2019 - 2020 LEGISLATURE
August 22, 2019 - Introduced by Senators Hansen, Wirch, L. Taylor, Smith,
Shilling, Schachtner, Risser, Ringhand, Miller, Larson, Johnson,
Erpenbach and Carpenter, cosponsored by Representatives Sinicki,
Anderson, Billings, Bowen, Brostoff, Cabrera, Considine, Crowley, Doyle,
Emerson, Fields, Goyke, Gruszynski, Haywood, Hebl, Hesselbein, Hintz,
Kolste, McGuire, B. Meyers, Milroy, L. Myers, Neubauer, Ohnstad, Pope,
Riemer, Sargent, Shankland, Spreitzer, Stubbs, Stuck, Subeck, C. Taylor,
Vining, Vruwink and Zamarripa. Referred to Committee on Labor and
Regulatory Reform.
SB367,1,7 1An Act to repeal 103.36; to amend 111.322 (2m) (a), 111.322 (2m) (b) and 814.04
2(intro.); and to create 103.135 of the statutes; relating to: prohibiting an
3employer from relying on information about a prospective employee's
4compensation when making employment decisions or inquiring about a
5prospective employee's compensation and from restricting an employee's right
6to disclose compensation information and allowing actions in circuit court and
7providing a penalty.
Analysis by the Legislative Reference Bureau
This bill prohibits certain employer conduct related to compensation
information of current and prospective employees.
The bill prohibits an employer from doing any of the following with respect to
a prospective employee:
1. Soliciting information about the prospective employee's current or prior
compensation before making an offer of employment. The bill also repeals a
provision that gives employers the right to solicit such information.
2. Relying on information regarding the prospective employee's current or prior
compensation when determining whether to make an offer of employment, or setting
compensation when making an offer of employment to that prospective employee.

3. Requiring that the prospective employee's current or prior compensation
meet certain criteria in order for the prospective employee to be considered for
employment.
4. Refusing to hire the prospective employee for exercising his or her rights
relating to compensation information.
The bill also prohibits an employer from discharging or discriminating against
a current employee for disclosing the details of the employee's compensation,
discussing the compensation of other employees, asking other employees for details
regarding their compensation, or taking certain actions to enforce an employee's
rights under the bill.
The bill requires employers to post notices, where notices to employees are
customarily posted and on any electronic job posting, regarding employees' and
prospective employees' rights under the bill and provides a penalty for an employer's
failure to do so.
The bill allows the Department of Workforce Development or an individual who
is alleged or was found to have been discriminated against on the basis of
compensation information to bring an action in circuit court in addition to or in lieu
of filing an administrative complaint. The bill does not allow such an action for
damages to be brought against a local governmental unit or against an employer that
employs fewer than 15 individuals.
Under the bill, if the circuit court finds that a defendant has committed an act
of discrimination, the circuit court may award back pay and any other relief that
could have been awarded in an administrative proceeding. In addition, the circuit
court must order the defendant to pay to the individual discriminated against
compensatory and punitive damages that the circuit court finds appropriate, except
that the total amount of damage awarded for future economic losses and for pain and
suffering, emotional distress, mental anguish, loss of enjoyment of life, and other
noneconomic losses and punitive damages is subject to the following limitations:
1. If the defendant employs 100 or fewer employees, no more than $50,000.
2. If the defendant employs more than 100 but fewer than 201 employees, no
more than $100,000.
3. If the defendant employs more than 200 but fewer than 501 employees, no
more than $200,000.
4. If the defendant employs more than 500 employees, no more than $300,000.
The bill requires DWD to annually revise these amounts based upon the change
in the consumer price index in the previous year, if any positive change has occurred.
Under current fair employment law, an individual who alleges discrimination
in employment may file a complaint with DWD seeking action that will effectuate
the purpose of the fair employment law, including reinstating the employee,
providing back pay, and paying costs and attorney fees.

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:
SB367,1 1Section 1. 103.135 of the statutes is created to read:
SB367,3,5 2103.135 Compensation information of employees and prospective
3employees.
(1) Unlawful employer conduct related to prospective employee
4compensation information
. (a) No employer may directly or indirectly do any of the
5following:
SB367,3,86 1. Subject to par. (b), solicit from a prospective employee or a prospective
7employee's current or former employer information about the prospective employee's
8current or prior compensation before making an offer of employment.
SB367,3,119 2. Require that a prospective employee's current or prior compensation meet
10certain criteria in order for the prospective employee to be considered for
11employment.
SB367,3,1712 3. Refuse to hire or employ or otherwise discriminate against a prospective
13employee in compensation or in the terms, conditions, or privileges of employment
14for opposing a practice prohibited under this paragraph, filing or indicating an intent
15to file a complaint or otherwise attempting to enforce any right under this paragraph,
16or testifying, assisting, or participating in any manner in any investigation, action,
17or proceeding to enforce any right under this paragraph.
SB367,4,218 4. Subject to par. (b), notwithstanding the provisions of subch. II of ch. 230
19regarding state civil service, rely on information obtained from any source regarding
20a prospective employee's current or prior compensation when determining whether

1to make an offer of employment, or setting compensation when making an offer of
2employment to that prospective employee.
