230.85(3)(b)
(b) If, after hearing, the division of equal rights finds that the respondent did not engage in or threaten a retaliatory action it shall order the complaint dismissed. The division of equal rights shall order the employee's appointing authority to insert a copy of the findings and orders into the employee's personnel file and, if the respondent is a natural person, order the respondent's appointing authority to insert such a copy into the respondent's personnel file. If the division of equal rights finds by unanimous vote that the employee filed a frivolous complaint it may order payment of the respondent's reasonable actual attorney fees and actual costs. Payment may be assessed against either the employee or the employee's attorney, or assessed so that the employee and the employee's attorney each pay a portion. To find a complaint frivolous the division of equal rights must find that either
s. 814.025 (3) (a) or
(b) applies or that both
s. 814.025 (3) (a) and
(b) apply.
230.85(3)(c)
(c) Pending final determination by the division of equal rights of any complaint under this section, the division of equal rights may make interlocutory orders.
230.85(3)(d)
(d) Interim earnings or amounts earnable with reasonable diligence by the person subjected to the retaliatory action or threat shall reduce back pay otherwise allowable. Amounts received by the person subjected to the retaliatory action or threat as unemployment benefits or welfare payments do not reduce the back pay otherwise allowable, but shall be withheld from the person subjected to the retaliatory action or threat and immediately paid to the unemployment reserve fund or to the welfare agency making the payment.
230.85(4)
(4) The division of equal rights shall serve a certified copy of the findings and order on the respondent and, if the respondent is a natural person, upon the respondent's appointing authority.
230.85(5)(a)(a) If a respondent does not comply with any lawful order by the division of equal rights, for each such failure the respondent shall forfeit a sum of not less than $10 nor more than $100. Every day during which a respondent fails to comply with any order of the division of equal rights constitutes a separate violation of that order.
230.85(5)(b)
(b) As an alternative to
par. (a), the division of equal rights may enforce an order by a suit in equity.
230.85(6)(a)(a) If a disciplinary action occurs or is threatened within the time prescribed under
par. (b), that disciplinary action or threat is presumed to be a retaliatory action or threat thereof. The respondent may rebut that presumption by a preponderance of the evidence that the disciplinary action or threat was not a retaliatory action or threat thereof.
230.85(6)(b)
(b) Paragraph (a) applies to a disciplinary action under
s. 230.80 (2) (a) which occurs or is threatened within 2 years, or to a disciplinary action under
s. 230.80 (2) (b),
(c) or
(d) which occurs or is threatened within one year, after an employee discloses information under
s. 230.81 which merits further investigation or after the employee's appointing authority, agent of an appointing authority or supervisor learns of that disclosure, whichever is later.
230.85 Cross-reference
Cross Reference: See also ch.
DWD 224, Wis. adm. code.
230.85 Annotation
The commission may not use a "multiplier" in computing reasonable attorney fees under sub. (3) (a) 4.; only
SCR 20:1.5 factors are permissible. Board of Regents v. Personnel Commission
147 Wis. 2d 406,
433 N.W.2d 273 (Ct. App. 1988).
230.86
230.86
Discipline based on surveillance. 230.86(1)
(1) No appointing authority may take any disciplinary action based in whole or in part on wiretapping, electronic surveillance or one-way mirrors unless that surveillance produces evidence that the employee against whom disciplinary action is taken has committed a crime or unless that surveillance is authorized by the appointing authority and is conducted in accordance with the rules promulgated under
s. 16.004 (12).
230.86(2)
(2) Subsection (1) does not apply to wiretapping, electronic surveillance or one-way mirrors used to monitor security or used for public safety purposes at a state institution.
230.86 History
History: 1989 a. 245;
1993 a. 496.
230.86 Cross-reference
Cross Reference: See also ch.
DWD 224, Wis. adm. code.
230.87
230.87
Judicial review. 230.87(1)(1) Findings and orders of the division of equal rights under this subchapter are subject to judicial review under
ch. 227. Upon that review, or in any enforcement action, the department of justice shall represent the division of equal rights unless a conflict of interest results from that representation. A court may order payment of a prevailing appellant employee's reasonable attorney fees by a governmental unit respondent, or by a governmental unit employing a respondent who is a natural person if that governmental unit received notice and an opportunity to appear before the court.
230.87(2)
(2) If the court finds that the appeal is frivolous, it shall award to the respondent reasonable attorney fees and costs. Payment may be assessed fully against the appellant, including a governmental unit, or the appellant's attorney or assessed so that the appellant and the appellant's attorney each pay a portion. To find an appeal frivolous, the court must find one or more of the following:
230.87(2)(a)
(a) The appeal was filed, used or continued in bad faith, solely for purposes of harassing or maliciously injuring another.
230.87(2)(b)
(b) The appellant or appellant's attorney knew, or should have known, that the appeal was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal of existing law.
230.87 Cross-reference
Cross Reference: See also ch.
DWD 224, Wis. adm. code.
230.88
230.88
Payment of award, judgment or settlement; effect of order, arbitration award or commencement of court action. 230.88(1)(1)
Payment. Any award, judgment or settlement obtained by an employee under this subchapter shall be paid from the funds appropriated under
s. 20.865 (1) (a),
(g) and
(q).
230.88(2)(a)(a) A final order issued under
s. 230.85 or
230.87 which has not been appealed and for which the time of appeal has passed binds all parties who were subjected to the jurisdiction of the division of equal rights or the court and who received an opportunity to be heard. With respect to these parties, the decree is conclusive as to all issues of law and fact decided.
230.88(2)(b)
(b) No collective bargaining agreement supersedes the rights of an employee under this subchapter. However, nothing in this subchapter affects any right of an employee to pursue a grievance procedure under a collective bargaining agreement under
subch. V of ch. 111, and if the division of equal rights determines that a grievance arising under such a collective bargaining agreement involves the same parties and matters as a complaint under
s. 230.85, it shall order the arbitrator's final award on the merits conclusive as to the rights of the parties to the complaint, on those matters determined in the arbitration which were at issue and upon which the determination necessarily depended.
230.88(2)(c)
(c) No later than 10 days before the specified time of hearing under
s. 230.85 (2), an employee shall notify the division of equal rights orally or in writing if he or she has commenced or will commence an action in a court of record alleging matters prohibited under
s. 230.83 (1). If the employee does not substantially comply with this requirement, the division of equal rights may assess against the employee any costs attributable to the failure to notify. Failure to notify the division of equal rights does not affect a court's jurisdiction to proceed with the action. Upon commencement of such an action in a court of record, the division of equal rights has no jurisdiction to process a complaint filed under
s. 230.85 except to dismiss the complaint and, if appropriate, to assess costs under this paragraph.
230.88 History
History: 1983 a. 409;
2003 a. 33.
230.89
230.89
Rule making and reporting. 230.89(1)
(1) The division of equal rights shall promulgate rules to carry out its responsibilities under this subchapter.
230.89(2)
(2) Every 2 years, the division of equal rights shall submit a report to the chief clerk of each house of the legislature, for distribution to the appropriate standing committees under
s. 13.172 (3), regarding complaints filed, hearings held and actions taken under this subchapter, including the dollar amount of any monetary settlement or final monetary award which has become binding on the parties.
230.89 Cross-reference
Cross Reference: See also
PC, Wis. adm. code.
