AB64: Bill Text

AB64,670,10 108.095 (7) Any party may commence an action for judicial review of a decision of the commission administrator under this section, after exhausting the remedies provided under this section, by commencing the action within 30 days after the administrator's decision of the commission is delivered electronically or mailed to the department and is delivered electronically to, or mailed to the last-known address of, each other party. The scope and manner of judicial review is the same as that provided in s. 108.09 (7).

AB64,1431 Section 1431 . 108.10 (2) of the statutes is amended to read:

AB64,670,17 108.10 (2) Any hearing duly requested shall be held before an appeal tribunal established as provided by s. 108.09 (3), and s. 108.09 (4) and (5) shall be applicable to the proceedings before such the tribunal. The department may be a party in any proceedings before an appeal tribunal. The employing unit or the department may petition the commission for review of the appeal tribunal's decision by the administrator under s. 108.09 (6).

AB64,1432 Section 1432 . 108.10 (3) of the statutes is amended to read:

AB64,670,20 108.10 (3) The commission's administrator's authority to take action as to any issue or proceeding under this section is the same as that specified in s. 108.09 (6).

AB64,1433 Section 1433 . 108.10 (4) of the statutes is amended to read:

AB64,671,10 108.10 (4) The employing unit may commence an action for the judicial review of a commission decision of the administrator under this section, provided the employing unit has exhausted the remedies provided under this section. The department may commence an action for the judicial review of a commission decision of the administrator under this section, but the department is not required to have been a party to the proceedings before the commission review by the administrator or to have exhausted the remedies provided under this section. In an action commenced under this section by a party that is not the department, the department shall be a defendant and shall be named as a party in the complaint commencing the action. If a plaintiff fails to name either name the department or the commission as defendants and a defendant or serve them the department as required under s. 108.09 (7), the court shall dismiss the action. The scope of judicial review, and the manner thereof insofar as applicable, shall be the same as that provided in s. 108.09 (7). a defendant defendant summons and

AB64,1434 Section 1434 . 108.10 (6) of the statutes is amended to read:

AB64,671,19 108.10 (6) Any determination by the department or any decision by an appeal tribunal or by the commission administrator is conclusive with respect to an employing unit unless the department or the employing unit files a timely request for a hearing or petition for review as provided in this section. A determination or decision is binding upon the department only insofar as the relevant facts were included in the record that was before the department at the time the determination was issued, or before the appeal tribunal or commission the administrator at the time the decision was issued.

AB64,1435 Section 1435 . 108.10 (7) of the statutes is repealed.

AB64,1436 Section 1436. 108.14 (2m) of the statutes is amended to read:

AB64,672,16 108.14 (2m) In the discharge of their duties under this chapter an appeal tribunal, commissioner or other another authorized representative of the department or commission may administer oaths to persons appearing before them, take depositions, certify to official acts, and by subpoenas, served in the manner in which circuit court subpoenas are served, compel attendance of witnesses and the production of books, papers, documents, and records necessary or convenient to be used by them in connection with any investigation, hearing, or other proceeding under this chapter. A party's attorney of record may issue a subpoena to compel the attendance of a witness or the production of evidence. A subpoena issued by an attorney must be in substantially the same form as provided in s. 805.07 (4) and must be served in the manner provided in s. 805.07 (5). The attorney shall, at the time of issuance, send a copy of the subpoena to the appeal tribunal or other representative of the department responsible for conducting the proceeding. However, in any investigation, hearing, or other proceeding involving the administration of oaths or the use of subpoenas under this subsection due notice shall be given to any interested party involved, who shall be given an opportunity to appear and be heard at any such proceeding and to examine witnesses and otherwise participate therein. Witness fees and travel expenses involved in proceedings under this chapter may be allowed by the appeal tribunal or representative of the department at rates specified by department rules, and shall be paid from the administrative account.

