2023 Wisconsin Statutes & Annotations › Chapter 111 - Employment relations. › 111.39 - Powers and duties of department.

111.39
Powers and duties of department.
Except as provided under s. 111.375 (2), the department shall have the following powers and duties in carrying out this subchapter:
(1)
The department may receive and investigate a complaint charging discrimination, discriminatory practices, unfair honesty testing or unfair genetic testing in a particular case if the complaint is filed with the department no more than 300 days after the alleged discrimination, unfair honesty testing or unfair genetic testing occurred. The department may give publicity to its findings in the case.
(2)
In carrying out this subchapter the department and its duly authorized agents are empowered to hold hearings, subpoena witnesses, take testimony and make investigations in the manner provided in s. 103.005. The department or its duly authorized agents may privilege witnesses testifying before them under the provisions of this subchapter against self-incrimination.
(3)
The department shall dismiss a complaint if the person filing the complaint fails to respond within 20 days to any correspondence from the department concerning the complaint and if the correspondence is sent by certified mail to the last-known address of the person.
(4)
(a)
The department shall employ such examiners as are necessary to hear and decide complaints of discrimination and to assist in the effective administration of this subchapter. The examiners may make findings and orders under this section.
(b)
If the department finds probable cause to believe that any discrimination has been or is being committed, that unfair honesty testing has occurred or is occurring or that unfair genetic testing has occurred or is occurring, it may endeavor to eliminate the practice by conference, conciliation or persuasion. If the department does not eliminate the discrimination, unfair honesty testing or unfair genetic testing, the department shall issue and serve a written notice of hearing, specifying the nature of the discrimination that appears to have been committed or unfair honesty testing or unfair genetic testing that has occurred, and requiring the person named, in this section called the “respondent", to answer the complaint at a hearing before an examiner. The notice shall specify a time of hearing not less than 30 days after service of the complaint, and a place of hearing within either the county of the respondent's residence or the county in which the discrimination, unfair honesty testing or unfair genetic testing appears to have occurred. The testimony at the hearing shall be recorded or taken down by a reporter appointed by the department.
(c)
If, after hearing, the examiner finds that the respondent has engaged in discrimination, unfair honesty testing or unfair genetic testing, the examiner shall make written findings and order such action by the respondent as will effectuate the purpose of this subchapter, with or without back pay. If the examiner awards any payment to an employee because of a violation of s. 111.321 by an individual employed by the employer, under s. 111.32 (6), the employer of that individual is liable for the payment. If the examiner finds a respondent violated s. 111.322 (2m), the examiner shall award compensation in lieu of reinstatement if requested by all parties and may award compensation in lieu of reinstatement if requested by any party. Compensation in lieu of reinstatement for a violation of s. 111.322 (2m) may not be less than 500 times nor more than 1,000 times the hourly wage of the person discriminated against when the violation occurred. Back pay liability may not accrue from a date more than 2 years prior to the filing of a complaint with the department. Interim earnings or amounts earnable with reasonable diligence by the person discriminated against or subjected to unfair honesty testing or unfair genetic testing shall operate to reduce back pay otherwise allowable. Amounts received by the person discriminated against or subject to the unfair honesty testing or unfair genetic testing as unemployment benefits or welfare payments shall not reduce the back pay otherwise allowable, but shall be withheld from the person discriminated against or subject to unfair honesty testing or unfair genetic testing and immediately paid to the unemployment reserve fund or, in the case of a welfare payment, to the welfare agency making the payment.
(d)
The department shall serve a certified copy of the findings and order on the respondent, the order to have the same force as other orders of the department and be enforced as provided in s. 103.005. Any person aggrieved by noncompliance with the order may have the order enforced specifically by suit in equity. If the examiner finds that the respondent has not engaged in discrimination, unfair honesty testing, or unfair genetic testing as alleged in the complaint, the department shall serve a certified copy of the examiner's findings on the complainant, together with an order dismissing the complaint.
(5)
(a)
Any respondent or complainant who is dissatisfied with the findings and order of the examiner may file a written petition with the department for review by the commission of the findings and order.
