111.371
111.371
Local ordinance; collective bargaining agreements. Section 111.37 does not do any of the following:
111.371(1)
(1) Prevent a county, city, village or town from adopting an ordinance that prohibits honesty testing, restricts the use of honesty testing to a greater extent than
s. 111.37 or provides employees with more rights and remedies with respect to honesty testing than are provided under
s. 111.37.
111.371(2)
(2) Supersede, preempt or prohibit provisions of a collective bargaining agreement that prohibit honesty testing, restrict the use of honesty testing to a greater extent than
s. 111.37 or provide employees with more rights and remedies with respect to honesty testing than are provided under
s. 111.37.
111.371 History
History: 1991 a. 289,
315.
111.372
111.372
Use of genetic testing in employment situations. 111.372(1)(1) No employer, labor organization, employment agency or licensing agency may directly or indirectly:
111.372(1)(a)
(a) Solicit, require or administer a genetic test to any person as a condition of employment, labor organization membership or licensure.
111.372(1)(b)
(b) Affect the terms, conditions or privileges of employment, labor organization membership or licensure or terminate the employment, labor organization membership or licensure of any person who obtains a genetic test.
111.372(2)
(2) Except as provided in
sub. (4), no person may sell to or interpret for an employer, labor organization, employment agency or licensing agency a genetic test of an employee, labor organization member or licensee or of a prospective employee, labor organization member or licensee.
111.372(3)
(3) Any agreement between an employer, labor organization, employment agency or licensing agency and another person offering employment, labor organization membership, licensure or any pay or benefit to that person in return for taking a genetic test is prohibited.
111.372(4)
(4) This section does not prohibit the genetic testing of an employee who requests a genetic test and who provides written and informed consent to taking a genetic test for any of the following purposes:
111.372(4)(b)
(b) Determining the employee's susceptibility or level of exposure to potentially toxic chemicals or potentially toxic substances in the workplace, if the employer does not terminate the employee, or take any other action that adversely affects any term, condition or privilege of the employee's employment, as a result of the genetic test.
111.372 History
History: 1991 a. 117.
111.372 Annotation
The New Genetic World and the Law. Derse. Wis. Law. April 2001.
111.375
111.375
Department to administer. 111.375(1)
(1) This subchapter shall be administered by the department. The department may make, amend and rescind such 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.
111.375(2)
(2) This subchapter applies to each agency of the state.
111.375 Cross-reference
Cross-reference: See also ch.
DWD 218, Wis. adm. code.
111.375 Annotation
Administrative remedies available under the fair employment act, subch. II of ch. 111, are the exclusive remedies for violations. The act does not provide a remedy for emotional distress resulting from discriminatory firing. Bachand v. Connecticut General Life Insurance Co.
101 Wis. 2d 617,
305 N.W.2d 149 (Ct. App. 1981).
111.38
111.38
Investigation and study of discrimination. Except as provided under
s. 111.375 (2), the department shall:
111.38(1)
(1) Investigate the existence, character, causes and extent of discrimination in this state and the extent to which the same is susceptible of elimination.
111.38(2)
(2) Study the best and most practicable ways of eliminating any discrimination found to exist, and formulate plans for the elimination thereof by education or other practicable means.
111.38(3)
(3) Publish and disseminate reports embodying its findings and the results of its investigations and studies relating to discrimination and ways and means of reducing or eliminating it.
111.38(4)
(4) Confer, cooperate with and furnish technical assistance to employers, labor unions, educational institutions and other public or private agencies in formulating programs, educational and otherwise, for the elimination of discrimination.
111.38(5)
(5) Make specific and detailed recommendations to the interested parties as to the methods of eliminating discrimination.
111.38(6)
(6) Transmit to the legislature from time to time recommendations for any legislation which may be deemed desirable in the light of the department's findings as to the existence, character and causes of any discrimination.
111.38 History
History: 1977 c. 196;
1981 c. 334 ss.
18,
25 (2); Stats. 1981 s. 111.38.
111.39
111.39
Powers and duties of department. Except as provided under
s. 111.375 (2), the department shall have the following powers and duties in carrying out this subchapter:
111.39(1)
(1) The department may receive and investigate a complaint charging discrimination, discriminatory practices, unfair honesty testing or unfair genetic testing in a particular case if the complaint is filed with the department no more than 300 days after the alleged discrimination, unfair honesty testing or unfair genetic testing occurred. The department may give publicity to its findings in the case.
111.39(2)
(2) In carrying out this subchapter the department and its duly authorized agents are empowered to hold hearings, subpoena witnesses, take testimony and make investigations in the manner provided in
s. 103.005. The department or its duly authorized agents may privilege witnesses testifying before them under the provisions of this subchapter against self-incrimination.