AB64,1437 Section 1437. 108.14 (3m) of the statutes is amended to read:

AB64,673,2 108.14 (3m) In any court action to enforce this chapter the department, the commission, and the state may be represented by any licensed attorney who is an employee of the department or the commission and is designated by either of them the department for this purpose or at the, upon request of either of them by the department, by the department of justice. If the governor designates special counsel to defend, in behalf of the state, the validity of this chapter or of any provision of Title IX of the social security act, the expenses and compensation of the special counsel and of any experts employed by the department in connection with that proceeding may be charged to the administrative account. If the compensation is being determined on a contingent fee basis, the contract is subject to s. 20.9305.

AB64,1438 Section 1438. 108.14 (7) (a) of the statutes is amended to read:

AB64,673,10 108.14 (7) (a) The records made or maintained by the department or commission in connection with the administration of this chapter are confidential and shall be open to public inspection or disclosure only to the extent that the department or commission permits in the interest of the unemployment insurance program. No person may permit inspection or disclosure of any record provided to it by the department or commission unless the department or commission authorizes the inspection or disclosure.

AB64,1439 Section 1439. 108.14 (22) of the statutes is amended to read:

AB64,673,19 108.14 (22) The commission department shall maintain a searchable, electronic database of significant decisions made by the commission appeal tribunals and the administrator on matters under this chapter for the use of attorneys employed by the department and the commission and other individuals employed by the department and the commission whose duties necessitate use of the database. The department may also include in the database decisions of the labor and industrial review commission that were required to be maintained in the database under s. 108.14 (22), 2015 stats.

AB64,1440 Section 1440. 108.17 (3m) of the statutes is amended to read:

AB64,674,3 108.17 (3m) If an appeal tribunal or the commission administrator issues a decision under s. 108.10 (2), or a court issues a decision on review under s. 108.10 (4), in which it is determined that an amount has been erroneously paid by an employer, the department shall, from the administrative account, credit the employer with interest at the rate of 0.75 percent per month or fraction thereof on the amount of the erroneous payment. Interest shall accrue from the month which the erroneous payment was made until the month in which it is either used as a credit against future contributions or refunded to the employer.

AB64,1441 Section 1441. 108.22 (8) (a) of the statutes is amended to read:

AB64,674,14 108.22 (8) (a) If benefits are erroneously paid to an individual, the individual's liability to reimburse the fund for the overpayment may be set forth in a determination or decision issued under s. 108.09. Any determination which establishes or increases an overpayment shall include a finding concerning whether waiver of benefit recovery is required under par. (c). If any decision of an appeal tribunal, the commission administrator, or any court establishes or increases an overpayment and the decision does not include a finding concerning whether waiver of benefit recovery is required under par. (c), the appeal tribunal, commission administrator, or court shall remand the issue to the department for a determination.

AB64,1442 Section 1442. 108.22 (8) (c) 2. of the statutes is amended to read:

AB64,674,19 108.22 (8) (c) 2. If a determination or decision issued under s. 108.09 is amended, modified, or reversed by an appeal tribunal, the commission administrator, or any court, that action shall not be treated as establishing a departmental error for purposes of subd. 1. a.

AB64,1443 Section 1443. 108.24 (4) of the statutes is amended to read:

AB64,675,4 108.24 (4) Any person who, without authorization of the department, permits inspection or disclosure of any record relating to the administration of this chapter that is provided to the person by the department under s. 108.14 (7) (a), (b), or (bm) and any person who, without authorization of the commission, permits inspection or disclosure of any record relating to the administration of this chapter that is provided to the person by the commission under s. 108.14 (7) (a), shall be fined not less than $25 nor more than $500 or may be imprisoned in the county jail for not more than one year or both. Each such unauthorized inspection or disclosure constitutes a separate offense.

