Chapter 111

111.10 Cross-reference Cross-reference: See also ch. ERC 5, Wis. adm. code.

111.10 Annotation A grievance was arbitrable under the “discharge and nonrenewal” clause of a bargaining agreement when the contract offered by the board was signed by the teacher after deleting the title “probationary contract” and the board did not accept this counteroffer or offer the teacher a second contract. Joint School District No. 10 v. Jefferson Education Ass’n, 78 Wis. 2d 94, 253 N.W.2d 536 (1977).

111.10 Annotation The Wisconsin Employment Relations Commission’s power to participate in dispute settlement arbitration is liberally construed. Thus, when parties to a collective bargaining agreement select an arbitrator from a list provided by the commission, this section applies. Layton School of Art & Design v. WERC, 82 Wis. 2d 324, 262 N.W.2d 218 (1978).

111.10 Annotation Municipal labor arbitration is within the scope of ch. 788. Milwaukee District Council 48 v. Milwaukee Sewerage Commission, 107 Wis. 2d 590, 321 N.W.2d 309 (Ct. App. 1982).

111.10 Annotation The Res Judicata Standard of Confirmed Arbitration Awards in Wisconsin. Gilchrist. 1987 WLR 895.

111.11 111.11 Mediation. The commission may appoint any competent, impartial, disinterested person to act as mediator in any labor dispute either upon its own initiative or upon the request of one of the parties to the dispute. It shall be the function of such mediator to bring the parties together voluntarily under such favorable auspices as will tend to effectuate settlement of the dispute, but neither the mediator nor the commission shall have any power of compulsion in mediation proceedings. The commission shall provide necessary expenses for such mediators as it may appoint, order reasonable compensation not exceeding $10 per day for each such mediator, and prescribe reasonable rules of procedure for such mediators.

111.11 History History: 1995 a. 27, 225.

111.11 Cross-reference Cross-reference: See also ch. ERC 6, Wis. adm. code.

111.115 111.115 Notice of certain proposed strikes.

111.115(1) (1) In this section, “strike” includes any concerted stoppage of work by employees, and any concerted slowdown or other concerted interruption of operations or services by employees, or any concerted refusal of employees to work or perform their usual duties as employees, for the purpose of enforcing demands upon an employer.

111.115(3) (3) Where the exercise of the right to strike by employees of any employer engaged in the state of Wisconsin in the production, harvesting or initial off-farm processing of any farm or dairy product produced in this state would tend to cause the destruction or serious deterioration of such product, the employees shall give to the commission at least 10 days’ notice of their intention to strike and the commission shall immediately notify the employer of the receipt of such notice. Upon receipt of such notice, the commission shall take immediate steps to effect mediation, if possible. In the event of the failure of the efforts to mediate, the commission shall endeavor to induce the parties to arbitrate the controversy.

111.115 History History: 1995 a. 27, ss. 3789b, 3789bc; 1999 a. 83; 2011 a. 10.

111.12 111.12 Duties of the attorney general and district attorneys. Upon the request of the commission, the attorney general or the district attorney of the county in which a proceeding is brought before the circuit court for the purpose of enforcing or reviewing an order of the commission shall appear and act as counsel for the commission in such proceeding and in any proceeding to review the action of the circuit court affirming, modifying or reversing such order.

111.14 111.14 Penalty. Any person who shall willfully assault, resist, prevent, impede, or interfere with the commission or any of its agents or agencies in the performance of duties pursuant to this subchapter shall be punished by a fine of not more than $500 or by imprisonment in the county jail for not more than one year, or both.

111.14 History History: 2017 a. 59.

111.15 111.15 Construction of subchapter I. Except as specifically provided in this subchapter, nothing therein shall be construed so as to interfere with or impede or diminish in any way the right to strike or the right of individuals to work; nor shall anything in this subchapter be so construed as to invade unlawfully the right to freedom of speech. Nothing in this subchapter shall be so construed or applied as to deprive any employee of any unemployment benefit which the employee might otherwise be entitled to receive under ch. 108.

111.15 History History: 1993 a. 492.

111.17 111.17 Conflict of provisions; effect. Wherever the application of the provisions of other statutes or laws conflict with the application of the provisions of this subchapter, this subchapter shall prevail, except that in any situation where the provisions of this subchapter cannot be validly enforced the provisions of such other statutes or laws shall apply.

111.17 History History: 1995 a. 27; 2011 a. 10.

111.18 111.18 Limit on payment to health care institutions.

