Chapter 109

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).

109.12 History History: 1989 a. 44; 1991 a. 146; 1997 a. 237.