SB367,4,63 (b) After an employer has offered employment to a prospective employee and
4the details of compensation have been agreed upon, the employer may obtain the
5prospective employee's written consent for the employer to solicit information about,
6or take action to confirm, the prospective employee's current or prior compensation.
SB367,4,10 7(2) Disclosure of compensation information by employees. (a) An employee
8may disclose the details of the employee's compensation to anyone and, subject to par.
9(d), may discuss the compensation of other employees of the same employer and may
10ask other employees of the same employer for details regarding their compensation.
SB367,4,1311 (b) Except as provided in par. (d), no employer may interfere with, restrain, or
12deny the exercise of the right of an employee to disclose, discuss, or inquire about
13compensation as provided in par. (a).
SB367,4,2014 (c) An employer may not discharge or discriminate against an employee in
15promotion, in compensation, or in the terms, conditions, or privileges of employment
16for disclosing, discussing, or inquiring about compensation as provided in par. (a),
17opposing a practice prohibited under par. (b), filing or indicating an intent to file a
18complaint or otherwise attempting to enforce any right under par. (a), or testifying,
19assisting, or participating in any manner in any investigation, action, or proceeding
20to enforce any right under par. (a).
SB367,4,2521 (d) Subject to s. 19.35, an employer may prohibit a human resources or payroll
22employee, a supervisor, or any other employee whose job responsibilities require or
23allow the employee access to other employees' compensation information from
24disclosing information about any other employee's compensation without that
25employee's prior written consent.
SB367,5,3
1(3) Enforcement. Any employee or prospective employee who is refused
2employment, terminated, discharged, or otherwise discriminated against in
3violation of sub. (1) (a) or (2) (a) to (c) may do any of the following:
SB367,5,114 (a) File a complaint with the department, and the department shall process the
5complaint in the same manner that employment discrimination complaints are
6processed under s. 111.39. If the department finds that a violation has occurred, the
7department may order the employer to take action to remedy the violation, including
8reinstating the employee, providing compensation in lieu of reinstatement,
9providing back pay accrued not more than 2 years before the complaint was filed, and
10paying reasonable actual costs and, notwithstanding s. 814.04 (1), reasonable
11attorney fees to the complainant.
SB367,5,1212 (b) Bring an action in circuit court under sub. (4).
SB367,5,21 13(4) Civil action. (a) Except as provided in this paragraph, the department or
14an individual alleged or found to have been discriminated against under sub. (1) or
15(2) may bring an action in circuit court requesting the relief described in par. (d)
16against an employer that is alleged or found to have engaged in that discrimination.
17The department or an individual alleged or found to have been discriminated against
18may not bring an action under this paragraph against a local governmental unit, as
19defined in s. 19.42 (7u), or against an employer that employs fewer than 15
20individuals for each working day in each of 20 or more calendar weeks in the current
21or preceding year.
SB367,5,2522 (b) If a petition for judicial review of the findings and order of the department
23concerning the same violation as the violation giving rise to the action under par. (a)
24is filed, the circuit court shall consolidate the proceeding for judicial review and the
25action under par. (a).
SB367,6,4
1(c) An individual alleged or found to have been discriminated against under
2sub. (1) or (2) is not required to file a complaint under sub. (3) (a) or seek review under
3s. 111.395 in order for the department or the individual to bring an action under par.
4(a).
SB367,6,195 (d) Subject to pars. (e) and (f), in an action under par. (a), if the circuit court finds
6that discrimination has occurred, or if such a finding has been made by an examiner
7and not been further appealed, the circuit court may order any relief that an
8examiner would be empowered to order under s. 111.39 (4) (c) after a hearing on a
9complaint filed under s. 111.39. In addition, the circuit court shall order the
10defendant to pay to the individual discriminated against any other compensatory
11damages, and punitive damages under s. 895.043 that the circuit court or jury finds
12appropriate, plus reasonable costs and attorney fees incurred in the action. If any
13relief was ordered under sub. (3) (a) or s. 111.395, the circuit court shall specify
14whether the relief ordered under this paragraph is in addition to or replaces the relief
15ordered under sub. (3) (a) or s. 111.395. The sum of the amount of compensatory
16damages for future economic losses and for pain and suffering, emotional distress,
17mental anguish, loss of enjoyment of life, and other noneconomic losses and the
18amount of punitive damages that a circuit court may order may not exceed the
19following:
SB367,6,2220 1. In the case of a defendant that employs 100 or fewer employees for each
21working day in each of 20 or more calendar weeks in the current or preceding year,
22$50,000.
SB367,6,2523 2. In the case of a defendant that employs more than 100 but fewer than 201
24employees for each working day in each of 20 or more calendar weeks in the current
25or preceding year, $100,000.
SB367,7,3
13. In the case of a defendant that employs more than 200 but fewer than 501
2employees for each working day in each of 20 or more calendar weeks in the current
3or preceding year, $200,000.
