2017 - 2018 LEGISLATURE
December 5, 2017 - Introduced by Representatives Pope, Hebl, C. Taylor,
Vruwink, Anderson, Crowley, Fields, Berceau, Sinicki, Ohnstad, Spreitzer,
Subeck, Considine and Sargent, cosponsored by Senators Carpenter,
Larson, Vinehout, Johnson and Erpenbach. Referred to Committee on Labor.
1An Act to amend
102.03 (2), 102.81 (5), 102.82 (1) and 814.04 (intro.); and to
102.80 (1) (dm), 102.81 (4g) and 103.08 of the statutes; relating to:
3prohibiting abusive work environments and permitting an individual who has
4been subjected to such an environment to bring a civil action.
Analysis by the Legislative Reference Bureau
This bill prohibits abusive work environments and allows an individual who
has been subjected to such an environment to bring a civil action.
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.
This bill provides an exception to that exclusive remedy provision. Under this
bill, 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") may 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. The aggrieved employee must commence an
action within one year after the last act constituting the unlawful employment
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 from the
aggrieved employee's work area of the person who engaged in the abusive conduct,
medical expenses, back pay, front pay, compensation for pain and suffering,
compensation for emotional distress, punitive damages, and reasonable costs and
attorney fees. If the circuit court orders 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 is not liable for compensation for emotional
distress or punitive damages unless the abusive conduct was extreme and
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
102.03 (2) of the statutes is amended to read:
102.03 (2) Where such Except as provided in this subsection, when those 3
conditions exist the right to the recovery of compensation under this chapter shall 4
be the exclusive remedy against the employer, any other employee of the same 5
and the worker's compensation insurance carrier. This section does not 6
limit the right of an employee to bring action against any coemployee for an assault 7
intended to cause bodily harm, or
against a coemployee for negligent operation of a 8
motor vehicle not owned or leased by the employer, against the employer or a
9coemployee for an unlawful employment practice under s. 103.08 (3),
or against a 10
coemployee of the same employer to the extent that there would be liability of a 11
governmental unit to pay judgments against employees under a collective 12
bargaining agreement or a local ordinance.
102.80 (1) (dm) of the statutes is created to read:
(dm) Amounts received under s. 103.08 (6) (a) 1.
102.81 (4g) of the statutes is created to read:
If an injured employee who received one or more payments under 3
sub. (1) begins an action against the employee's employer or a coemployee under s. 4
103.08 (3) for an unlawful employment practice arising out of the same underlying 5
behavior as the behavior giving rise to the injury that is compensable under sub. (1), 6
the injured employee shall provide to the department a copy of all papers filed by any 7
party to the action. If the injured employee is awarded medical expenses, back pay, 8
or front pay under s. 103.08 (5) (a), the employer shall reimburse the department as 9
provided in s. 103.08 (6) (a) 1.
102.81 (5) of the statutes is amended to read:
The department of justice may bring an action to collect the payment 12
under sub. (4) or (4g)
102.82 (1) of the statutes is amended to read:
Except as provided in sub. (2) (ar), an uninsured employer shall 15
reimburse the department for any payment made under s. 102.81 (1) to or on behalf 16
of an employee of the uninsured employer or to an employee's dependents and for any 17
expenses paid by the department in administering the claim of the employee or 18
dependents, less amounts repaid by the uninsured employer,
dependents under s. 102.81 (4) (b) or (4g)
. The reimbursement owed under this 20
subsection is due within 30 days after the date on which the department notifies the 21
uninsured employer that the reimbursement is owed. Interest shall accrue on 22
amounts not paid when due at the rate of 1 percent per month.
103.08 of the statutes is created to read:
24103.08 Abusive work environments. (1) Definitions.
In this section:
(a) “Abusive conduct" means conduct, including acts or omissions, by an 2
employer or employee, that a reasonable person would find to be abusive based on 3
the severity, nature, and frequency of the conduct. “Abusive conduct" includes 4
repeated infliction of verbal abuse such as derogatory remarks, insults, and epithets; 5
verbal, nonverbal, or physical conduct that is threatening, intimidating, or 6
humiliating; sabotage or undermining of an employee's work performance; or, as an 7
aggravating factor, exploitation of an employee's known psychological or physical 8
illness or disability. “Abusive conduct" does not include a single act unless that act 9
is especially severe or egregious.
