LRB-0172/1
MED&GMM:emw&wlj:jf
2015 - 2016 LEGISLATURE
January 16, 2015 - Introduced by Senators Wirch,
Carpenter, Hansen, Harris
Dodd, Risser, L. Taylor and Lassa, cosponsored by Representatives Ohnstad,
Barca, Barnes, Berceau, Bowen, Brostoff, Hesselbein, Mason, Milroy,
Sargent, Subeck, Sinicki and Zamarripa. Referred to Committee on Labor and
Government Reform.
SB5,1,11
1An Act to renumber and amend 103.35, 109.09 (1) and 109.11 (1) (b);
to amend
2103.34 (6) (d), 109.03 (5), 109.09 (2) (a), 109.09 (2) (b) 3., 109.09 (2) (c) 2., 109.11
3(title), 109.11 (1) (a), 109.11 (1) (c), 109.11 (2) (a), 109.11 (2) (b), 111.322 (2m) (a),
4111.322 (2m) (b), 893.44 (1) and 893.44 (2); and
to create 20.445 (1) (gr), 103.35
5(1), 103.35 (3), 103.40, 109.01 (3m), 109.11 (4) and 814.75 (28) of the statutes;
6relating to: the provision by employers to employees of written disclosure
7statements of the terms of employment, the filing and investigation of wage
8claims, the statute of limitations for filing a wage claim action, the payment of
9interest, penalties, and surcharges on wage claims, occupational or
10professional licensing of employers that owe wages under wage claim
11judgments, and making an appropriation.
Analysis by the Legislative Reference Bureau
Current law
Wage claims
Filing and investigation of; statute of limitations. Under current law, an
employee who has a claim that his or her employer has not paid the employee any
wages that are owed to the employee (wage claim) may either: 1) file the wage claim
with the Department of Workforce Development (DWD), which may attempt to settle
and compromise the wage claim or commence an action in circuit court against the
employer on the employee's behalf to collect the wage claim; or 2) commence an action
in circuit court on his or her own behalf to collect the wage claim without first filing
a wage claim with DWD. An action in circuit court to collect a wage claim must be
commenced no later than two years after the wage claim is filed with DWD or, if the
wage claim is not first filed with DWD, no later than two years after the cause of
action accrues (statute of limitations); DWD may investigate a wage claim only if it
is filed no later than two years after the wages are due.
Increased wages. Under current law, if a wage claim action is commenced in
circuit court before DWD has completed its attempt to settle and compromise the
claim, the circuit court may order the employer to pay, in addition to the amount of
wages unpaid, increased wages of not more than 50 percent of the amount of wages
unpaid. If a wage claim action is commenced in circuit court after DWD has
completed its attempt to settle and compromise the claim, the circuit court may order
the employer to pay, in addition to the amount of wages unpaid, increased wages of
not more than 100 percent of the amount of wages unpaid.
The bill
Wage claims
Filing and investigation of; statute of limitations. This bill permits an
employee to file a wage claim with DWD or to commence a wage claim action in circuit
court not only on his or her own behalf but also on behalf of other employees similarly
situated who consent in writing to being parties to the claim or action. The bill also
increases the statute of limitations for a wage claim action to four years after the
wage claim is filed with DWD or, if the wage claim is not first filed with DWD, to four
years after the cause of action accrues and permits DWD to investigate a wage claim
that is filed no later than four years after the wages are due.
Increased wages. The bill also permits a circuit court to order: 1) an employer
against which a wage claim action is commenced in circuit court before DWD has
completed its attempt to settle and compromise the claim to pay, in addition to the
amount of wages unpaid, increased wages of not more than 100 percent of the
amount of wages unpaid; and 2) an employer against which a wage claim action is
commenced in circuit court after DWD has completed its attempt to settle and
compromise the claim to pay, in addition to the amount of wages unpaid, increased
wages of not more than 200 percent of the amount of wages unpaid.
Interest and surcharges. In addition, the bill permits DWD to require, and
a circuit court to order, an employer who fails to pay wages that are due and payable
to pay interest on the amount of wages due and unpaid at the rate of 2 percent per
month for each month that the wages were due and unpaid and to pay to DWD or the
circuit court a surcharge of $500 for a first violation, $750 for a second violation, and
$1,000 for a third or subsequent violation. Surcharges collected by DWD or a circuit
court must be deposited in the general fund, appropriated to DWD, and used for the
administration of the wage claim law.
Costs and attorney fees. Finally, with respect to wage claims, the bill permits
a circuit court to require an employer who fails to pay wages that are due and payable
to pay reasonable costs and attorney fees.
Disclosure statements
Terms of employment; disclosure required. Moreover, the bill requires an
employer to provide an employee with a written statement disclosing the terms of
employment (disclosure statement) at the time the employee is hired, on January 1
of each year in which the employee is employed by the employer, and not less than
seven days before the effective date of any change in the terms of employment. The
disclosure statement must be in English and, if the employee has limited English
proficiency, in the employee's native language. The disclosure statement must
include: 1) the full name, mailing address, and telephone number of the employer;
2) the remuneration to be paid to the employee, the frequency of payment of that
remuneration, and, if that remuneration is paid as an hourly wage, the hourly basic
rate of pay to be paid to the employee; 3) the circumstances under which the employee
will be paid at a rate that is higher than the hourly basic rate of pay for working in
excess of an established number of hours per day, per week, or per month or for
working on designated nights, weekends, or holidays; and 4) a description of any
other economic benefits that the employer will provide, including health insurance
benefits, paid sick leave, vacation pay, holiday pay, pension or other retirement
benefits, personal protective equipment that is required for the performance of the
employee's work, worker's compensation coverage, or unemployment insurance,
whether an employee contribution will be required for those benefits, and, if so, the
amount of that employee contribution.
Remedies. An employer that fails to provide a disclosure statement to an
employee as required under the bill or that fails to comply with the terms of
employment specified in a disclosure statement provided to an employee is liable to
the employee for: 1) all actual damages, including any wage claim or wage deficiency,
sustained by the employee as a result of the employer's failure to provide that
statement or to comply with those terms; 2) liquidated damages of not more than $50
for each working day that the employer fails to provide that statement or to comply
with those terms or, if applicable, the increased wages payable under the bill,
whichever is greater; and 3) reasonable costs and attorney fees.
Occupational or professional licensing
Unpaid wage claim judgments. Finally, the bill requires a state office,
department, board, examining board, affiliated credentialing board, commission,
council, or independent agency in the executive branch, the legislature, or the courts
(licensing agency) to require an applicant for issuance or renewal of an occupational
or professional certificate, license, permit, or registration (license) to disclose
whether there are any wage claim judgments against the applicant that the
applicant has not paid. If there are any such judgments, the licensing agency must
determine that the applicant is ineligible for issuance or renewal of the license,
unless the applicant demonstrates that the applicant has the willingness and ability
to pay the judgment.
For further information see the state 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:
SB5,1
1Section
1. 20.445 (1) (gr) of the statutes is created to read:
SB5,4,32
20.445
(1) (gr)
Wage claim surcharges. All moneys received from surcharges
3collected under s. 109.11 (4), for the administration of ch. 109.
SB5,2
4Section
2. 103.34 (6) (d) of the statutes is amended to read:
SB5,4,75
103.34
(6) (d) A traveling sales crew worker who is owed compensation may file
6a wage claim with the department under s. 109.09 (1)
(a) or may bring an action
7under s. 109.03 (5) without first filing a wage claim with the department.
SB5,3
8Section
3. 103.35 of the statutes is renumbered 103.35 (2) and amended to
9read:
SB5,5,210
103.35
(2) No
state office, department, board, examining board, affiliated
11credentialing board, commission, council or independent agency in the executive
12branch, the legislature or the courts may, as a condition for receiving an occupational
13or professional certificate, license, permit or registration, require the submission of
14information by the applicant which is not essential for the determination of licensing
15agency may require an applicant for issuance or renewal of a license to submit any
16information that is not essential for the licensing agency to determine the applicant's 17eligibility for
the issuance or renewal of the
certificate, license
, permit or
18registration. Information which. A licensing agency may request information that 19is not essential
for the licensing agency to determine
an applicant's eligibility for
20issuance or renewal
may be requested of a license, but the
licensing agency shall
1notify the applicant
shall be notified in a prominent place on or accompanying the
2request that she or he is not required to provide such information.
SB5,4
3Section
4. 103.35 (1) of the statutes is created to read:
SB5,5,44
103.35
(1) In this section:
SB5,5,65
(a) "License" means an occupational or professional certificate, license, permit,
6or registration.