SB367,7,64 4. In the case of a defendant that employs more than 500 employees for each
5working day in each of 20 or more calendar weeks in the current or preceding year,
6$300,000.
SB367,7,97 (e) If the circuit court orders a payment under par. (a) because of a violation of
8sub. (1) or (2) by an individual employed by an employer, the employer of that
9individual is liable for the payment.
SB367,7,1210 (f) 1. In this paragraph, “consumer price index" means the average of the
11consumer price index for all urban consumers, U.S. city average, as determined by
12the bureau of labor statistics of the federal department of labor.
SB367,7,2513 2. Except as provided in this subdivision, beginning on July 1, 2021, and on
14each July 1 after that, the department shall adjust the amounts specified in par. (a)
151., 2., 3., and 4. by calculating the percentage difference between the consumer price
16index for the 12-month period ending on December 31 of the preceding year and the
17consumer price index for the 12-month period ending on December 31 of the year
18before the preceding year and adjusting those amounts by that percentage
19difference. The department shall publish the adjusted amounts calculated under
20this subdivision in the Wisconsin Administrative Register, and the adjusted amounts
21shall apply to actions commenced under sub. (1) (a) beginning on July 1 of the year
22of publication. This subdivision does not apply if the consumer price index for the
2312-month period ending on December 31 of the preceding year did not increase over
24the consumer price index for the 12-month period ending on December 31 of the year
25before the preceding year.
SB367,8,2
1(5) Notice posted. (a) Each employer shall provide notice to employees and
2prospective employees of their rights under this section by doing all of the following:
SB367,8,53 1. Posting, in one or more conspicuous places where notices to employees are
4customarily posted, a notice in a form approved by the department setting forth
5employees' and prospective employees' rights under this section.
SB367,8,86 2. Including, on each listing for a job vacancy or other employment opportunity
7that is advertised by electronic mail, posting on an Internet site, or other electronic
8means, a notice that includes all of the following information:
SB367,8,129 a. A statement that the employer is prohibited from relying on a prospective
10employee's current or former compensation when determining whether to make an
11offer of employment or setting compensation or when making an offer of
12employment.
SB367,8,1513 b. A statement that the employer is prohibited from asking about a prospective
14employee's compensation until after the employer has offered the prospective
15employee employment and they have agreed upon the details of compensation.
SB367,8,1816 c. A statement that the employer is prohibited from requiring that a
17prospective employee's current or prior compensation meet certain criteria in order
18for the prospective employee to be considered for employment.
SB367,8,2019 d. Information, or a hyperlink to information, regarding prohibited bases of
20discrimination under subch. II of ch. 111.
SB367,8,2221 (b) Any employer that violates par. (a) shall forfeit not more than $100 for each
22offense.
SB367,2 23Section 2 . 103.36 of the statutes is repealed.
SB367,3 24Section 3. 111.322 (2m) (a) of the statutes is amended to read:
SB367,9,4
1111.322 (2m) (a) The individual files a complaint or attempts to enforce any
2right under s. 103.02, 103.10, 103.11, 103.13, 103.135, 103.28, 103.32, 103.34,
3103.455, 104.12, 109.03, 109.07, 109.075, 146.997, or 995.55, or ss. 101.58 to 101.599
4or 103.64 to 103.82.
SB367,4 5Section 4. 111.322 (2m) (b) of the statutes is amended to read:
SB367,9,96 111.322 (2m) (b) The individual testifies or assists in any action or proceeding
7held under or to enforce any right under s. 103.02, 103.10, 103.11, 103.13, 103.135,
8103.28, 103.32, 103.34, 103.455, 104.12, 109.03, 109.07, 109.075, 146.997, or 995.55,
9or ss. 101.58 to 101.599 or 103.64 to 103.82.
SB367,5 10Section 5 . 814.04 (intro.) of the statutes is amended to read:
SB367,9,15 11814.04 Items of costs. (intro.) Except as provided in ss. 93.20, 100.195 (5m)
12(b), 100.30 (5m), 103.135 (4) (d), 106.50 (6) (i) and (6m) (a), 115.80 (9), 767.553 (4) (d),
13769.313, 802.05, 814.245, 895.035 (4), 895.044, 895.443 (3), 895.444 (2), 895.445 (3),
14895.446 (3), 895.506, 943.212 (2) (b), 943.245 (2) (d), 943.51 (2) (b), and 995.10 (3),
15when allowed costs shall be as follows:
SB367,6 16Section 6. Initial applicability.
SB367,9,1917 (1) Employment discrimination damages. This act first applies to acts of
18employment discrimination under s. 103.135 committed on the effective date of this
19subsection.
SB367,9,2320 (2) Collective bargaining agreement. This act first applies to an employee
21who is affected by a collective bargaining agreement that contains provisions
22inconsistent with this act on the day on which the collective bargaining agreement
23expires or is extended, modified, or renewed, whichever occurs first.
SB367,7 24Section 7 . Effective date.
SB367,10,2
1(1) This act takes effect on the first day of the 6th month beginning after
2publication.
SB367,10,33 (End)
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