2011 Wisconsin Code
Chapter 230. State employment relations.
230.85 Enforcement.

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 by unanimous vote 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 - ANNOT.

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.

230.85 - ANNOT.

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

230.85 - ANNOT.

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).

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