SB5,5,97
(b) "Licensing agency" means a state office, department, board, examining
8board, affiliated credentialing board, commission, council, or independent agency in
9the executive branch, the legislature, or the courts.
SB5,5
10Section
5. 103.35 (3) of the statutes is created to read:
SB5,5,1911
103.35
(3) A licensing agency shall require an applicant for issuance or renewal
12of a license to disclose whether there are any judgments under s. 109.03 (5) or 109.09
13(1) against the applicant that the applicant has not paid. A licensing agency shall
14use the circuit court automated information systems established under s. 758.19 (4)
15to verify the applicant's disclosure. If there are any judgments under s. 109.03 (5)
16or 109.09 (1) against the applicant that the applicant has not paid, the licensing
17agency shall determine that the applicant is ineligible for issuance or renewal of the
18license, unless the applicant demonstrates that the applicant has the willingness
19and ability to pay the judgment.
SB5,6
20Section
6. 103.40 of the statutes is created to read:
SB5,6,3
21103.40 Terms of employment; disclosure statement. (1) Disclosure
22statement required. An employer shall provide an employee with a written
23statement disclosing the terms of employment at the time the employee is hired, on
24January 1 of each year in which the employee is employed by the employer, and not
25less than 7 days before the effective date of any change in the terms of employment.
1The written disclosure statement shall be in English and, if the employee has limited
2English proficiency, in the employee's native language. The written disclosure
3statement shall include all of the following information:
SB5,6,44
(a) The full name, mailing address, and telephone number of the employer.
SB5,6,75
(b) The remuneration to be paid to the employee, the frequency of payment of
6that remuneration, and, if that remuneration is paid as an hourly wage, the hourly
7basic rate of pay to be paid to the employee.
SB5,6,118
(c) The circumstances under which the employee will be paid at a rate that is
9higher than the hourly basic rate of pay for working in excess of an established
10number of hours per day, per week, or per month or for working on designated nights,
11weekends, or holidays.
SB5,6,1712
(d) A description of any other economic benefits that the employer will provide,
13including health insurance benefits, paid sick leave, vacation pay, holiday pay,
14pension or other retirement benefits, personal protective equipment that is required
15for the performance of the employee's work, worker's compensation coverage, or
16unemployment insurance, whether an employee contribution will be required for
17those benefits, and, if so, the amount of that employee contribution.
SB5,6,20
18(2) Waiver prohibited. Any agreement between an employer and an employee
19purporting to waive or modify the written disclosure statement requirement under
20sub. (1) or any term of employment specified in such a statement is void.
SB5,6,25
21(3) Noncompliance; enforcement. (a) Any employer that fails to provide a
22written disclosure statement to an employee as required under sub. (1) or that fails
23to comply with the terms of employment specified in a written disclosure statement
24provided to an employee under sub. (1) is liable to the employee for all of the
25following:
SB5,7,3
11. All actual damages, including any wage claim or wage deficiency, sustained
2by the employee as a result of the employer's failure to provide that statement or to
3comply with those terms.
SB5,7,74
2. Liquidated damages of not more than $50 for each working day that the
5employer fails to provide that statement or to comply with those terms or, if
6applicable, the increased wages payable under s. 109.11 (2) (a) or (b), whichever is
7greater.
SB5,7,88
3. Reasonable costs and attorney fees, notwithstanding s. 814.04.
SB5,7,149
(b) In addition to the liability specified in par. (a) 1. to 3., the department or the
10circuit court may order an employer that fails to provide a written disclosure
11statement to an employee as required under sub. (1) or that fails to comply with the
12terms of employment specified in a written disclosure statement provided to an
13employee under sub. (1) to take such action as will effectuate the purpose of this
14section.
SB5,7,1915
(c) An employee who is affected by a violation of par. (a) may file a wage claim
16with the department under s. 109.09 (1) (a) or may bring an action under s. 109.03
17(5) without first filing a wage claim with the department under s. 109.09 (1) (a).
18Section 111.322 applies to any discharge or other discriminatory acts arising in
19connection with any proceeding under this section.
SB5,7
20Section
7. 109.01 (3m) of the statutes is created to read:
SB5,7,2521
109.01
(3m) "Wage claim" includes a claim under s. 103.40 (3) (c) that an
22employer has failed to provide a written disclosure statement to an employee as
23required under s. 103.40 (1) or has failed to comply with the terms of employment
24specified in a written disclosure statement provided to an employee under s. 103.40
25(1).