(b) “Abusive work environment" means a work environment in which an 11
employer or one or more of its employees, acting with intent to cause pain or distress 12
to an employee, subjects that employee to abusive conduct that causes physical harm 13
or psychological harm to that employee.
(c) “Adverse employment action" means an action taken by an employer with 15
respect to an employee that has the effect, in whole or in part, of a penalty, including 16
dismissal or suspension from employment, demotion, denial of a promotion, 17
unfavorable transfer or reassignment, reduction in compensation, or denial of 18
increased compensation. “Adverse employment action" also includes a constructive 19
(d) “Aggrieved employee" means an employee who brings an action under sub. 21
(3) alleging that he or she has been injured by an unlawful employment practice.
(e) “Constructive discharge" means a situation in which an employee resigns 23
from employment because the employee reasonably believes that he or she was 24
subjected to an abusive work environment and, prior to the employee resigning, the
employer was aware of the abusive conduct that gave rise to the abusive work 2
environment and the employer failed to stop it.
(f) “Employee" means an individual employed by an employer.
(g) “Employer" means a person engaging in any activity, enterprise, or business 5
in this state employing one or more persons on a permanent basis. “Employer" 6
includes the state and any office, department, independent agency, authority, 7
institution, association, society, or other body in state government created or 8
authorized to be created by the constitution or any law, including the legislature and 9
(h) “Physical harm" means the impairment of an individual's physical health 11
or bodily integrity.
(i) “Psychological harm" means the impairment of an individual's mental 13
(j) “Retaliate" means to take an action that negatively affects the terms, 15
conditions, and privileges of an employee's employment.
(k) “Unlawful employment practice" means an unlawful employment practice 17
prohibited under sub. (2) (a) or (b).
18(2) Abusive work environment prohibited.
(a) It is an unlawful employment 19
practice for an employer or employee to subject an employee to an abusive work 20
(b) It is an unlawful employment practice for an employer or employee to 22
retaliate or threaten to retaliate in any manner against an employee for any of the 23
1. Because the employee opposed an unlawful employment practice.
2. Because the employee initiated, testified in, assisted in, or in any other 2
manner participated in an investigation, action, or proceeding to enforce a right 3
under this section, including any internal investigation or proceeding, any mediation 4
or arbitration proceeding, or any court action.
3. Because the employer believes that the employee engaged in conduct 6
described in subd. 1. or 2.
(c) The prohibitions under pars. (a) and (b) may be enforced only by a civil cause 8
of action brought under sub. (3).
9(3) Civil cause of action.
In addition to obtaining any other remedy provided 10
by law, an employee who alleges that he or she has been injured by an unlawful 11
employment practice may bring an action in circuit court against the employer and, 12
if applicable, the employee who allegedly engaged in the unlawful employment 13
practice for such relief under sub. (5) as the court may consider appropriate. An 14
action under this subsection shall be commenced within one year after the last act 15
constituting the unlawful employment practice occurred or be barred.
16(4) Affirmative defenses.
(a) If the alleged unlawful employment practice did 17
not result in an adverse employment action against the aggrieved employee, the 18
employer may plead as an affirmative defense that all of the following are true:
1. The employer exercised reasonable care to prevent and promptly correct the 20
abusive conduct that is the basis for the aggrieved employee's cause of action.
2. The aggrieved employee unreasonably failed to take advantage of 22
appropriate preventive or corrective opportunities the employer provided to prevent 23
or correct the abusive conduct described under subd. 1.
(b) If the alleged unlawful employment practice resulted in an adverse 25
employment action against the aggrieved employee, the employer may plead as an
affirmative defense that the aggrieved employee's complaint is based on any of the 2
1. An adverse employment action that was reasonably taken for poor 4
performance or misconduct by the aggrieved employee or for the employer's economic 5
2. An adverse employment action that was taken in response to a reasonable 7
performance evaluation of the aggrieved employee.
3. A reasonable investigation of a potentially illegal or unethical activity by the 9