check processes are often handled by whoever is doing the hiring in the moment, without a consistent standard for what “substantially related to the job” actually means for that specific role. A citation or old charge gets flagged, a decision gets made quickly, and no one documents the job-relatedness analysis that the law actually requires.

What to Check

If your hiring process includes a background check step, confirm that whoever reviews the results has a clear, written standard for what disqualifies a candidate and why it is job-related, not just a gut reaction to what shows up. Confirm that municipal citations are being handled the same way arrest records are, not treated as a separate, lower-scrutiny category. And confirm that decisions get documented, since an undocumented judgment call is exactly what shows up as inconsistent when a complaint gets filed.

This is not new law in the sense of a brand new statute. It is existing law that just got reaffirmed and expanded, which makes it more relevant, not less.

This article is part of our HR Support & Insights for Wisconsin Businesses resource hub.