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  • May 06, 2022

    Firing Worker Based on Deferred Prosecution Agreements Did Not Violate WFEA

    A company that fired an employee who admitted to felony charges that were the subject of deferred prosecution agreements did not violate the Wisconsin Fair Employment Act, the Wisconsin Court of Appeals has ruled.
    Handcuffs Atop A Fingerprint Card And An Intake Form May 6, 2022 – A company that fired an employee who admitted to felony charges that were the subject of deferred prosecution agreements did not violate the Wisconsin Fair Employment Act (WFEA), the Wisconsin Court of Appeals has ruled.

    In Vega v. Labor and Industry Review Commission, 2021AP24 (April 19, 2022), the Court of Appeals District III held that because the agreements were part of the employee’s arrest record rather than his conviction record, the company did not wrongfully discriminate against the employee when it fired him. 

    Pleas in Buffalo County

    David Vega began working for Preferred Sands of Minnesota, LLC in September 2010.

    Jeff M. Brown Jeff M. Brown is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.

    In April 2011, Vega pled guilty to two misdemeanor counts of fourth-degree sexual assault in Buffalo County Circuit Court. He also pled guilty to a felony count of third-degree sexual assault as part of a deferred prosecution agreement.

    Under the agreement, the circuit court would dismiss the felony count after seven years if Vega complied with the agreement’s terms. If Vega did not comply, the court would immediately accept his plea and enter a judgment of conviction.

    The agreement also required Vega to complete the probation conditions imposed upon him as a result of the misdemeanor conviction.

    Pleas in Pierce County

    In October 2012, Vega pled guilty to a misdemeanor count of fourth-degree sexual assault of a child under age 13 in Pierce County Circuit Court.

    The court placed Vega on two years’ probation and required him to both register as a sex offender for life and comply with the terms of the probation imposed by Buffalo County Circuit Court.

    Vega also pled guilty to the felony count under a deferred prosecution agreement.

    Under the terms of the agreement, the circuit court would dismiss the felony count after six years if Vega complied with the agreement. If Vega didn’t comply with the agreement, he’d be immediately convicted.

    The agreement also specified that Vega would be subject to the conditions of probation imposed upon him as a result of the misdemeanor conviction.

    Fired After Admitting Guilt

    In 2015, Vega was transferred to Preferred Sands Wisconsin, LLC, a sister company of Preferred Sands Minnesota. Johnson, a human resources manager for Preferred Sands, Wisconsin interviewed Vega about his criminal history.

    When Johnson asked Vega about the two deferred prosecution agreements, Vega admitted that his statements in the two deferred prosecution agreements were true and admitted the allegations contained in the agreements.

    Because of Vega’s admissions, Preferred Sands Wisconsin fired Vega.

    Complaint and Appeals

    Vega filed a complaint with the Equal Rights Division of the Wisconsin Department of Workforce Development. An administrative law judge (ALJ) concluded that Preferred Sands had violated the WFEA by firing Vega based on his conviction record.

    Preferred Sands appealed to the Labor and Industry Review Commission (LIRC). LIRC found that Preferred Sands had permissibly fired Vega based on his admissions about the felony charges.

    Vega appealed to the Dunn County Circuit Court. The circuit court ruled that Preferred Sands had wrongfully fired Vega because 1) the deferred prosecution agreements were conviction records under the WFEA and 2) the company gained nothing new from Vegas’ admissions about the agreements.

    Agreements Not Conviction Records

    Before the court of appeals, Vega argued that the deferred prosecution agreements were conviction records, rather than arrest records, under the WFEA – a critical distinction, because the WFEA makes it wrongful to fire an employee on the basis of a conviction record but not on the basis of an arrest record.

    Writing for a three-judge panel, Judge Thomas Hurz explained that a deferred prosecution agreement is not part of a person’s conviction record under the WFEA “because it occurs before any finding of guilt or culpability has occurred.”

    “It is simply an agreement that a defendant will not be prosecuted for—or, in this case, convicted of—a crime if the defendant complies with the terms of the agreement,” Judge Hruz wrote.

    Agreements Don’t Impose Probation

    Vega argued that the deferred prosecution agreements were part of his conviction record because they imposed probation, jail time, individual counseling, and sex offender treatment.

    But the agreements were not the source of the probation requirement imposed on Vega, Judge Hruz explained.

    “Rather, [the Pierce County agreement] required that [Vega] ‘comply with terms of probation relative to Count 2,’ which was the misdemeanor conviction in Pierce County,” Hruz wrote.

    “The Pierce County agreement also never discussed or imposed any period of imprisonment, fine, extended supervision, or parole.”

    The same analysis applied to the Buffalo County agreement, Judge Hruz noted.

    Decision Based on New Information

    Vega also argued that LIRC’s decision was not supported by substantial evidence that Preferred Sands fired him because of information it obtained as part of its independent investigation – namely, his admissions about deferred prosecution agreements.

    Rather, Vega argued, Preferred Sands fired him because it learned he was a registered sex offender. Furthermore, Vega argued, the company’s investigation of him flowed from learning that he was a registered sex offender.

    The court of appeals held that Preferred Sands was in part motivated to fire Vega because he was a registered sex offender. But, Judge Hruz explained, there was substantial evidence the company was also motivated by the admissions Vega made during his interview with Johnson.

    After all, Hruz pointed out, Preferred Sands didn’t fire Vega upon learning he was a registered sex offender. Rather, it interviewed Vega to obtain more information about his criminal history.

    And that interview was significant, Judge Hruz explained.

    “Although Vega provided scant detail during the interview and confirmed everything that the documents had alleged, his admissions still provided new and independent information that he had, in fact, committed felony-level sexual assaults and that all of the details in the detective’s statements were true,” Hruz wrote.



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