An Arrest Record By Any Other Name: Wisconsin Court of Appeals Grapples with the Meaning of an “Arrest Record” for Purposes of the Wisconsin Fair Employment Act
As most, and one would hope all, Wisconsin employers know, applicants and employees in Wisconsin are afforded certain protections against discrimination based on arrest and conviction records.
Earlier this year, the Wisconsin Court of Appeals considered whether the term “arrest” included the issuance of a civil, municipal citation. It found that it did not.
The case, Oconomowoc Area Sch. Dist. v. Cota, 2024 WI App 8, 410 Wis. 2d 619, 3 N.W.3d 736, involves two school district maintenance workers, brothers Gregory and Jeffrey Cota, who were both discharged for allegedly pocketing some of the cash proceeds they received when delivering and selling scrap metal from the school district to a recycling center.
Following another employee’s report that he and the Cotas had pocketed some of the scrap metal proceeds following the delivery of scrap metal from a school in the district that had closed, the school district investigated. It determined that over a nearly two-year period, the recycling center had paid a total of $10,613.16 for scrap metal, but only $4,929.35 had been turned over to the district. When interviewed during the investigation, Greogry Cota turned in a bag containing more than $400 in cash, which he claimed he had been holding at home as “petty cash.” The Cotas brothers were suspended, and the matter was referred to local municipal law enforcement. The Town of Oconomowoc determined sufficient evidence existed to issue civil municipal citations that the Cotas had retained some of the cash proceeds from the sale of their employer’s scrap metal.
After the municipal citations were issued, the prosecuting attorney approached the school district about whether it would agree to a resolution whereby civil citations would be issued to the Cotas in exchange for a restitution payment of $500 to the school district. The school district agreed, and the charges were resolved through such a stipulation. The school district understood this restitution payment by the Cotas constituted an admission of improper retention of the funds belonging to the district without authorization. Based on that, the school district then terminated the brothers’ employment.
Following their terminations, the Cotas brought arrest record discrimination claims under the Wisconsin Fair Employment Act (WFEA). The Labor and Industry Review Commission (LIRC) found that the stipulations were part of an arrest record. LIRC further noted that, while the school district had formed a belief that the brothers had retained scrap funds belonging to the school district based on its own internal investigation, it was not “persuaded” to discharge them from employment until two years later, when it received the stipulations. Thus, LIRC concluded that the school district’s motivation in making the termination decisions was, at least in part, the stipulations. Because of this, LIRC found in the employees’ favor.
The Wisconsin Court of Appeals reversed, concluding the WFEA does not provide protection against employment actions based upon information related to a civil, municipal charge. It noted that, pursuant to Wis. Stat. § 111.32(1), an “arrest record” included information indicating that an individual was investigated, arrested, or charged with “any felony, misdemeanor or other offense pursuant to any law enforcement or military authority.”
The Cotas had argued that “other offense” language must reference a civil infraction, as Wisconsin criminal code has only two designations for criminal offenses, felonies and misdemeanors. The Court of Appeals disagreed, finding that “other offense” could be a designation of a criminal offense in a different state or other jurisdiction, and that reference to “any law enforcement” indicated something criminal in nature. In any event, the Court of Appeals found that the underlying conduct has to be something of a criminal nature to trigger protection against arrest and conviction discrimination under the WFEA. It reversed and found in favor of the employer school district.
The Court of Appeals decision is an unpublished one. But, interestingly, the Wisconsin Supreme Court granted review this past June. Oral argument took place on September 10, 2024, and an opinion is forthcoming.
In the meantime, one takeaway for employers is to carefully consider best practices for making employment-related decisions when internally investigating possible criminal activities. LIRC’s decision to find fault with the employer for waiting for the outcome of the criminal investigation suggests that employers may want to consider whether to take action solely based on their internal findings when the underlying improper conduct is substantiated and action is warranted.
Author: Jerilyn Jacobs
An Arrest Record By Any Other Name: Wisconsin Court of Appeals Grapples with the Meaning of an “Arrest Record” for Purposes of the Wisconsin Fair Employment Act
As most, and one would hope all, Wisconsin employers know, applicants and employees in Wisconsin are afforded certain protections against discrimination based on arrest and conviction records.
Earlier this year, the Wisconsin Court of Appeals considered whether the term “arrest” included the issuance of a civil, municipal citation. It found that it did not.
The case, Oconomowoc Area Sch. Dist. v. Cota, 2024 WI App 8, 410 Wis. 2d 619, 3 N.W.3d 736, involves two school district maintenance workers, brothers Gregory and Jeffrey Cota, who were both discharged for allegedly pocketing some of the cash proceeds they received when delivering and selling scrap metal from the school district to a recycling center.
Following another employee’s report that he and the Cotas had pocketed some of the scrap metal proceeds following the delivery of scrap metal from a school in the district that had closed, the school district investigated. It determined that over a nearly two-year period, the recycling center had paid a total of $10,613.16 for scrap metal, but only $4,929.35 had been turned over to the district. When interviewed during the investigation, Greogry Cota turned in a bag containing more than $400 in cash, which he claimed he had been holding at home as “petty cash.” The Cotas brothers were suspended, and the matter was referred to local municipal law enforcement. The Town of Oconomowoc determined sufficient evidence existed to issue civil municipal citations that the Cotas had retained some of the cash proceeds from the sale of their employer’s scrap metal.
After the municipal citations were issued, the prosecuting attorney approached the school district about whether it would agree to a resolution whereby civil citations would be issued to the Cotas in exchange for a restitution payment of $500 to the school district. The school district agreed, and the charges were resolved through such a stipulation. The school district understood this restitution payment by the Cotas constituted an admission of improper retention of the funds belonging to the district without authorization. Based on that, the school district then terminated the brothers’ employment.
Following their terminations, the Cotas brought arrest record discrimination claims under the Wisconsin Fair Employment Act (WFEA). The Labor and Industry Review Commission (LIRC) found that the stipulations were part of an arrest record. LIRC further noted that, while the school district had formed a belief that the brothers had retained scrap funds belonging to the school district based on its own internal investigation, it was not “persuaded” to discharge them from employment until two years later, when it received the stipulations. Thus, LIRC concluded that the school district’s motivation in making the termination decisions was, at least in part, the stipulations. Because of this, LIRC found in the employees’ favor.
The Wisconsin Court of Appeals reversed, concluding the WFEA does not provide protection against employment actions based upon information related to a civil, municipal charge. It noted that, pursuant to Wis. Stat. § 111.32(1), an “arrest record” included information indicating that an individual was investigated, arrested, or charged with “any felony, misdemeanor or other offense pursuant to any law enforcement or military authority.”
The Cotas had argued that “other offense” language must reference a civil infraction, as Wisconsin criminal code has only two designations for criminal offenses, felonies and misdemeanors. The Court of Appeals disagreed, finding that “other offense” could be a designation of a criminal offense in a different state or other jurisdiction, and that reference to “any law enforcement” indicated something criminal in nature. In any event, the Court of Appeals found that the underlying conduct has to be something of a criminal nature to trigger protection against arrest and conviction discrimination under the WFEA. It reversed and found in favor of the employer school district.
The Court of Appeals decision is an unpublished one. But, interestingly, the Wisconsin Supreme Court granted review this past June. Oral argument took place on September 10, 2024, and an opinion is forthcoming.
In the meantime, one takeaway for employers is to carefully consider best practices for making employment-related decisions when internally investigating possible criminal activities. LIRC’s decision to find fault with the employer for waiting for the outcome of the criminal investigation suggests that employers may want to consider whether to take action solely based on their internal findings when the underlying improper conduct is substantiated and action is warranted.