4. Employment
C. Child Care and Child Welfare Work
A. In General
In general, Wisconsin law prohibits discrimination based on “conviction record,” and a delinquency adjudication is included in the definition of “conviction record.” Wis. Stat. §§ 111.321, 111.32(1),(3). However, the definition of “discrimination” has exceptions for certain offenses and professions.
Generally, it is not discrimination to refuse to hire a person if “the individual has been convicted of any felony, misdemeanor, or other offense, the circumstances of which substantially relate to the circumstances of the particular job or licensed activity.” Wis. Stat. § 111.335(3)(a)1. There is ambiguity about whether this exception, referring to “has been convicted of,” applies to juvenile adjudications.
If a bond is required for the job, and the person is “not bondable,'' an employer may refuse to hire, or may fire an employee. Wis. Stat. § 111.335(3)(a)2.
Employment in the field of private investigation, private security guards, and burglar alarm installers, may be denied if the person “has been convicted of a felony” and “has not been pardoned for that felony.” Wis. Stat. § 111.335(3)(b),(c). Again, it is unclear if this exception applies to delinquency adjudications.
B. Education Agencies
Educational agencies, defined broadly to include state prisons, juvenile correctional facilities and secured residential care centers, the Mendota and Winnebago Mental Health Institutes, the state schools for the deaf and the blind, a state center for the developmentally disabled, and all public and private schools, may refuse to hire or fire a person “who has been convicted of a felony and has not been pardoned for that felony.” Wis. Stat. §§ 111.335(1m)(a), 111.335(3)(e). The language, “convicted of a felony,” suggests that only adult convictions may disqualify a person from education employment, but there is no authoritative interpretation of whether it applies to delinquency adjudications.
C. Child Care and Child Welfare Work
Wis. Stat. § 48.685 (4m)(b) prohibits child welfare agencies, group homes, shelter care facilities, and residential care centers from employing or contracting with a caregiver or congregate care worker, if the employee or contractee has been adjudicated delinquent or has a pending delinquency petition for one of the “serious crimes'' listed in Wis. Stat. § 48.685(1)(c).⁵¹ Wis. Stat. 48.685(4m)(b)2m prohibits employment at congregate care facilities if the employee was “charged” with a violation of a number of Chapter 948 crimes, but the “charge was dismissed or amended as part of a plea agreement.” The use of the word “charge” suggests that this law does not apply to juvenile delinquency cases.
Wis. Stat. § 48.686(4m) enacts similar limitations on child care centers, stating that a child care agency may not employ or contract with someone to provide child care who has been adjudicated delinquent for one of the serious crimes listed in Wis. Stat. § 48.686(1)(c)⁵² or if they are registered as a sex offender.
DCF-F-5296,⁵³ the background check form for child care licensing and employee screening, specifically asks if the applicant was “ever adjudicated delinquent by a court of law or tribal court when [you] were aged 10 to 17 years?” DCF-F-2978,⁵⁴ the background check form for child welfare licensing and employee screening also asks if the applicant was “ever adjudicated delinquent by a court of law, including tribal court,” for a crime or ordinance violation. In both cases, the applicant must describe the delinquent act, its date, location, and location of the court, and notes that the applicant may be asked to provide a certified copy of the delinquency petition, adjudication, or other relevant court or police documents.
Both forms also ask if the applicant has ever been required to register as a sex offender. Additionally, they ask if the applicant has been the subject of investigation, or has been found to have abused, neglected, or stolen the property of a child, adult or elderly person.
If the background check shows that the applicant was adjudicated delinquent for a “serious offense,” they will be excluded from employment unless they can prove rehabilitation. Wis. Stat. § 48.685(5). An applicant for child care employment is not eligible to prove rehabilitation until 5 years have elapsed from the completion of disposition. Wis Stat. §§ 48.686(4m), 48.686(5)(a). If the applicant was adjudicated delinquent for a non-serious offense, the agency must determine if the applicant's offense was “substantially related” to client care or program activities. Wis. Stat. §§ 48.685(5m), 48.686(5m).
D. Law Enforcement
Jobs in law enforcement do not require a license, but the DOJ Law Enforcement Standards Board does set minimum qualifications for recruitment and employment, and “certifies” law enforcement personnel who meet those qualifications, as well as various training and education standards. The minimum employment standards also apply to tribal law enforcement and jail and/or juvenile detention officers.
Among the various training, education, and physical fitness standards is a requirement of a valid driver license, and the following: 1) Applicants must not have been convicted of a felony-level offense; 2) Applicants must not have been convicted of a domestic abuse crime; and 3) Applicants must be of good character.
The first two standards, referencing “conviction” of felony-level offenses or domestic abuse offenses, are ambiguous, as to whether they apply to delinquency adjudications. However, delinquency adjudications discovered in the background investigation would be relevant to the “good character” requirement.
The “good character” criterion requires a written report, including a search of local, state and national fingerprint records, a background investigation, and any other investigation that may “detect conditions which adversely affect performance of one’s duty as a law enforcement officer or jail or juvenile detention officer.” Wis. Admin. Code LES 2.01.
