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Unlike the Cost of Gas, the Cost of Employment Litigation Has Gone Down:
Legislation Repeals Monetary Awards For Discrimination Cases in Wisconsin
Employers in Wisconsin, already faced with litigation costs to defend discrimination claims, will no longer be subject to paying compensatory and punitive damages to employees who prevail in their complaints under Wisconsin law. The recently passed Senate Bill 202 (SB 202) will restore the pre-July 2009 provisions of the Wisconsin Fair Employment Act (WFEA) and limit remedies to back pay, reinstatement or front pay, interest, costs and attorney fees.

The Wisconsin Fair Employment Act
Under the WFEA, it is unlawful for public and private employers to refuse to hire, discharge, promote, compensate, or otherwise discriminate against an individual, in any term or condition of employment, because of a person’s protected class. Protected categories include an individual's age, race, creed, color, disability, marital status, sex, sexual orientation, national origin, ancestry, arrest or conviction record, military service, use or nonuse of a lawful product off the employer's premises during non-working hours, or based on the use of unfair honesty or genetic testing. Remedies for individuals who prevail in their claims alleging violations of the Act include back pay, reinstatement or front pay, interests, costs and attorney fees.

The Equal Pay Enforcement Act (Wisconsin Act 20)
SB 202 was introduced specifically to restore the provisions of the WFEA by repealing the additional remedies provided in the Equal Pay Enforcement Act (Wisconsin Act 20), a bill which took effect on July 2, 2009. The Equal Pay Enforcement Act was created to give workers more avenues to press charges by allowing individuals to plead their cases in the less costly, more accessible state circuit court system, rather than just in federal court. It also provided stronger penalties for employers who were found guilty of discrimination by allowing Complainants who received findings of discrimination, and who pursued all administrative and judicial appeals, to file an action in state court to obtain additional damages in the form of compensatory and punitive awards. These additional awards would have ranged from $50,000 to $300,000, subject to limits based on the size of the employer, plus additional costs and attorney fees.

Senate Bill 202
SB 202 repeals the additional remedies provided by the 2009 Equal Pay Enforcement Act. Under the new law, employees who file claims with the Wisconsin Department of Workforce Development (DWD) alleging that they were discriminated against in employment or subjected to unfair honesty or genetic testing, in violation of the WFEA, will no longer be able to file a lawsuit in state court to obtain additional awards in the form of compensatory and punitive damages if they prevail in their agency-based claims. Following in the steps of the Senate, on February 21, 2012, the Assembly voted to pass SB 202 by a margin of 60-35 with the vote following party lines. The Senate previously approved the bill on November 3, 2011, with all 17 Republican members voting in favor of the legislation and all 16 Democrats opposing it.

Wisconsin business organizations, including the Wisconsin chapter of the National Federation of Independent Business, strongly supported the legislation, which reduces litigation costs for Wisconsin employers, allowing them to invest in their businesses and retain or hire more employees. However, opponents of SB 202 claimed that this bill hurts all Wisconsin workers, but especially older employees, many of whom are highly skilled but have been unemployed due to the downturn in the economy, and women. The Wisconsin Alliance for Women’s Health estimates that families in the state lose more than $4,000 per year due to unequal pay. Based on 2010 U.S. Census data, two-thirds of Wisconsin households are headed by single women and women in Wisconsin earn 75 cents for every dollar that men make—an average of $11,201 less per year than men.

Impact of the Law
Governor Walker is expected to sign the bill into law soon and it will become effective one day after signing. In a unique twist, SB 202 will not only apply to all future cases filed after the bill becomes law, but also to pending complaints in which a decision has not yet been issued by an Administrative Law Judge (ALJ) at the DWD or, if an ALJ’s decision has been appealed, by the Labor and Industry Review Commission (LIRC), by the date the law takes effect. Compensatory and punitive damages remain potential remedies for claims made under federal law that are pursued in state or federal court.

Krukowski & Costello, S.C. provided guidance to the co-sponsors of the bill and business organizations that supported the legislation. If you have any questions regarding the legislation and its impact on discrimination claims, please call me at 414-988-8404 or send an e-mail to me at tpk@kclegal.com.

Posted 3/19/12. 
 
If you have any questions or comments, please contact me at 414-423-1330 or via e-mail at: tpk@kclegal.com
 
 
Thomas P. Krukowski, Esq.
Krukowski & Costello, S.C.
http://www.krukowski.com/
 
Legislative Partner

Krukowski &
Costello
 
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Margie Harvey

Margie Harvey, SPHR
Miles Kimball Company 
250 City Center
Oshkosh, WI  54906
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Em: mharvey@mileskimball.com

 
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