Employers May Now Exercise Greater Discretion Regarding Criminal Convictions

By: Attorneys Dean Dietrich and Justin Andrews – Weld Riley, S.C.

A recent decision from the Wisconsin Supreme Court has opened the door for employers to take a more “expanded” view of the circumstances that would allow an employer to discriminate against someone because of an arrest or conviction record. In the recent decision of Cree, Inc. v. Palmer (2022 WI 15, March, 2022), the Wisconsin Supreme Court (in a 4 – 3 decision) held that the employer could look at the facts and circumstances surrounding the conviction record of an employee and determine whether those circumstances “substantially relate” to the job responsibilities of the employee by comparing the material elements of the criminal conviction to the employee’s employment setting where similar behavior could occur.

The Court did not overturn the general requirements that an employer must follow to determine whether the circumstances of a conviction “substantially relate” to the job tasks and duties of the employee. Rather, it held that an employer does not have to conclude that the job tasks and duties of the position be exactly the same as the criminal elements of the conviction to allow the employer to take adverse employment action.

In the Cree decision, the Court held that the employer properly applied the “substantial relationship” test when determining that a conviction for domestic violence was materially related to the job tasks of a lighting applications specialist position where the employee would be working with customers at the customer’s location or traveling to trade shows where the employee would work without company supervision.  The Court held that the company acted appropriately when determining the convictions relating to domestic violence were materially related to the job tasks of the position and when terminating the employee.

The practical result of this decision is to allow employers to use a more expansive view of the substantial relationship test.  The Court decided that the Equal Rights Division requirement related to the conviction for domestic violence should only be limited to a narrow type of job responsibilities where an employee may develop a relationship with another employee, was not the appropriate way to view the substantial relationship test.  The Court acknowledged the concept of recidivism and gave more effect to the potential that a person convicted of a certain type of crime should not be placed in an employment setting where recidivism could occur.

This does not mean that employees are no longer protected under the arrest/conviction record discrimination law but rather means that the determination by the employer should be based upon a more expansive view of the connection between the circumstances of the conviction and the circumstances of the job being performed.

If you have questions regarding whether termination is appropriate, do not hesitate to reach out to legal counsel. Please also never hesitate to call us or one of our business partners at Weld Riley, S.C. at 715-839-7786.