AB64: Bill Text

AB64,1364 Section 1364 . 102.61 (2) of the statutes is amended to read:

AB64,641,17 102.61 (2) The division, the commission administrator, and the courts shall determine the rights and liabilities of the parties under this section in like manner and with like effect as the division, the commission administrator, and the courts determine other issues under this chapter. A determination under this subsection may include a determination based on the evidence regarding the cost or scope of the services provided by a private rehabilitation counselor under sub. (1m) (a) or the cost or reasonableness of a rehabilitative training program developed under sub. (1m) (a).

AB64,1365 Section 1365 . 102.64 (title) of the statutes is amended to read:

AB64,641,19 102.64 (title) Attorney general shall represent state and commission.

AB64,1366 Section 1366 . 102.64 (3) of the statutes is amended to read:

AB64,642,2 102.64 (3) In any action to review an order or award of the commission administrator, and upon any appeal therein to the court of appeals, the attorney general shall appear on behalf of the commission division, whether any other party defendant shall be is represented or not, except that in actions brought by the state the governor shall appoint an attorney to appear on behalf of the commission division.

AB64,1367 Section 1367 . 102.75 (1) of the statutes is amended to read:

AB64,642,18 102.75 (1) The department shall assess upon and collect from each licensed worker's compensation insurance carrier and from each employer exempted under s. 102.28 (2) (b) or (bm) from the duty to carry insurance under s. 102.28 (2) (a) the proportion of total costs and expenses incurred by the council on worker's compensation for travel and research and by the department, and the division, and the commission in the administration of this chapter for the current fiscal year, plus any deficiencies in collections and anticipated costs from the previous fiscal year, that the total indemnity paid or payable under this chapter by each such carrier and exempt employer in worker's compensation cases initially closed during the preceding calendar year, other than for increased, double, or treble compensation, bore to the total indemnity paid in cases closed the previous calendar year under this chapter by all carriers and exempt employers, other than for increased, double, or treble compensation. The council on worker's compensation, and the division, and the commission shall annually certify any costs and expenses for worker's compensation activities to the department at such time as the secretary requires.

AB64,1368 Section 1368 . 102.75 (1m) of the statutes is amended to read:

AB64,642,24 102.75 (1m) The moneys collected under subs. (1) and (1g) and under ss. 102.28 (2) and 102.31 (7), together with all accrued interest, shall constitute a separate nonlapsible fund designated as the worker's compensation operations fund. Moneys in the fund may be expended only as provided in ss. 20.427 (1) (ra) and s. 20.445 (1) (ra), (rb), and (rp) and may not be used for any other purpose of the state.

AB64,1369 Section 1369. 103.001 (1) of the statutes is repealed.

AB64,1370 Section 1370. 103.001 (2) of the statutes is repealed.

AB64,1371 Section 1371 . 103.005 (14) (c) of the statutes is amended to read:

AB64,643,10 103.005 (14) (c) Any commissioner, the The secretary or any deputy of the department may enter any place of employment or public building for the purpose of collecting facts and statistics and bringing to the attention of every employer or owner any law relating to the regulation of employment or any order of the department and any failure on the part of such the employer or owner to comply with that law or order. No employer or owner may refuse to admit any commissioner, the secretary or any deputy of the department to his or her place of employment or public building.

AB64,1372 Section 1372 . 103.005 (16) of the statutes is amended to read:

AB64,643,13 103.005 (16) Each of the commissioners, the The secretary or any deputy secretary may certify to official acts, and take testimony.

AB64,1373 Section 1373. 103.04 of the statutes is repealed.

AB64,1374 Section 1374 . 103.06 (1) (a) of the statutes is renumbered 103.06 (1) (ar).

AB64,1375 Section 1375 . 103.06 (1) (ag) of the statutes is created to read:

AB64,643,18 103.06 (1) (ag) “Administrator” means the administrator of the division of the department that is responsible for administering this section.

AB64,1376 Section 1376 . 103.06 (6) (c) of the statutes is amended to read:

AB64,644,7 103.06 (6) (c) The employer or the department may request a review of an appeal tribunal's decision by petitioning the commission filing, within 21 days after the decision was electronically delivered to the employer or mailed to the employer's last-known address, a petition with the department for review of the decision within 21 days after the decision was mailed to the employer's last-known address. The commission by the administrator. The administrator shall conduct the review in the manner described in s. 108.09 (6). An order to stop work that is in effect under par. (b) 3. shall remain in effect as provided in par. (b) 3. during the pendency of a review under this paragraph. A decision of the commission administrator under this paragraph is final and the provisions of s. 108.10 (6) and (7) shall apply to the decision unless judicial review of the decision is requested under par. (d). A decision of the commission administrator under this paragraph is subject to judicial review only as provided in par. (d) and not as provided in ch. 227.

