111.39 Cross-referenceCross-reference: See also LIRC and ch. DWD 218, Wis. adm. code.
111.39 AnnotationA Department of Industry, Labor and Human Relations 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 AnnotationAn 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 sub. (4) (b)] and former 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) the Department of Industry, Labor and Human Relations 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 AnnotationA court should not use ch. 227 or s. 752.35 to circumvent the policy under s. 111.36 (3m) (c) [now sub. (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 AnnotationA valid offer of reinstatement terminates the accrual of back pay. To constitute a valid offer of reinstatement: 1) the offer must be for the same position or a substantially equivalent position; 2) the offer must be unconditional; 3) the employee must be afforded a reasonable time to respond to the offer; and 4) the offer should come directly from the employer or its agent who is authorized to hire and fire, rather than from another employee or other unauthorized individual. Anderson v. LIRC, 111 Wis. 2d 245, 330 N.W.2d 594 (1983).
111.39 AnnotationPrejudgment interest should be included in back pay awards. Anderson v. LIRC, 111 Wis. 2d 245, 330 N.W.2d 594 (1983).
111.39 AnnotationSub. (1) is a statute of limitations. As such it is an affirmative defense that may be waived. County of Milwaukee v. LIRC, 113 Wis. 2d 199, 335 N.W.2d 412 (Ct. App. 1983).
111.39 AnnotationUnder s. 111.36 (3) (b) [now sub. (4) (c)], the Department of Industry, Labor and Human Relations may award attorney’s fees to a prevailing complainant. Watkins v. LIRC, 117 Wis. 2d 753, 345 N.W.2d 482 (1984).
111.39 AnnotationUnder sub. (1), “filing” does not occur until the complaint is received by the Department of Industry, Labor and Human Relations, and when discrimination “occurred” in termination cases is the date of notice of termination. Hilmes v. DILHR, 147 Wis. 2d 48, 433 N.W.2d 251 (Ct. App. 1988).
111.39 AnnotationThe Wisconsin Personnel Commission may not award costs and attorney’s fees for discovery motions filed against the state under the Wisconsin Fair Employment Act. DOT v. Wisconsin Personnel Commission, 176 Wis. 2d 731, 500 N.W.2d 664 (1993).
111.39 AnnotationVictims 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 AnnotationEvidence 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 AnnotationWhat 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 AnnotationAbbyland, 206 Wis. 2d 309 (1996), clearly held that compensation discrimination is actionable if an employee received payment within the 300-day period before filing the employee’s complaint pursuant to a discriminatory compensation decision. It does not matter that the discriminatory compensation decision was made before the 300-day period, nor does it matter when the employee became aware of the discrimination. Rice Lake Harley Davidson v. LIRC, 2014 WI App 104, 357 Wis. 2d 621, 855 N.W.2d 882, 14-0013.
111.39 AnnotationA prevailing complainant is entitled to reasonable attorney fees under this subchapter. A plaintiff is a prevailing party if the plaintiff succeeds on any significant issue in litigation that achieves some of the benefit the plaintiff sought in bringing suit. That the award of fees must be reasonable did not mean that because the complainant in this case received less than ten percent of the back pay she requested, she was entitled to only ten percent of the attorney fees she requested. Rice Lake Harley Davidson v. LIRC, 2014 WI App 104, 357 Wis. 2d 621, 855 N.W.2d 882, 14-0013.
111.39 AnnotationUnder sub. (5) (b), when a party seeks review of an administrative law judge’s (ALJ) findings or order, the Labor and Industry Review Commission (LIRC) is not bound by the ALJ’s decision. The reviewing court cannot ignore and jump over the findings of LIRC to reach those of the ALJ that were set aside. The role of the court on appeal is to search the record for evidence supporting LIRC’s factual determinations, not to search for evidence against them. Robles v. Thomas Hribar Truck & Equipment, Inc., 2020 WI App 74, 394 Wis. 2d 761, 951 N.W.2d 853, 19-1412.
111.39 AnnotationIn Wisconsin, the general rule is that when an agency acting as an appeal tribunal—here, the Labor and Industry Review Commission (LIRC)—diverges from the hearing examiner—the administrative law judge (ALJ)—as to material findings of facts based on witness credibility, LIRC must hold a credibility conference in order to obtain the ALJ’s impressions concerning the witnesses’ demeanor and credibility. When credibility of witnesses is at issue, it is a denial of due process if the administrative agency making a fact determination does not have the benefit of the findings, conclusions, and impressions of the testimony of each hearing officer who conducted any part of the hearing. LIRC is required to provide an explanation for its disagreement with the ALJ in its memorandum opinion. Robles v. Thomas Hribar Truck & Equipment, Inc., 2020 WI App 74, 394 Wis. 2d 761, 951 N.W.2d 853, 19-1412.
111.39 AnnotationAlthough it is within the Labor and Industry Review Commission’s discretion to award back pay, the availability of back pay is not unlimited. A discharged employee is expected to mitigate the employee’s damages during the period of unemployment, and the award of back pay shall be reduced for interim earnings or amounts earnable with reasonable diligence. It is the employer’s burden to prove that an employee failed to exercise reasonable diligence in mitigating damages. Wingra Redi-Mix Inc. v. LIRC, 2023 WI App 34, 408 Wis. 2d 563, 993 N.W.2d 715, 21-2028.
111.39 AnnotationA proposed rule that would prohibit departmental employees from making public any information obtained under s. 111.36 [now this section] 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. Discussing the open meetings law [now ss. 19.81 to 19.98]. 60 Atty. Gen. 43.
111.39 AnnotationThe 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 AnnotationUnder Title VII of the federal Civil Rights Act, to establish constructive discharge, the plaintiff 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, 124 S. Ct. 2342, 159 L. Ed. 2d 204 (2004).
111.39 AnnotationSex Discrimination Law: Old Problems, New Scrutiny. Larson & Tutwiler. Wis. Law. Apr. 2020.
111.39 AnnotationEmployment Termination: Computing Economic Losses. Baum. Wis. Law. Sept. 2020.
111.395111.395Judicial 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 HistoryHistory: 1977 c. 29, 418; 1981 c. 334 s. 23; Stats. 1981 s. 111.395; 1995 a. 27.
subch. III of ch. 111SUBCHAPTER III
PUBLIC UTILITIES
111.50111.50Declaration 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 AnnotationThe application of the open meetings law to duties of WERC is discussed. 68 Atty. Gen. 171.