109.07(3)(a)(a) If an employer fails to give timely notice to an affected employe as required under
sub. (1m), the affected employe 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 employe 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 employe'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 employe was employed by the employer.
109.07(3)(a)1.b.
b. The employe'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 employe would have received under an employe 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 employe benefit plan.
109.07(3)(b)
(b) The amount that an employe may recover under
par. (a) shall be reduced by any cost that the employer incurs by crediting the employe, under an employe 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 that 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) and ending on whichever of the following occurs first:
109.07(3)(c)1.
1. The day that the employer actually gave the notice to the employe.
109.07(3)(c)2.
2. The day that the business closing or mass layoff occurred.
109.07(4)(a)(a) An employe whose employer fails to notify timely the employe under
sub. (1m) may file a claim with the department. If the employe files a claim with the department no later than 300 days after the business closing or mass layoff, 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 employe, 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 employe 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 employe 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 employe may bring an action in circuit court to recover the payment under
sub. (3). If the employe 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)(a)(a) If an employer fails to give timely notice to the highest official of a municipality as required under
sub. (1m), 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 that the employer was required to give notice to the highest official and ending on the earlier of the day that the employer actually gave notice to the highest official or the day that 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)(a)(a) An employer is not liable under this section for a failure to give notice to any person under
sub. (1m), if the department determines all of the following:
109.07(5)(a)1.
1. When the notice under
sub. (1m) 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) 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), 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 employes 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 employes 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 employes 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 employes 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 employes are customarily posted, a notice in a form approved by the department setting forth employes' 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 Annotation
There is no private cause of action under this section. Henne v. Allis-Chalmers Corp., 660 F Supp. 1464 (E. D. Wis. 1987).
109.09
109.09
Wage claims, collection. 109.09(1)
(1) The department shall investigate and attempt equitably to adjust controversies between employers and employes as to alleged wage claims. The department may receive and investigate any wage claim which 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 employe during the period commencing 2 years before the date the claim is filed. The department shall enforce this chapter and
ss. 66.293,
103.02,
103.49,
103.82 and
104.12. In pursuance of this duty, the department may sue the employer on behalf of the employe 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) for the operation of the office of the district attorney who prosecuted the action.
109.09(2)
(2) The department, under its authority under
sub. (1) to maintain actions for the benefit of employes, or an employe 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. A lien under this subsection takes effect when the department or employe files a verified petition claiming 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 department or employe must file the petition within 2 years after the date that the wages were due. The petition shall specify the nature of the claim and the amount claimed, describe the property upon which the claim is made and state that the petitioner claims a lien on that property. The lien shall take precedence over all other debts, judgments, decrees, liens or mortgages against the employer, except a lien under
s. 292.31 (8) (i),
292.41 (6) (d) or
292.81, and may be enforced in the manner provided in
ss. 779.09 to
779.12,
779.20 and
779.21, insofar as such provisions are applicable. The lien ceases to exist if the department or the employe does not bring an action to enforce the lien within the period prescribed in
s. 893.44 for the underlying wage claim.
109.09 Annotation
Under (1), courts may award costs to DILHR when DILHR prevails but may not tax costs against DILHR when defendant employer prevails. DILHR v. Coatings, Inc. 126 W (2d) 338, 376 NW (2d) 834 (1985).
109.10
109.10
Reciprocal agreements. 109.10(1)
(1) In this section, "responsible agency" means a state officer, agency or other body that is responsible for the collection of wage claims or wage deficiencies.
109.10(2)
(2) The secretary and the responsible agency of another state may enter into a reciprocal agreement governing the collection, under the laws of the other state, of wage claims and wage deficiencies received by the department.
109.10(3)
(3) Consistent with the terms of a reciprocal agreement entered into with a responsible agency of another state under
sub. (2), the department may do any of the following:
109.10(3)(a)
(a) Bring an action, through the department of justice, in any court of competent jurisdiction in the other state to collect wage claims and wage deficiencies received by the department.
109.10(3)(b)
(b) Through the department of justice, enforce a judgment in the other state on wage claims or wage deficiencies received by the department.
109.10(3)(c)
(c) If permitted under the laws of the other state, refer wage claims or wage deficiencies to the responsible agency for collection in the other state.
109.10(4)(a)(a) Subject to
par. (b), the department, through the department of justice, may bring an action under
s. 109.09 on wage claims or wage deficiencies received by the department from a responsible agency of another state.