SB5,8
1Section
8. 109.03 (5) of the statutes is amended to read:
SB5,8,142
109.03
(5) Enforcement. Except as provided in sub. (1), no employer may by
3special contract with employees or by any other means secure exemption from this
4section. Each employee shall have a right of action against any employer for the full
5amount of the employee's wages due on each regular pay day as provided in this
6section and for
interest on that amount and increased wages as provided in s. 109.11
7(2), in any court of competent jurisdiction.
An employee may bring an action under
8this subsection on his or her own behalf and on behalf of other employees similarly
9situated who consent in writing to being parties to the action. Such a consent shall
10be filed with the court. An employee may bring an action
against an employer under
11this subsection without first filing a wage claim with the department under s. 109.09
12(1)
(a). An employee who brings an action against an employer under this subsection
13shall have a lien upon all property of the employer, real or personal, located in this
14state as described in s. 109.09 (2).
SB5,9
15Section
9. 109.09 (1) of the statutes is renumbered 109.09 (1) (a) and amended
16to read:
SB5,9,217
109.09
(1) (a) The department shall investigate and attempt equitably to adjust
18controversies between employers and employees as to alleged wage claims.
An
19employee may file a wage claim under this paragraph on his or her own behalf and
20on behalf of other employees similarly situated who consent in writing to being
21parties to the claim. Such a consent shall be filed with the department. The
22department may receive and investigate any wage claim
which that is filed with the
23department, or received by the department under s. 109.10 (4), no later than
2 4 24years after the date the wages are due.
The department may, after After receiving
25a wage claim,
the department may investigate any wages due from the employer
1against whom the claim is filed to any employee during the period commencing
2 24 years before the date the claim is filed.
SB5,9,12
3(b) The department shall enforce this chapter and ss. 66.0903, 103.02,
103.40, 4103.49, 103.82, 104.12, and 229.8275. In pursuance of this duty, the department may
5sue the employer on behalf of the employee to collect any wage claim or wage
6deficiency and ss. 109.03 (6) and 109.11 (2) and (3) shall apply to such actions. Except
7for actions under s. 109.10, the department may refer such an action to the district
8attorney of the county in which the violation
occurs
occurred for prosecution and
9collection and the district attorney shall commence an action in the circuit court
10having appropriate jurisdiction. Any number of wage claims or wage deficiencies
11against the same employer may be joined in a single proceeding, but the court may
12order separate trials or hearings.
SB5,9,17
13(c) In actions that are referred to a district attorney under
this subsection par.
14(b), any taxable costs recovered by the district attorney shall be paid into the general
15fund of the county in which the violation occurs and used by that county to meet its
16financial responsibility under s. 978.13 (2) (b) for the operation of the office of the
17district attorney who prosecuted the action.
SB5,10
18Section
10. 109.09 (2) (a) of the statutes is amended to read:
SB5,9,2319
109.09
(2) (a) The department of workforce development, under its authority
20under sub. (1)
(b) to maintain actions for the benefit of employees, or an employee
21who brings an action under s. 109.03 (5) shall have a lien upon all property of the
22employer, real or personal, located in this state for the full amount of any wage claim
23or wage deficiency.
SB5,11
24Section
11. 109.09 (2) (b) 3. of the statutes is amended to read:
SB5,10,5
1109.09
(2) (b) 3. The department of workforce development or employee must
2file the notice under subd. 1. or 2. within
2 4 years after the date on which the wages
3were due. The notice shall specify the nature of the claim and the amount claimed,
4describe the property upon which the claim is made
, and state that the person filing
5the notice claims a lien on that property.
SB5,12
6Section
12. 109.09 (2) (c) 2. of the statutes is amended to read:
SB5,10,167
109.09
(2) (c) 2. Except as provided in this subdivision, a lien under par. (a) does
8not take precedence over a lien of a commercial lending institution against the
9employer that originates before the lien under par. (a) takes effect. Subject to subd.
103., a lien under par. (a) takes precedence over a lien of a commercial lending
11institution against the employer that originates before the lien under par. (a) takes
12effect only as to the first $3,000 of unpaid wages covered under the lien that are
13earned by an employee within the 6 months preceding the date on which the
14employee files the wage claim under sub. (1)
(a) or brings the action under s. 109.03
15(5) or the date on which the department receives the wage claim under s. 109.10 (4)
16(a), whichever is applicable.