111.39(3)
(3) The department shall dismiss a complaint if the person filing the complaint fails to respond within 20 days to any correspondence from the department concerning the complaint and if the correspondence is sent by certified mail to the last-known address of the person.
111.39(4)(a)(a) The department shall employ such examiners as are necessary to hear and decide complaints of discrimination and to assist in the effective administration of this subchapter. The examiners may make findings and orders under this section.
111.39(4)(b)
(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. If the department does not eliminate the discrimination, unfair honesty testing or unfair genetic testing, 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.
111.39(4)(c)
(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. 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.
111.39(4)(d)
(d) The department shall serve a certified copy of the findings and order on the respondent, the order to have the same force as other orders of the department and be enforced as provided in
s. 103.005. Any person aggrieved by noncompliance with the order may have the order enforced specifically by suit in equity. If the examiner finds that the respondent has not engaged in discrimination, unfair honesty testing, or unfair genetic testing as alleged in the complaint, the department shall serve a certified copy of the examiner's findings on the complainant, together with an order dismissing the complaint. If the examiner finds that the respondent has engaged in discrimination, unfair honesty testing, or unfair genetic testing as alleged in the complaint, the department shall serve a certified copy of the examiner's findings on the complainant, together with a notice advising the complainant that after the completion of all administrative proceedings under this section he or she may bring an action as provided in
s. 111.397 (1) (a) to recover compensatory and punitive damages as provided in
s. 111.397 (2) (a) and advising the complainant of the time under
s. 111.397 (1) (b) within which the action must be commenced or be barred.
111.39(5)(a)(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.
111.39(5)(b)
(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, 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 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.
111.39(5)(c)
(c) On motion, the commission may set aside, modify or change any decision made by the commission, 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 may on its own motion, for reasons it deems sufficient, set aside any final decision of the commission 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.
111.39(5)(d)
(d) If the commission affirms a finding that the respondent has engaged in discrimination, unfair honesty testing, or unfair genetic testing as alleged in the complaint, the commission shall serve a certified copy of the commission's decision on the complainant, together with a notice advising the complainant that after the completion of all administrative proceedings under this section he or she may bring an action as provided in
s. 111.397 (1) (a) to recover compensatory and punitive damages as provided in
s. 111.397 (2) (a) and advising the complainant of the time under
s. 111.397 (1) (b) within which the action must be commenced or be barred.
111.39(6)
(6) If an order issued under
sub. (4) is unenforceable against any labor organization in which membership is a privilege, the employer with whom the labor organization has an all-union shop agreement shall not be held accountable under this chapter when the employer is not responsible for the discrimination, the unfair honesty testing or the unfair genetic testing.
111.39 Cross-reference
Cross-reference: See also LIRC and ch.
DWD 218, Wis. adm. code.
111.39 Annotation
A department order that was broader in scope than the nature of the discrimination set forth in the notice of hearing was overbroad. Chicago, Milwaukee, St. Paul & Pacific Railroad Co. v. DILHR,
62 Wis. 2d 392,
215 N.W.2d 443 (1972).
111.39 Annotation
An employer found to have discriminated against a female employee with respect to required length of pregnancy leave and applicable employee benefits was denied adequate notice of the leave benefits issue prior to hearing as required by s. 111.36 (3) (a) [now s. 111.39 (4) (b)] and s. 227.09, 1971 stats., because: 1) the notice received by the employer merely charged "an act of discrimination due to sex;" 2) the complaint specified the discriminatory act as the refusal to rehire the employee as soon as she was able to return to work; 3) DILHR characterized the complaint as involving only length of the required leave; and 4) the discriminatory aspects of the required pregnancy leave and applicable benefits constituted separate legal issues. Wisconsin Telephone Co. v. DILHR,
68 Wis. 2d 345,
228 N.W.2d 649 (1975).
111.39 Annotation
A court should not use ch. 227 or s. 752.35 to circumvent the policy under s. 111.36 (3m) (c) [now s. 111.39 (5) (c)] that proceedings before the commission are not to be reopened more than one year after entry of a final decision. Chicago & North Western Railroad v. LIRC,
91 Wis. 2d 462,
283 N.W.2d 603 (Ct. App. 1979).
111.39 Annotation
A valid offer of reinstatement terminates the accrual of back pay. The commission erred in finding an employer's offer to be sufficient. Prejudgment interest should be awarded on back pay. Anderson v. LIRC,
111 Wis. 2d 245,
330 N.W.2d 594 (1983).
111.39 Annotation
Sub. (1) is a statute of limitations. As such it is an affirmative defense that may be waived. Milwaukee Co. v. LIRC,
