Expanding “Arrest Record” Protections Under the Wisconsin Fair Employment Act to Non-Criminal Offenses and Clarifying Employer Motive Standards

Introduction

In Oconomowoc Area School District v. Gregory L. Cota, 2025 WI 11, the Wisconsin Supreme Court resolved two pivotal questions under the Wisconsin Fair Employment Act (the “Act”): (1) whether the Act’s definition of “arrest record” encompasses non-criminal offenses (such as municipal citations), and (2) whether an employer may lawfully terminate an employee when the employer’s own internal investigation suggests wrongdoing but waits for law-enforcement corroboration before acting. The court answered “yes” to the first question—holding that “any … other offense” in Wis. Stat. § 111.32(1) reaches non-criminal offenses—and “no” to the second—finding that the School District unlawfully terminated the Cotas “because of” their arrest records in violation of the Act.

The case arose when members of the Oconomowoc Area School District grounds crew were accused by a coworker of stealing proceeds from scrap-metal recycling. An inconclusive internal investigation prompted the District to refer the matter to local police. Although law enforcement ultimately cited Gregory and Jeffrey Cota only for municipal theft (a non-criminal forfeiture offense), the District waited for that citation and subsequent prosecuting-attorney communications before firing the Cotas. The Labor and Industry Review Commission (“LIRC”) ruled for the Cotas, concluding the District acted “because of” their arrest records in violation of the Act. A divided court of appeals reversed on the ground that non-criminal offenses fall outside the Act’s definition of “arrest record.” The Supreme Court granted review.

Summary of the Judgment

Justice Dallet, writing for the majority, first interpreted the Act’s definition of “arrest record” in Wis. Stat. § 111.32(1), which includes information that an individual has been “questioned … arrested … charged with … any … other offense pursuant to any law-enforcement authority.” Applying plain-meaning principles, the court concluded that “any … other offense” unambiguously encompasses both criminal and non-criminal offenses, consistent with how “offense” is used elsewhere in Wisconsin statute and in contemporaneous statutory enactments. The court further held that including non-criminal offenses aligns with the Act’s express statutory purpose—protecting employees from employment discrimination based on arrest records—and promotes uniform treatment of like conduct (e.g., first OWI infractions).

The court then reviewed LIRC’s determination that the District terminated the Cotas “because of” their arrest records—a legal conclusion informed by factual findings. LIRC found that, although the District’s HR director suspected the Cotas of theft during the internal investigation, she did not feel justified in firing them until law-enforcement citations and the assistant city attorney’s statements affirmed the District’s suspicions. Substantial evidence supported LIRC’s finding that the citation and prosecutorial communications motivated the firing. The court rejected the District’s reliance on the so-called “Onalaska defense” (City of Onalaska v. LIRC), noting that defense applies only when an employer truly relies on its independent investigation—without regard to arrest records—as the sole basis for termination. Here, LIRC credited the testimony that the District delayed disciplinary action until it had arrest-record information, and that arrest record prompted the decision to fire. Because that finding is supported by substantial evidence and the employer acted “because of” the arrest records, the court affirmed LIRC’s order awarding reinstatement, back pay, attorneys’ fees, and a cease-and-desist directive.

Analysis

Precedents Cited

City of Onalaska v. LIRC (120 Wis. 2d 363 (Ct. App. 1984)) – Established that an employer does not unlawfully discriminate on the basis of arrest record when it terminates an employee based solely on the employer’s independent investigation and questioning rather than any arrest record information.
Miller Brewing Co. v. DILHR (103 Wis. 2d 496 (Ct. App. 1981)) – Recognized the Act’s amendment to include arrest and conviction records, emphasizing the legislature’s intent to protect ex-offenders from arbitrary, stigma-based employment decisions unrelated to job qualifications.
Clean Wisconsin, Inc. v. DNR (2021 WI 72) – Articulated the standard of de novo review for statutory interpretation and the substantial-evidence standard for agency findings of fact.
Hilton ex rel. Pages Homeowners’ Ass’n v. DNR (2006 WI 84) – Explained that agency findings of fact must stand if supported by substantial evidence and that a “finding” is not to be overturned simply because evidence might support a different conclusion.

