Public policy as to labor litigation.
In the interpretation and application of ss. 103.56
, the public policy of this state is declared to be:
Equity procedure that permits a complaining party to obtain sweeping injunctive relief that is not preceded by or conditioned upon notice to and hearing of the responding party or parties, or that issues after hearing based upon written affidavits alone and not wholly or in part upon examination, confrontation and cross-examination of witnesses in open court, is peculiarly subject to abuse in labor litigation for all of the following reasons:
That the existing state of affairs cannot be maintained but is necessarily altered by the injunction.
That determination of issues of veracity and of probability of fact from affidavits of the opposing parties that are contradictory and, under the circumstances, untrustworthy rather than from oral examination in open court is subject to grave error.
That error in issuing the injunctive relief is usually irreparable to the opposing party.
That delay incident to the normal course of appellate practice frequently makes ultimate correction of error in law or in fact unavailing in the particular case.
Injunctions: conditions of issuance; restraining orders. 103.56(1)(1)
No court shall have jurisdiction to issue a temporary or permanent injunction in any case involving or growing out of a labor dispute, except after hearing the testimony of witnesses in open court, with opportunity for cross-examination, in support of the allegations of a complaint made under oath, and testimony in opposition to the allegations of the complaint, if offered, and except after findings of all of the following facts by the court:
That unlawful acts have been threatened or committed and will be executed or continued unless restrained.
That substantial and irreparable injury to complainant's property will follow unless the relief requested is granted.
That as to each item of relief granted greater injury will be inflicted upon the complainant by the denial of that relief than will be inflicted upon the defendants by the granting of that relief.
That the complainant has no adequate remedy at law.
That the public officers charged with the duty to protect complainant's property have failed or are unable to furnish adequate protection.
A hearing under sub. (1)
shall be held after due and personal notice of the hearing has been given, in the manner that the court shall direct, to all known persons against whom relief is sought, and also to those public officers who are charged with the duty to protect the complainant's property.
If a complainant alleges that a substantial and irreparable injury to the complainant's property will be unavoidable unless a temporary restraining order is issued before a hearing under sub. (1)
may be had, a temporary restraining order may be granted on reasonable notice of application for the temporary restraining order as the court may direct by order to show cause, but in no case less than 48 hour's notice. The order to show cause shall be served upon the party or parties that are sought to be restrained and that are specified in the order. The order shall be issued only upon testimony under oath or, in the discretion of the court, upon affidavits, sufficient, if sustained, to justify the court in issuing a temporary injunction upon a hearing as provided for under this section.
A temporary restraining order issued under sub. (3)
shall be effective for no longer than 5 days and, at the expiration of the 5-day period, shall become void and not subject to renewal or extension, except that if the hearing for a temporary injunction begins before the expiration of the 5-day period the restraining order may in the court's discretion be continued until a decision is reached on the issuance of the temporary injunction.
No temporary restraining order or temporary injunction may be issued under this section except on condition that the complainant first files an undertaking with adequate security sufficient to compensate those enjoined for any loss, expense, or damage caused by the improvident or erroneous issuance of the order or injunction, including all reasonable costs, reasonable attorney fees and expenses that will be incurred in opposing the order or the granting of any injunctive relief sought in the same proceeding and subsequently denied by the court.
The undertaking required under sub. (5)
shall represent an agreement between the complainant and the surety upon which a decree may be rendered in the same suit or proceeding against the complainant and surety, the complainant and surety submitting themselves to the jurisdiction of the court for that purpose. However, nothing contained in this section deprives any party having a claim or cause of action under or upon an undertaking filed under sub. (5)
from electing to pursue an ordinary remedy by suit at law or in equity.
Sub. (1) and s. 103.62 [now s. 103.505], relating to limitations upon the jurisdiction of a court to issue injunctions in cases arising from labor disputes, are inapplicable to actions brought by the state or its political subdivisions against public employees. Joint School v. Wisconsin Rapids Education Association, 70 Wis. 2d 292
, 234 N.W.2d 289
Clean hands doctrine.
No restraining order or injunctive relief may be granted to any complainant who has failed to comply with any legal obligation which is involved in the labor dispute in question, or who has failed to make every reasonable effort to settle the dispute either by negotiation or with the aid of any available machinery of governmental mediation or voluntary arbitration, but nothing in this section requires a court to await the action of any such tribunal if irreparable injury is threatened.
History: 1997 a. 253
Except as provided in s. 103.56
, any restraining order or temporary or permanent injunction granted in a case involving or growing out of a labor dispute is subject to all of the following:
The order or injunction may be granted only on the basis of findings of fact made and filed by the court in the record of the case prior to the issuance of the order or injunction.