AB64,1377 Section 1377. 103.06 (6) (d) of the statutes is amended to read:

AB64,644,16 103.06 (6) (d) The employer or the department may commence an action for the judicial review of a decision of the commission administrator under par. (c) within 30 days after the administrator's decision was electronically delivered to the employer or mailed to the employer's last-known address. The scope of judicial review under this paragraph, and the manner of that review insofar as is applicable, shall be the same as that provided in s. 108.09 (7). An order to stop work that is in effect under par. (b) 3. shall remain in effect as provided in par. (b) 3. during the pendency of a review under this paragraph.

AB64,1378 Section 1378. 103.06 (6) (e) of the statutes is amended to read:

AB64,644,25 103.06 (6) (e) In addition to any forfeiture for which the employer may be liable under sub. (5) (c) and any other penalty for which the employer may be liable for a violation of a requirement specified in sub. (3) (a), any employer that violates a final order to stop work of the department under sub. (5) (b) or final decision of an appeal tribunal, the commission administrator, or a court affirming such an order under par. (b), (c), or (d) is subject to a forfeiture of $1,000 for each day of violation. An employer may seek review of a forfeiture imposed under this paragraph in the same manner as an order to stop work is reviewed under pars. (a) to (d).

AB64,1379 Section 1379. 103.10 (12) (b) of the statutes is amended to read:

AB64,645,13 103.10 (12) (b) An employee who believes his or her employer has violated sub. (11) (a) or (b) may, within 30 days after the violation occurs or the employee should reasonably have known that the violation occurred, whichever is later, file a complaint with the department alleging the violation. Except as provided in s. 230.45 (1m), the department shall investigate the complaint and shall attempt to resolve the complaint by conference, conciliation or persuasion. The parties may also attempt to resolve the complaint through offers of settlement in accordance with s. 103.12. If the complaint is not resolved through settlement under s. 103.12 or otherwise and the department finds probable cause to believe a violation has occurred, the department shall proceed with notice and a hearing on the complaint as provided in ch. 227. The hearing shall be held within 60 days after the department receives the complaint.

AB64,1380 Section 1380 . 103.10 (12) (d) of the statutes is amended to read:

AB64,645,21 103.10 (12) (d) The department shall issue its decision and order within 30 days after the hearing. If the department finds that an employer violated sub. (11) (a) or (b), it may, except as provided in s. 103.12 (12), order the employer to take action to remedy the violation, including providing requested family leave or medical leave, reinstating an employee, providing back pay accrued not more than 2 years before the complaint was filed and paying reasonable actual attorney fees to the complainant.

AB64,1381 Section 1381 . 103.11 (12) (a) of the statutes is amended to read:

AB64,646,8 103.11 (12) (a) An employee who believes his or her employer has violated sub. (11) (a) or (b) may, within 30 days after the violation occurs or the employee should reasonably have known that the violation occurred, whichever is later, file a complaint with the department alleging the violation. The department shall investigate the complaint and shall attempt to resolve the complaint by conference, conciliation, or persuasion. The parties may also attempt to resolve the complaint through offers of settlement in accordance with s. 103.12. If the complaint is not resolved through settlement under s. 103.12 or otherwise and the department finds probable cause to believe a violation has occurred, the department shall proceed with notice and a hearing on the complaint as provided in ch. 227. The hearing shall be held within 60 days after the department receives the complaint.

AB64,1382 Section 1382 . 103.11 (12) (b) of the statutes is amended to read:

AB64,646,16 103.11 (12) (b) The department shall issue its decision and order within 30 days after the hearing. If the department finds that an employer violated sub. (11) (a) or (b), it may, except as provided in s. 103.12 (12), order the employer to take action to remedy the violation, including providing the requested bone marrow and organ donation leave, reinstating an employee, providing back pay accrued not more than 2 years before the complaint was filed, and paying reasonable actual attorney fees to the complainant.

AB64,1383 Section 1383. 103.12 of the statutes is created to read:

AB64,646,18 103.12 Offers of settlement. (1) In this section:

AB64,646,20 (a) “More favorable award” means an order under s. 103.10 (12) (d) or 103.11 (12) (b) to which either of the following applies:

AB64,646,23 1. The order includes an order of reinstatement, or for some other substantive or tangible benefit besides a mere finding that the law was violated, that was not provided for in a settlement offer made under this section.

AB64,647,3 2. The order includes a monetary award to the complainant that, exclusive of the complainant's pre-offer costs and post-offer costs, exceeds the compensation provided for in a settlement offer made under this section.

AB64,647,5 (b) “Prejudgment interest” means interest at an annual rate equal to 1 percent plus the prime rate in effect on the date of the settlement offer.

AB64,647,9 (c) “Pre-offer costs” and “post-offer costs” include reasonable attorney fees, filing fees, subpoena fees, copying costs, court reporter fees, reasonable investigative costs, reasonable travel expenses, and all other similar fees and expenses related to litigating the complaint.

AB64,647,11 (2) This section applies with respect to complaints under s. 103.10 (12) or 103.11 (12).

AB64,647,16 (3) Unless otherwise specified, a settlement offer made under this section is an offer to resolve all claims between the parties. Settlement offers made under this section shall be construed as including all compensation that may be awarded under s. 103.10 (12) (d) or 103.11 (12) (b) or in a civil action under s. 103.10 (13) or 103.11 (13).

AB64,647,21 (4) At any time between 10 days after a complaint is filed under s. 103.10 (12) (b) or 103.11 (12) (a) and 10 days prior to commencement of a hearing under s. 103.10 (12) (b) or 103.11 (12) (a), any party may serve an offer upon any other party to the action for settlement to be entered in accordance with the terms and conditions stated at that time.

AB64,647,23 (5) A settlement offer under sub. (4) shall include a citation to this section and shall satisfy all of the following:

AB64,647,24 (a) Be in writing.

AB64,647,25 (b) Identify parties making the offer and the parties to whom the offer is made.

AB64,648,1 (c) Identify generally the claim the offer is attempting to resolve.

AB64,648,2 (d) State the terms and conditions of the offer.

AB64,648,3 (e) Include one of the following:

AB64,648,7 1. If the complainant is making the offer, the statement “In accordance with and subject to s. 103.12, Wis. Stats., if this offer is not accepted and a more favorable award is obtained by the complainant, prejudgment interest will attach to the final award from the date this offer was received.”

AB64,648,11 2. If the respondent is making the offer, the statement “In accordance with and subject to s. 103.12, Wis. Stats., if this offer is not accepted and the complainant fails to obtain a more favorable award, the respondent will be entitled to post-offer costs and fees, including attorney fees, from the date this offer was received.”

AB64,648,13 (f) State the deadline by which the offer must be accepted, in accordance with sub. (11) (b).

AB64,648,16 (g) Include a provision that requires the accepting party and, if the accepting party is represented by an attorney, the accepting party's attorney to indicate acceptance of the offer by signing a statement that the offer is accepted.

AB64,648,17 (h) Be signed by the offeror or the offeror's attorney of record.

AB64,648,18 (i) Include a certificate of service and be served by certified mail.

AB64,648,19 (j) Be served on all parties to whom the offer is made.

AB64,648,23 (6) (a) A settlement offer may be made subject to a confidentiality requirement and such other reasonable conditions, including the execution of appropriate releases, indemnities, and other documents, as are typical of such settlement agreements.

AB64,648,25 (b) All terms and conditions included in a final and fully executed settlement agreement are presumed to be reasonable.

AB64,649,5 (c) 1. Notwithstanding subs. (12) and (13), if a settlement offer is declined by the offeree because of a condition the offeree believes to be unreasonable, and the condition is later determined by the department to be unreasonable under the circumstances of the case, the offer may not be the basis for an award of post-offer costs or prejudgment interest.

AB64,649,7 2. Notwithstanding subd. 1., if a complainant fails to obtain a more favorable award, the monetary amount in the settlement offer shall be considered reasonable.

AB64,649,10 (7) Service of a settlement offer tolls the offeror's obligations regarding discovery, responsive pleadings, and other investigative and litigation obligations until one of the following occurs:

AB64,649,12 (a) The offeree accepts or declines the offer as provided in sub. (10) (a) or (11) (a).

AB64,649,15 (b) If the offer expires as provided in sub. (11) (b), the offeree acknowledges receipt of the offer in writing, with the signature of the offeree and, if the offeree is represented by an attorney, the offeree's attorney.

AB64,649,17 (8) A settlement offer may be withdrawn in writing at any time prior to acceptance by the offeree. Once withdrawn, the offer is void.

AB64,649,22 (9) Any settlement offer, the acceptance or declination of any such offer, and any negotiations related to such offers may not be proffered or accepted as evidence nor mentioned in a hearing under s. 103.10 (12) (b) or 103.11 (12) (a) or in any other proceedings relating to the claim, except as provided in sub. (14), and shall be treated for all other purposes as provided in s. 904.08.

AB64,650,4 (10) (a) Any acceptance of a settlement offer shall, whether made on the document containing the offer or on a separate document of acceptance, be in writing, be promptly delivered to the offeror or the offeror's attorney, and include the signature of the accepting party and, if the accepting party is represented by an attorney, the accepting party's attorney. Upon acceptance, the parties are obligated to enter into good faith negotiations to memorialize the terms of the settlement and execute documents necessary to effectuate the settlement.

AB64,650,9 (b) If a settlement offer is accepted, the parties shall promptly file with the department a notice that settlement has been reached between the parties in accordance with this section, together with the complainant's request for dismissal of the complaint, and the department shall enter the settlement and dismissal of the complaint accordingly.

AB64,650,13 (11) (a) Any declination of a settlement offer shall, except as provided in par. (b), be in writing, be promptly delivered to the offeror or the offeror's attorney, and include the signature of the offeree and, if the offeree is represented by an attorney, the offeree's attorney.

AB64,650,16 (b) If a settlement offer is not accepted or declined in accordance with this section prior to a hearing or within 10 days after it is served, whichever occurs first, the offer shall expire and shall be deemed declined.

AB64,650,24 (12) (a) If a respondent's settlement offer is not accepted and the complainant fails to obtain a more favorable award, the complainant shall not recover any post-offer costs and shall pay the respondent's post-offer costs from the date of the offer. In addition, the complainant shall be required to pay a reasonable sum to cover the costs of services of any expert witness who is not a regular employee of any party that are actually incurred and reasonably necessary in preparation for the hearing or during the hearing. This subsection supersedes any statute awarding post-offer costs and fees to a prevailing complainant.

AB64,651,5 (b) If a respondent's settlement offer is not accepted and the complainant fails to obtain a more favorable award, the amounts under par. (a) shall be deducted from any award made in favor of the complainant. If the post-offer costs of the respondent exceed the amount awarded to the complainant, the net amount shall be awarded to the respondent and the award shall be entered accordingly.

AB64,651,7 (13) If a complainant's settlement offer is not accepted and the complainant obtains a more favorable award, the department shall do all of the following:

AB64,651,8 (a) Award prejudgment interest on the final award from the date of the offer.

AB64,651,12 (b) Require the respondent to pay a reasonable sum to cover the costs of services of any expert witness who is not a regular employee of any party that are actually incurred and reasonably necessary in preparation for the hearing or during the hearing, in addition to the complainant's costs.

AB64,651,19 (14) (a) After the department makes an order under s. 103.10 (12) (d) or 103.11 (12) (b), either party may make a subsequent motion to introduce evidence of a valid settlement offer made under this section that was declined. The motion shall be made within 10 business days after the date of the award and shall identify the parties in the offer, who made the offer, the amount of the offer, the date of the offer, and the date it was declined. The motion shall also identify the effect the declined offer has on the final award and how the department should proceed.

AB64,651,21 (b) A nonmoving party may file a response to a motion under par. (a) within 5 business days after the movant files the motion.

AB64,651,24 (15) Police officers shall be permitted to testify as expert witnesses for the purposes of this section. For purposes of this section, “complainant” includes a cross-complainant and “respondent” includes a cross-respondent.

AB64,1384 Section 1384 . 103.503 (1) (a) of the statutes is amended to read:

AB64,652,6 103.503 (1) (a) “Accident" means an incident caused, contributed to, or otherwise involving an employee that resulted or could have resulted in death, personal injury, or property damage and that occurred while the employee was performing the work described in s. 66.0903 (4), 2013 stats., or s. 16.856 (2m), 2015 stats., on a project of public works or while the employee was performing work on a public utility project.

AB64,1385 Section 1385 . 103.503 (1) (c) of the statutes is amended to read:

AB64,652,11 103.503 (1) (c) “Contracting agency" means a local governmental unit, as defined in s. 66.0903 (1) (d), or a state agency, as defined in s. 16.856 (1) (h), that has contracted for the performance of work on a project of public works or a public utility that has contracted for the performance of work on a public utility project.

AB64,1386 Section 1386 . 103.503 (1) (e) of the statutes is amended to read:

AB64,652,15 103.503 (1) (e) “Employee" means a laborer, worker, mechanic, or truck driver who performs the work described in s. 66.0903 (4), 2013 stats., or s. 16.856 (2m), 2015 stats., on a project of public works or on a public utility project.

AB64,1387 Section 1387 . 103.503 (1) (fm) of the statutes is created to read:

AB64,652,20 103.503 (1) (fm) “Local governmental unit" means a political subdivision of this state, a special purpose district in this state, an instrumentality or corporation of such a political subdivision or special purpose district, a combination or subunit of any of the foregoing, or an instrumentality of the state and any of the foregoing.

AB64,1388 Section 1388 . 103.503 (1) (g) of the statutes is amended to read:

AB64,653,2 103.503 (1) (g) “Project of public works" means a project of public works that is subject to s. 16.856 or that would be subject to s. 66.0903, 2013 stats., if the project were erected, constructed, repaired, remodeled, or demolished prior to January 1, 2017, or that would be subject to s. 16.856, 2015 stats., if the project were erected, constructed, repaired, remodeled, or demolished prior to the effective date of this paragraph .... [LRB inserts date].

AB64,1389 Section 1389 . 103.503 (1) (j) of the statutes is created to read: