Wisconsin law enforcement agencies have new tools to screen applicants for officer jobs as of November 7, 2021, which is the effective date of 2021 Wisconsin Act 82. A covered agency is any governmental unit of the State of Wisconsin or a political subdivision of the state that employs one or more law enforcement officers, and the Marquette University police department (“Department”). These Departments also have new compliance obligations for employee records and when responding to other Departments’ requests for current and former officers’ employment records.

A Department must require each person it interviews for an officer job who is or has been an officer to agree to disclose his or her employment file and release the interviewing Department and the responding Department from any liability related to the use and disclosure of the candidate’s employment file. Wis. Stat. § 165.85(4)(em)(1). Each Wisconsin law enforcement agency must now maintain an employment file for each person it employs. Wis. Stat. § 175.65.  The definition of an employment file is below.

A Department that is interviewing a candidate must request the employment file and waiver at least 30 days before it decides whom to hire. Wis. Stat. § 165.84(4)(em)(4). A Department may not consider for employment any candidate who refuses to sign the waiver. Wis. Stat. § 165.85(4)(em)(3). The Department that receives a request for a current or former officer’s employment file must make the file available to the requesting Department within 21 days of receiving the waiver. Wis. Stat. § 165.85(4)(em)(2), (4). The new law also allows a hiring Department to interview the Department that formerly employed an officer candidate. Wis. Stat. § 165.85(4)(em)(5). The new law protects the Department that is interviewed and the Department conducting the interview from liability for participating in an oral interview. Wis. Stat. § 165.85(4)(em)(8).

Recommended Practical Next Steps

A Department should consider the following to aid in its compliance, as follows:

  • Prepare a form for an officer candidate that a police department interviewed to give permission for his or her current and former police department employers to disclose his or her employment files and to waive all liability in connection with that disclosure. When this article was published, the League of Wisconsin Municipalities provided a form without charge on its website;
  • Review the documents the Department keeps on employees and map them to the identified employment file documents, which are:
  • Performance reviews
  • Job performance information
  • Internal affairs investigative files
  • Administrative files
  • Previous personnel applications
  • Personnel-related claims
  • Disciplinary actions
  • Substantiated complaints and commendations
  • Any other information related to performance and conduct
  • Maintain medical records related to mental competency issues bearing on an employee’s suitability for a law enforcement position in a separate medical file and indicate those records must be included in a response to an employment file request concerning a covered current or former officer. (The Americans with Disabilities Act [29 C.F.R. § 1630.14(c)(1)] requires separation of an employee’s medical records and employment records);
  • Identify by date the scope of covered officers and covered employment file documents or information; and
  • Review the Department’s record retention guidelines, if any, to ensure they cover the identified records for an employment file and have a time period for retention and destruction. If the municipality or the Department does not have a record retention schedule, these compliance obligations may be sufficient reason to create a schedule. See Stat. § 19.21 and the Public Records Board’s information for counties and municipalities.  If a Department or municipality does not establish a schedule for destruction of employment file records, the covered employees and records will continue to grow without limit.  A schedule would limit the retained records and compliance obligation.

If you have any questions about the new employment file obligations on Wisconsin law enforcement agencies or record retention/destruction, please contact Pamela M. Ploor at pploor@staffordlaw.com or (414) 982-2854, or contact your Stafford Rosenbaum LLP attorney.

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