Wisconsin Statutes 111.335 – Arrest or conviction record; exceptions and special cases
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Terms Used In Wisconsin Statutes 111.335
- agency: means an office, department, independent agency, authority, institution, association, society or other body in state government created or authorized to be created by the constitution or any law, including the legislature and the courts. See Wisconsin Statutes 111.32
- Arrest: Taking physical custody of a person by lawful authority.
- Arrest record: includes , but is not limited to, information indicating that an individual has been questioned, apprehended, taken into custody or detention, held for investigation, arrested, charged with, indicted or tried for any felony, misdemeanor or other offense pursuant to any law enforcement or military authority. See Wisconsin Statutes 111.32
- Commission: means the labor and industry review commission. See Wisconsin Statutes 111.32
- Contract: A legal written agreement that becomes binding when signed.
- Conviction: A judgement of guilt against a criminal defendant.
- Conviction record: includes , but is not limited to, information indicating that an individual has been convicted of any felony, misdemeanor or other offense, has been adjudicated delinquent, has been less than honorably discharged, or has been placed on probation, fined, imprisoned, placed on extended supervision or paroled pursuant to any law enforcement or military authority. See Wisconsin Statutes 111.32
- Department: means the department of workforce development. See Wisconsin Statutes 111.32
- Employer: means the state and each agency of the state and, except as provided in par. See Wisconsin Statutes 111.32
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Following: when used by way of reference to any statute section, means the section next following that in which the reference is made. See Wisconsin Statutes 990.01
- in writing: includes any representation of words, letters, symbols or figures. See Wisconsin Statutes 990.01
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- License: means the whole or any part of any permit, certificate, approval, registration, charter or similar form of permission required by a state or local unit of government for the undertaking, practice or continuation of any occupation or profession. See Wisconsin Statutes 111.32
- Licensing agency: means any board, commission, committee, department, examining board, affiliated credentialing board or officer, except a judicial officer, in the state or any city, village, town, county or local government authorized to grant, deny, renew, revoke, suspend, annul, withdraw or amend any license. See Wisconsin Statutes 111.32
- Military service: means service in the U. See Wisconsin Statutes 111.32
- Person: includes all partnerships, associations and bodies politic or corporate. See Wisconsin Statutes 990.01
- Physician assistant: means a person who is licensed as a physician assistant under subch. See Wisconsin Statutes 990.01
- Probation: A sentencing alternative to imprisonment in which the court releases convicted defendants under supervision as long as certain conditions are observed.
- Promulgate: when used in connection with a rule, as defined under…. See Wisconsin Statutes 990.01
- State: when applied to states of the United States, includes the District of Columbia, the commonwealth of Puerto Rico and the several territories organized by Congress. See Wisconsin Statutes 990.01
- Year: means a calendar year, unless otherwise expressed; "year" alone means "year of our Lord". See Wisconsin Statutes 990.01
(1m) Definitions. In this section:
(a) “Educational agency” means a school district, a cooperative educational service agency, a county children with disabilities education board, a state prison under s. 302.01, a juvenile correctional facility, as defined in s. 938.02 (10p), a secured residential care center for children and youth, as defined in s. 938.02 (15g), the Wisconsin Center for the Blind and Visually Impaired, the Wisconsin Educational Services Program for the Deaf and Hard of Hearing, the Mendota Mental Health Institute, the Winnebago Mental Health Institute, a state center for the developmentally disabled, a private school, a charter school, a private, nonprofit, nonsectarian agency under contract with a school board under s. 118.153 (3) (c), or a nonsectarian private school or agency under contract with the board of school directors in a 1st class city under s. 119.235 (1).
(b) “Exempt offense” means any of the following:
1. A violation specified in ch. 940 or s. 948.02, 948.025, 948.03, 948.05, 948.051, 948.055, 948.06, 948.07, 948.075, 948.08, 948.085, or 948.095.
2. A violation of the law of another jurisdiction that would be a violation described in subd. 1. if committed in this state.
(c) “State licensing agency” means a licensing agency that is an agency, as defined in s. 227.01 (1).
(d) “Violent crime against a child” means any of the following:
1. A violation of s. 948.02 (1) or (2), 948.025, 948.03 (2) (a) or (c) or (5) (a) 1., 2., 3., or 4., 948.05, 948.051, 948.055, 948.07, 948.08, 948.085, 948.095, or 948.30 (2).
2. A felony violation of s. 948.03 (3) or (5) (a) 4.
3. A violation of the law of another jurisdiction that would be a violation described in subd. 1. or 2. if committed in this state.
(2) Discrimination because of arrest record; exceptions.