(b)
If no petition is filed within 21 days from the date that a copy of the findings and order of the examiner is mailed to the last-known address of the respondent the findings and order shall be considered final for purposes of enforcement under sub. (4) (d). If a timely petition is filed, the commission, on review, may either affirm, reverse or modify the findings or order in whole or in part, or set aside the findings and order and remand to the department for further proceedings. Such actions shall be based on a review of the evidence submitted. If the commission is satisfied that a respondent or complainant has been prejudiced because of exceptional delay in the receipt of a copy of any findings and order it may extend the time another 21 days for filing the petition with the department.
(c)
On motion, the commission may set aside, modify or change any decision made by the commission, at any time within 28 days from the date thereof if it discovers any mistake therein, or upon the grounds of newly discovered evidence. The commission may on its own motion, for reasons it deems sufficient, set aside any final decision of the commission within one year from the date thereof upon grounds of mistake or newly discovered evidence, and remand the case to the department for further proceedings.
(6)
If an order issued under sub. (4) is unenforceable against any labor organization in which membership is a privilege, an employer with whom the labor organization has an enforceable all-union agreement shall not be held accountable under this chapter if the employer is not responsible for the discrimination, the unfair honesty testing, or the unfair genetic testing.
History:  1973 c. 268; 1977 c. 29, 196; 1979 c. 221, 319, 355; 1981 c. 334 ss. 20, 25 (2); Stats. 1981 s. 111.39; 1983 a. 122; 1989 a. 228; 1991 a. 117; 1995 a. 27; 2009 a. 20; 2011 a. 219; 2015 a. 1.
A Department of Industry, Labor and Human Relations order that was broader in scope than the nature of the discrimination set forth in the notice of hearing was overbroad. Chicago, Milwaukee, St. Paul & Pacific Railroad Co. v. DILHR, 62 Wis. 2d 392, 215 N.W.2d 443 (1972).
An employer found to have discriminated against a female employee with respect to required length of pregnancy leave and applicable employee benefits was denied adequate notice of the leave benefits issue prior to hearing as required by s. 111.36 (3) (a) [now sub. (4) (b)] and former s. 227.09, 1971 stats., because: 1) the notice received by the employer merely charged “an act of discrimination due to sex;" 2) the complaint specified the discriminatory act as the refusal to rehire the employee as soon as she was able to return to work; 3) the Department of Industry, Labor and Human Relations characterized the complaint as involving only length of the required leave; and 4) the discriminatory aspects of the required pregnancy leave and applicable benefits constituted separate legal issues. Wisconsin Telephone Co. v. DILHR, 68 Wis. 2d 345, 228 N.W.2d 649 (1975).
A court should not use ch. 227 or s. 752.35 to circumvent the policy under s. 111.36 (3m) (c) [now sub. (5) (c)] that proceedings before the commission are not to be reopened more than one year after entry of a final decision. Chicago & North Western Railroad v. LIRC, 91 Wis. 2d 462, 283 N.W.2d 603 (Ct. App. 1979).
A valid offer of reinstatement terminates the accrual of back pay. The Labor and Industry Review Commission erred in finding an employer's offer to be sufficient. Prejudgment interest should be awarded on back pay. Anderson v. LIRC, 111 Wis. 2d 245, 330 N.W.2d 594 (1983).
Sub. (1) is a statute of limitations. As such it is an affirmative defense that may be waived. County of Milwaukee v. LIRC, 113 Wis. 2d 199, 335 N.W.2d 412 (Ct. App. 1983).
Under s. 111.36 (3) (b) [now sub. (4) (c)], the Department of Industry, Labor and Human Relations may award attorney's fees to a prevailing complainant. Watkins v. LIRC, 117 Wis. 2d 753, 345 N.W.2d 482 (1984).
Under sub. (1), “filing" does not occur until the complaint is received by the Department of Industry, Labor and Human Relations, and when discrimination “occurred" in termination cases is the date of notice of termination. Hilmes v. DILHR, 147 Wis. 2d 48, 433 N.W.2d 251 (Ct. App. 1988).
The Wisconsin Personnel Commission may not award costs and attorney's fees for discovery motions filed against the state under the Wisconsin Fair Employment Act. DOT v. Wisconsin Personnel Commission, 176 Wis. 2d 731, 500 N.W.2d 664 (1993).
Victims of discrimination in the work place who voluntarily quit a position must show constructive discharge to recover back pay and reinstatement. Marten Transport, Ltd. v. DILHR, 176 Wis. 2d 1012, 501 N.W.2d 391 (1993).
Evidence of acts occurring outside of the sub. (1) 300-day statute of limitations period may be admitted as proof of a state of mind for acts during a relevant time. Abbyland Processing v. LIRC, 206 Wis. 2d 309, 557 N.W.2d 419 (Ct. App. 1996), 96-1119.
What constitutes reasonable diligence under sub. (4) (c) is to be determined from all the facts of a case. U.S. Paper Converters, Inc. v. LIRC, 208 Wis. 2d 523, 561 N.W.2d 756 (Ct. App. 1997), 96-2055.
Abbyland, 206 Wis. 2d 309 (1996), clearly held that compensation discrimination is actionable if an employee received payment within the 300-day period before filing the employee's complaint pursuant to a discriminatory compensation decision. It does not matter that the discriminatory compensation decision was made before the 300-day period, nor does it matter when the employee became aware of the discrimination. Rice Lake Harley Davidson v. LIRC, 2014 WI App 104, 357 Wis. 2d 621, 855 N.W.2d 882, 14-0013.
A prevailing complainant is entitled to reasonable attorney fees under this subchapter. A plaintiff is a prevailing party if the plaintiff succeeds on any significant issue in litigation that achieves some of the benefit the plaintiff sought in bringing suit. That the award of fees must be reasonable did not mean that because the complainant in this case received less than ten percent of the back pay she requested, she was entitled to only ten percent of the attorney fees she requested. Rice Lake Harley Davidson v. LIRC, 2014 WI App 104, 357 Wis. 2d 621, 855 N.W.2d 882, 14-0013.
Under sub. (5) (b), when a party seeks review of an administrative law judge's (ALJ) findings or order, the Labor and Industry Review Commission (LIRC) is not bound by the ALJ's decision. The reviewing court cannot ignore and jump over the findings of LIRC to reach those of the ALJ that were set aside. The role of the court on appeal is to search the record for evidence supporting LIRC's factual determinations, not to search for evidence against them. Robles v. Thomas Hribar Truck & Equipment, Inc., 2020 WI App 74, 394 Wis. 2d 761, 951 N.W.2d 853, 19-1412.
In Wisconsin, the general rule is that when an agency acting as an appeal tribunal—here, the Labor and Industry Review Commission (LIRC)—diverges from the hearing examiner—the administrative law judge (ALJ)—as to material findings of facts based on witness credibility, LIRC must hold a credibility conference in order to obtain the ALJ's impressions concerning the witnesses' demeanor and credibility. When credibility of witnesses is at issue, it is a denial of due process if the administrative agency making a fact determination does not have the benefit of the findings, conclusions, and impressions of the testimony of each hearing officer who conducted any part of the hearing. LIRC is required to provide an explanation for its disagreement with the ALJ in its memorandum opinion. Robles v. Thomas Hribar Truck & Equipment, Inc., 2020 WI App 74, 394 Wis. 2d 761, 951 N.W.2d 853, 19-1412.
A proposed rule that would prohibit departmental employees from making public any information obtained under s. 111.36 [now this section] prior to the time an adjudicatory hearing takes place, if used as a blanket to prohibit persons from inspecting or copying public papers and records, would be in violation of s. 19.21. Discussing the open meetings law [now ss. 19.81 to 19.98]. 60 Atty. Gen. 43.
The department may proceed in a matter despite a settlement between the parties if the agreement does not eliminate the discrimination. The department may approve a settlement between the parties that does not provide full back pay if the agreement will eliminate the unlawful practice or act. 66 Atty. Gen. 28.
Under Title VII of the federal Civil Rights Act, to establish constructive discharge, the plaintiff must show that an abusive working environment became so intolerable that resignation qualified as a fitting response. Unless the plaintiff quits in reasonable response to an employer-sanctioned adverse action officially changing his or her employment status, an employer may defend against a claim by showing that: 1) it had installed an accessible and effective policy for reporting and resolving sexual harassment complaints; and 2) the plaintiff unreasonably failed to use that preventive or remedial apparatus. Pennsylvania State Police v. Suders, 542 U.S. 129, 124 S. Ct. 2342, 159 L. Ed. 2d 204 (2004).
Sex Discrimination Law: Old Problems, New Scrutiny. Larson & Tutwiler. Wis. Law. Apr. 2020.
Employment Termination: Computing Economic Losses. Baum. Wis. Law. Sept. 2020.