113 Wis. 2d 199,
335 N.W.2d 412 (Ct. App. 1983).
111.39 Annotation
Under s. 111.36 (3) (b) [now s. 111.39 (4) (c)] the department may award attorney fees to a prevailing complainant. Watkins v. LIRC,
117 Wis. 2d 753,
345 N.W.2d 482 (1984).
111.39 Annotation
Under sub. (1), "filing" does not occur until the complaint is received by the department, and when discrimination "occurred" in termination cases is the date of the date of notice of termination. Hilmes v. DILHR,
147 Wis. 2d 48,
433 N.W.2d 251 (Ct. App. 1988).
111.39 Annotation
The personnel commission may not award costs and attorney fees for discovery motions filed against the state under the fair employment act. DOT v. Personnel Commission,
176 Wis. 2d 731,
500 N.W.2d 664 (1993).
111.39 Annotation
Victims of discrimination in the work place who voluntarily quit a position must show constructive discharge to recover back pay and reinstatement. Marten Transport, Ltd. v. DILHR,
176 Wis. 2d 1012,
501 N.W.2d 391 (1993).
111.39 Annotation
Evidence of acts occurring outside of the sub. (1) 300-day statute of limitations period may be admitted as proof of a state of mind for acts during a relevant time. Abbyland Processing v. LIRC,
206 Wis. 2d 309,
557 N.W.2d 419 (Ct. App. 1996),
96-1119.
111.39 Annotation
What constitutes reasonable diligence under sub. (4) (c) is to be determined from all the facts of a case. U. S. Paper Converters, Inc. v. LIRC,
208 Wis. 2d 523,
561 N.W.2d 756 (Ct. App. 1997),
96-2055.
111.39 Annotation
A proposed rule that would prohibit departmental employees from making public any information obtained under s. 111.36 [now s. 111.39] prior to the time an adjudicatory hearing takes place, if used as a blanket to prohibit persons from inspecting or copying public papers and records, would be in violation of s. 19.21. The open meetings law [now ss. 19.81 to 19.98] is discussed. 60 Atty. Gen. 43.
111.39 Annotation
The department may proceed in a matter despite a settlement between the parties if the agreement does not eliminate the discrimination. The department may approve a settlement between the parties that does not provide full back pay if the agreement will eliminate the unlawful practice or act. 66 Atty. Gen. 28.
111.39 Annotation
Under Title VII of the Civil Rights Act, to establish constructive discharge, the plaintiff must must show that an abusive working environment became so intolerable that resignation qualified as a fitting response. Unless the plaintiff quits in reasonable response to an employer-sanctioned adverse action officially changing his or her employment status, an employer may defend against a claim by showing that: 1) it had installed an accessible and effective policy for reporting and resolving sexual harassment complaints; and 2) the plaintiff unreasonably failed to use that preventive or remedial apparatus. Pennsylvania State Police v. Suders,
542 U.S. 129,
159 L. Ed 2d 204,
124 S. Ct. 2342 (2004).
111.395
111.395
Judicial review. Findings and orders of the commission under this subchapter are subject to review under
ch. 227. Orders of the commission shall have the same force as orders of the department under
chs. 103 to
106 and may be enforced as provided in
s. 103.005 (11) and
(12) or specifically by a suit in equity. In any enforcement action the merits of any order of the commission are not subject to judicial review. Upon such review, or in any enforcement action, the department of justice shall represent the commission.
111.395 History
History: 1977 c. 29,
418;
1981 c. 334 s.
23; Stats. 1981 s. 111.395;
1995 a. 27.
111.397(1)(a)(a) Except as provided in this paragraph, after the completion of all administrative proceedings under
s. 111.39 concerning a violation of
s. 111.321,
111.37, or
111.372, the department or a person discriminated against or subjected to unfair honesty testing or unfair genetic testing may bring an action in circuit court against any employer, labor organization, or employment agency that engaged in that discrimination, unfair honesty testing, or unfair genetic testing to recover compensatory and punitive damages caused by the violation, plus reasonable costs and attorney fees incurred in the action. Those damages are in addition to any back pay or other amounts awarded under
s. 111.39. The department or a person discriminated against or subjected to unfair honesty testing or unfair genetic testing may not bring an action under this paragraph against any local governmental unit, as defined in
s. 19.42 (7u), or against any employer, labor organization, or employment agency employing fewer than 15 individuals for each working day in each of 20 or more calendar weeks in the current or preceding year.
111.397(1)(b)
(b) An action under
par. (a) shall be commenced within 60 days after the date on which a copy of the final decision under
s. 111.39 (4) (d) is mailed to the last-known address of the complainant or, if that decision is reviewed by the commission, within 60 days after the date on which a copy of the final decision under
s. 111.39 (5) (d) is mailed to the last-known address of the complainant, or be barred.
