Wisconsin Employment Screening Overview
Wisconsin is generally employer-friendly for background screening, with no statewide ban-the-box law for private employers, no salary history ban, and no restrictions on credit checks beyond federal requirements.
However, employers must apply a "substantial relationship" test before using conviction records in hiring decisions, and local ordinances in Madison and Milwaukee may impose additional requirements—federal FCRA and anti-discrimination laws also apply.
What's Permitted
- Employers may consider conviction records only when substantially related to the job
- Employers may request salary history information from applicants at any stage
- Public works contractors must implement written substance abuse prevention programs
- No statewide E-Verify mandate for private employers currently
What's Prohibited
- Refusing to hire based on conviction records unless substantially related to the job
- Requesting arrest records other than pending charges on applications
- Applying blanket policies excluding all applicants with any conviction history
- Using expunged records as a basis for employment decisions
Ban the Box Laws
Public Employers OnlyStatus Summary
Wisconsin has no statewide Ban the Box for private employers. Under Wis. Stat. § 111.335, consider only convictions substantially related; don’t ask about non‑pending arrests (DWD). Madison contractors and Milwaukee public hiring follow Ban the Box.
Key Requirements
Wisconsin Fair Employment Act (Wis. Stat. §111.335)
State discrimination law limiting criminal-history use:
- Prohibits discrimination for arrest records.
- Allows considering convictions if substantially related.
- Excludes deferred prosecutions from convictions.
- Requires individualized assessment; bans blanket exclusions.
- 300-day complaint filing deadline.
Sources: https://docs.legis.wisconsin.gov/document/statutes... ; https://dwd.wisconsin.gov/er/civilrights/discrimin...
City of Madison Ordinance (Madison Gen. Ord. §39.08)
Local Ban the Box for city contractors:
- Applies to city contracts over $25,000.
- No arrest/conviction questions on applications.
- Background checks after conditional offer only.
- Contractors must retain hiring records for inspection.
- Enforcement through contract compliance mechanisms.
Sources: City of Madison Gen. Ord. §39.08 (cited in DWD materials) — see summary: https://docs.legis.wisconsin.gov/misc/lc/study/202...
Milwaukee County / City of Milwaukee
Local Ban the Box for county and city hiring:
- County omits conviction questions from applications.
- Background checks before eligible-list placement only.
- City resolution encourages employer policy adoption.
- Applies to public employers and county jobs.
- Resolution is nonbinding for private employers.
Sources: DWD summary and local ordinance references: https://dwd.wisconsin.gov/er/civilrights/discrimin... ; see local ordinance summaries in DWD materials above
Federal Executive Order (federal contractors)
Federal contractor Ban the Box requirements:
- Inquiries delayed until after conditional offers.
- Applies to federal agencies and contractors.
- Federal rules supersede less-stringent local law.
- Wisconsin federal contractors must comply.
- Follow federal guidance for hiring processes.
Sources: federal contractor guidance as discussed in DWD materials: https://dwd.wisconsin.gov/er/civilrights/discrimin...
Ban the Box Best Practices for Wisconsin Employers
- Do not ask about arrests (except pending charges).
- Delay conviction inquiries until after conditional offer when feasible.
- Assess convictions individually for substantial relationship to job.
- Provide pre-adverse notice and reasonable opportunity to respond.
- Follow Madison, Milwaukee ordinances and federal contractor rules.
Individual Assessments
Enhanced (Beyond EEOC)Status Summary
Wisconsin has a unique employment discrimination framework under Wis. Stat. § 111.335 that prohibits employers from refusing to hire or otherwise discriminating against an applicant based on a conviction record unless the offense is "substantially related" to the circumstances of the particular job. This "substantially related" standard is more demanding than the EEOC's "job related and consistent with business necessity" test, as it requires a direct nexus between the specific offense and the specific job duties. While Wisconsin does not have a ban the box timing restriction, the substantive protection against conviction based discrimination goes beyond the EEOC baseline by creating a statutory cause of action enforceable through the Wisconsin Department of Workforce Development.
Key Requirements
Wis. Stat. § 111.335 prohibits employment discrimination based on conviction records unless the conviction is "substantially related" to the job.
The "substantially related" standard requires employers to demonstrate a direct nexus between the specific offense and the specific duties and responsibilities of the position.
This standard is more demanding than the EEOC's "job related and consistent with business necessity" test.
Wisconsin does not have a statewide ban the box law restricting the timing of criminal history inquiries; employers may ask about conviction history on initial applications.
Employers may not discriminate based on arrest records (as distinct from convictions) under any circumstances.
The law is enforced through the Wisconsin Department of Workforce Development, Equal Rights Division, which investigates complaints and may order reinstatement, back pay, and other remedies.
Milwaukee has a local ban the box ordinance that restricts timing of criminal history inquiries for city contractors and employers.
