Chapter 230

230.81 Annotation The Department of Workforce Development, Equal Rights Division’s (ERD) interpretation of “supervisor” as used in sub. (1) (a) was reasonable. ERD has long interpreted supervisor to mean any person within an employee’s supervisory chain of command. ERD’s interpretation reasonably means a supervisor is any person with actual authority to take employment action or to effectively recommend such action. Under ERD’s interpretation of the term “supervisor” and the phrase “an employee’s supervisor,” it could be that a particular employee has more than one “chain of command.” Bethards v. DWD, 2017 WI App 37, 376 Wis. 2d 347, 899 N.W.2d 364, 16-0409.

230.81 Annotation The court declined to adopt the categorical rule that a human resources, or like, supervisor will never be within an employee’s supervisory chain of command, even when that employee works in a different division within an organizational structure. The determination of whether a particular recipient of a disclosure is an employee’s supervisor is a mixed question of law and fact. The factual findings will determine both how the employee’s supervisory authority is structured and which individuals have actual authority to take employment action or effectively recommend such action, or otherwise have authority to direct an employee’s job performance. Bethards v. DWD, 2017 WI App 37, 376 Wis. 2d 347, 899 N.W.2d 364, 16-0409.

230.81 Annotation Don’t Whistle While You Work: Wisconsin’s Vanishing Protections for Public Employee Whistleblowers. Triggs. 2019 WLR 129.

230.82 230.82 Processing of information.

230.82(1) (1) A governmental unit to which an employee discloses information under s. 230.81 (1) shall process it as provided in this section. Within 30 days of receiving the information, the governmental unit shall either initially determine if it merits further investigation or refer the information to a governmental unit better able to initially determine if it merits further investigation. A governmental unit which initially determines information to merit further investigation shall, within 30 days of that determination, either commence a full investigation into the truth of the information or refer the information to a governmental unit better able to conduct such an investigation, which shall commence it within 30 days of referral. A governmental unit may disclose or refer information to an appropriate law enforcement agency or district or federal attorney as part of an investigation or in lieu of referral to another governmental unit, if the law enforcement agency or district or federal attorney is best able to conduct the investigation. Any full investigation commenced shall be completed within a reasonable time.

230.82(2) (2) A governmental unit which initially determines that information merits further investigation, or which after a full investigation finds information to be true, shall so inform the employee and his or her appointing authority in writing. A governmental unit which initially determines information not to merit further investigation, refers the information to another governmental unit or after a full investigation finds information to be untrue shall so inform the employee in writing.

230.82(3) (3) A governmental unit which investigates or otherwise processes information disclosed under s. 230.81 may require that an interview with any employee described in s. 230.80 (3), except a management or supervisory employee immediately involved in the subject matter of the information disclosed, be conducted outside the presence of the appointing authority or any representative or agent thereof unless the employee voluntarily requests that presence. An appointing authority shall permit an employee to be interviewed without loss of pay and to have an employee representative present at the interview. An appointing authority of an employee to be interviewed may require the governmental unit to give the appointing authority reasonable notice prior to the interview.

230.82(4) (4) A governmental unit shall keep the identity of the employee confidential until the governmental unit determines the information merits further investigation. If a governmental unit conducts a full investigation, it shall keep the identity of the employee confidential if it is reasonably possible to do so.

230.82 History History: 1983 a. 409.

230.83 230.83 Retaliatory action prohibited.

230.83(1) (1) No appointing authority, agent of an appointing authority or supervisor may initiate or administer, or threaten to initiate or administer, any retaliatory action against an employee.

230.83(2) (2) This section does not apply to an employee who discloses information if the employee knows or anticipates that the disclosure is likely to result in the receipt of anything of value for the employee or for the employee’s immediate family, unless the employee discloses information in pursuit of any award offered by any governmental unit for information to improve government administration or operation.

