Wisconsin ban-the-box rules: arrest and conviction record law, state jobs and Madison

Wisconsin has no ban-the-box timing law for private employers, but as of October 2026 its rules on what you may ask and use are stricter than many states that do. The Wisconsin Fair Employment Act makes arrest record and conviction record protected categories for any employer with at least one employee and for employment agencies: you may not ask about arrests other than pending charges, and you may reject someone over a conviction or pending charge only when its circumstances substantially relate to the job. The state's own civil service waits until an applicant is certified before asking about convictions, and Madison requires its contractors to wait until a conditional offer.

Does Wisconsin have a ban-the-box law?

Not in the usual sense. No statute tells a private Wisconsin employer to wait until an interview or an offer before asking about criminal history. Instead, Wis. Stat. 111.321 forbids employment discrimination by any "employer, labor organization, employment agency, licensing agency, or other person" on the basis of arrest record or conviction record, alongside age, race, sex and the other protected bases. The definitions in Wis. Stat. 111.32 make that reach very wide:

• Employer: the state and its agencies and "any other person engaging in any activity, enterprise or business employing at least one individual."
• Employment agency: "any person, including this state, who regularly undertakes to procure employees or opportunities for employment for any other person." Staffing firms and recruiters are covered in their own right.
• Arrest record: being questioned, apprehended, taken into custody, held for investigation, arrested, charged, indicted or tried.
• Conviction record: being convicted, adjudicated delinquent, less than honorably discharged, placed on probation, fined, imprisoned, placed on extended supervision or paroled.

What can Wisconsin employers ask about criminal history?

Wis. Stat. 111.335(2)(a) says employment discrimination because of arrest record includes "requesting an applicant, employee, member, licensee or any other individual, on an application form or otherwise, to supply information regarding any arrest record of the individual except a record of a pending charge." The one exception is a job that depends on the person being bondable under a standard fidelity bond, or an equivalent bond required by law or established business practice, where the person may not be bondable because of an arrest record.

The Department of Workforce Development's arrest and conviction record page says an employer "is not allowed to ask about arrests, other than pending charges," that questions about pending charges or convictions must make clear they matter only if substantially related to the job, and that in an interview the employer "must obtain enough information to determine if the conviction record is substantially related to the job."

When may a Wisconsin employer reject someone because of a record?

Under 111.335(2)(b) and (3)(a), only when the circumstances of a pending charge or a conviction "substantially relate to the circumstances of the particular job," or when the person is not bondable for a job that requires a bond. The department's examples: a theft conviction relates to a cashier job, and a drunk driving conviction relates to a truck driving job. Its rule of thumb is that an offense is substantially related "when there is some overlap between the circumstances of the job and the circumstances of the offense."

The department is blunt about blanket policies: an employer "cannot legally make a rule that no persons with conviction records will be employed," and each job and record must be considered individually. Customer or co-worker preference is not a valid reason. A candidate who disagrees can file with the Equal Rights Division within 300 days. How the test has been applied in cases, how expunged convictions are treated and where to get a state record check are covered in Wisconsin background check laws.

When does the State of Wisconsin ask about convictions?

For state civil service jobs, Wis. Stat. 230.16(1)(ap), created by 2015 Wisconsin Act 150 (enacted February 12, 2016), says the director "may not request a person applying for a position in the civil service, on an application or otherwise, to supply information regarding the conviction record of the applicant, or otherwise inquire into or consider the conviction record of the applicant before the applicant has been certified for the position." Two qualifications:

• The state may tell applicants that, by law or policy, a particular conviction record may disqualify them from a particular position.
• If a particular conviction record disqualifies applicants for a position, the state may ask before certification to decide whether the applicant is disqualified.

The rule covers the state civil service, not cities, counties, school districts or private employers.

What does Madison require?

