Chapter 109

109.07(1m)(c) (c) This subsection does not apply to a business closing or mass layoff that is caused by a strike or lockout.

109.07(3) (3) 

109.07(3)(a) (a) If an employer fails to give timely notice to an affected employee as required under sub. (1m) (a), the affected employee may recover, as provided under sub. (4), all of the following:

109.07(3)(a)1. 1. Pay, for the days during the recovery period described under par. (c) that the employee would have worked if the business closing or mass layoff had not occurred, based on the greater of the following:

109.07(3)(a)1.a. a. The employee’s regular rate of pay from the employer, averaged over the shorter of the 3-year period preceding the business closing or mass layoff or the entire period during which the employee was employed by the employer.

109.07(3)(a)1.b. b. The employee’s regular rate of pay from the employer at the time of the business closing or mass layoff.

109.07(3)(a)2. 2. The value of any benefit that the employee would have received under an employee benefit plan during the recovery period described under par. (c), but did not receive because of the business closing or mass layoff, including the cost of medical treatment incurred that would have been covered under the employee benefit plan.

109.07(3)(b) (b) The amount that an employee may recover under par. (a) shall be reduced by any cost that the employer incurs by crediting the employee, under an employee benefit plan, for time not actually served because of a business closing or mass layoff.

109.07(3)(c) (c) The recovery period under par. (a) begins on the day on which the business closing or mass layoff occurs. The recovery period equals the number of days in the period beginning on the day on which an employer is required to give notice under sub. (1m) (a) and ending on whichever of the following occurs first:

109.07(3)(c)1. 1. The day on which the employer actually gave the notice to the employee.

109.07(3)(c)2. 2. The day on which the business closing or mass layoff occurred.

109.07(4) (4) 

109.07(4)(a) (a) An employee whose employer fails to notify timely the employee under sub. (1m) (a) may file a claim with the department. If the employee files a claim with the department no later than 300 days after the day on which the business closing or mass layoff occurred, the department shall, in the manner provided in s. 109.09, investigate the claim, determine the number of days that the employer was late in providing notice and, on behalf of the employee, attempt to recover from the employer the payment under sub. (3).

109.07(4)(b) (b) If the department does not recover payment within 180 days after a claim is filed or within 30 days after it notifies the employee of its determination under par. (a), whichever is first, the department shall refer the claim to the department of justice. The department of justice may bring an action in circuit court on behalf of the employee to recover the payment under sub. (3).

109.07(4)(c) (c) If the department of justice does not bring an action under par. (b) within 120 days after the claim is referred to it, the employee may bring an action in circuit court to recover the payment under sub. (3). If the employee prevails in the action, he or she shall also recover costs under ch. 814 and, notwithstanding s. 814.04 (1), reasonable attorney fees.

109.07(4)(d) (d) An action under this section shall be begun within one year after the department refers the claim to the department of justice under par. (b), or be barred.

109.07(4m) (4m) 

109.07(4m)(a) (a) If an employer fails to give timely notice to the highest official of a municipality as required under sub. (1m) (a), the department shall assess a business closing surcharge against the employer of not more than $500 for each day in the period beginning on the day on which the employer was required to give notice to the highest official and ending on the earlier of the day on which the employer actually gave notice to the highest official or the day on which the business closing or mass layoff occurred.

109.07(4m)(b) (b) The department shall deposit business closing surcharges collected under par. (a) in the general fund.

109.07(5) (5) 

109.07(5)(a) (a) An employer is not liable under this section for a failure to give notice to any person under sub. (1m) (a), if the department determines all of the following:

109.07(5)(a)1. 1. When the notice under sub. (1m) (a) would have been timely given, that the employer was actively seeking capital or business to enable the employer to avoid or postpone indefinitely the business closing or mass layoff.

109.07(5)(a)2. 2. That the employer reasonably and in good faith believed that giving the notices to all parties required under sub. (1m) (a) would have prevented the employer from obtaining the capital or business.

109.07(5)(b) (b) The department may not determine that an employer was actively seeking capital or business under par. (a) 1. unless the employer has a written record, made while the employer was seeking capital or business, of those activities. The record shall consist of the documents and other material specified by the department by rule under s. 109.12 (1) (b). The employer shall have individual documents in the record notarized, as required by the department’s rules. The employer shall provide the department with an affidavit verifying the content of the notarized documents.

