Off-Duty Conduct Protections in Wisconsin: What Employers Can and Cannot Do

Federal law provides limited protection for off-duty conduct. Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e) protects off-duty conduct only when it relates to protected class status—for example, an employer cannot fire you for off-duty political activities advocating for civil rights based on race, color, religion, sex, or national origin. The Americans with Disabilities Act (42 U.S.C. § 12101 et seq.) does not protect lawful off-duty conduct unless it relates to a disability or disability-related activity.

The National Labor Relations Act (29 U.S.C. § 151 et seq.) protects union organizing and protected concerted activity conducted off-duty. The Genetic Information Nondiscrimination Act (42 U.S.C. § 2000ff) prohibits discrimination based on genetic information, including family medical history, but does not broadly shield all off-duty conduct. Federal law also protects whistleblowing under various statutes (Sarbanes-Oxley, Dodd-Frank, etc.) regardless of when the protected activity occurs.

The EEOC enforces federal discrimination laws. Most off-duty conduct, absent a connection to protected class status or concerted activity, remains subject to at-will employment doctrine at the federal level. Many states, including Wisconsin, provide broader protections for lawful off-duty conduct beyond federal minimums.

Wisconsin provides significantly broader protection for off-duty conduct than federal law under the Wisconsin Fair Employment Act (Statute § 111.31) and Wisconsin Privacy Act (§ 111.36). Wisconsin Statute § 111.31(1)(a) explicitly prohibits employers from discharging or discriminating against any employe for lawful political activities or the expression of political views outside work hours. This is substantially broader than federal law, which only protects off-duty political activity when connected to protected class advocacy.

Wisconsin Statute § 111.36 protects employees' rights to engage in lawful activities outside work and to maintain privacy in personal affairs unless the conduct materially and substantially affects job performance or creates a material conflict of interest. Under this statute, employers must demonstrate that off-duty conduct has a direct, material connection to business operations or legitimate employer interests before termination is lawful. This is a higher bar than federal at-will employment doctrine.

Wisconsin Statute § 103.035 protects employees called to jury duty from discharge, discipline, or threats for such service—a protection broader than some federal standards. Wisconsin also recognizes a public policy exception to at-will employment for off-duty conduct. Under Wisconsin common law, an employer cannot terminate an employee for conduct that does not affect job performance and is lawful, such as legal off-duty activities, political expression, or personal lifestyle choices that do not create business conflicts.

Unlike federal law, Wisconsin does not require the employee to prove discrimination based on protected class status to obtain protection for most off-duty conduct. State law covers all employees in Wisconsin, including those in small businesses with fewer than 15 employees (which would not be covered by Title VII). Remedies under Wisconsin law include reinstatement, back pay, front pay, compensatory damages for emotional distress, and in rare cases, punitive damages. The Wisconsin Department of Safety and Professional Services (DSPS) Equal Rights Division investigates complaints.

Wisconsin's off-duty conduct protections contain significant exceptions. Illegal conduct conducted outside work hours remains grounds for termination; employers can fire employees for felonies, misdemeanors, or conduct that violates criminal law. Wisconsin Statute § 111.36 permits termination if off-duty conduct materially and substantially affects job performance or creates a material and substantial conflict of interest with the employer's business. For example, an employee working for a financial institution who commits securities fraud off-duty can be terminated.

Employers can discipline or discharge employees for breach of confidentiality or non-disclosure obligations, even if the breach occurs during off-duty time. Competing business activity is an exception; if an employee uses off-duty time to build a competing business using the employer's trade secrets, client lists, or proprietary methods, termination is lawful. Conduct that damages the employer's reputation or ability to serve customers, when directly and materially linked to the employer's business operations, may be grounds for termination, though Wisconsin courts apply this narrowly.

Union members subject to collective bargaining agreements may have fewer protections than statutory law provides; arbitration clauses in union contracts may apply instead of statutory remedies. However, the union contract cannot eliminate statutory protections outright. Additionally, public sector employees and certain licensed professionals (attorneys, healthcare workers) may face heightened standards regarding off-duty conduct that affects professional ethics or public trust, though even these employees retain substantial statutory protection under § 111.36.