E. Eligibility for Job Corps
Job Corps is an education and job training program run by the federal Department of Labor, for youth, ages 16 to 24, who are low income and face barriers to education and employment, such as being a school dropout, being homeless, being a parent, being in foster care, or lacking basic skills needed for workforce preparation. 20 CFR 686.400(a). There are two Job Corps sites in Wisconsin – one in Milwaukee, and one in the Chequamegon-Nicolet National Forest near Laona, called “Blackwell.”
Job Corps does not automatically disqualify anyone based on a delinquency adjudication. It disqualifies people “convicted” of felony murder, child abuse, and sexual assault. Other than those convictions, “no individual shall be denied a position in the Job Corps solely on the basis of individual contact with the criminal justice system.” 29 U.S.C. §3195(b)(2)(3).
The most common intersection between Job Corps and the juvenile justice system involves youth who are on supervision, but want to join the Job Corps. People on probation, parole, under a suspended sentence or “under the supervision of any agency as a result of court action or institutionalization,” are ineligible for Job Corps unless the court or supervising agency certifies in writing that the applicant has responded positively to supervision, that it will release the applicant from supervision, and that it will permit the applicant to leave the area or the state while enrolled in Job Corps. If the applicant owes more than $500 in fines or restitution, they must settle the restitution, or get the court’s agreement to suspend payment during Job Corps enrollment. 20 CFR §686.410. See “Job Corps Policy and Requirements Handbook.”⁵⁵
In determining eligibility, Job Corps staff also evaluate the likelihood that the applicant “can participate successfully in group situations and activities” and will not interfere with other students’ successful participation in the program. These standards allow consideration of anti-social conduct such as assault, illegal firearm possession, inappropriate sexual behavior and theft, whether or not it was adjudicated in juvenile court.⁵⁶
F. Military Enlistment
All branches of the military have eligibility criterion called “character/conduct,” which says its purpose is to “minimize entrance of persons who are likely to become disciplinary cases, security risks, or who are likely to disrupt good order, morale, and discipline.” 32 CFR §66.6(8). As a general rule, an “adverse adjudication” for any serious sex offense, and an “adverse adjudication” for more than one felony level offense will make a person ineligible for military enlistment. 32 CFR §66.6(8)(i)-(vi) provides more details as it relates to ineligibility, which are summarized below:
Those who are ineligible include:
Anyone on any form of judicial restraint, i.e. bond, probation, parole.
Anyone who has a “significant criminal record,” which includes a person “who has been convicted of a felony.” This includes juvenile delinquency charges because the definition of “conviction” includes any “adverse adjudication of guilt,” including one by a juvenile court. 32 CFR 66.3. It is possible to get a waiver of this criterion if there is just one “major misconduct,” violation. 32 CFR 66.7. Waiver decisions are discretionary and are made by superior officers; it may take up to six months for a decision.
NOTE: An “adverse adjudication” is also defined broadly in 32 CFR §66.3, to include any decision that is not an unconditional drop or dismissal of charges, or an acquittal. A consent decree, for example, is an adverse adjudication even if it leads to dismissal of the charges. A delinquency adjudication is considered “adverse” even if it is expunged.
Anyone who has two “misconduct” offenses (defined as laws punishable by six months to a year of incarceration). It is possible to get a waiver of this criterion.
Anyone who has a “pattern of misconduct,” defined as one “misconduct” offense and four “non-traffic offenses” (less than six-month penalty); or five or more “non-traffic” offenses. It is possible to get a waiver of this criterion.
Anyone who has been found guilty in a juvenile adjudication for a felony crime of rape, sexual abuse, sexual assault, incest, and any offense that results in a dispositional requirement of sex offender registration. This is an absolute prohibition, no waiver is possible.
Anyone with “a current or history of alcohol dependence, drug dependence, alcohol abuse, or other drug abuse” is incompatible with military life.” It may be medically disqualifying, although a waiver is possible.
NOTE: Possession of marijuana is classified as a “misconduct” offense but selling or distributing marijuana is a “major misconduct” offense. Wrongful possession of narcotics or habit-forming drugs (not including marijuana) is a “major misconduct” offense. Alcohol possession charges are “misconduct” offenses or “non-traffic offenses.”
Some assignments in the military require national security clearances, and a history of juvenile delinquency is a consideration in security clearance decisions. There are various levels of security clearance, and the higher the level, the more rigorous are the standards. A delay in getting a security clearance could result in an enlistee being held back in training or denied certain assignments. Therefore, applicants with delinquency backgrounds should ask recruitment officers about the security clearance process.
