Ban the Box Laws in Wisconsin: Criminal History in Hiring

Federal law does not impose a blanket ban-the-box requirement on private employers nationwide. However, the Equal Employment Opportunity Commission (EEOC) issued guidance in 2012 on the use of arrest and conviction records under Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e). The EEOC established that blanket policies excluding individuals with any criminal history may constitute discrimination if they have a disparate impact on protected classes, particularly African Americans and Hispanics who are arrested at higher rates.

Federal contractors and subcontractors with federal contracts exceeding $150,000 must comply with Executive Order 11246 and related regulations enforcing affirmative action, though this does not explicitly address ban-the-box. Some federal agencies (including the Office of Personnel Management) have adopted ban-the-box policies for federal hiring, delaying criminal history inquiries until after conditional offers.

The Federal Trade Commission (FTC) enforces the Fair Credit Reporting Act (15 U.S.C. § 1681), which requires employers using third parties for background checks to follow specific procedures, including advance notice and opportunity for applicants to dispute results. However, the FCRA does not prohibit criminal history inquiries; it regulates how they are conducted.

Wisconsin enacted comprehensive ban-the-box protections that are significantly stronger than federal law. Wisconsin Statute § 111.335 explicitly prohibits employers from requesting, requiring, or taking into consideration information about an applicant's criminal history—including arrests not leading to conviction, criminal charges, or convictions—before the employer makes a conditional job offer.

Wisconsin's law applies to all employers in the state, with no employee count threshold. This makes Wisconsin's ban-the-box law broader than many federal requirements that only apply to contractors or specific industries. The law defines "conditional job offer" as an offer contingent on the applicant successfully passing background checks or other screening procedures standard for the position.

Under Wisconsin Statute § 111.336, only after a conditional offer is made may an employer inquire about criminal history or conduct a background check. If the employer intends to withdraw the offer based on criminal history, the employer must provide the applicant with a written notice at least 5 business days before the withdrawal decision, allowing the applicant to dispute the accuracy of the information or provide evidence of rehabilitation. The employer must also provide a copy of the background check report.

Wisconsin's law applies to all employment decisions, including rehire of former employees. It covers not only direct inquiries but also indirect attempts to obtain this information, such as asking about gaps in employment or asking applicants to disclose all prior arrests. Violations are treated as discrimination under Wisconsin's fair employment law, allowing applicants to file complaints with the Wisconsin Equal Rights Division (part of the Department of Safety and Professional Services) and seek civil remedies including damages and attorney's fees.

Wisconsin's ban-the-box law contains specific exceptions where criminal history inquiries are permitted before a conditional job offer. First, employers may inquire about criminal history for positions in which a federal law or Wisconsin law explicitly requires consideration of criminal records—for example, positions requiring fingerprinting or state background checks for child care, nursing homes, schools, or other regulated industries.

Second, the law does not apply to applicants seeking positions with the federal government, state government, or local government. Government employers operating under federal or state civil service laws may have different hiring rules and may conduct criminal background checks earlier in the process.

Third, employers may consider criminal history in making employment decisions only when there is a direct relationship between the criminal conduct and the job duties. For example, conviction for embezzlement might be directly relevant to a position handling cash or financial records, but the employer must evaluate individual circumstances and cannot apply a blanket ban. The law requires individualized assessment.

Fourth, minor traffic violations, parking tickets, and similar low-level violations typically are not considered "criminal history" under Wisconsin law, though serious traffic offenses (such as OWI or vehicular homicide) may be. The law does not protect inquiries about traffic records or professional license suspensions unrelated to criminal conduct.

Fifth, the ban-the-box protections do not override legitimate business-related reasons to reject candidates unrelated to criminal history. An applicant may be rejected for lack of qualifications, poor interview performance, or failure of employment verification checks, provided the rejection is not a pretext for criminal history discrimination.

**Step 1: Document Everything.** Keep detailed records of all job applications, emails, and interview notes. Note the exact date and time of any inquiry about criminal history, arrests, or convictions. Screenshot or photograph the job application form if it contains prohibited questions. Save copies of any written communications from the employer asking about criminal background. Record the names and positions of individuals who asked about your criminal history. Also document how similarly situated applicants (without criminal history or from different demographics) were treated in comparison.

**Step 2: File an Internal Complaint (Optional but Recommended).** Send a written complaint to the employer's HR department or hiring manager within a reasonable timeframe, clearly stating that the employer violated Wisconsin's ban-the-box law by inquiring about criminal history before making a conditional job offer. Request a written response. Keep copies of all correspondence. While not required, this step creates a record and may lead to resolution without formal proceedings. If the employer retaliates after you file an internal complaint, that retaliation is also illegal under Wisconsin law.

**Step 3: File a Charge with Wisconsin Equal Rights Division (WERED).** Contact the Wisconsin Department of Safety and Professional Services, Equal Rights Division. File a charge of discrimination within 300 days of the violation (this deadline is extended if you also file a charge with the EEOC, as federal deferral agreements may apply). You can file online at the ERD website (https://dsps.wi.gov/ERD/Pages/default.aspx), by mail, or in person. The charge must include: your name and contact information, the employer's name and address, a description of the violation (the date and nature of the criminal history inquiry), the date of the inquiry, the job title or position applied for, and names of witnesses if any. You do not need to have an attorney to file; ERD staff can assist you. Include copies of documentation from Step 1 and Step 2.

**Step 4: ERD Investigation and Possible EEOC Cross-Filing.** After you file, the Equal Rights Division will investigate within approximately 120 days (though this timeline can extend). ERD will contact the employer, request documentation, and may interview witnesses. If your case involves potential race, national origin, or color discrimination (because of disparate impact on protected classes), the charge may be cross-filed with the EEOC, which has concurrent jurisdiction. The federal EEOC investigation may run parallel to the state investigation. During investigation, the employer may be required to produce job application records, interview notes, and evidence of hiring practices. You will be contacted for additional information or interviews. Do not ignore communication from ERD; respond promptly.

**Step 5: Resolution and Legal Action.** If ERD finds probable cause of discrimination, the agency may attempt to conciliate (negotiate a settlement) between you and the employer. Possible remedies include hiring you for the position (if still available), retroactive wages, damages for emotional distress, compensatory damages, and attorney's fees. If conciliation fails or no probable cause is found, ERD will issue a final determination. You then have the right to file a civil lawsuit in Wisconsin state court or request a hearing before an Administrative Law Judge. If you want stronger representation, consult an employment law attorney licensed in Wisconsin who has experience with EEOC and state discrimination claims. Many employment attorneys work on contingency fees (no upfront cost; they take a percentage of your recovery), so cost should not be a barrier to obtaining legal help.