Chapter 109

109.03 Annotation Sub. (5) establishes a distinct cause of action and enforcement procedure for a wage claim, wholly apart from any contract claims. Merely pleading a contract action based on nonpayment of wages is insufficient to trigger a ch. 109 wage claim under notice pleading. Wolnak v. Cardiovascular & Thoracic Surgeons of Central Wisconsin, S.C., 2005 WI App 217, 287 Wis. 2d 560, 706 N.W.2d 667, 04-1051.

109.03 Annotation Appellate courts ordinarily defer to a circuit court’s determination as to hours awarded in allowing attorney fees. An attorney’s hours are subject to the scrutiny of the circuit court and unreasonable hours should not be compensated. Nonetheless, the appellate courts must probe the circuit court’s explanation to determine if the court employed a logical rationale based on the appropriate legal principles and facts of record. The record should show that the circuit court did not eyeball the fee request and cut it down by an arbitrary percentage because it seemed excessive. Johnson v. Roma II — Waterford LLC, 2013 WI App 38, 346 Wis. 2d 612, 829 N.W.2d 538, 12-1028.

109.03 Annotation Time spent in travel between home and work in an employer-supplied vehicle does not give rise to wages earned by an employee under sub. (1). Conveying company tools from an employee’s home to the employee’s jobsite, without more, does not make the employee’s travel time an integral part of a principal activity or a closely related activity that is indispensable to its performance. Kieninger v. Crown Equipment Corp., 2019 WI 27, 386 Wis. 2d 1, 924 N.W.2d 172, 17-0631.

109.03 Annotation Although Wisconsin’s wage law is modeled after the federal Fair Labor Standards Act (FLSA), there is no Wisconsin statute or regulation that is equivalent to 29 USC 203(o) of the FLSA, which specifically permits collective bargaining over compensation for donning and doffing. Sub. (5) provides that an employer may not contractually avoid its obligation to pay an employee for all compensable time. Therefore, under Wisconsin law, compensation for donning and doffing personal protective equipment cannot be modified or eliminated through collective bargaining. Piper v. Jones Dairy Farm, 2020 WI 28, 390 Wis. 2d 762, 940 N.W.2d 701, 18-1681.

109.03 Annotation Sub. (5), which outlines the right of an employee to bring a wage claim, is not a complete bar to an employer’s equitable defenses. Piper v. Jones Dairy Farm, 2020 WI 28, 390 Wis. 2d 762, 940 N.W.2d 701, 18-1681.

109.03 Annotation Wisconsin requires time spent donning and doffing safety gear to be compensated at the minimum wage or higher, and that this time counts toward the limit after which the overtime rate kicks in. Wisconsin law is not preempted by federal law. Spoerle v. Kraft Foods Global, Inc., 614 F.3d 427 (2010).

109.03 Annotation Attorney fees are awardable under sub. (6). Jackman v. WMAC Inv. Corp., 610 F. Supp. 290 (1985).

109.03 Annotation Wage claims against a governmental body under this section are exempt from the notice of claim requirements under s. 893.80. Gilbertson v. City of Sheboygan, 165 F. Supp. 3d 742 (2016).

109.03 Annotation Under regulations promulgated under s. 104.045 (1), an employer taking a tip credit must have a tip declaration signed by the tipped employee each pay period to show that, when adding the tips received to the wages paid by the employer, no less than the minimum rate was received by the employee. When the employer’s time and payroll records do not contain these requirements, no tip credit is allowed, and a plaintiff may pursue back wages under sub. (5) for alleged violations of such regulations. Hussein v. Jun-Yan, LLC, 502 F. Supp. 3d 1366 (2020).

109.07 109.07 Mergers, liquidations, dispositions, relocations or cessation of operations affecting employees; advance notice required.

109.07(1) (1) In this section:

109.07(1)(a) (a) “Affected employee” means an employee who loses, or who may reasonably be expected to lose, his or her employment with an employer that is required to give notice under sub. (1m) (a) because of the business closing or mass layoff.

109.07(1)(b) (b) “Business closing” means a permanent or temporary shutdown of an employment site or of one or more facilities or operating units at an employment site or within a single municipality that affects 25 or more employees, not including new or low-hour employees.

109.07(1)(c) (c) “Employee benefit plan” means a plan as defined in 29 USC 1002 (3).

109.07(1)(d) (d) “Employer” means any business enterprise that employs 50 or more persons in this state.

109.07(1)(e) (e) “Highest official” means the mayor of a city, town board chairperson or village president, except as follows:

109.07(1)(e)1. 1. For a city organized under subch. I of ch. 64, “highest official” means both the president of the city council and the city manager.

109.07(1)(e)2. 2. For a village organized under subch. I of ch. 64, “highest official” means both the president of the village board of trustees and the village manager.

109.07(1)(f) (f) “Mass layoff” means a reduction in an employer’s work force that is not the result of a business closing and that affects the following numbers of employees at an employment site or within a single municipality, not including new or low-hour employees:

109.07(1)(f)1. 1. At least 25 percent of the employer’s work force or 25 employees, whichever is greater; or

109.07(1)(f)2. 2. At least 500 employees.

109.07(1)(g) (g) “Municipality” means a city, village or town.

109.07(1)(h) (h) “New or low-hour employee” means an employee who has been employed by an employer for fewer than 6 of the 12 months preceding the date on which a notice is required under sub. (1m) (a) or who averages fewer than 20 hours of work per week.

109.07(1m) (1m) 

109.07(1m)(a) (a) Subject to sub. (5) or (6), an employer that has decided upon a business closing or mass layoff in this state shall promptly notify the subunit of the department that administers s. 106.15, any affected employee, any collective bargaining representative of any affected employee, and the highest official of any municipality in which the affected employment site is located, in writing of such action no later than 60 days prior to the date on which the business closing or mass layoff takes place. The notice to an affected employee shall also include contact information for the local workforce development board under 29 USC 2832 serving the area in which the employment site is located and, if available, the list of resources prepared under s. 106.11. The employer shall provide in writing all information concerning its payroll, affected employees, and the wages and other remuneration owed to those employees as the department may require. The department may in addition require the employer to submit a plan setting forth the manner in which final payment in full shall be made to affected employees.

109.07(1m)(b) (b) The department shall promptly provide a copy of the notice required under par. (a) to the office of the commissioner of insurance and shall cooperate with the office of the commissioner of insurance in the performance of its responsibilities under s. 601.41 (7).

109.07(1m)(c) (c) This subsection does not apply to a business closing or mass layoff that is caused by a strike or lockout.

109.07(3) (3) 

109.07(3)(a) (a) If an employer fails to give timely notice to an affected employee as required under sub. (1m) (a), the affected employee may recover, as provided under sub. (4), all of the following:

109.07(3)(a)1. 1. Pay, for the days during the recovery period described under par. (c) that the employee would have worked if the business closing or mass layoff had not occurred, based on the greater of the following:

109.07(3)(a)1.a. a. The employee’s regular rate of pay from the employer, averaged over the shorter of the 3-year period preceding the business closing or mass layoff or the entire period during which the employee was employed by the employer.

109.07(3)(a)1.b. b. The employee’s regular rate of pay from the employer at the time of the business closing or mass layoff.

109.07(3)(a)2. 2. The value of any benefit that the employee would have received under an employee benefit plan during the recovery period described under par. (c), but did not receive because of the business closing or mass layoff, including the cost of medical treatment incurred that would have been covered under the employee benefit plan.

109.07(3)(b) (b) The amount that an employee may recover under par. (a) shall be reduced by any cost that the employer incurs by crediting the employee, under an employee benefit plan, for time not actually served because of a business closing or mass layoff.

109.07(3)(c) (c) The recovery period under par. (a) begins on the day on which the business closing or mass layoff occurs. The recovery period equals the number of days in the period beginning on the day on which an employer is required to give notice under sub. (1m) (a) and ending on whichever of the following occurs first:

109.07(3)(c)1. 1. The day on which the employer actually gave the notice to the employee.

109.07(3)(c)2. 2. The day on which the business closing or mass layoff occurred.

109.07(4) (4) 

109.07(4)(a) (a) An employee whose employer fails to notify timely the employee under sub. (1m) (a) may file a claim with the department. If the employee files a claim with the department no later than 300 days after the day on which the business closing or mass layoff occurred, the department shall, in the manner provided in s. 109.09, investigate the claim, determine the number of days that the employer was late in providing notice and, on behalf of the employee, attempt to recover from the employer the payment under sub. (3).

109.07(4)(b) (b) If the department does not recover payment within 180 days after a claim is filed or within 30 days after it notifies the employee of its determination under par. (a), whichever is first, the department shall refer the claim to the department of justice. The department of justice may bring an action in circuit court on behalf of the employee to recover the payment under sub. (3).

109.07(4)(c) (c) If the department of justice does not bring an action under par. (b) within 120 days after the claim is referred to it, the employee may bring an action in circuit court to recover the payment under sub. (3). If the employee prevails in the action, he or she shall also recover costs under ch. 814 and, notwithstanding s. 814.04 (1), reasonable attorney fees.

109.07(4)(d) (d) An action under this section shall be begun within one year after the department refers the claim to the department of justice under par. (b), or be barred.

109.07(4m) (4m) 

109.07(4m)(a) (a) If an employer fails to give timely notice to the highest official of a municipality as required under sub. (1m) (a), the department shall assess a business closing surcharge against the employer of not more than $500 for each day in the period beginning on the day on which the employer was required to give notice to the highest official and ending on the earlier of the day on which the employer actually gave notice to the highest official or the day on which the business closing or mass layoff occurred.

109.07(4m)(b) (b) The department shall deposit business closing surcharges collected under par. (a) in the general fund.

109.07(5) (5) 

109.07(5)(a) (a) An employer is not liable under this section for a failure to give notice to any person under sub. (1m) (a), if the department determines all of the following:

109.07(5)(a)1. 1. When the notice under sub. (1m) (a) would have been timely given, that the employer was actively seeking capital or business to enable the employer to avoid or postpone indefinitely the business closing or mass layoff.

109.07(5)(a)2. 2. That the employer reasonably and in good faith believed that giving the notices to all parties required under sub. (1m) (a) would have prevented the employer from obtaining the capital or business.

109.07(5)(b) (b) The department may not determine that an employer was actively seeking capital or business under par. (a) 1. unless the employer has a written record, made while the employer was seeking capital or business, of those activities. The record shall consist of the documents and other material specified by the department by rule under s. 109.12 (1) (b). The employer shall have individual documents in the record notarized, as required by the department’s rules. The employer shall provide the department with an affidavit verifying the content of the notarized documents.

109.07(6) (6) An employer is not liable under this section for a failure to give notice to any person under sub. (1m) (a), if the department determines that the business closing or mass layoff is the result of any of the following:

109.07(6)(a) (a) The sale of part or all of the employer’s business, if the purchaser agrees in writing, as part of the purchase agreement, to hire substantially all of the affected employees with not more than a 6-month break in employment.

109.07(6)(b) (b) The relocation of part or all of an employer’s business within a reasonable commuting distance, if the employer offers to transfer substantially all of the affected employees with not more than a 6-month break in employment.

109.07(6)(c) (c) The completion of a particular project or work of a specific duration, including seasonal work, if the affected employees were hired with the understanding that their employment was limited to the duration of such work or project.

109.07(6)(d) (d) Business circumstances that were not foreseeable when the notice would have been timely given.

109.07(6)(e) (e) A natural or man-made disaster beyond the control of the employer.

109.07(6)(f) (f) A temporary cessation in business operations, if the employer recalls the affected employees on or before the 60th day beginning after the cessation.

109.07(7) (7) Each employer shall post, in one or more conspicuous places where notices to employees are customarily posted, a notice in a form approved by the department setting forth employees’ rights under this section. Any employer who violates this subsection shall forfeit not more than $100.

109.07(8) (8) Section 111.322 (2m) applies to discharge and other discriminatory acts arising in connection with any proceeding under this section.

109.07 History History: 1975 c. 380; 1983 a. 84, 149; 1983 a. 192 s. 304; 1983 a. 538; 1987 a. 27; 1989 a. 44, 228; 1995 a. 27, ss. 3782 and 9116 (5); 1997 a. 51; 2009 a. 87; 2011 a. 32.

109.07 Cross-reference Cross-reference: See also ch. DWD 279, Wis. adm. code.

109.07 Annotation The application of this section is limited to business closures of employment sites, defined by reference to geography rather than ownership. A transfer of business assets does not constitute a business closing unless it results in either a temporary or permanent shutdown in the operation of the business site. State v. T.J. International, Inc., 2001 WI 76, 244 Wis. 2d 481, 628 N.W.2d 774, 99-2803.

109.07 Annotation There is no private cause of action under this section. Henne v. Allis-Chalmers Corp., 660 F. Supp. 1464 (1987).

109.075 109.075 Cessation of health care benefits affecting employees, retirees and dependents; advance notice required.

109.075(1) (1) In this section:

109.075(1)(a) (a) “Affected employee, retiree or dependent” means an employee, retired employee or a surviving covered dependent of an employee or retired employee who loses, or may reasonably be expected to lose, his or her health care benefits provided by an employer who is required to give notice under sub. (2) because the employer has decided to cease providing health care benefits.

109.075(1)(b) (b) “Employee benefit plan” means a plan as defined in 29 USC 1002 (3).