Legal Standard
Wis. Stat. § 111.335 (Wisconsin Fair Employment Act). The statute establishes a "substantially related" test for conviction based employment discrimination, which is a higher bar than the EEOC's "job related and consistent with business necessity" standard. Employers must show that the specific offense bears a substantial relationship to the specific job. Enforcement is through the Wisconsin Department of Workforce Development, Equal Rights Division, which processes discrimination complaints and may award remedies including back pay, reinstatement, and compensatory damages.
Individual Assessment Best Practices for Wisconsin Employers
- Evaluate each conviction individually to determine whether the offense is "substantially related" to the specific duties of the position before taking adverse action.
- Document the analysis of how each conviction relates (or does not relate) to the job duties and responsibilities.
- Do not use arrest records (as distinct from convictions) as a basis for any employment decision.
- Apply the three Green factors and nine EEOC factors as supplementary guidance when conducting the substantially related analysis.
- Provide applicants an opportunity to explain circumstances, rehabilitation efforts, and mitigating information before making a final decision.
- Follow FCRA adverse action procedures when using third party background checks.
- Train hiring managers on the "substantially related" standard and the distinction between arrest and conviction records.
- If operating in Milwaukee, also comply with the local ban the box ordinance restricting timing of criminal history inquiries for covered employers.
- Retain records of all conviction related employment decisions for at least three years.
Salary History Ban
NoWisconsin Statute 103.36
Permits employer salary-history inquiries statewide: https://docs.legis.wisconsin.gov/document/statutes...
- Employers may solicit salary history.
- Local governments cannot ban inquiries.
- Applies to all employer types.
- No timing or notice limits.
- DWD enforces; $100-per-violation fine. https://dwd.wisconsin.gov/er/laborstandards/salary...
Wisconsin Fair Employment Act (Wis. Stat. §§111.322, 111.36)
State anti-discrimination law limiting pay practices: https://docs.legis.wisconsin.gov/document/statutes... https://docs.legis.wisconsin.gov/document/statutes...
- Prohibits pay discrimination by protected characteristic.
- Requires equal pay for equal work.
- Salary history can't justify discriminatory pay.
- Discrimination complaints follow WFEA procedures.
Federal Equal Pay Act / Title VII
Federal laws supplement state protections: https://www.eeoc.gov/statutes/equal-pay-act-1963
- Prohibits sex-based wage discrimination.
- Title VII covers race and sex discrimination.
- Federal law applies alongside state law.
- Federal claims may provide additional remedies.
Important Distinction
Wisconsin permits employers to solicit salary history and preempts local bans under Wis. Stat. §103.36 (Wis. Act 327), contrary to the national salary‑history ban trend. https://docs.legis.wisconsin.gov/document/statutes... https://docs.legis.wisconsin.gov/document/acts/201...
Salary History Best Practices for Wisconsin Employers
- Apply salary-history questions consistently to all applicants.
- Document compensation rationale: market, qualifications, and salary history.
- Ensure salary history doesn't perpetuate discriminatory pay.
- Follow the most restrictive jurisdiction's pay-history rules.
- Adopt pay transparency or disclose salary ranges proactively.
Consumer Credit Checks
NoNo Wisconsin ban; public employers may use credit checks for fiduciary roles under state HR policy (Ch.246) https://dpm.wi.gov/Hand%20Book%20Chapters/WHRH_Ch_... while Wis. Stat. §230.17(3) https://law.justia.com/codes/wisconsin/chapter-230... mandates criminal-history checks; all employers must comply with the FCRA https://www.ftc.gov/system/files/ftc_gov/pdf/fcra-... (7‑year rule; $75,000 exception).
Key Requirements
Fair Credit Reporting Act (FCRA)
Federal law governing employment credit checks:
- Controls employment credit report use.
- Requires written disclosure and consent.
- Pre-adverse and adverse notices required.
- Seven-year reporting limit for most items.
- Salary exception over $75,000.
Source: FTC FCRA guidance — https://www.ftc.gov/system/files/ftc_gov/pdf/fcra-...
Wis. Stat. § 230.17(3)
State statute on fiduciary hiring background checks:
- Mandates criminal background checks for fiduciaries.
- Does not mandate credit checks.
- Applies to public appointing authorities.
- Statute focused on criminal history.
Source: Wis. Stat. § 230.17 — https://law.justia.com/codes/wisconsin/chapter-230...
Wisconsin Human Resources Handbook, Ch. 246
State HR policy on background checks:
- Permits credit checks for fiduciary positions.
- Requires FCRA compliance when used.
- Job-relatedness and necessity advised.
- Public agencies must follow procedures.
Source: WHRH Ch. 246 — https://dpm.wi.gov/Hand%20Book%20Chapters/WHRH_Ch_...
Wisconsin Court System background-check policy
Court system policy on employment checks:
- Credit checks only for fiduciary roles.
- Job postings must state credit check.
- Applicants must sign FCRA authorization.
- Provide FCRA rights information sheet.
Source: Court system BG check policy — https://www.wicourts.gov/courts/employment/docs/bg...
