LRB-3738/1
GMM:jld:md
2009 - 2010 LEGISLATURE
March 24, 2010 - Introduced by Representatives Roys, Sinicki and Berceau,
cosponsored by Senator Coggs. Referred to Committee on Labor.
AB894,1,4
1An Act to amend 102.03 (2), 102.81 (5), 102.82 (1) and 814.04 (intro.); and
to
2create 102.80 (1) (dm), 102.81 (4g), 103.08 and 893.997 of the statutes;
3relating to: prohibiting abusive work environments and permitting a person
4who has been subject to such an environment to bring a civil action.
Analysis by the Legislative Reference Bureau
Current law. Under current law, worker's compensation is generally the
exclusive remedy of an employee against his or her employer, a coemployee, or the
employer's worker's compensation insurer for an injury sustained while performing
services growing out of and incidental to employment.
Civil action for abusive work environment. This bill provides an exception
to that exclusive remedy provision permitting an employee who alleges that he or she
has been injured by being subjected to an abusive work environment or by being
subjected to retaliation or a threat of retaliation for opposing an abusive work
environment or for initiating or in any manner participating in an investigation,
action, or proceeding to enforce the right not to be subjected to an abusive work
environment (collectively "unlawful employment practice") to bring an action in
circuit court against the employer or employee who allegedly engaged in the
unlawful employment practice for such relief as the court may consider appropriate.
Such an action must be commenced by the employee (aggrieved employee) within one
year after the last act constituting the unlawful employment practice occurred or be
barred.
Relief. If the circuit court finds that an employer or employee has engaged in
an unlawful employment practice, the court may enjoin the employer or employee
from engaging in that practice and may grant such other relief as the court may
consider appropriate, including reinstatement of the aggrieved employee, removal
of the person who engaged in the abusive conduct giving rise to the unlawful
employment practice from the aggrieved employee's work area, medical expenses,
back pay, front pay, compensation for emotional distress, punitive damages, and
reasonable costs and attorney fees. If the circuit court orders any payment of money
because of an unlawful employment practice engaged in by an employee, the
employer of the employee is liable for that payment. If an employer is found to have
engaged in an unlawful employment practice that did not result in an adverse
employment action against the aggrieved employee, the employer's liability for
compensation for emotional distress may not exceed $25,000 and the employer is not
liable for punitive damages.
Affirmative defenses. The bill permits an employer or employee against
whom an aggrieved employee brings an action for an unlawful employment practice
to plead affirmative defenses as follows:
1. If the alleged unlawful employment practice did not result in an adverse
employment action against the aggrieved employee, the employer may plead as an
affirmative defense that: a) the employer exercised reasonable care to prevent and
promptly correct the abusive conduct that was the basis for the aggrieved employee's
cause of action; and b) the aggrieved employee unreasonably failed to take advantage
of appropriate opportunities provided by the employer to prevent or correct that
abusive conduct.
2. If the alleged unlawful employment practice resulted in an adverse
employment action against the aggrieved employee, the employer may plead as an
affirmative defense that the aggrieved employee's complaint is based on: a) an
adverse employment action that was reasonably taken for poor performance,
misconduct, or economic necessity; b) an adverse employment action that was taken
in response to a reasonable performance evaluation; or c) a reasonable investigation
of a potentially illegal or unethical activity.
3. An employee who is alleged to have engaged in an unlawful employment
practice may plead as an affirmative defense that the employee engaged in that
practice at the direction of the employer under threat of an adverse employment
action against the employee for not engaging in that practice.
Double recovery prohibited. Finally, the bill requires the court to reduce the
amount awarded for medical expenses, back pay, or front pay in an action for an
unlawful employment practice by the amount of medical expenses or disability
benefits that the employer's worker's compensation insurer, the employer, if
self-insured, or the Department of Workforce Development (DWD), if the employer
is uninsured, has paid or is obligated to pay under the worker's compensation law
for an injury arising out of the same underlying behavior as the behavior giving rise
to the unlawful employment practice and to order the employer to reimburse the
insurer or DWD for the amount of the medical expenses or disability benefits that
the insurer or DWD has paid or is obligated to pay under the worker's compensation
law or for the amount awarded in the action for medical expenses, back pay, or front
pay, whichever is less.
