2015 - 2016 LEGISLATURE
SENATE AMENDMENT 3,
TO SENATE BILL 44
February 25, 2015 - Offered by Senators Erpenbach, Shilling,
Miller, Vinehout, Ringhand, Bewley, Harris Dodd, C. Larson, L. Taylor,
Wirch, Hansen and Lassa.
103.11 of the statutes is created to read:
6103.11 Wrongful discharge from employment. (1) Definitions.
In this 7
(a) "Constructive discharge" means the voluntary termination of employment 9
by an employee because of a situation created by an act or omission of his or her 10
employer that an objective, reasonable person would find so intolerable that 11
voluntary termination is the only reasonable alternative. "Constructive discharge" 12
does not include voluntary termination because of an employer's refusal to promote
the employee or improve wages, responsibilities, or other terms and conditions of 2
(b) "Discharge" means any termination of employment, including resignation, 4
elimination of a job, layoff for lack of work, failure to recall or rehire, and any other 5
reduction in the number of employees for a legitimate business reason. "Discharge" 6
includes a constructive discharge.
(c) "Employee" means a person who performs labor for an employer for 8
(d) "Employer" means a person engaging in any activity, enterprise, or business 10
in this state employing one or more persons on a permanent basis. "Employer" 11
includes the state and any office, department, independent agency, authority, 12
institution, association, society, or other body in state government created or 13
authorized to be created by the constitution or any law, including the legislature and 14
(e) "Good cause" means reasonable, job-related grounds for dismissal based on 16
a failure to satisfactorily perform job duties, disruption of the employer's operation, 17
or any other legitimate business reason.
(f) "Lost fringe benefits" means the value of any employer-paid vacation leave, 19
sick leave, health insurance plan, disability insurance plan, life insurance plan, and 20
pension benefit plan in force on the date of termination of employment that the 21
employee would have received had the employee not been discharged.
(g) "Lost wages" means the gross amount of wages that would have been 23
reported to the Internal Revenue Service as gross income on form W-2 had the 24
employee not been discharged and includes additional compensation deferred at the 25
option of the employee.
(h) "Probationary period" means a period of 6 months from the date an 2
employee is hired, unless the employer, at the time the employee is hired, expressly 3
provides for a shorter probationary period or for no probationary period, in which 4
case "probationary period" means that period so provided.
(i) "Public policy" means a policy in effect at the time of the discharge 6
concerning the public health, safety, or welfare established by constitutional 7
provision, statute, or administrative rule or regulation.
(j) "Wrongful discharge" means a discharge from employment that is unfair for 9
a reason specified in sub. (2) (b) or that is for a wrongful reason specified in sub. (2) 10
11(2) Wrongful discharge; exceptions.
(a) No employer may discharge an 12
employee unfairly or for any wrongful reason, except that this prohibition does not 13
apply to any of the following:
1. A discharge that the employee has chosen to contest under any other state 15
or federal law that provides a procedure or remedy for contesting the discharge.
2. A discharge that is covered by a written collective bargaining agreement.
3. A discharge that is covered by a written contract of employment for a specific 18
4. A discharge of an employee who any other state or federal law specifically 20
provides is an employee at will or is to serve at the pleasure of a public official or other 21
(b) Paragraph (a) does not preclude an employer from discharging an employee 23
for a violation of a work rule or performance standard if the procedures used to 24
discharge the employee are fair. For purposes of par. (a), a discharge of an employee
for a violation of a work rule or performance standard is unfair if any of the following 2
1. The work rule or performance standard was not made known to the employee 4
prior to the discharge.
2. The employer failed to enforce the work rule or performance standard in 6
similar situations for a prolonged period.
3. The employer did not conduct an interview with the employee, or hold a 8
hearing, concerning the violation prior to the discharge, did not conduct that 9
interview or hearing promptly after the violation, or did not provide the employee 10
with a precise description of the conduct constituting the violation.
4. The employer did not prove by clear and convincing evidence that the 12
employee committed the violation.
5. The violation is the same as or substantially similar to a violation committed 14
by another employee who was not discharged for committing the same or a 15
substantially similar violation.
6. Unless the violation is egregious, the employer failed to first apply a less 17
drastic form of discipline for the violation.
7. The discharge is disproportionate to the gravity of the violation, taking into 19
consideration any mitigating or aggravating circumstances.
(c) For purposes of par. (a), a discharge is for a wrongful reason if any of the 21
1. The discharge was in retaliation for the employee's refusal to violate a public 23
policy or reporting a violation of a public policy.
2. The employer violated the express provisions of its own written personnel 25
3. Except as provided in par. (d), the discharge was not for good cause.
(d) Paragraph (c) 2. does not apply to a discharge that occurs during a 3
probationary period of employment. During a probationary period of employment, 4
employment may be terminated at the will of either the employer or the employee 5
on notice to the other for any reason or for no reason, except as provided in par. (b) 6
or (c) 1. or 3. or as otherwise provided by law.
(a) Subject to par. (c), an employee may bring an action in circuit 8
court alleging a wrongful discharge committed by an employer in violation of sub. (2). 9
In any such action the employer has the burden of proving by clear and convincing 10
evidence that the employee was discharged fairly and not for a wrongful reason.
(b) If a court in an action filed under par. (a) finds that an employer has 12
committed a wrongful discharge, the court may award the employee lost wages and 13
lost fringe benefits for a period not to exceed 4 years from the date of discharge, 14
together with interest on the lost wages and lost fringe benefits and reasonable costs 15
and attorney fees incurred in the action, and may order such other action as will 16
effectuate the purpose of this section. The court shall deduct from the award interim 17
earnings, including amounts the employee could have earned with reasonable 18
diligence, except that before interim earnings are deducted from lost wages, the court 19
shall deduct from the interim earnings any reasonable amounts expended by the 20
employee in searching for, obtaining, or relocating to new employment. If the court 21
awards lost wages and lost fringe benefits under this paragraph and finds that the 22
standard under s. 895.043 (3) is violated, the court may also order the payment of 23
punitive damages based on that award in accordance with s. 895.043.
(c) 1. Subject to subds. 2. and 3., an action under par. (a) shall be commenced 25
within one year after the date of discharge, or be barred.
2. Except as provided in subd. 3., if an employer maintains written internal 2
procedures under which an employee may appeal a discharge within the 3
organizational structure of the employer, the employee shall first exhaust those 4
procedures prior to filing an action under par. (a). The employee's failure to initiate 5
or exhaust available internal procedures is a defense to an action brought under par. 6
(a). If the employer's internal procedures are not completed within 90 days after the 7
date the employee initiates the internal procedures, the employee may file an action 8
under par. (a) and for purposes of this subdivision the employer's internal procedures 9
are considered exhausted. The limitation period in subd. 1. is tolled until the 10
procedures are exhausted, except that in no case may the provisions of the employer's 11
internal procedures extend the limitation period under subd. 1. by more than 120 12
3. If the employer maintains written internal procedures under which an 14
employee may appeal a discharge within the organizational structure of the 15
employer, the employer shall, within 7 days after the date of the discharge, notify the 16
discharged employee of the existence of those procedures and shall supply the 17
discharged employee with a copy of those procedures. If an employer to which this 18
subdivision applies fails to comply with this subdivision, the discharged employee 19
need not comply with subd. 2.
20(4) Preemption of common-law remedies.
Except as provided in this section, 21
no claim for discharge may arise from tort or express or implied contract.".
814.04 (intro.) of the statutes is amended to read:
1814.04 Items of costs.
(intro.) Except as provided in ss. 93.20, 100.195 (5m) 2
(b), 100.30 (5m), 103.11 (3) (b),
106.50 (6) (i) and (6m) (a), 115.80 (9), 767.553 (4) (d), 3
769.313, 802.05, 814.245, 895.035 (4), 895.044, 895.443 (3), 895.444 (2), 895.445 (3), 4
895.446 (3), 895.506, 943.212 (2) (b), 943.245 (2) (d), 943.51 (2) (b), and 995.10 (3), 5
when allowed costs shall be as follows:
893.43 of the statutes is amended to read:
7893.43 Action on contract. An Except as provided in ss. 893.40 and 893.995,
action upon any contract, obligation,
or liability, express or implied, including an 9
action to recover fees for professional services, except those mentioned in s. 893.40, 10
shall be commenced within 6 years after the cause of action accrues or be barred.
893.995 of the statutes is created to read:
12893.995 Wrongful discharge; civil remedy.
Any civil action arising under 13
s. 103.11 is subject to the limitations of s. 103.11 (3) (c).".