109.075(1)(c) (c) “Employer” means any business enterprise that employs 50 or more persons in this state.

109.075(1)(d) (d) “Health care benefits” means coverage of health care expenses under an employee benefit plan.

109.075(2) (2) Subject to sub. (5) or (6), an employer who has decided to cease providing health care benefits in this state shall promptly notify any affected employee, retiree or dependent and any collective bargaining representative of any affected employee, retiree or dependent in writing of such action no later than 60 days prior to the date that the cessation of health care benefits takes place. This subsection does not apply to a cessation of health care benefits that is caused by a strike or lockout.

109.075(3) (3) 

109.075(3)(a) (a) If an employer fails to give timely notice to an affected employee, retiree or dependent as required under sub. (2), the affected employee, retiree or dependent may recover, as provided under sub. (4), the value of any health care benefits that the affected employee, retiree or dependent would have received during the recovery period described under par. (c), but did not receive because of the cessation of health care benefits, including the cost of any medical treatment incurred that would have been covered but for the cessation of health care benefits.

109.075(3)(b) (b) The amount that an affected employee may recover under par. (a) shall be reduced by any cost that the affected employer incurs by crediting the affected employee, under an employee benefit plan, for time not actually served because of a business closing, as defined in s. 109.07 (1) (b), or mass layoff, as defined in s. 109.07 (1) (f).

109.075(3)(c) (c) The recovery period under par. (a) begins on the day that the cessation of health care benefits occurs. The recovery period equals the number of days in the period beginning on the day on which an employer is required to give notice under sub. (2) and ending on whichever of the following occurs first:

109.075(3)(c)1. 1. The day that the employer actually gave the notice to the affected employee, retiree or dependent.

109.075(3)(c)2. 2. The day that the cessation of health care benefits occurred.

109.075(4) (4) 

109.075(4)(a) (a) An affected employee, retiree or dependent whose employer or former employer, or whose spouse’s or parent’s employer or former employer, fails to notify timely the affected employee, retiree or dependent under sub. (2) may file a claim with the department. If the affected employee, retiree or dependent files a claim with the department no later than 300 days after the cessation of health care benefits occurred, the department shall, in the manner provided in s. 109.09, investigate the claim, determine the number of days that the employer or former employer was late in providing notice and, on behalf of the affected employee, retiree or dependent, attempt to recover from the employer or former employer the payment under sub. (3).

109.075(4)(b) (b) If the department does not recover payment within 180 days after a claim is filed or within 30 days after it notifies the affected employee, retiree or dependent of its determination under par. (a), whichever is first, the department shall refer the claim to the department of justice. The department of justice may bring an action in circuit court on behalf of the affected employee, retiree or dependent to recover the payment under sub. (3).

109.075(4)(c) (c) If the department of justice does not bring an action under par. (b) within 120 days after the claim is referred to it, the affected employee, retiree or dependent may bring an action in circuit court to recover the payment under sub. (3). If the affected employee, retiree or dependent prevails in the action, he or she shall also recover costs under ch. 814 and, notwithstanding s. 814.04 (1), reasonable attorney fees.

109.075(4)(d) (d) An action under this section shall be begun within one year after the department refers the claim to the department of justice under par. (b), or be barred.

109.075(5) (5) 

109.075(5)(a) (a) An employer is not liable under this section for a failure to give notice to any person under sub. (2), if the department determines all of the following:

109.075(5)(a)1. 1. When the notice under sub. (2) would have been timely given, that the employer was actively seeking capital or business to enable the employer to avoid or postpone indefinitely the cessation of health care benefits.

109.075(5)(a)2. 2. That the employer reasonably and in good faith believed that giving the notice required under sub. (2) would have prevented the employer from obtaining the capital or business.

109.075(5)(b) (b) The department may not determine that an employer was actively seeking capital or business under par. (a) 1. unless the employer has a written record, made while the employer was seeking capital or business, of those activities. The record shall consist of the documents and other material specified by the department by rule under s. 109.12 (1) (b). The employer shall have individual documents in the record notarized, as required by the department’s rules. The employer shall provide the department with an affidavit verifying the content of the notarized documents.

109.075(6) (6) An employer is not liable under this section for a failure to give notice to any person under sub. (2), if the department determines that the cessation of health care benefits is the result of any of the following:

109.075(6)(a) (a) The sale of part or all of the employer’s business, if the purchaser agrees in writing, as part of the purchase agreement, to provide health care benefits for all of the affected employees, retirees and dependents with not more than a 60-day break in coverage.

109.075(6)(b) (b) Business circumstances that were not foreseeable when the notice would have been timely given.