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 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).
109.09 Annotation
Chapter 103 does not provide the exclusive remedy for enforcement of claims under that chapter. Claims under statutes enumerated in sub. (1) may be enforced by a private action brought under s. 109.03 (5). German v. DOT,
223 Wis. 2d 525,
589 N.W.2d 651 (Ct. App. 1998),
98-0250.
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 employee 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 employee 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 employee 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 employee, 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 employee, in addition to the amount of wages due and unpaid to an employee 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 employee the amount of wages due at the time, or under the conditions required in this chapter, constitutes a separate offense.
109.11 Annotation
In a collective bargaining/arbitration situation a defense of "good cause" under s. 111.70 (7m) (e) is available if the employer fails to pay wages pursuant to s. 109.03 (1). Employees Local 1901 v. Brown County,
146 Wis. 2d 728,
432 N.W.2d 571 (1988).
109.11 Annotation
Whether payments under an arbitration award are due from the entry of the award depends on the overall circumstances. Kenosha Fire Fighters v. City of Kenosha,
168 Wis. 2d 658,
484 N.W.2d 152 (1992).
109.11 Annotation
Neither the text of sub. (2) (b) nor the case law interpreting it appear to support applying the federal presumption of double damages and burden-shifting framework to sub. (2) (b). The text and case law make clear that the circuit court has broad discretion under sub. (2) (b) to choose not to award a penalty and that, even when a penalty is appropriate, the court has discretion to award a penalty amounting to less than double damages. Johnson v. Roma II - Waterford LLC,
2013 WI App 38,
346 Wis. 2d 612,
829 N.W.2d 538,
12-1028.
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 the record required under
s. 109.075 (5) (b) and specify the documents that must contain notarized signatures.
109.12(2)
(2) Not later than March 1 annually, submit a written report on its activities in the preceding calendar year related to the enforcement and administration of
ss. 109.07 and
109.075 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.