111.397(1)(c)
(c) If a petition for judicial review of the findings and order of the commission concerning the same violation as the violation giving rise to the action under
par. (a) is filed, the court shall consolidate the proceeding for judicial review and the action under
par. (a).
111.397(2)(a)(a) Subject to
pars. (c) and
(d), in an action under
sub. (1) (a), the circuit court shall order the defendant to pay to the person discriminated against or subjected to unfair honesty testing or unfair genetic testing compensatory damages, and punitive damages under
s. 895.043, in an amount that the circuit court or jury finds appropriate, plus reasonable costs and attorney fees incurred in the action. Those damages are in addition to any back pay or other amounts awarded under
s. 111.39. The sum of the amount of compensatory damages for future economic losses and for pain and suffering, emotional distress, mental anguish, loss of enjoyment of life, and other noneconomic losses and the amount of punitive damages that a circuit court may order may not exceed the following:
111.397(2)(a)1.
1. In the case of a defendant that employs 100 or fewer employees for each working day in each of 20 or more calendar weeks in the current or preceding year, $50,000.
111.397(2)(a)2.
2. In the case of a defendant that employs more than 100 but fewer than 201 employees for each working day in each of 20 or more calendar weeks in the current or preceding year, $100,000.
111.397(2)(a)3.
3. In the case of a defendant that employs more than 200 but fewer than 501 employees for each working day in each of 20 or more calendar weeks in the current or preceding year, $200,000.
111.397(2)(a)4.
4. In the case of a defendant that employs more than 500 employees for each working day in each of 20 or more calendar weeks in the current or preceding year, $300,000.
111.397(2)(c)
(c) If the circuit court orders any payment under
par. (a) because of a violation of
s. 111.321,
111.37, or
111.372 by an individual employed by an employer, the employer of that individual is liable for the payment.
111.397(2)(d)1.1. In this paragraph, "consumer price index" means the average of the consumer price index for all urban consumers, U.S. city average, as determined by the bureau of labor statistics of the U.S. department of labor.
111.397(2)(d)2.
2. Except as provided in this subdivision, beginning on July 1, 2010, and on each July 1 after that, the department shall adjust the amounts specified in
par. (a) 1.,
2.,
3., and
4. by calculating the percentage difference between the consumer price index for the 12-month period ending on December 31 of the preceding year and the consumer price index for the 12-month period ending on December 31 of the year before the preceding year and adjusting those amounts by that percentage difference. The department shall publish the adjusted amounts calculated under this subdivision in the Wisconsin Administrative Register, and the adjusted amounts shall apply to actions commenced under
sub. (1) (a) beginning on July 1 of the year of publication. This subdivision does not apply if the consumer price index for the 12-month period ending on December 31 of the preceding year did not increase over the consumer price index for the 12-month period ending on December 31 of the year before the preceding year.
111.397 History
History: 2009 a. 20.
PUBLIC UTILITIES
111.50
111.50
Declaration of policy. It is hereby declared to be the public policy of this state that it is necessary and essential in the public interest to facilitate the prompt, peaceful and just settlement of labor disputes between public utility employers and their employees which cause or threaten to cause an interruption in the supply of an essential public utility service to the citizens of this state and to that end to encourage the making and maintaining of agreements concerning wages, hours and other conditions of employment through collective bargaining between public utility employers and their employees, and to provide settlement procedures for labor disputes between public utility employers and their employees in cases where the collective bargaining process has reached an impasse and stalemate and as a result thereof the parties are unable to effect such settlement and which labor disputes, if not settled, are likely to cause interruption of the supply of an essential public utility service. The interruption of public utility service results in damage and injury to the public wholly apart from the effect upon the parties immediately concerned and creates an emergency justifying action which adequately protects the general welfare.
111.50 Annotation
The application of the open meetings law to duties of WERC is discussed. 68 Atty. Gen. 171.
111.51
111.51
Definitions. When used in this subchapter:
111.51(1)
(1) "Arbitrators" refers to the arbitrators provided for in this subchapter.
111.51(2)
(2) "Collective bargaining" means collective bargaining of or similar to the kind provided for by
subch. I.
111.51(3)
(3) "Commission" means the employment relations commission.
111.51(4)
(4) "Essential service" means furnishing water, light, heat, gas, electric power, public passenger transportation or communication, or any one or more of them, to the public in this state.
111.51(5)(a)(a) "Public utility employer" means any employer, other than the state or any political subdivision thereof, engaged in the business of furnishing water, light, heat, gas, electric power, public passenger transportation or communication, or any one or more of them, to the public in this state; and shall be considered to include a rural electrification cooperative association engaged in the business of furnishing any one or more of such services or utilities to its members in this state.