Similarly, the bill provides that, if the aggrieved employee recovers medical
expenses, back pay, or front pay in an action for an unlawful employment practice
arising out of the same underlying behavior as the behavior giving rise to an injury
that is compensable under the worker's compensation law, the amount payable for
medical expenses or disability benefits under the worker's compensation law for that
injury is reduced by the amount recovered for medical expenses, back pay, or front
pay under the unlawful employment practice action.
Definitions. For purposes of the bill:
1. "Abusive work environment" means a work environment in which an
employee is subjected to abusive conduct that is so severe that it causes tangible
harm, i.e., material impairment of physical or mental health or bodily integrity, to
the employee.
2. "Abusive conduct" means conduct, including acts or omissions, by an
employer or employee, with malice, i.e., intent to cause pain, injury, or distress to
another person without legitimate cause or justification, that a reasonable person
would find to be hostile based on the severity, nature, and frequency of the conduct.
"Abusive conduct" includes repeated infliction of verbal abuse such as derogatory
remarks, insults, and epithets; verbal or physical conduct that is threatening,
intimidating, or humiliating; sabotage or undermining of an employee's work
performance; or exploitation of an employee's known psychological or physical
vulnerability. "Abusive conduct," however, does not include a single act unless that
act is especially severe or egregious.
3. "Adverse employment action" means an action taken by an employer with
respect to an employee that has the effect, in whole or in part, of a penalty, including
dismissal or suspension from employment, demotion, denial of a promotion,
unfavorable transfer or reassignment, reduction in compensation, or denial of
increased compensation. "Adverse employment action" also includes a constructive
discharge, which is defined in the bill as a situation in which an employee resigns
from employment because the employee reasonably believes that he or she was
subjected to abusive conduct and, prior to resigning, the employee notified the
employer of the abusive conduct and the employer failed to take reasonable steps to
eliminate the abusive conduct.
For further information see the state and local fiscal estimate, which will be
printed as an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB894, s. 1
1Section
1. 102.03 (2) of the statutes is amended to read:
AB894,4,92
102.03
(2) Where such Except as provided in this subsection, when those 3conditions exist the right to the recovery of compensation under this chapter shall
1be the exclusive remedy against the employer, any other employee of the same
2employer
, and the worker's compensation insurance carrier. This section does not
3limit the right of an employee to bring action against any coemployee for an assault
4intended to cause bodily harm,
or against a coemployee for negligent operation of a
5motor vehicle not owned or leased by the employer,
against the employer or a
6coemployee for an unlawful employment practice under s. 103.08 (3), or against a
7coemployee of the same employer to the extent that there would be liability of a
8governmental unit to pay judgments against employees under a collective
9bargaining agreement or a local ordinance.
AB894, s. 2
10Section
2. 102.80 (1) (dm) of the statutes is created to read:
AB894,4,1111
102.80
(1) (dm) Amounts received under s. 103.08 (6) (a) 1.
AB894, s. 3
12Section
3. 102.81 (4g) of the statutes is created to read:
AB894,4,2013
102.81
(4g) If an injured employee who received one or more payments under
14sub. (1) begins an action against the employee's employer or a coemployee under s.
15103.08 (3) for an unlawful employment practice arising out of the same underlying
16behavior as the behavior giving rise to the injury that is compensable under sub. (1),
17the injured employee shall provide to the department a copy of all papers filed by any
18party to the action. If the injured employee is awarded medical expenses, back pay,
19or front pay under in s. 103.08 (5) (a), the employer shall reimburse the department
20as provided in s. 103.08 (6) (a) 1.
AB894, s. 4
21Section
4. 102.81 (5) of the statutes is amended to read:
AB894,4,2322
102.81
(5) The department of justice may bring an action to collect the payment
23under sub. (4)
or (4g).
AB894, s. 5
24Section
5. 102.82 (1) of the statutes is amended to read:
AB894,5,9
1102.82
(1) An uninsured employer shall reimburse the department for any
2payment made under s. 102.81 (1) to or on behalf of an employee of the uninsured
3employer or to an employee's dependents and for any expenses paid by the
4department in administering the claim of the employee or dependents, less amounts
5repaid by the
uninsured employer, employee
, or dependents under s. 102.81 (4) (b)
6or (4g). The reimbursement owed under this subsection is due within 30 days after
7the date on which the department notifies the uninsured employer that the
8reimbursement is owed. Interest shall accrue on amounts not paid when due at the
9rate of 1% per month.
AB894, s. 6
10Section
6. 103.08 of the statutes is created to read:
AB894,5,11
11103.08 Abusive work environments. (1) Definitions. In this section:
AB894,5,2012
(a) "Abusive conduct" means conduct, including acts or omissions, by an
13employer or employee, with malice, that a reasonable person would find to be hostile
14based on the severity, nature, and frequency of the conduct. "Abusive conduct"
15includes repeated infliction of verbal abuse such as derogatory remarks, insults, and
16epithets; verbal or physical conduct that is threatening, intimidating, or
17humiliating; sabotage or undermining of an employee's work performance; or
18exploitation of an employee's known psychological or physical vulnerability.
19"Abusive conduct" does not include a single act unless that act is especially severe
20or egregious.
AB894,5,2321
(b) "Abusive work environment" means a work environment in which an
22employee is subjected to abusive conduct that is so severe that it causes tangible
23harm to the employee.
AB894,6,424
(c) "Adverse employment action" means an action taken by an employer with
25respect to an employee that has the effect, in whole or in part, of a penalty, including
1dismissal or suspension from employment, demotion, denial of a promotion,
2unfavorable transfer or reassignment, reduction in compensation, or denial of
3increased compensation. "Adverse employment action" also includes a constructive
4discharge.
AB894,6,65
(d) "Aggrieved employee" means an employee who brings an action under sub.
6(3) alleging that he or she has been injured by an unlawful employment practice.
AB894,6,117
(e) "Constructive discharge" means a situation in which an employee resigns
8from employment because the employee reasonably believes that he or she was
9subjected to abusive conduct and, prior to resigning, the employee notified the
10employer of the abusive conduct and the employer failed to take reasonable steps to
11eliminate the abusive conduct.
AB894,6,1212
(f) "Employee" means an individual employed by an employer.
AB894,6,1813
(g) "Employer" means a person engaging in any activity, enterprise, or business
14in this state employing one or more persons on a permanent basis. "Employer"
15includes the state and any office, department, independent agency, authority,
16institution, association, society, or other body in state government created or
17authorized to be created by the constitution or any law, including the legislature and
18the courts.
AB894,6,2019
(h) "Malice" means the intent to cause pain, injury, or distress to another
20person, without legitimate cause or justification.
AB894,6,2221
(i) "Retaliate" means to take an action that negatively affects the terms,
22conditions, and privileges of an employee's employment.
AB894,6,2423
(j) "Tangible harm" means any material impairment of a person's physical or
24mental health or bodily integrity.
AB894,7,2
1(k) "Unlawful employment practice" means an an unlawful employment
2practice prohibited under sub. (2).
AB894,7,5
3(2) Abusive work environment prohibited. (a) It is an unlawful employment
4practice for an employer or employee to subject an employee to an abusive work
5environment.
AB894,7,86
(b) It is an unlawful employment practice for an employer or employee to
7retaliate or threaten to retaliate in any manner against an employee for any of the
8following reasons:
AB894,7,99
1. Because the employee opposed an unlawful employment practice.
AB894,7,1310
2. Because the employee initiated, testified in, assisted in, or in any other
11manner participated in an investigation, action, or proceeding to enforce a right
12under this section, including any internal investigation or proceeding, any mediation
13or arbitration proceeding, or any court action.
AB894,7,1514
3. Because the employer believes that the employee engaged in the conduct
15described in subd. 1. or 2.
AB894,7,1716
(c) The prohibitions under pars. (a) and (b) may be enforced only by a civil cause
17of action brought under sub. (3).
AB894,7,24
18(3) Civil cause of action. In addition to obtaining any other remedy provided
19by law, an employee who alleges that he or she has been injured by an unlawful
20employment practice may bring an action in circuit court against the employer or
21employee who allegedly engaged in the unlawful employment practice for such relief
22under sub. (5) as the court may consider appropriate. An action under this
23subsection shall be commenced within one year after the last act constituting the
24unlawful employment practice occurred or be barred.
AB894,8,3
1(4) Affirmative defenses. (a) If the alleged unlawful employment practice did
2not result in an adverse employment action against the aggrieved employee, the
3employer may plead as an affirmative defense that all of the following are true:
AB894,8,54
1. The employer exercised reasonable care to prevent and promptly correct the
5abusive conduct that was the basis for the aggrieved employee's cause of action.