230.83(3) (3) Nothing in this section restricts the right of an employer to take appropriate disciplinary action against an employee who knowingly makes an untrue statement or discloses information the disclosure of which is expressly prohibited by state or federal law, rule or regulation.

230.83 History History: 1983 a. 409.

230.83 Cross-reference Cross-reference: See also ch. DWD 224, Wis. adm. code.

230.85 230.85 Enforcement.

230.85(1) (1) An employee who believes that a supervisor or appointing authority has initiated or administered, or threatened to initiate or administer, a retaliatory action against that employee in violation of s. 230.83 may file a written complaint with the division of equal rights, specifying the nature of the retaliatory action or threat thereof and requesting relief, within 60 days after the retaliatory action allegedly occurred or was threatened or after the employee learned of the retaliatory action or threat thereof, whichever occurs last.

230.85(2) (2) The division of equal rights shall receive and, except as provided in s. 230.45 (1m), investigate any complaint under sub. (1). In the course of investigating or otherwise processing such a complaint, the division of equal rights may require that an interview with any employee described in s. 230.80 (3), except a management or supervisory employee who is a party to or is immediately involved in the subject matter of the complaint, be conducted outside the presence of the appointing authority or any representative or agent thereof unless the employee voluntarily requests that presence. An appointing authority shall permit an employee to be interviewed without loss of pay and to have an employee representative present at the interview. An appointing authority of an employee to be interviewed may require the division of equal rights to give the appointing authority reasonable notice prior to the interview. If the division of equal rights finds probable cause to believe that a retaliatory action has occurred or was threatened, it may endeavor to remedy the problem through conference, conciliation or persuasion. If that endeavor is not successful, the division of equal rights shall issue and serve a written notice of hearing, specifying the nature of the retaliatory action which has occurred or was threatened, and requiring the person named, in this section called the “respondent”, to answer the complaint at a hearing. The notice shall specify the place of hearing and a time of hearing not less than 30 days after service of the complaint upon the respondent nor less than 10 days after service of the notice of hearing. If, however, the division of equal rights determines that an emergency exists with respect to a complaint, the notice of hearing may specify a time of hearing within 30 days after service of the complaint upon the respondent, but not less than 10 days after service of the notice of hearing. The testimony at the hearing shall be recorded or taken down by a reporter appointed by the division of equal rights.

230.85(3) (3) 

230.85(3)(a) (a) After hearing, the division of equal rights shall make written findings and orders. If the division of equal rights finds that the respondent engaged in or threatened a retaliatory action, it shall order the employee’s appointing authority to insert a copy of the findings and orders into the employee’s personnel file and, if the respondent is a natural person, order the respondent’s appointing authority to insert such a copy into the respondent’s personnel file. In addition, the division of equal rights may take any other appropriate action, including but not limited to the following:

230.85(3)(a)1. 1. Order reinstatement or restoration of the employee to his or her previous position with or without back pay.

230.85(3)(a)2. 2. Order transfer of the employee to an available position for which the employee is qualified within the same governmental unit.

230.85(3)(a)3. 3. Order expungement of adverse material relating to the retaliatory action or threat from the employee’s personnel file.

230.85(3)(a)4. 4. Order payment of the employee’s reasonable attorney fees by a governmental unit respondent, or by a governmental unit employing a respondent who is a natural person if that governmental unit received notice and an opportunity to participate in proceedings before the division of equal rights.

230.85(3)(a)5. 5. Recommend to the appointing authority of a respondent who is a natural person that disciplinary or other action be taken regarding the respondent, including but not limited to any of the following:

230.85(3)(a)5.a. a. Placement of information describing the respondent’s violation of s. 230.83 in the respondent’s personnel file.

230.85(3)(a)5.b. b. Issuance of a letter reprimanding the respondent.

230.85(3)(a)5.c. c. Suspension.

230.85(3)(a)5.d. d. Termination.