(a) Employment discrimination because of arrest record includes, but is not limited to, requesting an applicant, employee, member, licensee or any other individual, on an application form or otherwise, to supply information regarding any arrest record of the individual except a record of a pending charge, except that it is not employment discrimination to request such information when employment depends on the bondability of the individual under a standard fidelity bond or when an equivalent bond is required by state or federal law, administrative regulation or established business practice of the employer and the individual may not be bondable due to an arrest record.
(b) Notwithstanding s. 111.322, it is not employment discrimination because of arrest record to refuse to employ or license, or to suspend from employment or licensing, any individual who is subject to a pending criminal charge if the circumstances of the charge substantially relate to the circumstances of the particular job or licensed activity, except as provided in sub. (4) (a).
(3) Discrimination because of conviction record; exceptions.
(a) Notwithstanding s. 111.322, it is not employment discrimination because of conviction record to refuse to employ or license, or to bar or terminate from employment or licensing, any individual if any of the following applies to the individual:
1. Subject to sub. (4) (b) to (d), the individual has been convicted of any felony, misdemeanor, or other offense the circumstances of which substantially relate to the circumstances of the particular job or licensed activity.
2. The individual is not bondable under a standard fidelity bond or an equivalent bond where such bondability is required by state or federal law, administrative regulation, or established business practice of the employer.
(b) Notwithstanding s. 111.322, it is not employment discrimination because of conviction record to refuse to employ a person in a business licensed under s. 440.26 or as an employee specified in s. 440.26 (5) (b) if the person has been convicted of a felony and has not been pardoned for that felony.
(c) Notwithstanding s. 111.322, it is not employment discrimination because of conviction record to refuse to employ as an installer of burglar alarms a person who has been convicted of a felony and has not been pardoned for that felony.
(d) Notwithstanding s. 111.322, it is not employment discrimination because of conviction record to refuse to employ in a position in the classified service a person who has been convicted under 50 U.S. Code § 3811 for refusing to register with the selective service system and who has not been pardoned.
(e) Notwithstanding s. 111.322, it is not employment discrimination because of conviction record for an educational agency to refuse to employ or to terminate from employment an individual who has been convicted of a felony and who has not been pardoned for that felony.
(f) Notwithstanding s. 111.322, it is not employment discrimination because of conviction record to refuse to employ or license, or to bar or terminate from employment or licensure, any individual who has been convicted of any offense under s. 440.52 (13) (c).
(4) Discrimination in licensing.
(a) It is employment discrimination because of arrest record for a licensing agency to refuse to license any individual under sub. (2) (b) or to suspend an individual from licensing under sub. (2) (b) solely because the individual is subject to a pending criminal charge, unless the circumstances of the charge substantially relate to the circumstances of the particular licensed activity and the charge is for any of the following:
1. An exempt offense.
2. A violent crime against a child.
(b) It is employment discrimination because of conviction record for a licensing agency to refuse to license any individual under sub. (3) (a) 1. or to bar or terminate an individual from licensing under sub. (3) (a) 1. because the individual was adjudicated delinquent under ch. 938 for an offense other than an exempt offense.
(c)
1. If a licensing agency refuses to license an individual under sub. (3) (a) 1. or bars or terminates an individual from licensing under sub. (3) (a) 1., the licensing agency shall, subject to subd. 2., do all of the following:
a. State in writing its reasons for doing so, including a statement of how the circumstances of the offense relate to the particular licensed activity.
b. Allow the individual to show evidence of rehabilitation and fitness to engage in the licensed activity under par. (d). If the individual shows competent evidence of sufficient rehabilitation and fitness to perform the licensed activity under par. (d), the licensing agency may not refuse to license the individual or bar or terminate the individual from licensing based on that conviction.
(d)
1. Competent evidence of sufficient rehabilitation and fitness to perform the licensed activity under par. (c) 1. b. may be established by the production of any of the following:
a. The individual’s most recent certified copy of a federal department of defense form DD-214 showing the person’s honorable discharge, or separation under honorable conditions, from the U.S. armed forces for military service rendered following conviction for any offense that would otherwise disqualify the individual from the license sought, except that the discharge form is not competent evidence of sufficient rehabilitation and fitness to perform the licensed activity if the individual was convicted of any misdemeanor or felony subsequent to the date of the honorable discharge or separation from military service.
b. A copy of the local, state, or federal release document; and either a copy of the relevant department of corrections document showing completion of probation, extended supervision, or parole; or other evidence that at least one year has elapsed since release from any local, state, or federal correctional institution without subsequent conviction of a crime along with evidence showing compliance with all terms and conditions of probation, extended supervision, or parole.
2. In addition to the documentary evidence that may be provided under subd. 1. to show sufficient rehabilitation and fitness to perform the licensed activity under par. (c) 1. b., the licensing agency shall consider any of the following evidence presented by the individual:
a. Evidence of the nature and seriousness of any offense of which he or she was convicted.
b. Evidence of all circumstances relative to the offense, including mitigating circumstances or social conditions surrounding the commission of the offense.
c. The age of the individual at the time the offense was committed.
d. The length of time that has elapsed since the offense was committed.
e. Letters of reference by persons who have been in contact with the individual since the applicant’s release from any local, state, or federal correctional institution.
f. All other relevant evidence of rehabilitation and present fitness presented.
(e) A state licensing agency that may refuse to license individuals under sub. (3) (a) 1. or that may bar or terminate an individual from licensure under sub. (3) (a) 1. shall publish on the agency’s Internet site a document indicating the offenses or kinds of offenses that may result in such a refusal, bar, or termination.
(f)
1. A state licensing agency that may refuse to license individuals under sub. (3) (a) 1. or that may bar or terminate individuals from licensing under sub. (3) (a) 1. shall allow an individual who does not possess a license to, without submitting a full application and without paying the fees applicable to applicants, apply to the agency for a determination of whether the individual would be disqualified from obtaining the license due to his or her conviction record.
2. A state licensing agency shall make a determination under subd. 1. in writing and send the determination to the applicant no later than 30 days after receiving the application for a determination.
3. A determination made under subd. 1., with respect to convictions reviewed by the state licensing agency as part of the determination, shall be binding upon the agency if the individual subsequently applies for the applicable license, unless there is information relevant to the determination that was not available to the agency at the time of the determination.
4. A state licensing agency may require a fee to be paid to the agency for a determination issued under subd. 1. of an amount necessary to cover the cost of making the determination.
5. A state licensing agency described in subd. 1. shall create a form on which an individual applying for a determination under subd. 1. may do all of the following:
a. State whether he or she has ever been convicted of a crime.
b. Identify the date of conviction for any crime described under subd. 5. a. and describe the nature and circumstances of the crime.
c. Sign his or her name to attest to the accuracy and truthfulness of the information under subd. 5. a. and b. and, if applicable, to acknowledge the agency’s authority to conduct an investigation of the individual.
6. A state licensing agency described in subd. 1. shall promulgate rules to implement this paragraph, except that the department of safety and professional services may promulgate rules defining uniform procedures for making such determinations to be used by the department of safety and professional services, the real estate appraisers board, and all examining boards and affiliated credentialing boards attached to the department of safety and professional services or an examining board.
(h) Notwithstanding s. 111.322, it is not employment discrimination because of conviction record to revoke, suspend or refuse to renew a license or permit under ch. 125 if the person holding or applying for the license or permit has been convicted of one or more of the following:
1. Manufacturing, distributing or delivering a controlled substance or controlled substance analog under s. 961.41 (1).
2. Possessing, with intent to manufacture, distribute or deliver, a controlled substance or controlled substance analog under s. 961.41 (1m).
3. Possessing, with intent to manufacture, distribute or deliver, or manufacturing, distributing or delivering a controlled substance or controlled substance analog under a federal law that is substantially similar to s. 961.41 (1) or (1m).
4. Possessing, with intent to manufacture, distribute or deliver, or manufacturing, distributing or delivering a controlled substance or controlled substance analog under the law of another state that is substantially similar to s. 961.41 (1) or (1m).
5. Possessing any of the materials listed in s. 961.65 with intent to manufacture methamphetamine under that section or under a federal law or a law of another state that is substantially similar to s. 961.65.
(i)
1. Notwithstanding s. 111.322, it is not employment discrimination because of conviction record to deny or refuse to renew a license or permit under s. 440.26 to a person who has been convicted of a felony and has not been pardoned for that felony.
2. Notwithstanding s. 111.322, it is not employment discrimination because of conviction record to revoke a license or permit under s. 440.26 (6) (b) if the person holding the license or permit has been convicted of a felony and has not been pardoned for that felony.
(j) Notwithstanding s. 111.322, it is not employment discrimination because of conviction record for the board of nursing to refuse to license an individual in accordance with s. 441.51 (3) (c) 7. and 8.
(jm) Notwithstanding s. 111.322, it is not employment discrimination because of conviction record for the physician assistant affiliated credentialing board to refuse to grant to an individual a compact privilege, as defined in s. 448.988 (2) (b), in accordance with s. 448.988 (4) (a) 3.