Questions have been asked about the Wisconsin Fair Employment Act (“WFEA”) and one of its protected classes, arrest and conviction records, which is not covered under Federal employment statutes. The Act requires that at the onset of an employment relationship, the employer is prohibited from asking about prior arrests, including in the employment application, except in the case where bondability is a requirement of the job. The employer is permitted to ask about prior convictions, but the employer should clearly state that a conviction is not an automatic bar to employment. After employment, the WFEA prohibits any employment action that was motivated, even in part, by an arrest or conviction record. If the motivation for employment action is the unlawful conduct itself, not the arrest or conviction, the employer is exonerated, although this is difficult to show. There also is a substantial relationship exception. Basically, this means that if the employer can show that circumstances of the arrest or conviction “substantially relate to the circumstances of a particular job,” the arrest or conviction can be the basis of the employment action. With regard to arrests, this exception only applies to refusing to employ, not to terminate or suspend an individual, but in regard to criminal records, it may apply to refusing to employee, license or termination of an individual. A substantial relationship is an objective test, and is not a question of the employer’s intent. The WFEA also provides that an arrest or conviction record may be “per se” substantially related. Not surprisingly, conduct engaged in while the employee is on duty, is per se substantially related to the job. If an employer terminates or refuses to hire an individual on the basis of a conviction record if the individual is not bondable when required at standard rates, this is “per se” permissible. Other per se exceptions involve security-related businesses and criminal background checks of caregivers.