AB894,8,86
2. The aggrieved employee unreasonably failed to take advantage of
7appropriate opportunities provided by the employer to prevent or correct that
8abusive conduct.
AB894,8,129
(b) If the alleged unlawful employment practice resulted in an adverse
10employment action against the aggrieved employee, the employer may plead as an
11affirmative defense that the aggrieved employee's complaint is based on any of the
12following:
AB894,8,1413
1. An adverse employment action that was reasonably taken for poor
14performance, misconduct, or economic necessity.
AB894,8,1615
2. An adverse employment action that was taken in response to a reasonable
16performance evaluation.
AB894,8,1717
3. A reasonable investigation of a potentially illegal or unethical activity.
AB894,8,2118
(c) An employee who is alleged to have engaged in an unlawful employment
19practice may plead as an affirmative defense that the employee engaged in that
20practice at the direction of the employer under threat of an adverse employment
21action against the employee for not engaging in that practice.
AB894,9,7
22(5) Relief. (a) Subject to par. (b) and sub. (6) (a) 1., if the circuit court finds
23that an employer or employee has engaged in an unlawful employment practice, the
24court may enjoin the employer or employee from engaging in that practice and may
25grant such other relief as the court may consider appropriate, including
1reinstatement of the aggrieved employee, removal of the person who engaged in the
2abusive conduct giving rise to the unlawful employment practice from the aggrieved
3employee's work area, medical expenses, back pay, front pay, compensation for
4emotional distress, punitive damages under s. 895.043, and reasonable costs and
5attorney fees. If the circuit court orders any payment under this paragraph because
6of an unlawful employment practice engaged in by an employee, the employer of the
7employee is liable for that payment.
AB894,9,118
(b) If an employer is found to have engaged in an unlawful employment practice
9that did not result in an adverse employment action against the aggrieved employee,
10the employer's liability for compensation for emotional distress may not exceed
11$25,000 and the employer is not liable for punitive damages.
AB894,9,13
12(6) Effect on other laws. (a) This section does not relieve any person from
13any duty, liability, or penalty provided by any other law except as follows:
AB894,9,2514
1. If the worker's compensation insurer of an employer that is ordered to pay
15medical expenses under sub. (5) (a), the employer, if self-insured, or the department,
16if the employer is uninsured, has paid or is obligated to pay medical expenses under
17ch. 102 for an injury arising out of the same underlying behavior as the behavior
18giving rise to the unlawful employment practice for which the employer is liable, or
19if the worker's compensation insurer of an employer that is ordered to pay back pay
20or front pay under sub. (5) (a), the employer, if self-insured, or the department, if the
21employer is uninsured, has paid or is obligated to pay disability benefits under ch.
22102 for such an injury for the same period as back or front pay is awarded under sub.
23(5) (a), the court shall reduce the amount awarded under sub. (5) (a) for medical
24expenses, back pay, or front pay by the amount of those medical expenses or disability
25benefits that the insurer, employer, or department has paid or is obligated to pay
1under ch. 102. If the insurer or department has paid or is obligated to pay those
2medical expenses or disability benefits under ch. 102, the court shall order the
3employer to reimburse the insurer or department for the amount of those expenses
4or benefits paid or for the amount awarded under sub. (5) (a) for medical expenses,
5back pay, or front pay, whichever is less.
AB894,10,136
2. If the aggrieved employee recovers medical expenses under sub. (5) (a) for
7an unlawful employment practice arising out of the same underlying behavior as the
8behavior giving rise to an injury that is compensable under ch. 102 or recovers back
9pay or front pay under sub. (5) (a) for such an unlawful employment practice for the
10same period as disability benefits are payable under ch. 102, the amount payable for
11medical expenses or disability benefits under ch. 102 for that injury shall be reduced
12by the amount recovered for medical expenses, back pay, or front pay under sub. (5)
13(a).
AB894,10,2114
(b) An aggrieved employee who has claimed worker's compensation or
15payments under s. 102.81 (1) for an injury arising out of the same underlying
16behavior as the behavior giving rise to the unlawful employment practice for which
17the aggrieved employee brings an action under sub. (3) shall provide notice of the
18action and copies of all papers filed by a party to the action to the employer's worker's
19compensation insurer or, if the employer is uninsured, to the department and notice
20of the worker's compensation proceeding and copies of all papers filed by a party to
21the proceeding to the court and to all parties to the action.