LRB-2297/1
KRP&AJM:emw
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.
AB719,1,4 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) 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
practice occurred.

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
outrageous.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB719,1 1Section 1. 102.03 (2) of the statutes is amended to read:
AB719,2,122 102.03 (2) Where such Except as provided in this subsection, when those
3conditions exist the right to the recovery of compensation under this chapter shall
4be the exclusive remedy against the employer, any other employee of the same
5employer, and the worker's compensation insurance carrier. This section does not
6limit the right of an employee to bring action against any coemployee for an assault
7intended to cause bodily harm, or against a coemployee for negligent operation of a
8motor 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
10coemployee of the same employer to the extent that there would be liability of a
11governmental unit to pay judgments against employees under a collective
12bargaining agreement or a local ordinance.
AB719,2 13Section 2. 102.80 (1) (dm) of the statutes is created to read:
AB719,2,1414 102.80 (1) (dm) Amounts received under s. 103.08 (6) (a) 1.
AB719,3
1Section 3. 102.81 (4g) of the statutes is created to read:
AB719,3,92 102.81 (4g) If an injured employee who received one or more payments under
3sub. (1) begins an action against the employee's employer or a coemployee under s.
4103.08 (3) for an unlawful employment practice arising out of the same underlying
5behavior as the behavior giving rise to the injury that is compensable under sub. (1),
6the injured employee shall provide to the department a copy of all papers filed by any
7party to the action. If the injured employee is awarded medical expenses, back pay,
8or front pay under s. 103.08 (5) (a), the employer shall reimburse the department as
9provided in s. 103.08 (6) (a) 1.
AB719,4 10Section 4. 102.81 (5) of the statutes is amended to read:
AB719,3,1211 102.81 (5) The department of justice may bring an action to collect the payment
12under sub. (4) or (4g).
AB719,5 13Section 5. 102.82 (1) of the statutes is amended to read:
AB719,3,2214 102.82 (1) Except as provided in sub. (2) (ar), an uninsured employer shall
15reimburse the department for any payment made under s. 102.81 (1) to or on behalf
16of an employee of the uninsured employer or to an employee's dependents and for any
17expenses paid by the department in administering the claim of the employee or
18dependents, less amounts repaid by the uninsured employer, employee, or
19dependents under s. 102.81 (4) (b) or (4g). The reimbursement owed under this
20subsection is due within 30 days after the date on which the department notifies the
21uninsured employer that the reimbursement is owed. Interest shall accrue on
22amounts not paid when due at the rate of 1 percent per month.
AB719,6 23Section 6. 103.08 of the statutes is created to read:
AB719,3,24 24103.08 Abusive work environments. (1) Definitions. In this section:
AB719,4,9
1(a) “Abusive conduct" means conduct, including acts or omissions, by an
2employer or employee, that a reasonable person would find to be abusive based on
3the severity, nature, and frequency of the conduct. “Abusive conduct" includes
4repeated infliction of verbal abuse such as derogatory remarks, insults, and epithets;
5verbal, nonverbal, or physical conduct that is threatening, intimidating, or
6humiliating; sabotage or undermining of an employee's work performance; or, as an
7aggravating factor, exploitation of an employee's known psychological or physical
8illness or disability. “Abusive conduct" does not include a single act unless that act
9is especially severe or egregious.
AB719,4,1310 (b) “Abusive work environment" means a work environment in which an
11employer or one or more of its employees, acting with intent to cause pain or distress
12to an employee, subjects that employee to abusive conduct that causes physical harm
13or psychological harm to that employee.
AB719,4,1914 (c) “Adverse employment action" means an action taken by an employer with
15respect to an employee that has the effect, in whole or in part, of a penalty, including
16dismissal or suspension from employment, demotion, denial of a promotion,
17unfavorable transfer or reassignment, reduction in compensation, or denial of
18increased compensation. “Adverse employment action" also includes a constructive
19discharge.
AB719,4,2120 (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.
AB719,5,222 (e) “Constructive discharge" means a situation in which an employee resigns
23from employment because the employee reasonably believes that he or she was
24subjected to an abusive work environment and, prior to the employee resigning, the

1employer was aware of the abusive conduct that gave rise to the abusive work
2environment and the employer failed to stop it.
AB719,5,33 (f) “Employee" means an individual employed by an employer.
AB719,5,94 (g) “Employer" means a person engaging in any activity, enterprise, or business
5in this state employing one or more persons on a permanent basis. “Employer"
6includes the state and any office, department, independent agency, authority,
7institution, association, society, or other body in state government created or
8authorized to be created by the constitution or any law, including the legislature and
9the courts.
AB719,5,1110 (h) “Physical harm" means the impairment of an individual's physical health
11or bodily integrity.
AB719,5,1312 (i) “Psychological harm" means the impairment of an individual's mental
13health.
AB719,5,1514 (j) “Retaliate" means to take an action that negatively affects the terms,
15conditions, and privileges of an employee's employment.
AB719,5,1716 (k) “Unlawful employment practice" means an unlawful employment practice
17prohibited under sub. (2) (a) or (b).
AB719,5,20 18(2) Abusive work environment prohibited. (a) It is an unlawful employment
19practice for an employer or employee to subject an employee to an abusive work
20environment.
AB719,5,2321 (b) It is an unlawful employment practice for an employer or employee to
22retaliate or threaten to retaliate in any manner against an employee for any of the
23following reasons:
AB719,5,2424 1. Because the employee opposed an unlawful employment practice.
AB719,6,4
12. Because the employee initiated, testified in, assisted in, or in any other
2manner participated in an investigation, action, or proceeding to enforce a right
3under this section, including any internal investigation or proceeding, any mediation
4or arbitration proceeding, or any court action.
AB719,6,65 3. Because the employer believes that the employee engaged in conduct
6described in subd. 1. or 2.
AB719,6,87 (c) The prohibitions under pars. (a) and (b) may be enforced only by a civil cause
8of action brought under sub. (3).
AB719,6,15 9(3) Civil cause of action. In addition to obtaining any other remedy provided
10by law, an employee who alleges that he or she has been injured by an unlawful
11employment practice may bring an action in circuit court against the employer and,
12if applicable, the employee who allegedly engaged in the unlawful employment
13practice for such relief under sub. (5) as the court may consider appropriate. An
14action under this subsection shall be commenced within one year after the last act
15constituting the unlawful employment practice occurred or be barred.
AB719,6,18 16(4) Affirmative defenses. (a) If the alleged unlawful employment practice did
17not result in an adverse employment action against the aggrieved employee, the
18employer may plead as an affirmative defense that all of the following are true:
AB719,6,2019 1. The employer exercised reasonable care to prevent and promptly correct the
20abusive conduct that is the basis for the aggrieved employee's cause of action.
AB719,6,2321 2. The aggrieved employee unreasonably failed to take advantage of
22appropriate preventive or corrective opportunities the employer provided to prevent
23or correct the abusive conduct described under subd. 1.
AB719,7,224 (b) If the alleged unlawful employment practice resulted in an adverse
25employment action against the aggrieved employee, the employer may plead as an

1affirmative defense that the aggrieved employee's complaint is based on any of the
2following:
AB719,7,53 1. An adverse employment action that was reasonably taken for poor
4performance or misconduct by the aggrieved employee or for the employer's economic
5necessity.
AB719,7,76 2. An adverse employment action that was taken in response to a reasonable
7performance evaluation of the aggrieved employee.
AB719,7,98 3. A reasonable investigation of a potentially illegal or unethical activity by the
9aggrieved employee.
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