109.07(6) (6) An employer is not liable under this section for a failure to give notice to any person under sub. (1m) (a), if the department determines that the business closing or mass layoff is the result of any of the following:

109.07(6)(a) (a) The sale of part or all of the employer’s business, if the purchaser agrees in writing, as part of the purchase agreement, to hire substantially all of the affected employees with not more than a 6-month break in employment.

109.07(6)(b) (b) The relocation of part or all of an employer’s business within a reasonable commuting distance, if the employer offers to transfer substantially all of the affected employees with not more than a 6-month break in employment.

109.07(6)(c) (c) The completion of a particular project or work of a specific duration, including seasonal work, if the affected employees were hired with the understanding that their employment was limited to the duration of such work or project.

109.07(6)(d) (d) Business circumstances that were not foreseeable when the notice would have been timely given.

109.07(6)(e) (e) A natural or man-made disaster beyond the control of the employer.

109.07(6)(f) (f) A temporary cessation in business operations, if the employer recalls the affected employees on or before the 60th day beginning after the cessation.

109.07(7) (7) Each employer shall post, in one or more conspicuous places where notices to employees are customarily posted, a notice in a form approved by the department setting forth employees’ rights under this section. Any employer who violates this subsection shall forfeit not more than $100.

109.07(8) (8) Section 111.322 (2m) applies to discharge and other discriminatory acts arising in connection with any proceeding under this section.

109.07 History History: 1975 c. 380; 1983 a. 84, 149; 1983 a. 192 s. 304; 1983 a. 538; 1987 a. 27; 1989 a. 44, 228; 1995 a. 27, ss. 3782 and 9116 (5); 1997 a. 51; 2009 a. 87; 2011 a. 32.

109.07 Cross-reference Cross-reference: See also ch. DWD 279, Wis. adm. code.

109.07 Annotation The application of this section is limited to business closures of employment sites, defined by reference to geography rather than ownership. A transfer of business assets does not constitute a business closing unless it results in either a temporary or permanent shutdown in the operation of the business site. State v. T.J. International, Inc., 2001 WI 76, 244 Wis. 2d 481, 628 N.W.2d 774, 99-2803.

109.07 Annotation There is no private cause of action under this section. Henne v. Allis-Chalmers Corp., 660 F. Supp. 1464 (1987).

109.075 109.075 Cessation of health care benefits affecting employees, retirees and dependents; advance notice required.

109.075(1) (1) In this section:

109.075(1)(a) (a) “Affected employee, retiree or dependent” means an employee, retired employee or a surviving covered dependent of an employee or retired employee who loses, or may reasonably be expected to lose, his or her health care benefits provided by an employer who is required to give notice under sub. (2) because the employer has decided to cease providing health care benefits.

109.075(1)(b) (b) “Employee benefit plan” means a plan as defined in 29 USC 1002 (3).

109.075(1)(c) (c) “Employer” means any business enterprise that employs 50 or more persons in this state.

109.075(1)(d) (d) “Health care benefits” means coverage of health care expenses under an employee benefit plan.

109.075(2) (2) Subject to sub. (5) or (6), an employer who has decided to cease providing health care benefits in this state shall promptly notify any affected employee, retiree or dependent and any collective bargaining representative of any affected employee, retiree or dependent in writing of such action no later than 60 days prior to the date that the cessation of health care benefits takes place. This subsection does not apply to a cessation of health care benefits that is caused by a strike or lockout.

109.075(3) (3) 

109.075(3)(a) (a) If an employer fails to give timely notice to an affected employee, retiree or dependent as required under sub. (2), the affected employee, retiree or dependent may recover, as provided under sub. (4), the value of any health care benefits that the affected employee, retiree or dependent would have received during the recovery period described under par. (c), but did not receive because of the cessation of health care benefits, including the cost of any medical treatment incurred that would have been covered but for the cessation of health care benefits.

109.075(3)(b) (b) The amount that an affected employee may recover under par. (a) shall be reduced by any cost that the affected employer incurs by crediting the affected employee, under an employee benefit plan, for time not actually served because of a business closing, as defined in s. 109.07 (1) (b), or mass layoff, as defined in s. 109.07 (1) (f).

109.075(3)(c) (c) The recovery period under par. (a) begins on the day that the cessation of health care benefits occurs. The recovery period equals the number of days in the period beginning on the day on which an employer is required to give notice under sub. (2) and ending on whichever of the following occurs first:

109.075(3)(c)1. 1. The day that the employer actually gave the notice to the affected employee, retiree or dependent.

109.075(3)(c)2. 2. The day that the cessation of health care benefits occurred.