Employers in federally regulated industries (banking, securities, aviation) may have additional permissible grounds to discipline off-duty conduct if compliance with federal regulations requires it. Finally, at-will employment remains the default rule in Wisconsin; the off-duty conduct protections are exceptions. An employer that can articulate a legitimate, non-discriminatory business reason unrelated to the off-duty conduct can terminate the employee, provided the reason does not itself violate public policy or anti-discrimination law.

Step 1: Document the off-duty conduct termination thoroughly. Keep records of all communications from your employer regarding the termination, including the termination letter, emails, messages, or notes from termination meetings. Document the specific off-duty conduct your employer cited. Record the date of termination, your job title, salary, and length of employment. Preserve any evidence that the off-duty conduct was lawful (e.g., screenshots of social media posts, proof of jury duty summons, documentation of political activity participation). Keep copies of company policies that may reference off-duty conduct standards, disciplinary history, and any prior warnings. Save communication with coworkers or supervisors regarding the off-duty conduct or your termination.

Step 2: Understand the internal complaint process and its legal significance. Although Wisconsin does not require internal complaints before filing with the state agency, sending a written complaint to HR or your employer's management creates a paper trail and may toll or extend certain deadlines. Document this internal complaint in writing (email preferred) stating that you were terminated for off-duty conduct you believe violates Wisconsin law. Retain copies of any response from the employer. This step protects you if the employer later claims you failed to mitigate damages or if timing questions arise. Internal complaints also create evidence of the employer's state of mind and knowledge of your rights.

Step 3: File a formal complaint with the Wisconsin Department of Safety and Professional Services (DSPS) Equal Rights Division within 300 days of termination. You have 300 days from the date of the alleged violation (termination) to file. Visit the DSPS website at dsps.wi.gov and locate the Equal Rights Division complaint form, or call (608) 266-6860 to request a form by mail. Complete the complaint form with your name, address, employer name and address, date of termination, description of the off-duty conduct, explanation of why you believe the termination violates Wisconsin Statute § 111.31 or § 111.36, names of potential witnesses, and any documentation you have collected. File by mail, email, or in person at the DSPS office located at 201 E Washington Ave, Room 135, Madison, WI 53703. Include copies (not originals) of all supporting documentation.

Step 4: Understand the investigation process and timeline. After you file, the DSPS Equal Rights Division will send you a confirmation letter and assign an investigator. The investigator will typically contact your employer within 2-4 weeks to request a response to your allegations. The investigation process usually takes 30-90 days, though complex cases may take longer. You will be interviewed, and the investigator will request documents from you and your employer. Expect the investigator to ask detailed questions about the specific off-duty conduct, your employer's business, the employer's stated reasons for termination, and whether the conduct materially and substantially affected your job or created a conflict of interest. The investigator may also interview coworkers and supervisors. You will receive a "Probable Cause" or "No Probable Cause" determination letter. If probable cause is found, the agency may attempt conciliation or pursue litigation. If no probable cause is found, you may request an administrative hearing or appeal to the Commission.

Step 5: Determine when to consult an employment attorney and what type. Consult an employment lawyer specializing in Wisconsin Fair Employment Act cases before filing if your situation involves complex facts, such as the conduct being arguably tied to a protected class, a union contract, or significant damages. Many employment attorneys offer free initial consultations and work on contingency (no upfront cost; attorney takes a percentage of settlement or judgment). If your employer is large or well-represented, or if the employer contests your version of events, legal representation significantly improves your chances. An attorney can help you frame your claim under § 111.31 or § 111.36 most persuasively and can represent you at conciliation meetings, administrative hearings, or in court if the case proceeds to litigation. After filing your complaint, you should consult an attorney if the investigator indicates the case may not survive or if conciliation fails and you wish to pursue an administrative hearing.