['Recruiting and hiring']
['Negligent Hiring / Retention']
06/14/2024
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Summary of differences between federal and state regulations
Employer immunity from disclosure claims
In Wisconsin, an employer/former employer may disclose to a prospective employer, upon request of the prospective employer or employee/former employee, a reference, unless he/she is not acting in good faith. An employer may be liable for disclosures not made in good faith. Lack of good faith may be shown if the employer/former employer provided knowingly false information, maliciously made the reference, or violated a discrimination law.
Two or more people may not prevent a person from obtaining employment; prevent a person (by use of a threat, promise, or blacklist) from keeping employment; nor blacklist a discharged employee or employee who left voluntarily. A person may not threaten, force, or coerce anyone in order to prevent a person from obtaining or keeping employment.
An employer may provide truthful reasons for an employee’s discharge upon request of the discharged employee, a prospective employer, or bondsman or surety. However, an employer may not provide reasons for discharging an employee if the intent is to blacklist the employee or prevent him/her from obtaining employment.
Arrest record inquiries
In Wisconsin, an employer may not ask about arrests, unless the charges are pending or unless the job requires a bondable person. An employer may deny or suspend employment based on a pending arrest record only if the circumstances of the arrest relate to the job to be performed. These requirements are repeated in the guide, “Wisconsin’s Fair Employment Law, #1 in a Series, Fair Hiring & Avoiding Loaded Interview Questions,” published by the Wisconsin Department of Workforce Development, Equal Rights Division, Civil Rights Bureau.
Wisconsin’s requirements are more stringent than the EEOC’s Notice N-915-061, which says, “Where it appears that the applicant or employee engaged in the conduct for which he was arrested and that the conduct is job-related and relatively recent, exclusion is justified.” According to the Notice, the employer must evaluate whether the arrest record reflects the applicant’s conduct. It should, therefore, examine the surrounding circumstances, offer the applicant or employee an opportunity to explain, and, if he or she denies engaging in the conduct, make the follow-up inquiries necessary to evaluate his/her credibility. Since using arrests as a disqualifying criteria can only be justified where it appears that the applicant actually engaged in the conduct for which he/she was arrested and that conduct is job-related, the EEOC concludes that an employer will seldom be able to justify making broad general inquiries about an employee’s or applicant’s arrests. Since business justification rests on issues of job relatedness and credibility, a blanket exclusion of people with arrest records will almost never withstand scrutiny, according to Notice N-915-061.
Conviction record inquiries
Both the EEOC and Wisconsin have no laws or regulations specifically prohibiting conviction record inquiries. However, if an employer asks about convictions in Wisconsin, the guide, “Wisconsin’s Fair Employment Law, #1 in a Series, Fair Hiring & Avoiding Loaded Interview Questions,” published by the Wisconsin Department of Workforce Development, Equal Rights Division, Civil Rights Bureau, says the employer must state that a conviction is not an automatic bar of employment and will be considered only if related to the job. An employer may not discriminate based on conviction records, but an employer may deny employment based on a conviction record if — the circumstances of the conviction relate to the job to be performed or the person is not bondable.
Wisconsin’s requirements are somewhat similar to EEOC’s Notice N-915, which says, “Where there is evidence of adverse impact, an absolute bar to employment based on the mere fact that the individual has a conviction record is unlawful under Title VII [of the Civil Rights Act of 1964, as amended].” According to Notice N-915, an employer’s policy or practice of excluding individuals from employment on the basis of their conviction records is unlawful under Title VII in the absence of a justifying business necessity. To determine whether an employer’s decision was justified by business necessity, he/she must show that he/she considered three factors:
- The nature and gravity of the offense or offenses;
- The time that has passed since the conviction and/or completion of the sentence; and
- The nature of the job held or sought.
State
Contacts
Employer immunity from disclosure claims
Wisconsin Court System; Director of State Courts
Wisconsin Department of Agriculture, Trade, and Consumer Protection
Arrest record inquiries
Wisconsin Department of Workforce Development
Conviction record inquiries
Wisconsin Department of Workforce Development
Regulations
Employer immunity from disclosure claims
Wisconsin Statute 895-487, Civil liability exemption; employment references
Wisconsin Statute 134.02, Blacklisting and coercion of employees
Wisconsin Statute 134.03, Preventing pursuit of work
Arrest record inquiries
Wisconsin Statute 111.321, Prohibited bases of discrimination
Wisconsin Statute 111.335, Arrest or conviction record; exceptions and special cases
Conviction record inquiries
Wisconsin Statute 111.321, Prohibited bases of discrimination
Wisconsin Statute 111.335, Arrest or conviction record; exceptions and special cases
Wisconsin DWD 218.22, Pre-Employment inquiries and employment records
Federal
Contacts
Employer immunity from disclosure claims
None.
Arrest record inquiries
Equal Employment Opportunity Commission (EEOC)
Conviction record inquiries
Equal Employment Opportunity Commission (EEOC)
Regulations
Employer immunity from disclosure claims
None.
Arrest record inquiries
None; however, EEOC published Notice N-915-061, September 7, 1990, "Policy Guidance on the Consideration of Arrest Records in Employment Decisions under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq. (1982)."
Conviction record inquiries
None; however, EEOC published Notice N-915, February 4, 1987, "Policy Statement on the Issue of Conviction Records under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq. (1982)."
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