Chapter 109

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.

109.075(6)(c) (c) A natural or man-made disaster beyond the control of the employer.

109.075(6)(d) (d) A temporary cessation in providing health care benefits, if the employer renews providing health care benefits for the affected employees, retirees and dependents on or before the 60th day beginning after the cessation.

109.075(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 the rights of employees, retirees and dependents under this section. Any employer who violates this subsection shall forfeit not more than $100.

109.075(8) (8) Section 111.322 (2m) applies to discharge and other discriminatory acts arising in connection with any proceeding under this section.

109.075 History History: 1997 a. 237.

109.09 109.09 Wage claims, collection.

109.09(1) (1) The department shall investigate and attempt equitably to adjust controversies between employers and employees as to alleged wage claims. The department may receive and investigate any wage claim that is filed with the department, or received by the department under s. 109.10 (4), no later than 2 years after the date the wages are due. The department may, after receiving a wage claim, investigate any wages due from the employer against whom the claim is filed to any employee during the period commencing 2 years before the date the claim is filed. The department shall enforce this chapter and s. 66.0903, 2013 stats., s. 103.49, 2013 stats., s. 229.8275, 2013 stats., and s. 16.856, 2015 stats., and ss. 103.02, 103.82, and 104.12. In pursuance of this duty, the department may sue the employer on behalf of the employee to collect any wage claim or wage deficiency and ss. 109.03 (6) and 109.11 (2) and (3) shall apply to such actions. Except for actions under s. 109.10, the department may refer such an action to the district attorney of the county in which the violation occurs for prosecution and collection and the district attorney shall commence an action in the circuit court having appropriate jurisdiction. Any number of wage claims or wage deficiencies against the same employer may be joined in a single proceeding, but the court may order separate trials or hearings. In actions that are referred to a district attorney under this subsection, any taxable costs recovered by the district attorney shall be paid into the general fund of the county in which the violation occurs and used by that county to meet its financial responsibility under s. 978.13 (2) (b) for the operation of the office of the district attorney who prosecuted the action.

109.09(2) (2) 

109.09(2)(a) (a) The department of workforce development, under its authority under sub. (1) to maintain actions for the benefit of employees, or an employee who brings an action under s. 109.03 (5) shall have a lien upon all property of the employer, real or personal, located in this state for the full amount of any wage claim or wage deficiency.

109.09(2)(b) (b)

109.09(2)(b)1. 1. A lien under par. (a) upon real property takes effect when the department of workforce development or employee files a notice of the lien with the clerk of the circuit court of the county in which the services or some part of the services were performed, pays the fee specified in s. 814.61 (5) to that clerk of circuit court and serves a copy of that petition on the employer by personal service in the same manner as a summons is served under s. 801.11 or by certified mail with a return receipt requested. The clerk of circuit court shall enter the notice of the lien on the judgment and lien docket kept under s. 779.07.

109.09(2)(b)2. 2. A lien under par. (a) upon personal property takes effect when the department of workforce development or employee files notice of the lien in the same manner, form, and place as financing statements are filed under subch. V of ch. 409 regarding debtors who are located in this state, pays the same fee provided in s. 409.525 for filing financing statements, and serves a copy of the notice on the employer by personal service in the same manner as a summons is served under s. 801.11 or by certified mail with a return receipt requested. The department of financial institutions shall place the notice of the lien in the same file as financing statements are filed under subch. V of ch. 409.

109.09(2)(b)3. 3. The department of workforce development or employee must file the notice under subd. 1. or 2. within 2 years after the date on which the wages were due. The notice shall specify the nature of the claim and the amount claimed, describe the property upon which the claim is made and state that the person filing the notice claims a lien on that property.

109.09(2)(c) (c)

109.09(2)(c)1. 1. In this paragraph:

109.09(2)(c)1.a. a. “Commercial lending institution” has the meaning given for “financial institution” in s. 234.01 (5k).

109.09(2)(c)1.b. b. “Financial institution” has the meaning given in s. 69.30 (1) (b).

109.09(2)(c)1m. 1m. A lien under par. (a) takes precedence over all other debts, judgments, decrees, liens, or mortgages against the employer, except a lien of a commercial lending institution as provided in subd. 2. and 3. or a lien under s. 292.31 (8) (i) or 292.81, regardless of whether those other debts, judgments, decrees, liens, or mortgages originate before or after the lien under par. (a) takes effect. A lien under par. (a) may be enforced in the manner provided in ss. 779.09 to 779.12, 779.20, and 779.21, insofar as those provisions are applicable. The lien ceases to exist if the department of workforce development or the employee does not bring an action to enforce the lien within the period prescribed in s. 893.44 for the underlying wage claim.

109.09(2)(c)2. 2. Except as provided in this subdivision, a lien under par. (a) does not take precedence over a lien of a commercial lending institution against the employer that originates before the lien under par. (a) takes effect. Subject to subd. 3., a lien under par. (a) takes precedence over a lien of a commercial lending institution against the employer that originates before the lien under par. (a) takes effect only as to the first $3,000 of unpaid wages covered under the lien that are earned by an employee within the 6 months preceding the date on which the employee files the wage claim under sub. (1) or brings the action under s. 109.03 (5) or the date on which the department receives the wage claim under s. 109.10 (4) (a), whichever is applicable.

109.09(2)(c)3. 3. Notwithstanding subd. 2., a lien of a financial institution that exists on November 30, 2003, and that originates before a lien under par. (a) takes effect takes precedence over the lien under par. (a), and a lien of a financial institution for any amount advanced by the financial institution after a lien under par. (a) takes effect under a contract entered into before December 1, 2003, including any extension or renewal of such a contract, takes precedence over the lien under par. (a). Notwithstanding subd. 2., a lien under par. (a) that exists on November 30, 2003, takes precedence over a lien of a commercial lending institution that is not a financial institution, regardless of whether the lien of the commercial lending institution originates before or after the lien under par. (a) takes effect.

109.09(3) (3) 

109.09(3)(a) (a) The legislature finds that the provision of a wage claim and collection law that is uniform throughout the state is a matter of statewide concern and that the enactment of a wage claim or collection ordinance by a city, village, town, or county would be logically inconsistent with, would defeat the purpose of, and would go against the spirit of this section. Therefore, this section shall be construed as an enactment of statewide concern for the purpose of providing a wage claim and collection law that is uniform throughout the state.

109.09(3)(b) (b) No city, village, town, or county may enact or enforce an ordinance that regulates wage claims or collections.

109.09(3)(c) (c) If a city, village, town, or county has in effect on April 18, 2018, an ordinance that regulates wage claims or collections, the ordinance does not apply and may not be enforced.

109.09 History History: 1975 c. 380; 1979 c. 32 s. 92 (9); 1985 a. 29, 220; 1989 a. 113; 1991 a. 146; 1993 a. 86, 453; 1995 a. 227; 1997 a. 27, 237; 1999 a. 9; 1999 a. 150 s. 672; 1999 a. 167; 2001 a. 10; 2003 a. 63; 2005 a. 434; 2009 a. 28; 2011 a. 32; 2015 a. 55; 2017 a. 59, 327.

109.09 Annotation Under sub. (1), courts may award costs to DILHR when DILHR prevails but may not tax costs against DILHR when a defendant employer prevails. DILHR v. Coatings, Inc., 126 Wis. 2d 338, 376 N.W.2d 834 (1985).

109.09 Annotation Ch. 103 does not provide the exclusive remedy for enforcement of claims under that chapter. Claims under statutes enumerated in sub. (1) may be enforced by a private action brought under s. 109.03 (5). German v. DOT, 223 Wis. 2d 525, 589 N.W.2d 651 (Ct. App. 1998), 98-0250.

109.09 Annotation Affirmed. 2000 WI 62, 235 Wis. 2d 576, 612 N.W.2d 50, 98-0250.

109.10 109.10 Reciprocal agreements.

109.10(1) (1) In this section, “responsible agency” means a state officer, agency or other body that is responsible for the collection of wage claims or wage deficiencies.

109.10(2) (2) The secretary and the responsible agency of another state may enter into a reciprocal agreement governing the collection, under the laws of the other state, of wage claims and wage deficiencies received by the department.

109.10(3) (3) Consistent with the terms of a reciprocal agreement entered into with a responsible agency of another state under sub. (2), the department may do any of the following:

109.10(3)(a) (a) Bring an action, through the department of justice, in any court of competent jurisdiction in the other state to collect wage claims and wage deficiencies received by the department.

109.10(3)(b) (b) Through the department of justice, enforce a judgment in the other state on wage claims or wage deficiencies received by the department.

109.10(3)(c) (c) If permitted under the laws of the other state, refer wage claims or wage deficiencies to the responsible agency for collection in the other state.

109.10(4) (4) 

109.10(4)(a) (a) Subject to par. (b), the department, through the department of justice, may bring an action under s. 109.09 on wage claims or wage deficiencies received by the department from a responsible agency of another state.

109.10(4)(b) (b) Actions under par. (a) may only be brought if the other state by law or reciprocal agreement permits similar actions in that state on wage claims or wage deficiencies arising in this state.

109.10 History History: 1989 a. 113; 1993 a. 86.

109.11 109.11 Penalties.

109.11(1) (1) Administrative penalties.

109.11(1)(a) (a) In adjusting a controversy between an employer and an employee as to an alleged wage claim filed with the department under s. 109.09 (1), the department may compromise and settle that wage claim for such sum as may be agreed upon between the department, the employee and the employer.

109.11(1)(b) (b) If the department finds that a wage claim is valid, the department may instruct the employer against whom the wage claim is filed to audit his or her payroll records to determine whether the employer may be liable for any other wage claims of the same type as the wage claim that prompted the audit instruction. If after the requested completion date of the audit the department receives a wage claim against the employer of the same type as the wage claim that prompted the audit instruction and if the department determines that the subsequent wage claim is valid, the department may audit the employer’s payroll records to determine whether the employer may be liable for any other wage claims of the same type as the wage claim that prompted the audit instruction. For any valid wage claim that is filed against an employer after the department has instructed the employer to audit his or her payroll records under this paragraph and that is of the same type as the wage claim that prompted the audit instruction and for any valid wage claim that is discovered as a result of the department’s audit under this paragraph and that is of the same type as the wage claim that prompted the audit instruction, the department shall require the employer to pay, in addition to the amount of wages due and unpaid, increased wages of not more than 50 percent of the amount of wages due and unpaid, unless the employer shows the department that payment of the increased wages would cause extreme hardship.

109.11(1)(c) (c) If an employer does not agree to compromise and settle a wage claim under this subsection, the department may refer the wage claim to a district attorney under s. 109.09 (1) or to the department of justice under s. 109.10 (3) for commencement of an action in circuit court to collect the amount of wages due and unpaid plus increased wages as specified in sub. (2) (b).

109.11(2) (2) Civil penalties.

109.11(2)(a) (a) In a wage claim action that is commenced by an employee before the department has completed its investigation under s. 109.09 (1) and its attempts to compromise and settle the wage claim under sub. (1), a circuit court may order the employer to pay to the employee, in addition to the amount of wages due and unpaid and in addition to or in lieu of the criminal penalties specified in sub. (3), increased wages of not more than 50 percent of the amount of wages due and unpaid.

109.11(2)(b) (b) In a wage claim action that is commenced after the department has completed its investigation under s. 109.09 (1) and its attempts to settle and compromise the wage claim under sub. (1), a circuit court may order the employer to pay to the employee, in addition to the amount of wages due and unpaid to an employee and in addition to or in lieu of the criminal penalties specified in sub. (3), increased wages of not more than 100 percent of the amount of those wages due and unpaid.

109.11(3) (3) Criminal penalties. Any employer who, having the ability to pay, fails to pay the wages due and payable as provided in this chapter or falsely denies the amount or validity thereof or that such wages are due, with intent to secure any discount upon such indebtedness or with intent to annoy, harass, oppress, hinder or defraud the person to whom such wages are due, may be fined not more than $500 or imprisoned not more than 90 days or both. Each failure or refusal to pay each employee the amount of wages due at the time, or under the conditions required in this chapter, constitutes a separate offense.

109.11 History History: 1975 c. 380, 421; 1977 c. 26; 1993 a. 86.

109.11 Annotation In a collective bargaining/arbitration situation a defense of “good cause” under s. 111.70 (7m) (e) is available if the employer fails to pay wages pursuant to s. 109.03 (1). Employees Local 1901 v. Brown County, 146 Wis. 2d 728, 432 N.W.2d 571 (1988).

109.11 Annotation Whether payments under an arbitration award are due from the entry of the award depends on the overall circumstances. Kenosha Fire Fighters v. City of Kenosha, 168 Wis. 2d 658, 484 N.W.2d 152 (1992).

109.11 Annotation Penalties under sub. (2) (b) may only be applied when wages are due and unpaid at the time an enforcement action is commenced in court. Hubbard v. Messer, 2003 WI 145, 267 Wis. 2d 92, 673 N.W.2d 676, 02-1701.

109.11 Annotation Neither the text of sub. (2) (b) nor the case law interpreting it appear to support applying the federal presumption of double damages and burden-shifting framework to sub. (2) (b). The text and case law make clear that the circuit court has broad discretion under sub. (2) (b) to choose not to award a penalty and that, even when a penalty is appropriate, the court has discretion to award a penalty amounting to less than double damages. Johnson v. Roma II - Waterford LLC, 2013 WI App 38, 346 Wis. 2d 612, 829 N.W.2d 538, 12-1028.

109.12 109.12 Rules and report. The department shall do all of the following:

109.12(1) (1) Promulgate rules to do all of the following:

109.12(1)(a) (a) Aid the administration of this chapter, including the enforcement of ss. 109.07 and 109.075 and criteria for exceptions under ss. 109.07 (5) and (6) and 109.075 (5) and (6).

109.12(1)(b) (b) Establish the form and content of the record required under s. 109.07 (5) (b) and the record required under s. 109.075 (5) (b) and specify the documents that must contain notarized signatures.

109.12(2) (2) Not later than March 1 annually, submit a written report on its activities in the preceding calendar year related to the enforcement and administration of ss. 109.07 and 109.075 to the chief clerk of each house of the legislature for distribution under s. 13.172 (3) to the standing committees with jurisdiction over labor.

109.12(3) (3) Include, in the report required under sub. (2), the number, type and disposition of all determinations made by the department under ss. 109.07 (5) and (6) and 109.075 (5) and (6).