AB64,1444 Section 1444 . 109.09 (1) of the statutes is amended to read:

AB64,676,2 109.09 (1) The department shall investigate and attempt equitably to adjust controversies between employers and employees as to alleged wage claims. The department may receive and investigate any wage claim that is filed with the department, or received by the department under s. 109.10 (4), no later than 2 years after the date the wages are due. The department may, after receiving a wage claim, investigate any wages due from the employer against whom the claim is filed to any employee during the period commencing 2 years before the date the claim is filed. The department shall enforce this chapter and s. 66.0903, 2013 stats., s. 103.49, 2013 stats., and s. 229.8275, 2013 stats., and s. 16.856, 2015 stats., and ss. 16.856, 103.02, 103.82, and 104.12. In pursuance of this duty, the department may sue the employer on behalf of the employee to collect any wage claim or wage deficiency and ss. 109.03 (6) and 109.11 (2) and (3) shall apply to such actions. Except for actions under s. 109.10, the department may refer such an action to the district attorney of the county in which the violation occurs for prosecution and collection and the district attorney shall commence an action in the circuit court having appropriate jurisdiction. Any number of wage claims or wage deficiencies against the same employer may be joined in a single proceeding, but the court may order separate trials or hearings. In actions that are referred to a district attorney under this subsection, any taxable costs recovered by the district attorney shall be paid into the general fund of the county in which the violation occurs and used by that county to meet its financial responsibility under s. 978.13 (2) (b) for the operation of the office of the district attorney who prosecuted the action.

AB64,1445 Section 1445 . 110.20 (9) (g) of the statutes is amended to read:

AB64,676,8 110.20 (9) (g) Prescribe a procedure for remote sensing of not less than 0.5 percent of nonexempt vehicles and, for such vehicles that grossly exceed applicable emission limitations, as determined by the department, notifying vehicle owners by mail or, if desired by the vehicle owner, by any electronic means offered by the department that an emissions inspection must be performed under sub. (6) (a) 4.

AB64,1446 Section 1446 . 111.07 (5) of the statutes is amended to read:

AB64,677,4 111.07 (5) The commission may make findings and orders or may authorize a commissioner or an examiner to make findings and orders. Any party in interest who is dissatisfied with the findings or order of a commissioner or examiner may file a written petition with the commission as a body to review the findings or order. If no petition is filed within 20 days from the date that a copy of the findings or order of the commissioner or examiner was mailed to the last-known address of the parties in interest, such findings or order shall be considered the findings or order of the commission as a body unless set aside, reversed , or modified by such commissioner the commission or examiner within such time. If the findings or order are set aside by the commissioner commission or examiner the status shall be the same as prior to the findings or order set aside. If the findings or order are reversed or modified by the commissioner or examiner, the time for filing petition with the commission shall run from the time that notice of such reversal or modification is mailed to the last-known address of the parties in interest. Within 45 days after the filing of such petition with the commission, the commission shall either affirm, reverse, set aside, or modify such findings or order, in whole or in part, or direct the taking of additional testimony. Such action shall be based on a review of the evidence submitted. If the commission is satisfied that a party in interest has been prejudiced because of exceptional delay in the receipt of a copy of any findings or order , it may extend the time another 20 days for filing a petition with the commission.

AB64,1447 Section 1447 . 111.07 (6) of the statutes is amended to read:

AB64,677,11 111.07 (6) The commission shall have the power to remove or transfer the proceedings pending before a commissioner or an examiner. It may also, on its own motion, set aside, modify, or change any order, findings, or award, whether made by an individual commissioner, an examiner, or by the commission as a body, at any time within 20 days from the date thereof if it shall discover any mistake therein, or upon the grounds of newly discovered evidence.

AB64,1448 Section 1448 . 111.14 of the statutes is amended to read:

AB64,677,17 111.14 Penalty. Any person who shall willfully assault, resist, prevent, impede, or interfere with any member of the commission or any of its agents or agencies in the performance of duties pursuant to this subchapter shall be punished by a fine of not more than $500 or by imprisonment in the county jail for not more than one year, or both.

AB64,1449 Section 1449 . 111.32 (1) of the statutes is renumbered 111.32 (1r).

AB64,1450 Section 1450 . 111.32 (1g) of the statutes is created to read:

AB64,677,21 111.32 (1g) “Administrator” means the administrator of the division of the department that is responsible for administering this subchapter.

AB64,1451 Section 1451 . 111.32 (2) of the statutes is repealed.

AB64,1452 Section 1452 . 111.322 (2m) (c) of the statutes is repealed.

AB64,1453 Section 1453. 111.322 (2m) (d) of the statutes is amended to read:

AB64,678,2 111.322 (2m) (d) The individual's employer believes that the individual engaged or may engage in any activity described in pars. (a) to (c) (bm).

AB64,1454 Section 1454 . 111.335 (1) (cx) of the statutes is amended to read:

AB64,678,7 111.335 (1) (cx) Notwithstanding s. 111.322, it is not employment discrimination because of conviction record to refuse to employ or license, or to bar or terminate from employment or licensure, any individual who has been convicted of any offense under s. 38.50 440.52 (13) (c).

AB64,1455 Section 1455 . 111.375 (1) of the statutes is amended to read:

AB64,678,19 111.375 (1) This subchapter shall be administered by the department. The department may make, amend and rescind such promulgate rules as are necessary to carry out this subchapter. The department or the commission may, by such agents or agencies as it designates, conduct in any part of this state any proceeding, hearing, investigation, or inquiry necessary to the performance of its functions. The department shall preserve the anonymity of any employee who is the aggrieved party in a complaint of discrimination in promotion, compensation, or terms and conditions of employment, of unfair honesty testing, or of unfair genetic testing against his or her present employer until a determination as to probable cause has been made, unless the department determines that the anonymity will substantially impede the investigation.

AB64,1456 Section 1456. 111.39 (4) (b) of the statutes is amended to read:

AB64,679,12 111.39 (4) (b) If the department finds probable cause to believe that any discrimination has been or is being committed, that unfair honesty testing has occurred or is occurring, or that unfair genetic testing has occurred or is occurring, it may endeavor to eliminate the practice by conference, conciliation , or persuasion. The parties may also attempt to resolve the complaint through offers of settlement in accordance with s. 111.392. If the department does not eliminate the discrimination, unfair honesty testing, or unfair genetic testing and the complaint is not resolved through settlement under s. 111.392 or otherwise, the department shall issue and serve a written notice of hearing, specifying the nature of the discrimination that appears to have been committed or unfair honesty testing or unfair genetic testing that has occurred, and requiring the person named, in this section called the “respondent",,” to answer the complaint at a hearing before an examiner. The notice shall specify a time of hearing not less than 30 days after service of the complaint, and a place of hearing within either the county of the respondent's residence or the county in which the discrimination, unfair honesty testing, or unfair genetic testing appears to have occurred. The testimony at the hearing shall be recorded or taken down by a reporter appointed by the department.

AB64,1457 Section 1457. 111.39 (4) (c) of the statutes is amended to read:

AB64,680,13 111.39 (4) (c) If, after hearing, the examiner finds that the respondent has engaged in discrimination, unfair honesty testing, or unfair genetic testing, the examiner shall make written findings and order such action by the respondent as will effectuate the purpose of this subchapter, with or without back pay, except as provided in s. 111.392 (12) and except that no attorney fees or costs shall be awarded to a complainant under this paragraph if no reinstatement, monetary relief, or other substantive or tangible benefit is ordered. If the examiner awards any payment to an employee because of a violation of s. 111.321 by an individual employed by the employer, under s. 111.32 (6), the employer of that individual is liable for the payment. If the examiner finds a respondent violated s. 111.322 (2m), the examiner shall award compensation in lieu of reinstatement if requested by all parties and may award compensation in lieu of reinstatement if requested by any party. Compensation in lieu of reinstatement for a violation of s. 111.322 (2m) may not be less than 500 times nor more than 1,000 times the hourly wage of the person discriminated against when the violation occurred. Back pay liability may not accrue from a date more than 2 years prior to the filing of a complaint with the department. Interim earnings or amounts earnable with reasonable diligence by the person discriminated against or subjected to unfair honesty testing or unfair genetic testing shall operate to reduce back pay otherwise allowable. Amounts received by the person discriminated against or subject to the unfair honesty testing or unfair genetic testing as unemployment benefits or welfare payments shall not reduce the back pay otherwise allowable, but shall be withheld from the person discriminated against or subject to unfair honesty testing or unfair genetic testing and immediately paid to the unemployment reserve fund or, in the case of a welfare payment, to the welfare agency making the payment.

AB64,1458 Section 1458 . 111.39 (5) of the statutes is amended to read:

AB64,680,17 111.39 (5) (a) Any respondent or complainant who is dissatisfied with the findings and order of the examiner may file a written petition with the department for review by the commission of the findings and order by the administrator.

AB64,681,2 (b) If no petition is filed within 21 days from the date that a copy of the findings and order of the examiner is mailed to the last-known address of the respondent the findings and order shall be considered final for purposes of enforcement under sub. (4) (d). If a timely petition is filed, the commission administrator, on review, may either affirm, reverse, or modify the findings or order in whole or in part, or set aside the findings and order and remand to the department for further proceedings. Such actions shall be based on a review of the evidence submitted. If the commission department is satisfied that a respondent or complainant has been prejudiced because of exceptional delay in the receipt of a copy of any findings and order it may extend the time another 21 days for filing the petition with the department.

AB64,681,10 (c) On motion, the commission administrator may set aside, modify, or change any decision made by the commission administrator, at any time within 28 days from the date thereof if it discovers any mistake therein, or upon the grounds of newly discovered evidence. The commission administrator may on its own motion, for reasons it deems sufficient, set aside any final decision of the commission administrator within one year from the date thereof upon grounds of mistake or newly discovered evidence, and remand the case to the department for further proceedings.

AB64,1459 Section 1459 . 111.392 of the statutes is created to read:

AB64,681,12 111.392 Offers of settlement. (1) In this section:

AB64,681,14 (a) “More favorable award” means an order under s. 111.39 (4) (c) to which either of the following applies:

AB64,681,17 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.

AB64,681,20 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.

AB64,681,22 (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.

AB64,682,2 (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.

AB64,682,3 (2) This section applies with respect to complaints under s. 111.39.

AB64,682,7 (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. 111.39 (4) (c).

AB64,682,11 (4) At any time between 10 days after a complaint is filed under s. 111.39 (1) and 10 days prior to commencement of a hearing under s. 111.39 (4) (b), 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.

AB64,682,13 (5) A settlement offer under sub. (4) shall include a citation to this section and shall satisfy all of the following:

AB64,682,14 (a) Be in writing.

AB64,682,15 (b) Identify parties making the offer and the parties to whom the offer is made.

AB64,682,16 (c) Identify generally the claim the offer is attempting to resolve.

AB64,682,17 (d) State the terms and conditions of the offer.

AB64,682,18 (e) Include one of the following:

AB64,682,22 1. If the complainant is making the offer, the statement “In accordance with and subject to s. 111.392, 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.”

AB64,683,2 2. If the respondent is making the offer, the statement “In accordance with and subject to s. 111.392, 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.”

AB64,683,4 (f) State the deadline by which the offer must be accepted, in accordance with sub. (11) (b).

AB64,683,7 (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.

AB64,683,8 (h) Be signed by the offeror or the offeror's attorney of record.

AB64,683,9 (i) Include a certificate of service and be served by certified mail.

AB64,683,10 (j) Be served on all parties to whom the offer is made.

AB64,683,14 (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.

AB64,683,16 (b) All terms and conditions included in a final and fully executed settlement agreement are presumed to be reasonable.

AB64,683,21 (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.

AB64,683,23 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.

AB64,684,3 (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:

AB64,684,5 (a) The offeree accepts or declines the offer as provided in sub. (10) (a) or (11) (a).

AB64,684,8 (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.

AB64,684,10 (8) A settlement offer may be withdrawn in writing at any time prior to acceptance by the offeree. Once withdrawn, the offer is void.

AB64,684,15 (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. 111.39 (4) (b) 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.

AB64,684,22 (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.