Wisconsin employers who run background checks have to satisfy two separate sets of rules at the same time. The federal Fair Credit Reporting Act governs how the report is ordered, disclosed and acted on. Wisconsin’s own employment discrimination law then controls what an employer may actually do with arrest and conviction information once the report comes back. The state’s approach is unusual compared to most other states, and getting it wrong can turn an ordinary hiring decision into a discrimination complaint. This guide walks through both layers, plus the state record check system, expungement, and caregiver screening rules that apply to many Wisconsin employers.
The federal baseline: the FCRA still applies in Wisconsin
Any employer that uses a background screening company, often called a consumer reporting agency, to pull a criminal history, credit report or other consumer report on an applicant or employee is subject to the Fair Credit Reporting Act. The statute sets out the employer’s core duties under 15 U.S.C. 1681b:
- Provide a clear, standalone written disclosure that a background report will be obtained for employment purposes, separate from the job application.
- Get the applicant’s written authorization before ordering the report.
- Send a pre adverse action notice with a copy of the report and the Summary of Rights before taking any adverse action based on the report.
- Wait a reasonable period, then send an adverse action notice if the employer proceeds with the adverse decision.
The Federal Trade Commission’s implementing rules for consumer reporting are codified in the Code of Federal Regulations, which Wisconsin employers can review directly through the electronic Code of Federal Regulations, Title 16, Part 600. None of these federal steps change because the job is in Wisconsin. What changes is what the employer is legally allowed to do with the results.
Wisconsin’s conviction and arrest record protection is a civil rights law
Most states that regulate criminal history in hiring do it through a ban the box ordinance or a short timing rule. Wisconsin does something broader. Under the Wisconsin Fair Employment Act, Wis. Stat. 111.335, arrest record and conviction record are protected categories, similar to race, sex or age. That means an employer generally may not refuse to hire, fire, or otherwise discriminate against someone because of an arrest or conviction record, unless a specific exception applies.
The main exception is the “substantial relationship” test. The Wisconsin Department of Workforce Development explains the standard this way on its civil rights guidance page: an arrest or conviction is substantially related to a job when there is some overlap between the circumstances of the offense and the circumstances of the job. The agency gives a concrete example, a theft conviction is substantially related to a cashier position, while a drunk driving conviction is substantially related to a truck driving job but probably not to a cashier job. See the full explanation at the Department of Workforce Development’s arrest and conviction record page.
A few practical consequences follow from this structure:
- A blanket policy that disqualifies anyone with any conviction record is not allowed under Wisconsin law. Each job and each record generally has to be considered individually.
- Employers may ask about pending charges and convictions, but the agency’s guidance is clear that the employer should state that the information will only be considered if it is substantially related to the particular job.
- Employers may not ask about, or act on, an arrest that did not result in a conviction, except for a charge that is still pending.
- Co-worker or customer discomfort with a conviction record is not, by itself, a lawful reason to deny employment under this law.
Arrest records versus conviction records under Wisconsin law
| Record type | Can an employer ask about it | Can it support an adverse decision |
|---|---|---|
| Pending criminal charge | Generally yes, employers may ask | Only if substantially related to the job, per DWD guidance |
| Arrest that did not lead to a conviction, and is not pending | Generally no | No, this is not a lawful basis for an adverse decision |
| Conviction record | Generally yes, employers may ask | Only if substantially related to the particular job and its circumstances |
| Expunged record under Wis. Stat. 973.015 | Treated as if the conviction did not occur for most purposes once expunged | No, once properly expunged it is not available to form the basis of a decision |
This table summarizes the general framework described on the DWD civil rights page and in the statute itself. Because the analysis is fact specific, employers facing a close call should document the job’s actual duties and how they relate to the offense, rather than relying on a fixed list of disqualifying crimes.
Expungement under Wisconsin law
Wisconsin’s expungement statute, Wis. Stat. 973.015, allows a court to expunge certain records for offenses committed when the person was under a specified age at the time of the offense, and only for certain classes of misdemeanors and felonies, subject to the eligibility rules in the statute. Expungement in Wisconsin happens at sentencing, with the actual expungement order entered later if the person successfully completes the sentence. Employers should not assume every applicant with a gap or a sealed record is hiding something. If a record was lawfully expunged, Wisconsin treats the underlying case as closed for most purposes, and employers generally should not ask about or rely on it.
Wisconsin DOJ criminal history record checks
The Wisconsin Department of Justice’s Crime Information Bureau maintains the state’s central repository of criminal history records and operates the public records check system that many employers and licensing bodies use. General information about the bureau’s record keeping role is available at the DOJ Crime Information Bureau page. Employers and the general public can run name based criminal history checks through the state’s online record check system, described at the Wisconsin Online Record Check System (WATCH) page. A WATCH search returns information from Wisconsin court and correctional records. It is not a substitute for a full FCRA compliant background check, which typically also checks other jurisdictions, and employers using a consumer reporting agency are still bound by the FCRA regardless of what state tools they also use.
Caregiver background checks under Wis. Stat. 50.065
Wisconsin has a separate, mandatory background check program for caregivers at facilities and agencies regulated by the Department of Health Services, including nursing homes, hospitals, home health agencies, and many other health and long term care providers. This program is set out in Wis. Stat. 50.065 and is administered through the Department of Health Services caregiver background check program. Entities covered by this law must check criminal history and certain registries before hiring a caregiver and on a recurring basis afterward, and the law lists categories of convictions that bar employment in a caregiving role, separate from the substantial relationship analysis that applies to ordinary private employers. Covered health and long term care employers should review the program details directly at the DHS caregiver background check program page rather than relying on the general Fair Employment Act framework alone, since the caregiver law can require automatic disqualification for specific offenses.
EEOC guidance on criminal records in hiring
At the federal level, Title VII of the Civil Rights Act does not prohibit criminal history screening outright, but the Equal Employment Opportunity Commission has long cautioned that a policy excluding everyone with a criminal record can have a disparate impact on groups protected under Title VII if it is not job related and consistent with business necessity. Employers should review the agency’s current guidance directly at the EEOC’s background checks guidance for employers before adopting or updating a criminal history policy, since the agency’s position and guidance documents are updated from time to time. Wisconsin’s substantial relationship test and the EEOC’s job relatedness framing point in a similar direction, an individualized review tied to the actual job tends to hold up better than a blanket rule, but the two are separate legal standards and compliance with one does not automatically satisfy the other.
Putting it together: an FCRA plus Wisconsin compliance sequence
| Step | Source of the duty | What it requires |
|---|---|---|
| 1. Standalone disclosure | FCRA, 15 U.S.C. 1681b | A document that only discloses the background check, signed or otherwise authorized separately from the application |
| 2. Written authorization | FCRA, 15 U.S.C. 1681b | The applicant’s consent to the check before it is run |
| 3. Order the report | Employer and screening provider | A permissible purpose must exist for every report pulled |
| 4. Individualized review of any hit | Wis. Stat. 111.335, substantial relationship test | Compare the offense to the actual duties and circumstances of the job rather than applying a blanket rule |
| 5. Pre adverse action notice | FCRA | Copy of the report and the Summary of Rights, before any final decision |
| 6. Adverse action notice | FCRA | Formal notice if the employer proceeds with the adverse decision after the waiting period |
Employers that also fall under the caregiver background check law, or that hold a state license that imposes its own fingerprinting and disqualification rules, generally need to layer those sector specific requirements on top of this sequence rather than substitute one for the other.
Frequently asked questions
Does Wisconsin have a ban the box law?
Wisconsin does not have a statewide ban the box law for private employers. Instead, the Wisconsin Fair Employment Act regulates what employers can do with arrest and conviction records once they have them, through the substantial relationship test described in Wis. Stat. 111.335 and explained on the DWD civil rights page.
Can a Wisconsin employer reject an applicant for any conviction on their record?
Generally no. Under Wisconsin law, a conviction can only support an adverse decision if it is substantially related to the particular job, based on the overlap between the offense and the job’s actual duties and circumstances. A blanket exclusion for all convictions is not consistent with this standard.
Can an employer ask about an arrest that never led to a conviction?
Generally no, unless the charge is still pending. Wisconsin treats closed arrests that did not result in conviction as protected information that should not factor into an employment decision.
What is the Wisconsin WATCH system?
WATCH is the Wisconsin Online Record Check System operated by the Department of Justice, which allows name based searches of Wisconsin court and correctional records. It is described at the DOJ WATCH system page. It is a state tool and does not replace a full FCRA compliant background check for employment purposes.
Do caregiver employers in Wisconsin follow different rules?
Yes. Employers and agencies regulated under Wis. Stat. 50.065 must run background checks through the Department of Health Services caregiver background check program, described at the DHS caregiver program page, and that program can require automatic disqualification for certain offenses, separate from the general substantial relationship analysis.
Does an expunged record have to be disclosed to a Wisconsin employer?
Expungement under Wis. Stat. 973.015 is limited to certain offenses and eligibility conditions set by the statute. Once a record is properly expunged, it generally should not be treated by an employer as an existing conviction. Employers with questions about a specific record should consult counsel rather than assume how a particular case was resolved.
Related reading on our site: how the individualized assessment process works after a criminal history hit and how clean slate and expungement laws affect what employers can see. For a broader look at how to structure a compliant screening program, visit Reveal Background.
This article is general information for employers and is not legal advice. Wisconsin employment law, FCRA obligations, and sector specific screening rules change and can apply differently to a given employer or role, so consult qualified counsel before adopting or changing a background check policy.
