Third-party job posting sites such as Indeed, Job Recruiter, etc., can be an easy and efficient way for employers to fill positions with quality candidates; however, Wisconsin employers, including out-of-state employers with job postings in Wisconsin, need to be mindful when submitting a job posting or run the risk of inadvertently violating the state’s non-discrimination law.

Wisconsin law prohibits employers from discriminating against applicants that have an arrest or criminal record, unless the circumstances of the charge or offense are substantially related to the job. This means that a job posting containing boilerplate restrictions such as “no felonies” or “clean criminal background” is sufficient for a company to be liable for such discrimination.

Recently, non-discrimination arrest and conviction claims have become more common, especially when third-party job posting sites are used. Companies that do not carefully review job postings run the risk of these sites automatically populating a “no felonies” restriction. This simple mistake can result in a discrimination claim against the employer from any individual with a felony, even those who are otherwise unqualified or have no intention of applying for the job. Serial claimants often file such discrimination claims against companies that allegedly violate this Wisconsin law in hopes of a settlement.

Although claimants that don’t apply for the position can only receive a cease-and-desist order, companies still often choose to negotiate a settlement with the claimant, instead of spending time and resources to fight the discrimination claim. However, if a claimant has applied for the position and was denied employment because of their arrest or criminal record, which is not substantially related to the job, the claimant may be awarded back pay with interest, attorneys fees, and a cease-and-desist order against the employer. Thus, such a small oversight in a job posting could cost the company significantly.

Wisconsin is not the only state that makes it illegal in a job posting to discriminate against an applicant because of an arrest and/or criminal record. In fact, there are numerous states—including Colorado, Hawaii, Illinois, Maine, and New York—and even cities that make such discrimination illegal. As such, companies should check with their legal team prior to advertising a job posting with a “no felonies” or “clean criminal background” requirement to ensure they do not run afoul of any such non-discrimination laws.  

Many thanks to summer associate McKailah Strang for her assistance with this article.