111.18(1) (1) In this section:

111.18(1)(a) (a) “Health care institution” includes hospitals, psychiatric hospitals, tuberculosis hospitals, nursing homes, kidney disease treatment centers, free-standing hemodialysis units, ambulatory surgical facilities, health maintenance organizations, limited service health organizations, preferred provider plans, community-based residential facilities that are certified as medical assistance providers under s. 49.45 (16) or that otherwise meet the requirements for certification, home health agencies and other comparable facilities. “Health care institution” does not include facilities operated solely as part of the practice of an independent practitioner, partnership, unincorporated medical group or service corporation as defined in s. 180.1901 (2).

111.18(1)(b) (b) “Proportional share” means the annual revenue of a health care institution received in the form of medical assistance reimbursement or public employee insurance from the state, divided by the total annual revenue of the health care institution.

111.18(2) (2) 

111.18(2)(a) (a)

111.18(2)(a)1. 1. Any health care institution found by the national labor relations board to have committed an unfair labor practice under 29 USC 158 or found by the employment relations commission to have committed a prohibited practice under s. 111.70 (3) that includes payment to any person for services rendered with respect to concerted activity engaged in by its employees for purposes of collective bargaining shall return to the state a proportional share of the amount paid to the person for the activity that constituted the unfair labor practice.

111.18(2)(a)2. 2. Any group of employees of a health care institution subject to subd. 1. may commence an action in circuit court to enforce the provisions of this subsection.

111.18(2)(a)3. 3. Reasonable costs and attorney fees incurred in enforcing a return of funds to the state under this section may be awarded to successful plaintiffs.

111.18(2)(b) (b) Paragraph (a) does not apply to:

111.18(2)(b)1. 1. Attorney fees for services rendered after the union is certified as a collective bargaining agent under this chapter or under the national labor relations act, 29 USC 151 to 169.

111.18(2)(b)2. 2. Attorney fees for services at an administrative agency or court proceeding or in preparation for the proceeding.

111.18(2)(b)3. 3. Salary paid to a full-time employee of a health care institution’s personnel department.

111.18 History History: 1981 c. 361; 1983 a. 27; 1985 a. 29; 1989 a. 303.

111.19 111.19 Title of subchapter I. This subchapter may be cited as the “Employment Peace Act”.

subch. II of ch. 111 SUBCHAPTER II

FAIR EMPLOYMENT

Subch. II of ch. 111 Cross-reference Cross-reference: See also ch. DWD 218, Wis. adm. code.

111.31 111.31 Declaration of policy.

111.31(1) (1) The legislature finds that the practice of unfair discrimination in employment against properly qualified individuals by reason of their age, race, creed, color, disability, marital status, sex, national origin, ancestry, sexual orientation, arrest record, conviction record, military service, use or nonuse of lawful products off the employer’s premises during nonworking hours, or declining to attend a meeting or to participate in any communication about religious matters or political matters, substantially and adversely affects the general welfare of the state. Employers, labor organizations, employment agencies, and licensing agencies that deny employment opportunities and discriminate in employment against properly qualified individuals solely because of their age, race, creed, color, disability, marital status, sex, national origin, ancestry, sexual orientation, arrest record, conviction record, military service, use or nonuse of lawful products off the employer’s premises during nonworking hours, or declining to attend a meeting or to participate in any communication about religious matters or political matters, deprive those individuals of the earnings that are necessary to maintain a just and decent standard of living.

111.31(2) (2) It is the intent of the legislature to protect by law the rights of all individuals to obtain gainful employment and to enjoy privileges free from employment discrimination because of age, race, creed, color, disability, marital status, sex, national origin, ancestry, sexual orientation, arrest record, conviction record, military service, use or nonuse of lawful products off the employer’s premises during nonworking hours, or declining to attend a meeting or to participate in any communication about religious matters or political matters, and to encourage the full, nondiscriminatory utilization of the productive resources of the state to the benefit of the state, the family, and all the people of the state. It is the intent of the legislature in promulgating this subchapter to encourage employers to evaluate an employee or applicant for employment based upon the individual qualifications of the employee or applicant rather than upon a particular class to which the individual may belong.

111.31(3) (3) In the interpretation and application of this subchapter, and otherwise, it is declared to be the public policy of the state to encourage and foster to the fullest extent practicable the employment of all properly qualified individuals regardless of age, race, creed, color, disability, marital status, sex, national origin, ancestry, sexual orientation, arrest record, conviction record, military service, use or nonuse of lawful products off the employer’s premises during nonworking hours, or declining to attend a meeting or to participate in any communication about religious matters or political matters. Nothing in this subsection requires an affirmative action program to correct an imbalance in the work force. This subchapter shall be liberally construed for the accomplishment of this purpose.