Credit Check Best Practices for Wisconsin Employers
- Comply with FCRA: written notice and written authorization required.
- Public sector: credit checks generally limited to fiduciary positions.
- Provide pre-adverse and final adverse action disclosures when applicable.
- Use credit information only if job-related and business necessity documented.
- Assess disparate impact risks per EEOC before adverse decisions.
Marijuana Protection
Medicinal Marijuana
No state medical‑marijuana protections; marijuana remains illegal under Wisconsin law. Lawful off‑duty hemp product use may be protected under Wis. Stat. §111.35. (https://docs.legis.wisconsin.gov/statutes/statutes...
Recreational Marijuana
Recreational marijuana is illegal in Wisconsin; employers may test and act except where Wis. Stat. §111.35 protects lawful off‑duty hemp product use; public‑works rules require written programs and SAMHSA‑standard testing under Wis. Stat. §103.503. (https://docs.legis.wisconsin.gov/statutes/statutes... (https://docs.legis.wisconsin.gov/statutes/statutes...
Drug Testing Regulations
Wisconsin: no blanket private‑employer drug‑testing statute; Wis. Stat. §103.503 mandates written substance‑abuse programs for public works; Wis. Stat. §111.35 protects lawful off‑duty product use; DWD administers pre‑employment reporting; federal/DOT rules apply.
Permitted Testing Types
Pre-Employment
Allowed; private employers may test; DWD pre-employment reporting applies.
Random Testing
Allowed; required for public-works contractors under Wis. Stat. 103.503.
Reasonable Suspicion
Allowed; required for public-works contractors under Wis. Stat. 103.503.
Post Accident
Allowed; required for public-works contractors under Wis. Stat. 103.503.
Workers' Compensation: Drug and Alcohol Provisions
Under Wis. Stat. §102.58, if an employee's injury results from intoxication by alcohol or use of a controlled substance, workers' compensation and death benefits are reduced by 15%, with the total reduction capped at $15,000.
Separately, under Wis. Stat. §102.58(2), if the employee violates the employer's written drug or alcohol policy and that violation is causal to the injury, no workers' compensation or death benefits are payable. Medical treatment and drug-treatment benefits under §§102.42 and 102.425 remain payable.
To rely on either provision, the employer must maintain and communicate a written drug-free workplace program and must establish the causal link between impairment (or policy violation) and the injury. The employer bears the burden of proof.
Best Practices
- Create and post written substance-abuse prevention policies.
- Comply with Wis. Stat. 103.503 for public works.
- Use SAMHSA-certified labs and chain-of-custody procedures.
- Honor Wis. Stat. 111.35 lawful off-duty product protections.
- Employer pays mandatory test costs; report failures to DWD.
Clean Slate Laws
NoNo comprehensive Clean Slate: expungement is limited under Wis. Stat. §973.015 (sentencing‑ordered, under‑25, ≤6‑year offenses); WFEA (Wis. Stat. §111.335) bars conviction‑based discrimination unless substantially related; expunged records prohibited from use.
E-Verify Requirements
VoluntaryWho Must Use E-Verify
Private Employers [Immigration Reform and Control Act (IRCA) — federal]
No Wisconsin state E‑Verify mandate for private employers; all must complete federal Form I‑9 under IRCA. https://dwd.wisconsin.gov/er/laws.htm
Federal Contractors [Federal Acquisition Regulation (FAR) / federal law]
Federal contractors must follow applicable federal E‑Verify requirements in contracting rules; enrollment depends on the relevant FAR/agency thresholds and clauses. https://www.congress.gov/bill/119th-congress/senat...
Any other relevant groups [Assembly Bill 281; Senate Bill 287]
AB 281 / SB 287 would require E‑Verify for state agencies and for state contractors with contracts of $50,000 or more if enacted. https://docs.legis.wisconsin.gov/document/proposal... https://docs.legis.wisconsin.gov/document/proposal...
Background Check Regulations
Federal FCRA sets baseline rules for employment background checks, and Wisconsin adds state-level requirements and limits — including public‑sector restrictions, licensing and caregiver checks, and limits on using criminal records — so employers must follow both federal and applicable state rules.
FCRA Compliance Process
Disclosure & Authorization
Provide clear, standalone written disclosure that a background check will be conducted. Obtain separate written authorization from the applicant before ordering the report.
Obtain Background Report
Order the background check from a Consumer Reporting Agency (CRA). Ensure the CRA is FCRA-compliant and provides accurate, up-to-date information.
Pre-Adverse Action Notice
If considering denying employment based on the report, provide the applicant with:
- Copy of the background report
- Copy of "A Summary of Your Rights Under the FCRA"
- Reasonable time to respond (typically 5 business days)
Adverse Action Notice
If final decision is made to deny employment, provide written notice including:
- Name, address, and phone number of the CRA
- Statement that the CRA did not make the decision
- Notice of right to dispute report accuracy
- Notice of right to request additional free copy within 60 days