Background Checks Done Right Pamela M. Ploor, Partner, Stafford Rosenbaum LLP
will be rejected for disclosing a criminal conviction unless it is substantially related to the applied for job. Wisconsin is one of the trickiest states in terms of use of an applicant’s criminal history. Many employers have inadvertently violated Wisconsin’s arrest and conviction record discrimination laws and had to pay significant money to applicants and their attorneys. If there is one item to remember from this month’s employment column it is to remember to check with a municipal attorney or human resources advisor before denying employment to an applicant for an arrest (not allowed), pending charge (allowed if the pending charge is substantially related to the applied for job), or conviction (allowed if the conviction is substantially related to the applied for job). An employer may only suspend and not terminate an employee because of a pending criminal charge. 3 Another important consideration for a municipal employer is how it gathers criminal history information on applicants. An employer may search for an applicant’s criminal history in the Wisconsin court system or request the information from the State of Wisconsin Department of Justice. While that process is free, it is the most complicated because the employer is on its own in interpreting the information. The information in the court system may be inconsistent or for another person with the same name. Another common problem is the court record may reflect an applicant pleaded “no contest” to a charged crime but the district attorney has not yet entered a judgment while the applicant is on probation. Then what? Municipalities will often have the police department conduct the criminal background check on non-public safety job applicants, which is not recommended. Why? Police conduct criminal investigations and are not familiar with the employment law restrictions applicable to employers. They tend to gather too much information, which can create problems for the municipality as an employer. 2. The Harris Poll conducted the Job Insights survey online between December 1, 2022, and December 15, 2022, among 1.002 U.S. hiring decision-makers at companies with more than one employee and who have full or significant involvement in hiring decisions at their organizations. 3. The Department of Workforce Development’s Equal Rights Division has a FAQ addressing arrest and conviction record available at https://dwd.wisconsin.gov/er/civilrights/ discrimination/arrest.htm (last accessed 8/26/2025).
In our internet age, so much information is available at our fingertips. Employers recruiting for jobs regularly check out applicants’ social media feeds. While information is plentiful, employers must be cautious about how they get information, what organization gathers the information for them, and what decisions they make with the information. This month’s employment law column will address the background check process for non-public safety municipal jobs in Wisconsin. 1 According to a 2022 Job Insights survey from the Harris Poll, 70% of companies use social media to research applicants. 2 Less than 20% of hiring managers in the U.S. research every applicant on social media, however, which reveals an inconsistency that could prove problematic. The kind of background check an employer decides to conduct should be connected to the type of job. For example, if the job will involve driving a municipal vehicle, an employer should check an applicants’ driving record before hiring an applicant. An employer should also be consistent in how it screens candidates for the same job. A key part of a background check is confirming an applicant’s criminal history. The first issue is when to ask applicants about their criminal history in the recruitment process. Historically, the guidance from the federal Equal Employment Opportunity Commission, which enforces nondiscrimination employment laws, provides that an employer must first conditionally offer an applicant a job before it may ask criminal history questions. An employer may make any job offer contingent on passing a background check. From a practical perspective, this means an employer should not ask an applicant about his or her criminal history in the first interview. An employer should provide a supplemental questionnaire inquiring into criminal background after it makes a conditional offer of employment preferably in writing. The questionnaire should state that no applicant
1. On February 22, 2022, I posted a blog at Stafford Rosenbaum addressing what was then a new law requiring Wisconsin law enforcement agencies to require persons who interview for an officer job to agree to disclose his or her employment file. “New Screening Tools and Compliance Obligations for Wisconsin Law Enforcement Agencies.” (URL: https://www. staffordlaw.com/legal-updates/new-screening-tools-and-compliance-obligations-for-wisconsin- law-enforcement-agencies/ last accessed 8/26/2025).
The Municipality - October 2025 | 22
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