The employer executes a statement, provided to the examinee before the test, that sets forth with particularity the specific incident or activity being investigated and the basis for testing particular employees; that is signed by a person, other than a polygraph examiner, authorized legally to bind the employer; that is retained by the employer for at least 3 years; and that identifies the specific economic loss or injury to the business of the employer, indicates that the employee had access to the property that is the subject of the investigation and describes the basis of the employer's reasonable suspicion that the employee was involved in the incident or activity under investigation.
Except as provided in sub. (6)
, this section does not prohibit an employer from administering polygraph tests, or from having polygraph tests administered, on a prospective employee who, if hired, would perform the employer's primary business purpose if the employer's primary business purpose is providing security personnel, armored car personnel or personnel engaged in the design, installation and maintenance of security alarm systems and if the employer protects any of the following:
Facilities, materials or operations that have a significant impact on the public health, safety or welfare of this state or the national security of the United States, including facilities engaged in the production, transmission or distribution of electric or nuclear power; public water supply facilities; shipments or storage of radioactive or other toxic waste materials; and public transportation.
Currency, negotiable securities, precious commodities or instruments and proprietary information.
Except as provided in sub. (6)
, this section does not prohibit a Wisconsin law enforcement agency from administering a polygraph test, or from having a polygraph test administered, on a prospective employee.
Except as provided in sub. (6)
, this section does not prohibit an employer that is authorized to manufacture, distribute or dispense a controlled substance included in schedule I, II, III, IV or V under ch. 961
from administering a polygraph test, or from having a polygraph test administered, if the test is administered to a prospective employee who would have direct access to the manufacture, storage, distribution or sale of the controlled substance or to a current employee if the test is administered in connection with an ongoing investigation of criminal or other misconduct that involves, or potentially involves, loss or injury to the manufacture, distribution or dispensing of the controlled substance by that employer and the employee had access to the person or property that is the subject of the investigation.
(6) Restrictions on use of exemptions. 111.37(6)(a)(a)
The exemption under sub. (5) (a)
does not apply if an employee is discharged, disciplined, denied employment or promotion or otherwise discriminated against on the basis of an analysis of a polygraph test chart or a refusal to take a polygraph test without additional supporting evidence. The evidence required by sub. (5) (a)
may serve as additional supporting evidence.
The exemptions under sub. (5) (b)
do not apply if an analysis of a polygraph test chart is used, or a refusal to take a polygraph test is used, as the sole basis upon which an adverse employment action described in par. (a)
is taken against an employee or prospective employee.
The exemptions under sub. (5) (a)
do not apply unless all of the following requirements are fulfilled:
Throughout all phases of the test the examinee is permitted to end the test at any time; the examinee is not asked questions in a manner that degrades, or needlessly intrudes on, the examinee; the examinee is not asked any question about religious beliefs or affiliations, political beliefs or affiliations, sexual behavior, beliefs or opinions on racial matters, or about beliefs, affiliations, opinions, or lawful activities regarding unions or labor organizations; and the examiner does not conduct the test if there is sufficient written evidence provided by a physician that the examinee is suffering from a medical or psychological condition or undergoing treatment that might cause abnormal responses during the testing.
Before the test is administered the prospective examinee is provided with reasonable oral and written notice of the date, time and location of the test, and of the examinee's right to obtain and consult with legal counsel or an employee representative before each phase of the test; is informed orally and in writing of the nature and characteristics of the tests and of the instruments involved; is informed orally and in writing whether or not the testing area contains a 2-way mirror, a camera or any other device through which the test can be observed; is informed orally and in writing whether or not any device other than the polygraph, including any device for recording or monitoring the test, will be used; is informed orally and in writing that the employer or the examinee may, after so informing the examinee, make a recording of the test; is read and signs a written notice informing the examinee that the examinee cannot be required to take the test as a condition of employment, that any statement made during the test may constitute additional supporting evidence for the purposes of an adverse employment action under par. (a)
, of the limitations on the use of a polygraph test under this subsection, of the legal rights and remedies available to the examinee under this section and ss. 905.065
, of the legal rights and remedies available to the examinee if the polygraph test is not conducted in accordance with this section and of the legal rights and remedies of the employer under this section; is provided an opportunity to review all questions to be asked during the test; and is informed of the right to end the test at any time.
