109.07(1)(e)2.
2. For a village organized under
subch. I of ch. 64, "highest official" means both the president of the village board of trustees and the village manager.
109.07(1)(f)
(f) "Mass layoff" means a reduction in an employer's work force that is not the result of a business closing and that affects the following numbers of employes at an employment site or within a single municipality, not including new or low-hour employes:
109.07(1)(f)1.
1. At least 25% of the employer's work force or 25 employes, whichever is greater; or
109.07(1)(g)
(g) "Municipality" means a city, village or town.
109.07(1)(h)
(h) "New or low-hour employe" means an employe who has been employed by an employer for fewer than 6 of the 12 months preceding the date on which a notice is required under
sub. (1m) or who averages fewer than 20 hours of work per week.
109.07(1m)
(1m) Subject to
sub. (5) or
(6), an employer who has decided upon a business closing or mass layoff in this state shall promptly notify the subunit of the department that administers
s. 106.15, any affected employe, any collective bargaining representative of any affected employe, and the highest official of any municipality in which the affected employment site is located, in writing of such action no later than 60 days prior to the date that the business closing or mass layoff takes place. The employer shall provide in writing all information concerning its payroll, affected employes and the wages and other remuneration owed to such employes as the department may require. The department may in addition require the employer to submit a plan setting forth the manner in which final payment in full shall be made to affected employes. The department shall promptly provide a copy of the notice required under this subsection to the department of commerce and to the office of the commissioner of insurance and shall cooperate with the department of commerce in the performance of its responsibilities under
s. 560.15 and with the office of the commissioner of insurance in the performance of its responsibilities under
s. 601.41 (7). This subsection does not apply to a business closing or mass layoff that is caused by a strike or lockout.
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).
109.075
109.075
Cessation of health care benefits affecting employes, retirees and dependents; advance notice required. 109.075(1)(a)
(a) "Affected employe, retiree or dependent" means an employe, retired employe or a surviving covered dependent of an employe or retired employe 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)(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 employe 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 employe, retiree or dependent and any collective bargaining representative of any affected employe, 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)(a)(a) If an employer fails to give timely notice to an affected employe, retiree or dependent as required under
sub. (2), the affected employe, retiree or dependent may recover, as provided under
sub. (4), the value of any health care benefits that the affected employe, 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 employe may recover under
par. (a) shall be reduced by any cost that the affected employer incurs by crediting the affected employe, under an employe 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 employe, retiree or dependent.
109.075(3)(c)2.
2. The day that the cessation of health care benefits occurred.
109.075(4)(a)(a) An affected employe, 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 employe, retiree or dependent under
sub. (2) may file a claim with the department. If the affected employe, 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 employe, 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 employe, 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 employe, 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 employe, retiree or dependent may bring an action in circuit court to recover the payment under
sub. (3). If the affected employe, 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)(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 employes, 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 employes, 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 employes are customarily posted, a notice in a form approved by the department setting forth the rights of employes, 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 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)(a)(a) The department of workforce development, 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.
109.09(2)(b)1.1. A lien under
par. (a) upon real property takes effect when the department of workforce development or employe 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 employe files a notice of the lien with the department of financial institutions, pays the fee specified in
s. 409.403 (5) (b) to the department of financial institutions 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
ss. 409.401 and
409.402.
109.09(2)(b)3.
3. The department of workforce development or employe 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) A lien under
par. (a) takes precedence over all other debts, judgments, decrees, liens or mortgages against the employer that originate after the lien takes effect as provided in
par. (b) 1. or
2., except a lien under
s. 292.31 (8) (i) 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 those provisions are applicable. The lien ceases to exist if the department of workforce development 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.