⁵¹ “Serious crime" means any of the following: 1) A violation of s. 940.19 (3), 1999 stats; 2) A violation of s. 940.01, 940.02, 940.03, 940.05, 940.12, 940.19 (2), (4), (5), or (6), 940.198 (2), 940.22 (2) or (3), 940.225 (1), (2), or (3), 940.285 (2), 940.29, 940.295, 942.09 (2), 948.02 (1) or (2), 948.025, 948.03 (2) or (5) (a) 1., 2., 3., or 4., 948.05, 948.051, 948.055, 948.06, 948.07, 948.08, 948.081, 948.085, 948.11 (2) (a) or (am), 948.12, 948.13, 948.21, 948.215, 948.30, or 948.53; 3) A violation of s. 940.302 (2) if s. 940.302 (2) (a) 1. b. applies; 3r) For purposes of licensing a foster home for the placement of a child or of providing subsidized guardianship payments to an interim caretaker under s. 48.623 (6) (am) or to a person seeking those payments as a successor guardian under s. 48.623 (6) (bm), or of permitting a person to be a caregiver or nonclient resident of a licensed foster home, any violation listed in subd. 1. to 3. or sub. (5) (bm) 1. to 4; 4) A violation of the law of any other state or United States jurisdiction that would be a violation listed in subd. 1., 2., 3., or 3r. if committed in this state.
⁵² “Serious crime" means any of the following: 1) A violation of s. 940.12, 940.22 (2) or (3), 940.285 (2), 940.29, 940.295, or 942.09 (2); 2) A violation of s. 940.302 (2) if s. 940.302 (2) (a) 1. b. applies; 3) An offense under ch. 948 that is a felony, other than a violation of s. 948.22 (2); 4) A violation of s. 940.19 (3), 1999 stats., or of s. 940.19 (2), (4), (5), or (6) or 940.20 (1) or (1m), if the victim is the spouse of the person; 5) A violation of s. 940.01, 940.02, 940.03, 940.05, 940.06, 940.21, 940.225 (1), (2), or (3), 940.23, 940.305, 940.31, 941.20 (2) or (3), 941.21, 943.02, 943.03, 943.04, 943.10 (2), 943.32 (2), 948.081, 948.21, 948.215, or; 6) Only for a caregiver, as defined in par. (ag) 2., a violation of s. 943.201, 943.203, or 943.38 (1) or (2); a violation of s. 943.34 (1), 943.395 (1), 943.41 (3) (e), (4) (a), (5), (6), or (6m), 943.45 (1), 943.455 (2), 943.46 (2), 943.47 (2), 943.50 (1m), or 943.70 (2) (a) or (am) or (3) (a) that is a felony; or an offense under subch. IV of ch. 943 that is a felony; 7) A violation of sub. (2) or s. 48.685 (2), (3), (4m) (b), or (6), 2015 stats., if the violation involves the provision of false information to or the intentional withholding of information from, the department, a county department, an agency contracting under s. 48.651 (2), a school board, or a child care program; 8) An offense involving fraudulent activity as a participant in the Wisconsin Works program under ss. 49.141 to 49.161, including as a recipient of a child care subsidy under s. 49.155, or as a recipient of aid to families with dependent children under s. 49.19, medical assistance under subch. IV of ch. 49, food stamps benefits under the food stamp program under 7 USC 2011 to 2036, supplemental security income payments under s. 49.77, payments for the support of children of supplemental security income recipients under s. 49.775, or health care benefits under the Badger Care health care program under s. 49.665; 9) A violation of s. 125.075 (1), 125.085 (3) (a) 2., 125.105 (2) (b), 125.66 (3), 125.68 (12), 940.09, 940.19 (2), (4), (5), or (6), 940.20, 940.203, 940.204, 940.205, 940.207, 940.25, or 943.23 (1g), a violation of s. 346.63 (1), (2), (5), or (6) that is a felony under s. 346.65 (2) (am) 4., 5., 6., or 7. or (f), (2j) (d), or (3m), or an offense under ch. 961 that is a felony; 10) A violation of s. 948.22 (2), unless the person has paid all arrearages due and is meeting his or her current support obligations; 11) A violation of the law of any other state or United States jurisdiction that would be a violation listed in subd. 1. to 10. if committed in this state; 12) A violation of the laws of another state or United States jurisdiction that if committed in this state would constitute felony battery under s. 940.19 (2), (4), (5), or (6), 940.20, or 940.204, a felony offense of domestic abuse, as defined in s. 813.12 (1) (am), a sex offense or a violent crime under ch. 948, or a violation of s. 940.225 if the victim was a child.
⁵³ Background Check Request, DCF-F-5296-E, Rev. Date 10/2019, Wisconsin Department of Children and Families, <https://view.officeapps.live.com/op/view.aspx?src=https%3A%2F%2Fdcf.wisconsin.gov%2Ffiles%2Fforms%2Fdoc%2F5296.docx&wdOrigin=BROWSELINK>
⁵⁴ Background information disclosure, DCF-F-2978-E, Rev. Date 8/2019, Wisconsin Department of Children and Families, <https://view.officeapps.live.com/op/view.aspx?src=https%3A%2F%2Fdcf.wisconsin.gov%2Ffiles%2Fforms%2Fdoc%2F2978.docx&wdOrigin=BROWSELINK >
⁵⁵ Policy Requirements and Handbook, Chapters 1-6, March 15 2022, U.S. Department of Labor, Office of Job Corps, <https://prh.jobcorps.gov/Entire%20PRH%20PDF/PRH%20(Chapters%201-6)%20-%2003.15.22.pdf>
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