Legal Reasoning

1. Ordinary Meaning and Statutory Context: The court began with the unambiguous dictionary meaning of “offense” as “infraction of the law” or “crime,” which naturally embraces non-criminal infractions. It then surveyed contemporaneous statutory usage—Ch. 300 (municipal court), Ch. 346 (Rules of the Road), Ch. 165 (Dept. of Justice)—showing that “offense” routinely includes non-criminal violations punishable only by forfeiture. The presence of the word “any” before “other offense” further signals inclusive breadth.

2. Statutory Purpose: The Act’s express purpose (§ 111.31(1)–(2)) is to protect individuals from employment discrimination based on arrest records, ensuring decisions rest on job-related qualifications, not incidental stigma. Limiting “arrest record” to criminal offenses would frustrate that purpose by granting less protection to employees cited under municipal ordinances or first-offense forfeiture statutes such as a first OWI.

3. Consistency with Exceptions: The statutory scheme contains discrete exceptions—some limited expressly to “criminal charges,” others applicable to any “pending charge” or to non-criminal “offenses” under specific statutes (§ 440.52(13)(c)). This structure reinforces that the general prohibition on arrest-record discrimination encompasses both criminal and non-criminal offenses, and that exceptions carve out narrow subsets.

4. Employer Motive and “Onalaska Defense”: Under the Act, an employer may terminate an employee—even one with an arrest record—if the employer does not act “because of” that arrest record. Onalaska stands for the principle that when an employer terminates based solely on its independent investigation and not on the fact of an arrest, it does not violate the Act. Here, however, LIRC found (and the record confirms) that the District postponed discipline until the police citation and assistant city attorney’s assurances arrived. Those components of the Cotas’ arrest records drove the firing decision. An employer cannot sidestep the Act by waiting for law-enforcement corroboration: if the arrest record is a but-for cause of termination, the Act is violated.

Impact

Employers in Wisconsin must treat non-criminal municipal citations and forfeiture offenses as arrest records under the Act. Terminations or adverse actions “because of” those records expose employers to liability.
The decision clarifies that waiting for law-enforcement confirmation of suspected misconduct does not immunize an employer from arrest-record discrimination claims if the arrest record ultimately motivates the employment action.
Employers should ensure that any employment decision is grounded in independent, job-related findings rather than solely in arrest-record information. Prompt action based on the employer’s internal conclusions—or delay until ultimate adjudication—may reduce risk.
The ruling promotes uniform protection: employees charged under city ordinances and those charged under state criminal statutes now enjoy parallel safeguards.

Complex Concepts Simplified

Non-Criminal Offense: A violation punishable only by a monetary forfeiture (e.g., certain traffic infractions or municipal ordinance violations), not by imprisonment.
“Arrest Record” Under the Act: Broadly includes any formal detentions or charges—felony, misdemeanor, or “other offense”—by law enforcement, now confirmed to include non-criminal offenses.
Onalaska Defense: A narrow employer defense permitting a termination based on an independent internal investigation—unrelated to an arrest record—when no reliance is placed on the arrest information itself.
Substantial Evidence Standard: A reviewing court must uphold agency findings of fact if a reasonable mind could accept the evidence as adequate support, even if other inferences are possible.

Conclusion

Oconomowoc Area School District v. Cota establishes two enduring precedents under Wisconsin’s Fair Employment Act. First, “arrest record” embraces non-criminal offenses, ensuring broad protection against discrimination for employees facing municipal or forfeiture-only charges. Second, employers cannot circumvent the Act by waiting for law-enforcement corroboration: if the arrest record is a but-for cause of firing, the statutory prohibition is violated. Moving forward, Wisconsin employers must ground employment decisions in independent, job-related factors, mindful that any reliance on arrest-record information—criminal or non-criminal—carries legal risk.