City contractors: MGO 39.08

Madison General Ordinance 39.08, "'Ban the Box' in City Contracting," applies to service contractors with city contracts over $25,000, recipients of city financial assistance over $25,000, public works contractors and prequalified subcontractors. Covered contractors must:

1. remove from all job application forms any question, check box or other inquiry about an applicant's arrest and conviction record;
2. refrain from asking about arrest or conviction record "in any manner" until after a conditional offer of employment; and
3. refrain from running a formal or informal background check, by any means, until after a conditional offer.

Contracts for goods only, emergency contracts, contracts with other governments and several other types are exempt. The rule does not apply when certain convictions bar employment in the position by law, when the law requires a check at an earlier time or in another manner (including licensed trades where the licensing authority requires the inquiry), or when the contractor serves vulnerable populations under the city's resolution on that subject.

Every employer in Madison: MGO 39.03

Madison's Equal Opportunities Ordinance states a policy of equal employment opportunity without regard to arrest record, conviction record or credit history, among other grounds, and makes it unlawful for any person, employer or employment agency to request credit history, or an arrest record other than a pending charge, on an application form or otherwise, with exceptions such as law enforcement jobs.

What federal rules still apply in Wisconsin?

• Title VII. The EEOC rescinded its 2012 guidance on arrest and conviction records on October 28, 2026, but Title VII and its disparate impact provision, 42 U.S.C. 2000e-2(k), still apply. In Wisconsin the state's substantial relationship test already requires a job-related review, which overlaps with the Green factors from the 1975 Eighth Circuit case (the nature and gravity of the offense, the time since it and the nature of the job).
• Federal contractors. The Fair Chance to Compete for Jobs Act, 41 U.S.C. 4714, bars contractors from requesting criminal history before a conditional offer for positions related to work under a federal contract, for contracts awarded under solicitations issued after its effective date, with exceptions.
• The FCRA. Reports from screening companies need a stand-alone disclosure, written authorization and the adverse action steps in the FCRA background check process. Tell your screening company to leave out arrests without a pending charge, since you may not use them.

Wisconsin criminal history rules at a glance

What should staffing agencies and recruiters do in Wisconsin?

• You are covered directly. As an employment agency under 111.32(7), your own forms and screens must follow 111.335, whatever the client does.
• Rewrite arrest questions. "Have you ever been arrested?" must go. Ask, if at all, about pending charges and convictions, and say a record will be considered only if substantially related to the job.
• Madison contract work: if your client holds a covered Madison contract, the criminal history question and the check wait until a conditional offer for the covered workforce.
• The rest of the state's hiring rules, including Wisconsin's law allowing salary history questions and agency licensing, are in hiring employees in Wisconsin and Wisconsin staffing agency licensing.

Questions to settle with a Wisconsin client at intake

• Does the client's application ask about arrests beyond pending charges? If so, it needs to change.
• Is the job bonded, and does the bond requirement come from law, regulation or established business practice?
• Does the client hold a covered City of Madison contract or receive city financial assistance?
• Who decides whether a conviction substantially relates to the job, and is the reasoning written down?
• Who orders the background check and sends the FCRA notices?

A script for Wisconsin screens

Client asks you to find out about arrests: "In Wisconsin we can't ask about arrests other than pending charges, and that applies to agencies too. If convictions matter for this job, your background step can look at whether one is substantially related."

Candidate volunteers a conviction: "Thanks for telling me. Wisconsin law only lets an employer consider a conviction that's substantially related to the job, and that's decided later, not on my screen. I won't note it."

Client says "we don't hire anyone with a record": "Wisconsin doesn't allow a blanket rule. Each record has to be weighed against the job. Let's agree which offenses relate to these duties and why."

A Wisconsin checklist for recruiting desks

1. Remove arrest questions (other than pending charges) from every application, portal and questionnaire.
2. Add a line that a conviction or pending charge is considered only if substantially related to the job.
3. Write down the job-related reasoning for any decision based on a record; a fair chance hiring policy keeps it consistent.
4. For Madison contract work, keep the question and the check until after a conditional offer.
5. Keep volunteered details out of notes and submittals; see what not to write in interview notes.
6. For neighboring states, see Minnesota and Illinois; for the federal picture, ban-the-box laws and interview questions.