111.31(4) (4) The practice of requiring employees or prospective employees to submit to a test administered by means of a lie detector, as defined in s. 111.37 (1) (b), is unfair, the practice of requesting employees and prospective employees to submit to such a test without providing safeguards for the test subjects is unfair, and the use of improper tests and testing procedures causes injury to the employees and prospective employees.

111.31(5) (5) The legislature finds that the prohibition of discrimination on the basis of creed under s. 111.337 is a matter of statewide concern, requiring uniform enforcement at state, county and municipal levels.

111.31 History History: 1977 c. 125; 1979 c. 319; 1981 c. 112, 334, 391; 1987 a. 63; 1991 a. 289, 310, 315; 1997 a. 112; 2007 a. 159; 2009 a. 290.

111.31 Annotation The Department of Industry, Labor and Human Relations is not limited to finding sex discrimination only when a 14th amendment equal protection violation can also be found. Wisconsin Telephone Co. v. DILHR, 68 Wis. 2d 345, 228 N.W.2d 649 (1975).

111.31 Annotation The Wisconsin Fair Employment Act (WFEA), this subchapter, is more direct and positive in prohibiting sex discrimination in employment than is the basic constitutional guarantee of equal protection of the laws; enforcement of the law is not limited by the “rational basis” or “reasonableness” tests employed in 14th amendment cases. Ray-O-Vac v. DILHR, 70 Wis. 2d 919, 236 N.W.2d 209 (1975).

111.31 Annotation Section 118.20 is not the exclusive remedy of a wronged teacher; it is supplementary to the remedy under the Wisconsin Fair Employment Act. The general provisions of s. 893.80 are superseded by the specific authority of the act. Kurtz v. City of Waukesha, 91 Wis. 2d 103, 280 N.W.2d 757 (1979).

111.31 Annotation An employee who was not handicapped, but perceived by the employer to be so, was entitled to protection under the Wisconsin Fair Employment Act. Dairy Equipment Co. v. DILHR, 95 Wis. 2d 319, 290 N.W.2d 330 (1980).

111.31 Annotation The Wisconsin Fair Employment Act provides the exclusive remedy for retaliatory discrimination. Bourque v. Wausau Hospital Center, 145 Wis. 2d 589, 427 N.W.2d 433 (Ct. App. 1988).

111.31 Annotation The Wisconsin Fair Employment Act does not apply to national guard personnel decisions; federal law prevents the state from regulating personnel criteria of the national guard. Hazelton v. Wisconsin Personnel Commission, 178 Wis. 2d 776, 505 N.W.2d 793 (Ct. App. 1993).

111.31 Annotation The exclusive remedy provision in s. 102.03 (2) does not bar a complainant whose claim is covered by the Workers Compensation Act from pursuing an employment discrimination claim under the Wisconsin Fair Employment Act. Byers v. LIRC, 208 Wis. 2d 388, 561 N.W.2d 678 (1997), 95-2490.

111.31 Annotation This act protects all employees, including prospective and de facto employees. 67 Atty. Gen. 169.

111.31 Annotation State courts have concurrent jurisdiction over federal Title VII civil rights actions. Yellow Freight System, Inc. v. Donnelly, 494 U.S. 820, 110 S. Ct. 1566, 108 L. Ed. 2d 834 (1990).

111.31 Annotation The federal Employee Retirement Income Security Act (ERISA) does not preempt state fair employment laws prohibiting discriminatory exclusion of pregnancy benefits in disability plans. Bucyrus-Erie Co. v. DILHR, 599 F.2d 205 (1979).

111.31 Annotation No private right of action exists under this subchapter. Busse v. Gelco Express Corp., 678 F. Supp. 1398 (1988).

111.31 Annotation Wisconsin’s Fair Employment Act: Coverage, Procedures, Substance, Remedies. Angle. 1975 WLR 696.

111.31 Annotation Perceived Handicap under the Wisconsin Fair Employment Act. Rollins. 1988 WLR 639.

111.31 Annotation The Wisconsin Fair Employment Act and the 1982 amendments. Rice. WBB Aug. 1982.

111.32 111.32 Definitions. When used in this subchapter:

111.32(1) (1) “Arrest record” includes, but is not limited to, information indicating that an individual has been questioned, apprehended, taken into custody or detention, held for investigation, arrested, charged with, indicted or tried for any felony, misdemeanor or other offense pursuant to any law enforcement or military authority.

111.32(2) (2) “Commission” means the labor and industry review commission.

111.32(2r) (2r) “Constituent group” includes a civic association, community group, social club, fraternal society, mutual benefit alliance, or labor organization.

111.32(3) (3) “Conviction record” includes, but is not limited to, information indicating that an individual has been convicted of any felony, misdemeanor or other offense, has been adjudicated delinquent, has been less than honorably discharged, or has been placed on probation, fined, imprisoned, placed on extended supervision or paroled pursuant to any law enforcement or military authority.

111.32(3m) (3m) “Creed” means a system of religious beliefs, including moral or ethical beliefs about right and wrong, that are sincerely held with the strength of traditional religious views.

111.32(4) (4) “Department” means the department of workforce development.

111.32(5) (5) “Employee” does not include any individual employed by his or her parents, spouse, or child or any individual excluded under s. 452.38.

111.32(6) (6) 

111.32(6)(a) (a) “Employer” means the state and each agency of the state and, except as provided in par. (b), any other person engaging in any activity, enterprise or business employing at least one individual. In this subsection, “agency” means an office, department, independent agency, authority, institution, association, society or other body in state government created or authorized to be created by the constitution or any law, including the legislature and the courts.

111.32(6)(b) (b) “Employer” does not include a social club or fraternal society under ch. 188 with respect to a particular job for which the club or society seeks to employ or employs a member, if the particular job is advertised only within the membership.

111.32(7) (7) “Employment agency” means any person, including this state, who regularly undertakes to procure employees or opportunities for employment for any other person.

111.32(7m) (7m) “Genetic testing” means a test of a person’s genes, gene products or chromosomes, for abnormalities or deficiencies, including carrier status, that are linked to physical or mental disorders or impairments, or that indicate a susceptibility to illness, disease, impairment or other disorders, whether physical or mental, or that demonstrate genetic or chromosomal damage due to environmental factors.

111.32(8) (8) “Individual with a disability” means an individual who:

111.32(8)(a) (a) Has a physical or mental impairment which makes achievement unusually difficult or limits the capacity to work;

111.32(8)(b) (b) Has a record of such an impairment; or

111.32(8)(c) (c) Is perceived as having such an impairment.

111.32(9) (9) “Labor organization” means:

111.32(9)(a) (a) Any organization, agency or employee representation committee, group, association or plan in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours or other terms or conditions of employment; or

111.32(9)(b) (b) Any conference, general committee, joint or system board or joint council which is subordinate to a national or international committee, group, association or plan under par. (a).

111.32(10) (10) “License” means the whole or any part of any permit, certificate, approval, registration, charter or similar form of permission required by a state or local unit of government for the undertaking, practice or continuation of any occupation or profession.

111.32(11) (11) “Licensing agency” means any board, commission, committee, department, examining board, affiliated credentialing board or officer, except a judicial officer, in the state or any city, village, town, county or local government authorized to grant, deny, renew, revoke, suspend, annul, withdraw or amend any license.

111.32(12) (12) “Marital status” means the status of being married, single, divorced, separated or widowed.

111.32(12g) (12g) “Military service” means service in the U.S. armed forces, the state defense force, the national guard of any state, or any other reserve component of the U.S. armed forces.

111.32(12j) (12j) “Political matters” means political party affiliation, a political campaign, an attempt to influence legislation, or the decision to join or not to join, or to support or not to support, any lawful political group, constituent group, or political or constituent group activity.

111.32(12m) (12m) “Religious association” means an organization, whether or not organized under ch. 187, which operates under a creed.

111.32(12p) (12p) “Religious matters” means religious affiliation or the decision to join or not to join, or to support or not to support, any bona fide religious association.

111.32(13) (13) “Sexual harassment” means unwelcome sexual advances, unwelcome requests for sexual favors, unwelcome physical contact of a sexual nature or unwelcome verbal or physical conduct of a sexual nature. “Sexual harassment” includes conduct directed by a person at another person of the same or opposite gender. “Unwelcome verbal or physical conduct of a sexual nature” includes but is not limited to the deliberate, repeated making of unsolicited gestures or comments of a sexual nature; the deliberate, repeated display of offensive sexually graphic materials which is not necessary for business purposes; or deliberate verbal or physical conduct of a sexual nature, whether or not repeated, that is sufficiently severe to interfere substantially with an employee’s work performance or to create an intimidating, hostile or offensive work environment.

111.32(13m) (13m) “Sexual orientation” means having a preference for heterosexuality, homosexuality or bisexuality, having a history of such a preference or being identified with such a preference.

111.32(13r) (13r) “Unfair genetic testing” means any test or testing procedure that violates s. 111.372.

111.32(14) (14) “Unfair honesty testing” means any test or testing procedure which violates s. 111.37.