230.85(3)(b) (b) If, after hearing, the division of equal rights finds that the respondent did not engage in or threaten a retaliatory action it shall order the complaint dismissed. The division of equal rights shall order the employee’s appointing authority to insert a copy of the findings and orders into the employee’s personnel file and, if the respondent is a natural person, order the respondent’s appointing authority to insert such a copy into the respondent’s personnel file. If the division of equal rights finds that the employee filed a frivolous complaint it may order payment of the respondent’s reasonable actual attorney fees and actual costs. Payment may be assessed against either the employee or the employee’s attorney, or assessed so that the employee and the employee’s attorney each pay a portion. To find a complaint frivolous the division of equal rights must find that s. 802.05 (2) or 895.044 has been violated.

230.85(3)(c) (c) Pending final determination by the division of equal rights of any complaint under this section, the division of equal rights may make interlocutory orders.

230.85(3)(d) (d) Interim earnings or amounts earnable with reasonable diligence by the person subjected to the retaliatory action or threat shall reduce back pay otherwise allowable. Amounts received by the person subjected to the retaliatory action or threat as unemployment benefits or welfare payments do not reduce the back pay otherwise allowable, but shall be withheld from the person subjected to the retaliatory action or threat and immediately paid to the unemployment reserve fund or to the welfare agency making the payment.

230.85(4) (4) The division of equal rights shall serve a certified copy of the findings and order on the respondent and, if the respondent is a natural person, upon the respondent’s appointing authority.

230.85(5) (5) 

230.85(5)(a) (a) If a respondent does not comply with any lawful order by the division of equal rights, for each such failure the respondent shall forfeit a sum of not less than $10 nor more than $100. Every day during which a respondent fails to comply with any order of the division of equal rights constitutes a separate violation of that order.

230.85(5)(b) (b) As an alternative to par. (a), the division of equal rights may enforce an order by a suit in equity.

230.85(6) (6) 

230.85(6)(a) (a) If a disciplinary action occurs or is threatened within the time prescribed under par. (b), that disciplinary action or threat is presumed to be a retaliatory action or threat thereof. The respondent may rebut that presumption by a preponderance of the evidence that the disciplinary action or threat was not a retaliatory action or threat thereof.

230.85(6)(b) (b) Paragraph (a) applies to a disciplinary action under s. 230.80 (2) (a) which occurs or is threatened within 2 years, or to a disciplinary action under s. 230.80 (2) (b), (c) or (d) which occurs or is threatened within one year, after an employee discloses information under s. 230.81 which merits further investigation or after the employee’s appointing authority, agent of an appointing authority or supervisor learns of that disclosure, whichever is later.

230.85 History History: 1983 a. 409; 1991 a. 39; 2003 a. 33; Sup. Ct. Order No. 03-06A, 2005 WI 86, 280 Wis. 2d xiii; 2011 a. 2; 2017 a. 59.

230.85 Cross-reference Cross-reference: See also ch. DWD 224, Wis. adm. code.

230.85 Annotation The commission may not use a “multiplier” in computing reasonable attorney fees under sub. (3) (a) 4.; only SCR 20:1.5 factors are permissible. Board of Regents v. Personnel Commission, 147 Wis. 2d 406, 433 N.W.2d 273 (Ct. App. 1988).

230.86 230.86 Discipline based on surveillance.

230.86(1) (1) No appointing authority may take any disciplinary action based in whole or in part on wiretapping, electronic surveillance or one-way mirrors unless that surveillance produces evidence that the employee against whom disciplinary action is taken has committed a crime or unless that surveillance is authorized by the appointing authority and is conducted in accordance with the rules promulgated under s. 16.004 (12).

230.86(2) (2) Subsection (1) does not apply to wiretapping, electronic surveillance or one-way mirrors used to monitor security or used for public safety purposes at a state institution.

230.86 History History: 1989 a. 245; 1993 a. 496.

230.86 Cross-reference Cross-reference: See also ch. DWD 224, Wis. adm. code.

230.87 230.87 Judicial review.