109.075(4) (4) 

109.075(4)(a) (a) An affected employee, retiree or dependent whose employer or former employer, or whose spouse’s or parent’s employer or former employer, fails to notify timely the affected employee, retiree or dependent under sub. (2) may file a claim with the department. If the affected employee, retiree or dependent files a claim with the department no later than 300 days after the cessation of health care benefits occurred, the department shall, in the manner provided in s. 109.09, investigate the claim, determine the number of days that the employer or former employer was late in providing notice and, on behalf of the affected employee, retiree or dependent, attempt to recover from the employer or former employer the payment under sub. (3).

109.075(4)(b) (b) If the department does not recover payment within 180 days after a claim is filed or within 30 days after it notifies the affected employee, retiree or dependent of its determination under par. (a), whichever is first, the department shall refer the claim to the department of justice. The department of justice may bring an action in circuit court on behalf of the affected employee, retiree or dependent to recover the payment under sub. (3).

109.075(4)(c) (c) If the department of justice does not bring an action under par. (b) within 120 days after the claim is referred to it, the affected employee, retiree or dependent may bring an action in circuit court to recover the payment under sub. (3). If the affected employee, retiree or dependent prevails in the action, he or she shall also recover costs under ch. 814 and, notwithstanding s. 814.04 (1), reasonable attorney fees.

109.075(4)(d) (d) An action under this section shall be begun within one year after the department refers the claim to the department of justice under par. (b), or be barred.

109.075(5) (5) 

109.075(5)(a) (a) An employer is not liable under this section for a failure to give notice to any person under sub. (2), if the department determines all of the following:

109.075(5)(a)1. 1. When the notice under sub. (2) would have been timely given, that the employer was actively seeking capital or business to enable the employer to avoid or postpone indefinitely the cessation of health care benefits.

109.075(5)(a)2. 2. That the employer reasonably and in good faith believed that giving the notice required under sub. (2) would have prevented the employer from obtaining the capital or business.

109.075(5)(b) (b) The department may not determine that an employer was actively seeking capital or business under par. (a) 1. unless the employer has a written record, made while the employer was seeking capital or business, of those activities. The record shall consist of the documents and other material specified by the department by rule under s. 109.12 (1) (b). The employer shall have individual documents in the record notarized, as required by the department’s rules. The employer shall provide the department with an affidavit verifying the content of the notarized documents.

109.075(6) (6) An employer is not liable under this section for a failure to give notice to any person under sub. (2), if the department determines that the cessation of health care benefits is the result of any of the following:

109.075(6)(a) (a) The sale of part or all of the employer’s business, if the purchaser agrees in writing, as part of the purchase agreement, to provide health care benefits for all of the affected employees, retirees and dependents with not more than a 60-day break in coverage.

109.075(6)(b) (b) Business circumstances that were not foreseeable when the notice would have been timely given.

109.075(6)(c) (c) A natural or man-made disaster beyond the control of the employer.

109.075(6)(d) (d) A temporary cessation in providing health care benefits, if the employer renews providing health care benefits for the affected employees, retirees and dependents on or before the 60th day beginning after the cessation.

109.075(7) (7) Each employer shall post, in one or more conspicuous places where notices to employees are customarily posted, a notice in a form approved by the department setting forth the rights of employees, retirees and dependents under this section. Any employer who violates this subsection shall forfeit not more than $100.

109.075(8) (8) Section 111.322 (2m) applies to discharge and other discriminatory acts arising in connection with any proceeding under this section.

109.075 History History: 1997 a. 237.

109.09 109.09 Wage claims, collection.

109.09(1) (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., s. 229.8275, 2013 stats., and s. 16.856, 2015 stats., and ss. 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.

109.09(2) (2) 

109.09(2)(a) (a) The department of workforce development, under its authority under sub. (1) to maintain actions for the benefit of employees, or an employee who brings an action under s. 109.03 (5) shall have a lien upon all property of the employer, real or personal, located in this state for the full amount of any wage claim or wage deficiency.

109.09(2)(b) (b)

109.09(2)(b)1. 1. A lien under par. (a) upon real property takes effect when the department of workforce development or employee files a notice of the lien with the clerk of the circuit court of the county in which the services or some part of the services were performed, pays the fee specified in s. 814.61 (5) to that clerk of circuit court and serves a copy of that petition on the employer by personal service in the same manner as a summons is served under s. 801.11 or by certified mail with a return receipt requested. The clerk of circuit court shall enter the notice of the lien on the judgment and lien docket kept under s. 779.07.

109.09(2)(b)2. 2. A lien under par. (a) upon personal property takes effect when the department of workforce development or employee files notice of the lien in the same manner, form, and place as financing statements are filed under subch. V of ch. 409 regarding debtors who are located in this state, pays the same fee provided in s. 409.525 for filing financing statements, and serves a copy of the notice on the employer by personal service in the same manner as a summons is served under s. 801.11 or by certified mail with a return receipt requested. The department of financial institutions shall place the notice of the lien in the same file as financing statements are filed under subch. V of ch. 409.

109.09(2)(b)3. 3. The department of workforce development or employee must file the notice under subd. 1. or 2. within 2 years after the date on which the wages were due. The notice shall specify the nature of the claim and the amount claimed, describe the property upon which the claim is made and state that the person filing the notice claims a lien on that property.

109.09(2)(c) (c)

109.09(2)(c)1. 1. In this paragraph:

109.09(2)(c)1.a. a. “Commercial lending institution” has the meaning given for “financial institution” in s. 234.01 (5k).

109.09(2)(c)1.b. b. “Financial institution” has the meaning given in s. 69.30 (1) (b).

109.09(2)(c)1m. 1m. A lien under par. (a) takes precedence over all other debts, judgments, decrees, liens, or mortgages against the employer, except a lien of a commercial lending institution as provided in subd. 2. and 3. or a lien under s. 292.31 (8) (i) or 292.81, regardless of whether those other debts, judgments, decrees, liens, or mortgages originate before or after the lien under par. (a) takes effect. A lien under par. (a) may be enforced in the manner provided in ss. 779.09 to 779.12, 779.20, and 779.21, insofar as those provisions are applicable. The lien ceases to exist if the department of workforce development or the employee does not bring an action to enforce the lien within the period prescribed in s. 893.44 for the underlying wage claim.

109.09(2)(c)2. 2. Except as provided in this subdivision, a lien under par. (a) does not take precedence over a lien of a commercial lending institution against the employer that originates before the lien under par. (a) takes effect. Subject to subd. 3., a lien under par. (a) takes precedence over a lien of a commercial lending institution against the employer that originates before the lien under par. (a) takes effect only as to the first $3,000 of unpaid wages covered under the lien that are earned by an employee within the 6 months preceding the date on which the employee files the wage claim under sub. (1) or brings the action under s. 109.03 (5) or the date on which the department receives the wage claim under s. 109.10 (4) (a), whichever is applicable.

109.09(2)(c)3. 3. Notwithstanding subd. 2., a lien of a financial institution that exists on November 30, 2003, and that originates before a lien under par. (a) takes effect takes precedence over the lien under par. (a), and a lien of a financial institution for any amount advanced by the financial institution after a lien under par. (a) takes effect under a contract entered into before December 1, 2003, including any extension or renewal of such a contract, takes precedence over the lien under par. (a). Notwithstanding subd. 2., a lien under par. (a) that exists on November 30, 2003, takes precedence over a lien of a commercial lending institution that is not a financial institution, regardless of whether the lien of the commercial lending institution originates before or after the lien under par. (a) takes effect.

109.09(3) (3) 

109.09(3)(a) (a) The legislature finds that the provision of a wage claim and collection law that is uniform throughout the state is a matter of statewide concern and that the enactment of a wage claim or collection ordinance by a city, village, town, or county would be logically inconsistent with, would defeat the purpose of, and would go against the spirit of this section. Therefore, this section shall be construed as an enactment of statewide concern for the purpose of providing a wage claim and collection law that is uniform throughout the state.

109.09(3)(b) (b) No city, village, town, or county may enact or enforce an ordinance that regulates wage claims or collections.

109.09(3)(c) (c) If a city, village, town, or county has in effect on April 18, 2018, an ordinance that regulates wage claims or collections, the ordinance does not apply and may not be enforced.

109.09 History History: 1975 c. 380; 1979 c. 32 s. 92 (9); 1985 a. 29, 220; 1989 a. 113; 1991 a. 146; 1993 a. 86, 453; 1995 a. 227; 1997 a. 27, 237; 1999 a. 9; 1999 a. 150 s. 672; 1999 a. 167; 2001 a. 10; 2003 a. 63; 2005 a. 434; 2009 a. 28; 2011 a. 32; 2015 a. 55; 2017 a. 59, 327.

109.09 Annotation Under sub. (1), courts may award costs to DILHR when DILHR prevails but may not tax costs against DILHR when a defendant employer prevails. DILHR v. Coatings, Inc., 126 Wis. 2d 338, 376 N.W.2d 834 (1985).