109.10(4)(b)
(b) Actions under
par. (a) may only be brought if the other state by law or reciprocal agreement permits similar actions in that state on wage claims or wage deficiencies arising in this state.
109.10 History
History: 1989 a. 113;
1993 a. 86.
109.11(1)(a)(a) In adjusting a controversy between an employer and an employe as to an alleged wage claim filed with the department under
s. 109.09 (1), the department may compromise and settle that wage claim for such sum as may be agreed upon between the department, the employe and the employer.
109.11(1)(b)
(b) If the department finds that a wage claim is valid, the department may instruct the employer against whom the wage claim is filed to audit his or her payroll records to determine whether the employer may be liable for any other wage claims of the same type as the wage claim that prompted the audit instruction. If after the requested completion date of the audit the department receives a wage claim against the employer of the same type as the wage claim that prompted the audit instruction and if the department determines that the subsequent wage claim is valid, the department may audit the employer's payroll records to determine whether the employer may be liable for any other wage claims of the same type as the wage claim that prompted the audit instruction. For any valid wage claim that is filed against an employer after the department has instructed the employer to audit his or her payroll records under this paragraph and that is of the same type as the wage claim that prompted the audit instruction and for any valid wage claim that is discovered as a result of the department's audit under this paragraph and that is of the same type as the wage claim that prompted the audit instruction, the department shall require the employer to pay, in addition to the amount of wages due and unpaid, increased wages of not more than 50% of the amount of wages due and unpaid, unless the employer shows the department that payment of the increased wages would cause extreme hardship.
109.11(1)(c)
(c) If an employer does not agree to compromise and settle a wage claim under this subsection, the department may refer the wage claim to a district attorney under
s. 109.09 (1) or to the department of justice under
s. 109.10 (3) for commencement of an action in circuit court to collect the amount of wages due and unpaid plus increased wages as specified in
sub. (2) (b).
109.11(2)(a)(a) In a wage claim action that is commenced by an employe before the department has completed its investigation under
s. 109.09 (1) and its attempts to compromise and settle the wage claim under
sub. (1), a circuit court may order the employer to pay to the employe, in addition to the amount of wages due and unpaid and in addition to or in lieu of the criminal penalties specified in
sub. (3), increased wages of not more than 50% of the amount of wages due and unpaid.
109.11(2)(b)
(b) In a wage claim action that is commenced after the department has completed its investigation under
s. 109.09 (1) and its attempts to settle and compromise the wage claim under
sub. (1), a circuit court may order the employer to pay to the employe, in addition to the amount of wages due and unpaid to an employe and in addition to or in lieu of the criminal penalties specified in
sub. (3), increased wages of not more than 100% of the amount of those wages due and unpaid.
109.11(3)
(3) Criminal penalties. Any employer who, having the ability to pay, fails to pay the wages due and payable as provided in this chapter or falsely denies the amount or validity thereof or that such wages are due, with intent to secure any discount upon such indebtedness or with intent to annoy, harass, oppress, hinder or defraud the person to whom such wages are due, may be fined not more than $500 or imprisoned not more than 90 days or both. Each failure or refusal to pay each employe the amount of wages due at the time, or under the conditions required in this chapter, constitutes a separate offense.
109.11 Annotation
In collective bargaining/arbitration situation 111.70 (7m) (e) "good cause" defense is available where employer fails to pay wages pursuant to 109.03 (1). Employees Local 1901 v. Brown County, 146 W (2d) 728, 432 NW (2d) 571 (1988).
109.11 Annotation
Whether payments under arbitration award are due from the entry of the award depends on the overall circumstances. Kenosha Fire Fighters v. City of Kenosha, 168 W (2d) 658, 484 NW (2d) 152 (1992).
109.12
109.12
Rules and report. The department shall do all of the following:
109.12(1)
(1) Promulgate rules to do all of the following:
109.12(1)(b)
(b) Establish the form and content of the record required under
s. 109.07 (5) (b) and specify the documents that must contain notarized signatures.
109.12(2)
(2) Not later than March 1 annually, beginning with 1990, submit a written report on its activities in the preceding calendar year related to the enforcement and administration of
s. 109.07 to the chief clerk of each house of the legislature for distribution under
s. 13.172 (3) to the standing committees with jurisdiction over labor.
109.12(3)
(3) Include, in the report required under
sub. (2), the number, type and disposition of all determinations made by the department under
s. 109.07 (5) and
(6).
109.12 History
History: 1989 a. 44;
1991 a. 146.