230.87(1) (1) Findings and orders of the division of equal rights under this subchapter are subject to judicial review under ch. 227. Upon that review, or in any enforcement action, the department of justice shall represent the division of equal rights unless a conflict of interest results from that representation. A court may order payment of a prevailing appellant employee’s reasonable attorney fees by a governmental unit respondent, or by a governmental unit employing a respondent who is a natural person if that governmental unit received notice and an opportunity to appear before the court.

230.87(2) (2) If the court finds that the appeal is frivolous, it shall award to the respondent reasonable attorney fees and costs. Payment may be assessed fully against the appellant, including a governmental unit, or the appellant’s attorney or assessed so that the appellant and the appellant’s attorney each pay a portion. To find an appeal frivolous, the court must find one or more of the following:

230.87(2)(a) (a) The appeal was filed, used or continued in bad faith, solely for purposes of harassing or maliciously injuring another.

230.87(2)(b) (b) The appellant or appellant’s attorney knew, or should have known, that the appeal was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal of existing law.

230.87 History History: 1983 a. 409; 1985 a. 135; 2003 a. 33.

230.87 Cross-reference Cross-reference: See also ch. DWD 224, Wis. adm. code.

230.88 230.88 Payment of award, judgment or settlement; effect of order, arbitration award or commencement of court action.

230.88(1) (1) Payment. Any award, judgment or settlement obtained by an employee under this subchapter shall be paid from the funds appropriated under s. 20.865 (1) (a), (g) and (q).

230.88(2) (2) Effect.

230.88(2)(a) (a) A final order issued under s. 230.85 or 230.87 which has not been appealed and for which the time of appeal has passed binds all parties who were subjected to the jurisdiction of the division of equal rights or the court and who received an opportunity to be heard. With respect to these parties, the decree is conclusive as to all issues of law and fact decided.

230.88(2)(b) (b) No collective bargaining agreement supersedes the rights of an employee under this subchapter. However, nothing in this subchapter affects any right of an employee to pursue a grievance procedure under a collective bargaining agreement under subch. V of ch. 111, and if the division of equal rights determines that a grievance arising under such a collective bargaining agreement involves the same parties and matters as a complaint under s. 230.85, it shall order the arbitrator’s final award on the merits conclusive as to the rights of the parties to the complaint, on those matters determined in the arbitration which were at issue and upon which the determination necessarily depended.

230.88(2)(c) (c) No later than 10 days before the specified time of hearing under s. 230.85 (2), an employee shall notify the division of equal rights orally or in writing if he or she has commenced or will commence an action in a court of record alleging matters prohibited under s. 230.83 (1). If the employee does not substantially comply with this requirement, the division of equal rights may assess against the employee any costs attributable to the failure to notify. Failure to notify the division of equal rights does not affect a court’s jurisdiction to proceed with the action. Upon commencement of such an action in a court of record, the division of equal rights has no jurisdiction to process a complaint filed under s. 230.85 except to dismiss the complaint and, if appropriate, to assess costs under this paragraph.

230.88 History History: 1983 a. 409; 2003 a. 33; 2009 a. 28; 2011 a. 10.

230.88 Annotation The commission lost its subject matter jurisdiction over the appellant’s whistleblower complaint once an action was filed in the federal district court that included allegations of state whistleblower violations. The state did not waive the jurisdictional issue by informing the commission that it had no objection to holding the commission proceeding in abeyance while the claims were pursued in federal court. The legislature expressly withdrew the power of the commission to adjudicate whistleblower claims once an action alleging those claims is filed in a court of record. Albrechtsen v. DWD, 2005 WI App 241, 288 Wis. 2d 144, 708 N.W.2d 1, 04-2130.

230.89 230.89 Rule making and reporting.

230.89(1) (1) The division of equal rights shall promulgate rules to carry out its responsibilities under this subchapter.