The examiner does not ask the examinee any question during the test that was not presented in writing for review to the examinee before the test.
Before any adverse employment action, the employer interviews the examinee on the basis of the results of the test; provides the examinee written copies of any opinion or conclusion rendered as a result of the test, the questions asked during the test and the corresponding charted responses; and offers the examinee the opportunity to explain any questionable responses or to retake the examination or both. If the subsequent responses or the reexamination clarify any questionable response, the results of the initial tests shall not be reported further and shall be removed, corrected or clarified in the employee's personnel records under s. 103.13 (4)
The examiner does not conduct and complete more than 5 polygraph tests on any day and does not conduct any polygraph test that lasts for less than 90 minutes.
The test is administered at a reasonable time and location.
The exemptions under sub. (5) (a)
do not apply unless the individual who conducts the polygraph test satisfies all of the following requirements:
Maintains at least a $50,000 bond or an equivalent amount of professional liability coverage.
Renders no opinion or conclusion about the test unless it is in writing and based solely on an analysis of polygraph test charts, does not contain information other than admissions, information, case facts and interpretation of the charts relevant to the purpose and stated objectives of the test, and does not include any recommendation concerning the employment of the examinee.
Maintains all opinions, reports, charts, written questions, lists and other records relating to the test for at least 3 years after administration of the test.
(7) Disclosure of information.
No person other than the examinee may disclose information obtained during a polygraph test, except that a polygraph examiner may disclose information acquired from a polygraph test to the examinee or any other person specifically designated in writing by the examinee.
In addition to the rights, remedies and procedures under ss. 111.375
, any employer who violates this section may be required to forfeit not more than $10,000.
The rights, remedies and procedures provided by this section may not be waived by contract or otherwise, unless that waiver is part of a written settlement agreed to and signed by the parties to an action or complaint under this section.
History: 1979 c. 319
; 1981 c. 334
; Stats. 1981 s. 111.37; 1991 a. 289
; 1995 a. 314
; 1997 a. 35
Local ordinance; collective bargaining agreements. Section 111.37
does not do any of the following:
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
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
History: 1991 a. 289
Use of genetic testing in employment situations. 111.372(1)(1)
No employer, labor organization, employment agency or licensing agency may directly or indirectly:
Solicit, require or administer a genetic test to any person as a condition of employment, labor organization membership or licensure.
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.
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.
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.
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:
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.
History: 1991 a. 117
The New Genetic World and the Law. Derse. Wis. Law. April 2001.
Department to administer. 111.375(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.
This subchapter applies to each agency of the state.
See also ch. DWD 218
, Wis. adm. code.
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).
Investigation and study of discrimination.
Except as provided under s. 111.375 (2)
, the department shall:
Investigate the existence, character, causes and extent of discrimination in this state and the extent to which the same is susceptible of elimination.
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.
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.
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.
Make specific and detailed recommendations to the interested parties as to the methods of eliminating discrimination.
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.
History: 1977 c. 196
; 1981 c. 334
, 25 (2)
; Stats. 1981 s. 111.38.
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:
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
If an order issued under sub. (4)
is unenforceable against any labor organization in which membership is a privilege, an employer with whom the labor organization has an enforceable all-union agreement shall not be held accountable under this chapter if the employer is not responsible for the discrimination, the unfair honesty testing, or the unfair genetic testing.
See also LIRC and ch. DWD 218
, Wis. adm. code.
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
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
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).
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
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).
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
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).
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
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
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
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
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.
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.
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
clearly held that compensation discrimination is actionable if an employee received payment within the 300-day period before filing his or her 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. Labor and Industry Review Commission, 2014 WI App 104
, 357 Wis. 2d 621
, 855 N.W.2d 882
A prevailing complainant is entitled to reasonable attorney fees under subch. II of ch. 111. A plaintiff is a prevailing party if he or she succeeds on any significant issue in litigation that achieves some of the benefit he or she 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 10 percent of the back pay she requested, she was entitled to only 10 percent of the attorney fees she requested. Rice Lake Harley Davidson v. Labor and Industry Review Commission, 2014 WI App 104
, 357 Wis. 2d 621
, 855 N.W.2d 882
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
and may be enforced as provided in s. 103.005 (11)
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.
History: 1977 c. 29
; 1981 c. 334
; Stats. 1981 s. 111.395; 1995 a. 27