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LRBa0070/1
GMM:jld:rs
2015 - 2016 LEGISLATURE
SENATE AMENDMENT 3,
TO SENATE BILL 44
February 25, 2015 - Offered by Senators Erpenbach, Shilling, Risser, Carpenter,
Miller, Vinehout, Ringhand, Bewley, Harris Dodd, C. Larson, L. Taylor,
Wirch, Hansen and Lassa.
SB44-SA3,1,11 At the locations indicated, amend the bill as follows:
SB44-SA3,1,3 21. Page 1, line 5: before "and providing" insert ", wrongful discharge from
3employment,".
SB44-SA3,1,4 42. Page 1, line 7: before that line insert:
SB44-SA3,1,5 5" Section 1. 103.11 of the statutes is created to read:
SB44-SA3,1,7 6103.11 Wrongful discharge from employment. (1) Definitions. In this
7section:
SB44-SA3,2,28 (a) "Constructive discharge" means the voluntary termination of employment
9by an employee because of a situation created by an act or omission of his or her
10employer that an objective, reasonable person would find so intolerable that
11voluntary termination is the only reasonable alternative. "Constructive discharge"
12does not include voluntary termination because of an employer's refusal to promote

1the employee or improve wages, responsibilities, or other terms and conditions of
2employment.
SB44-SA3,2,63 (b) "Discharge" means any termination of employment, including resignation,
4elimination of a job, layoff for lack of work, failure to recall or rehire, and any other
5reduction in the number of employees for a legitimate business reason. "Discharge"
6includes a constructive discharge.
SB44-SA3,2,87 (c) "Employee" means a person who performs labor for an employer for
8compensation.
SB44-SA3,2,149 (d) "Employer" means a person engaging in any activity, enterprise, or business
10in this state employing one or more persons on a permanent basis. "Employer"
11includes the state and any office, department, independent agency, authority,
12institution, association, society, or other body in state government created or
13authorized to be created by the constitution or any law, including the legislature and
14the courts.
SB44-SA3,2,1715 (e) "Good cause" means reasonable, job-related grounds for dismissal based on
16a failure to satisfactorily perform job duties, disruption of the employer's operation,
17or any other legitimate business reason.
SB44-SA3,2,2118 (f) "Lost fringe benefits" means the value of any employer-paid vacation leave,
19sick leave, health insurance plan, disability insurance plan, life insurance plan, and
20pension benefit plan in force on the date of termination of employment that the
21employee would have received had the employee not been discharged.
SB44-SA3,2,2522 (g) "Lost wages" means the gross amount of wages that would have been
23reported to the Internal Revenue Service as gross income on form W-2 had the
24employee not been discharged and includes additional compensation deferred at the
25option of the employee.
SB44-SA3,3,4
1(h) "Probationary period" means a period of 6 months from the date an
2employee is hired, unless the employer, at the time the employee is hired, expressly
3provides for a shorter probationary period or for no probationary period, in which
4case "probationary period" means that period so provided.
SB44-SA3,3,75 (i) "Public policy" means a policy in effect at the time of the discharge
6concerning the public health, safety, or welfare established by constitutional
7provision, statute, or administrative rule or regulation.
SB44-SA3,3,108 (j) "Wrongful discharge" means a discharge from employment that is unfair for
9a reason specified in sub. (2) (b) or that is for a wrongful reason specified in sub. (2)
10(c).
SB44-SA3,3,13 11(2) Wrongful discharge; exceptions. (a) No employer may discharge an
12employee unfairly or for any wrongful reason, except that this prohibition does not
13apply to any of the following:
SB44-SA3,3,1514 1. A discharge that the employee has chosen to contest under any other state
15or federal law that provides a procedure or remedy for contesting the discharge.
SB44-SA3,3,1616 2. A discharge that is covered by a written collective bargaining agreement.
SB44-SA3,3,1817 3. A discharge that is covered by a written contract of employment for a specific
18term.
SB44-SA3,3,2119 4. A discharge of an employee who any other state or federal law specifically
20provides is an employee at will or is to serve at the pleasure of a public official or other
21appointing authority.
SB44-SA3,4,222 (b) Paragraph (a) does not preclude an employer from discharging an employee
23for a violation of a work rule or performance standard if the procedures used to
24discharge the employee are fair. For purposes of par. (a), a discharge of an employee

1for a violation of a work rule or performance standard is unfair if any of the following
2applies:
SB44-SA3,4,43 1. The work rule or performance standard was not made known to the employee
4prior to the discharge.
SB44-SA3,4,65 2. The employer failed to enforce the work rule or performance standard in
6similar situations for a prolonged period.
SB44-SA3,4,107 3. The employer did not conduct an interview with the employee, or hold a
8hearing, concerning the violation prior to the discharge, did not conduct that
9interview or hearing promptly after the violation, or did not provide the employee
10with a precise description of the conduct constituting the violation.
SB44-SA3,4,1211 4. The employer did not prove by clear and convincing evidence that the
12employee committed the violation.
SB44-SA3,4,1513 5. The violation is the same as or substantially similar to a violation committed
14by another employee who was not discharged for committing the same or a
15substantially similar violation.
SB44-SA3,4,1716 6. Unless the violation is egregious, the employer failed to first apply a less
17drastic form of discipline for the violation.
SB44-SA3,4,1918 7. The discharge is disproportionate to the gravity of the violation, taking into
19consideration any mitigating or aggravating circumstances.
SB44-SA3,4,2120 (c) For purposes of par. (a), a discharge is for a wrongful reason if any of the
21following applies:
SB44-SA3,4,2322 1. The discharge was in retaliation for the employee's refusal to violate a public
23policy or reporting a violation of a public policy.
SB44-SA3,4,2524 2. The employer violated the express provisions of its own written personnel
25policy.
SB44-SA3,5,1
13. Except as provided in par. (d), the discharge was not for good cause.
SB44-SA3,5,62 (d) Paragraph (c) 2. does not apply to a discharge that occurs during a
3probationary period of employment. During a probationary period of employment,
4employment may be terminated at the will of either the employer or the employee
5on notice to the other for any reason or for no reason, except as provided in par. (b)
6or (c) 1. or 3. or as otherwise provided by law.
SB44-SA3,5,10 7(3) Action. (a) Subject to par. (c), an employee may bring an action in circuit
8court alleging a wrongful discharge committed by an employer in violation of sub. (2).
9In any such action the employer has the burden of proving by clear and convincing
10evidence that the employee was discharged fairly and not for a wrongful reason.
SB44-SA3,5,2311 (b) If a court in an action filed under par. (a) finds that an employer has
12committed a wrongful discharge, the court may award the employee lost wages and
13lost fringe benefits for a period not to exceed 4 years from the date of discharge,
14together with interest on the lost wages and lost fringe benefits and reasonable costs
15and attorney fees incurred in the action, and may order such other action as will
16effectuate the purpose of this section. The court shall deduct from the award interim
17earnings, including amounts the employee could have earned with reasonable
18diligence, except that before interim earnings are deducted from lost wages, the court
19shall deduct from the interim earnings any reasonable amounts expended by the
20employee in searching for, obtaining, or relocating to new employment. If the court
21awards lost wages and lost fringe benefits under this paragraph and finds that the
22standard under s. 895.043 (3) is violated, the court may also order the payment of
23punitive damages based on that award in accordance with s. 895.043.
SB44-SA3,5,2524 (c) 1. Subject to subds. 2. and 3., an action under par. (a) shall be commenced
25within one year after the date of discharge, or be barred.
SB44-SA3,6,12
12. Except as provided in subd. 3., if an employer maintains written internal
2procedures under which an employee may appeal a discharge within the
3organizational structure of the employer, the employee shall first exhaust those
4procedures prior to filing an action under par. (a). The employee's failure to initiate
5or 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
7date the employee initiates the internal procedures, the employee may file an action
8under par. (a) and for purposes of this subdivision the employer's internal procedures
9are considered exhausted. The limitation period in subd. 1. is tolled until the
10procedures are exhausted, except that in no case may the provisions of the employer's
11internal procedures extend the limitation period under subd. 1. by more than 120
12days.
SB44-SA3,6,1913 3. If the employer maintains written internal procedures under which an
14employee may appeal a discharge within the organizational structure of the
15employer, the employer shall, within 7 days after the date of the discharge, notify the
16discharged employee of the existence of those procedures and shall supply the
17discharged employee with a copy of those procedures. If an employer to which this
18subdivision applies fails to comply with this subdivision, the discharged employee
19need not comply with subd. 2.
SB44-SA3,6,21 20(4) Preemption of common-law remedies. Except as provided in this section,
21no claim for discharge may arise from tort or express or implied contract.".
SB44-SA3,6,22 223. Page 5, line 6: before that line insert:
SB44-SA3,6,23 23" Section 11r. 814.04 (intro.) of the statutes is amended to read:
SB44-SA3,7,5
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),
3769.313, 802.05, 814.245, 895.035 (4), 895.044, 895.443 (3), 895.444 (2), 895.445 (3),
4895.446 (3), 895.506, 943.212 (2) (b), 943.245 (2) (d), 943.51 (2) (b), and 995.10 (3),
5when allowed costs shall be as follows:
SB44-SA3,11t 6Section 11t. 893.43 of the statutes is amended to read:
SB44-SA3,7,10 7893.43 Action on contract. An Except as provided in ss. 893.40 and 893.995,
8an
action upon any contract, obligation, or liability, express or implied, including an
9action to recover fees for professional services, except those mentioned in s. 893.40,
10shall be commenced within 6 years after the cause of action accrues or be barred.
SB44-SA3,11v 11Section 11v. 893.995 of the statutes is created to read:
SB44-SA3,7,13 12893.995 Wrongful discharge; civil remedy. Any civil action arising under
13s. 103.11 is subject to the limitations of s. 103.11 (3) (c).".
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