The order or injunction shall include only a prohibition of those specific acts that are expressly complained of in the bill of complaint or petition filed in the case and expressly included in findings of fact made and filed by the court as provided under sub. (1)
The order or injunction shall be binding only upon the parties to the suit, their agents, servants, employees and attorneys, or those in active concert and participation with them, who by personal service or otherwise have received actual notice of the order or injunction.
History: 1997 a. 253
If any court issues or denies any temporary injunction in a case involving or growing out of a labor dispute, the court shall, upon the request of any party to the proceedings, and on filing the usual bond for costs, immediately certify the entire record of the case, including a transcript of the evidence taken, to the appropriate appellate court for its review. Upon the filing of the record in the appropriate appellate court, the appeal shall be given preference.
History: 1983 a. 219
; 1997 a. 253
If a person is charged with contempt under this chapter for violation of a restraining order or injunction issued by a court, the accused shall enjoy all of the following:
The rights to bail that are accorded to persons accused of a crime.
The right to be notified of the accusation and a reasonable time to make a defense, if the alleged contempt is not committed in the immediate view or presence of the court.
Upon demand, the right to a speedy and public trial by an impartial jury of the county in which the contempt was committed, except that this requirement does not apply to contempts committed in the presence of the court or so near to the court as to interfere directly with the administration of justice or to the misbehavior, misconduct or disobedience of any officer of the court in respect to the writs, orders or process of the court. All contempt proceedings brought for the alleged violation of any such restraining order or injunction are independent, original, special proceedings and shall require a unanimous finding of the jury.
A substitution of judge request in this section shall be made under s. 801.58
A jury trial is required in cases of criminal contempt when the penalty imposed is serious, but a striker charged with civil contempt for violation of an order enjoining a teachers strike was not entitled to a jury trial. Joint School v. Wisconsin Rapids Education Association, 70 Wis. 2d 292
, 234 N.W.2d 289
Punishment for contempt.
Punishment for a contempt, specified in s. 103.60
, may be by fine, not exceeding $25, or by imprisonment not exceeding 10 days, in the jail of the county where the court is sitting, or both, in the discretion of the court. If a person is committed to jail for the nonpayment of a fine imposed under this section, the person must be discharged at the expiration of 15 days except that if the person is also committed for a definite time the 15 days must be computed from the expiration of the definite time.
History: 1993 a. 492
; 1997 a. 253
“Nonprofit organization" means an organization described in section 501
(c) of the internal revenue code.
“Permit officer" means a person designated by the department to issue permits authorizing the employment of minors.
General standards for employment of minors. 103.65(1)(1)
A minor shall not be employed or permitted to work at any employment or in any place of employment dangerous or prejudicial to the life, health, safety, or welfare of the minor or where the employment of the minor may be dangerous or prejudicial to the life, health, safety or welfare of other employees or frequenters.
No minor under 16 years of age may be employed or permitted to work at any employment for such hours of the day or week, for such days of the week, or at such periods of the day as may be dangerous or prejudicial to the life, health, safety, or welfare of the minor.
History: 1971 c. 271
; 2011 a. 32
The plaintiff was in a class protected by a rule promulgated under this section; the court did not err in giving a “negligence per se" instruction. McGarrity v. Welch Plumbing Co. 104 Wis. 2d 414
, 312 N.W.2d 37
The trial court erred in failing to hold as a matter of law that the employer's violation of child labor laws caused injury and that the defense of the child's contributory negligence was inapplicable to the case. D. L. v. Huebner, 110 Wis. 2d 581
, 329 N.W.2d 890
An employer violating a child labor law is absolutely liable for resulting injuries to the minor, other employees, or frequenters of a place of employment. A driver on a public street may be a frequenter when the employment is in a street trade. Beard v. Lee Enterprises, Inc. 225 Wis. 2d 1
, 591 N.W.2d 156
A minor who paid an entry fee to participate in a featured truck race at a raceway was not an employee of the raceway. Olson v. Auto Sport, Inc. 2002 WI App 206
, 257 Wis. 2d. 298, 651 N.W.2d 328
Powers and duties of the department relating to employment of minors. 103.66(1)(1)
The department may investigate, determine and fix reasonable classifications of employments, places of employment and minimum ages for hazardous employment for minors, and may issue general or special orders prohibiting the employment of minors in employments or places of employment prejudicial to the life, health, safety or welfare of minors, and may carry out the purposes of ss. 103.64
. In fixing minimum ages for hazardous employment for minors under this subsection, the department shall do all of the following:
Permit the employment of a minor 14 years of age or over as a laboratory assistant for a nonprofit, community-based organization that provides educational opportunities in medically related fields if the minor is under the direct supervision of a mentor and the laboratory at which the minor is employed complies with 10 CFR 20.1207
and 29 CFR 1910.1030
Permit the employment of a minor 15 years of age or over as a lifeguard. The department shall require that an adult employee be present on the premises whenever a 15-year-old is employed as a lifeguard and shall require any minor to have successfully completed a bona fide life saving course in order to be employed as a lifeguard.
The department may investigate and fix reasonable classifications of employments and hours of employment for minors under 16 years of age and may issue general or special orders fixing for those minors maximum hours of employment per day and per week, maximum days of employment per week, hours at which employment may begin and end, and the duration of lunch and other rest periods as are necessary to protect the life, health, safety, and welfare of those minors. For minors under 16 years of age, the department may not fix hours of employment that exceed the maximum hours per day and per week specified in s. 103.68 (2) (a)
, that exceed the maximum days per week specified in s. 103.68 (2) (c)
, or that begin earlier or end later than the hours specified in s. 103.68 (2) (d)
. For minors 16 years of age or over, the department may fix the duration of lunch and other rest periods, but may not limit hours of employment or issue general or special orders fixing maximum hours of employment per day or per week, maximum days of employment per week, or hours at which employment may begin and end.
The investigations, classifications and orders provided for in subs. (1)
shall be made as provided under s. 103.005
. These orders are subject to review as provided in ch. 227
See also ch. DWD 270
, Wis. adm. code.
An occupation must be listed as a prohibited employment in rules adopted by DWD under s. 103.66 for there to be absolute liability. Perry v. Menomonee Mutual Insurance Co. 2000 WI App 215
, 239 Wis. 2d 26
, 619 N.W.2d 2
d 123, 00-0184
Minimum ages in various employments. 103.67(1)(1)
A minor 14 to 18 years of age may not be employed or permitted to work in any gainful occupation during the hours that the minor is required to attend school under s. 118.15
unless the minor has completed high school, except that any minor may be employed in a public exhibition as provided in s. 103.78
and a minor 16 years of age or over may be employed as an election inspector as provided in s. 7.30 (2) (am)
A minor under 14 years of age may not be employed or permitted to work in any gainful occupation at any time, except that a minor under 14 years of age may be employed or permitted to work as follows to the extent permitted under the federal Fair Labor Standards Act, 29 USC 201
Minors 12 years of age or older may be employed in school lunch programs of the school which they attend.
Minors under 14 years of age may be employed in public exhibitions as provided in s. 103.78
Minors 12 years of age or older may be employed in street trades, and any minor may work in fund-raising sales for nonprofit organizations, public schools, private schools, or tribal schools, as provided in ss. 103.21
Minors 12 and 13 years of age may provide caddy services.
Minors 12 years of age or older may be employed in farming.
Minors 12 years of age or older may be employed in and around a home in work usual to the home of the employer, if the work is not in connection with or a part of the business, trade or profession of the employer and the type of employment is not specifically prohibited by ss. 103.64
or by any order of the department.
A minor 12 years of age or older may be employed by a nonprofit organization in and around the home of an elderly person or a person with a disability to perform snow shoveling, lawn mowing, leaf raking, or other similar work usual to the home of the elderly person or person with a disability, if all of the following apply:
The work is not in connection with or a part of the business, trade, or profession of that person.
The minor is paid the applicable minimum wage under s. 104.035
or under federal law, whichever is greater, for the work.
The minor's parent or guardian provides the nonprofit organization with his or her written consent for the minor to perform the work.
Unless prohibited under s. 103.65
, minors of any age may be employed under the direct supervision of the minor's parent or guardian in connection with the parent's or guardian's business, trade, or profession.
Minors 12 and 13 years of age may be employed as sideline officials for high school football games.
Minors 12 and 13 years of age may be employed under direct adult supervision as officials for athletic events sponsored by private, nonprofit organizations in which the minor would be eligible to participate or in which the participants are the same age as or younger than the minor.
Minors 11 to 13 years of age may be employed as ball monitors at high school football games and practices.
Minors under 14 years of age may be employed as participants in a restitution project under s. 938.245 (2) (a) 5.
, 938.32 (1t) (a)
, 938.34 (5)
, or 938.345
, in a supervised work program or other community service work under s. 938.245 (2) (a) 6.
, 938.32 (1t) (b)
, 938.34 (5g)
, 938.343 (3)
, or 938.345
, or in the community service component of a youth report center program under s. 938.245 (2) (a) 9m.
, 938.32 (1p)
, 938.34 (7j)
, 938.342 (1d) (c)
or (1g) (k)
, 938.343 (3m)
, 938.344 (2g) (a) 5.
, or 938.355 (6) (d) 5.
or (6m) (a) 4.
do not apply to the employment of a minor engaged in domestic or farm work performed outside school hours in connection with the minor's own home and directly for the minor's parent or guardian.
See also ch. DWD 270
, Wis. adm. code.
An injured minor cannot be charged with contributory negligence when the child's employment is in violation of a child labor law. Tisdale v. Hasslinger, 79 Wis. 2d 194
, 255 N.W.2d 314