230.89(2) (2) Every 2 years, the division of equal rights shall submit a report to the chief clerk of each house of the legislature, for distribution to the appropriate standing committees under s. 13.172 (3), regarding complaints filed, hearings held and actions taken under this subchapter, including the dollar amount of any monetary settlement or final monetary award which has become binding on the parties.

230.89 History History: 1983 a. 409; 1987 a. 186; 2003 a. 33.

230.89 Cross-reference Cross-reference: See also ch. DWD 224, Wis. adm. code.

subch. IV of ch. 230 SUBCHAPTER IV

EMPLOYEE FREEDOM OF SPEECH PROTECTION

230.90 230.90 Government employer retaliation prohibited.

230.90(1) (1) In this section:

230.90(1)(a) (a) “Disciplinary action” means any action taken with respect to an employee which has the effect, in whole or in part, of a penalty.

230.90(1)(b) (b) “Employee” means any person employed by any governmental unit except:

230.90(1)(b)1. 1. A person employed by the office of the governor, the courts, the legislature or a service agency under subch. IV of ch. 13.

230.90(1)(b)2. 2. A person who is, or whose immediate supervisor is, assigned to an executive salary group under s. 20.923 or a person who has, or whose immediate supervisor has, a position specified in s. 36.115 (3m) (ae) to (f).

230.90(1)(c) (c) “Governmental unit” means any association, authority, board, commission, department, independent agency, institution, office, society or other body in state government created or authorized to be created by the constitution or any law, including the legislature, the office of the governor and the courts. “Governmental unit” does not mean the University of Wisconsin Hospitals and Clinics Authority or any political subdivision of the state or body within one or more political subdivisions which is created by law or by action of one or more political subdivisions.

230.90(1)(d) (d) “Information” means information gained by the employee which the employee reasonably believes demonstrates:

230.90(1)(d)1. 1. A violation of any state or federal law, rule or regulation.

230.90(1)(d)2. 2. Mismanagement or abuse of authority in state government, a substantial waste of public funds or a danger to public health and safety.

230.90(2) (2) An employee may bring an action in circuit court against his or her employer or employer’s agent, including this state, if the employer or employer’s agent retaliates, by engaging in a disciplinary action, against the employee because the employee exercised his or her rights under the first amendment to the U.S. constitution or article I, section 3, of the Wisconsin constitution by lawfully disclosing information or because the employer or employer’s agent believes the employee so exercised his or her rights. The employee shall bring the action within 2 years after the action allegedly occurred or after the employee learned of the action, whichever occurs last. No employee may bring an action against the division of personnel management in the department of administration as an employer’s agent.

230.90(3) (3) If, following the close of all evidence in an action under this section, a court or jury finds that retaliation was the primary factor in an employer’s or employer’s agent’s decision to engage in a disciplinary action, the court or jury may not consider any evidence offered by the employer or employer’s agent that the employer or employer’s agent would have engaged in the disciplinary action even if the employee had not disclosed, or the employer or employer’s agent had not believed the employee disclosed, the information.

230.90(4) (4) If the court or jury finds that the employer or employer’s agent retaliated against the employee, the court shall take any appropriate action, including but not limited to the following:

230.90(4)(a) (a) Order placement of the employee in his or her previous position with or without back pay.

230.90(4)(b) (b) Order transfer of the employee to an available position for which the employee is qualified within the same governmental unit.

230.90(4)(c) (c) Order expungement of adverse material relating to the retaliatory action or threat from the employee’s personnel file.

230.90(4)(cm) (cm) Order the employer to pay compensatory damages.

230.90(4)(d) (d) Order the employer to pay the employee’s reasonable attorney fees.

230.90(4)(e) (e) Order the employer or employer’s agent to insert a copy of the court order into the employee’s personnel file.

230.90(4)(f) (f) Recommend to the employer that disciplinary or other action be taken regarding the employer’s agent, including but not limited to any of the following: