Wisconsin 2023-2024 Regular Session

Wisconsin Assembly Bill AB1006 Compare Versions

Only one version of the bill is available at this time.

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3	3	2023 - 2024 LEGISLATURE
4	4	2023 ASSEMBLY BILL 1006
5	5	January 25, 2024 - Introduced by Representatives BARE, JOERS, C. ANDERSON, J.
6	6	ANDERSON, CLANCY, CONLEY, CONSIDINE, EMERSON, MADISON, MYERS, PALMERI,
7	7	RATCLIFF, SHELTON, SUBECK, SINICKI and NEUBAUER, cosponsored by Senators
8	8	CARPENTER, HESSELBEIN, AGARD and SPREITZER. Referred to Committee on
9	9	Labor and Integrated Employment.
10	10	*AUTHORS SUBJECT TO CHANGE*
11	11	AN ACT to amend 102.03 (2), 102.81 (5), 102.82 (1) and 814.04 (intro.); and to
12	12	create 102.80 (1) (dm), 102.81 (4g) and 103.08 of the statutes; relating to:
13	13	prohibiting abusive work environments and creating a cause of action.
14	14	Analysis by the Legislative Reference Bureau
15	15	This bill prohibits abusive work environments and allows an individual who
16	16	has been subjected to such an environment to bring a civil action.
17	17	Under current law, worker's compensation is generally the exclusive remedy of
18	18	an employee against his or her employer, a coemployee, or the employer's worker's
19	19	compensation insurer for an injury sustained while performing services from and
20	20	incidental to employment.
21	21	This bill provides an exception to that exclusive remedy provision. Under the
22	22	bill, an employee who alleges that he or she has been injured by being subjected to
23	23	an abusive work environment or by being subjected to retaliation or a threat of
24	24	retaliation for opposing an abusive work environment or for initiating, or in any
25	25	manner participating in, an investigation, action, or proceeding to enforce the right
26	26	not to be subjected to an abusive work environment (“unlawful employment
27	27	practice") may bring an action in circuit court against the employer or employee who
28	28	allegedly engaged in the unlawful employment practice for relief the court considers
29	29	appropriate. The aggrieved employee must commence an action within one year
30	30	after the last act constituting the unlawful employment practice occurred.
31	31	If the circuit court finds that an employer or employee has engaged in an
32	32	unlawful employment practice, the court may enjoin the employer or employee from
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38	38	engaging in that practice and may grant other relief the court considers appropriate,
39	39	including reinstatement of the aggrieved employee, removal of the person who
40	40	engaged in the abusive conduct from the aggrieved employee's work area, medical
41	41	expenses, back pay, front pay, compensation for pain and suffering, compensation for
42	42	emotional distress, punitive damages, and reasonable costs and attorney fees. If the
43	43	circuit court orders payment of money because of an unlawful employment practice
44	44	engaged in by an employee, the employer of the employee is liable for that payment.
45	45	If an employer is found to have engaged in an unlawful employment practice that did
46	46	not result in an adverse employment action against the aggrieved employee, the
47	47	employer is not liable for compensation for emotional distress or punitive damages
48	48	unless the abusive conduct was extreme and outrageous.
49	49	For further information see the state fiscal estimate, which will be printed as
50	50	an appendix to this bill.
51	51	The people of the state of Wisconsin, represented in senate and assembly, do
52	52	enact as follows:
53	53	SECTION 1. 102.03 (2) of the statutes is amended to read:
54	54	102.03 (2) Where such Except as provided in this subsection, when those
55	55	conditions exist the right to the recovery of compensation under this chapter shall
56	56	be the exclusive remedy against the employer, any other employee of the same
57	57	employer, and the worker's compensation insurance carrier. This section does not
58	58	limit the right of an employee to bring action against any coemployee for an assault
59	59	intended to cause bodily harm, or against a coemployee for negligent operation of a
60	60	motor vehicle not owned or leased by the employer, against the employer or a
61	61	coemployee for an unlawful employment practice under s. 103.08 (3), or against a
62	62	coemployee of the same employer to the extent that there would be liability of a
63	63	governmental unit to pay judgments against employees under a collective
64	64	bargaining agreement or a local ordinance.
65	65	SECTION 2. 102.80 (1) (dm) of the statutes is created to read:
66	66	102.80 (1) (dm) Amounts received under s. 103.08 (6) (a) 1.
67	67	SECTION 3. 102.81 (4g) of the statutes is created to read:
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85	85	SECTION 3
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87	87	102.81 (4g) If an injured employee who received one or more payments under
88	88	sub. (1) begins an action against the employee's employer or a coemployee under s.
89	89	103.08 (3) for an unlawful employment practice arising out of the same underlying
90	90	behavior as the behavior giving rise to the injury that is compensable under sub. (1),
91	91	the injured employee shall provide to the department a copy of all papers filed by any
92	92	party to the action. If the injured employee is awarded medical expenses, back pay,
93	93	or front pay under s. 103.08 (5) (a), the employer shall reimburse the department as
94	94	provided in s. 103.08 (6) (a) 1.
95	95	SECTION 4. 102.81 (5) of the statutes is amended to read:
96	96	102.81 (5) The department of justice may bring an action to collect a payment
97	97	under sub. (4) (b) or (c) or (4g).
98	98	SECTION 5. 102.82 (1) of the statutes is amended to read:
99	99	102.82 (1) Except as provided in sub. (2) (ar), an uninsured employer shall
100	100	reimburse the department for any payment made under s. 102.81 (1) to or on behalf
101	101	of an employee of the uninsured employer or to an employee's dependents and for any
102	102	expenses paid by the department in administering the claim of the employee or
103	103	dependents, less amounts repaid by the uninsured employer, employee, or
104	104	dependents under s. 102.81 (4) (b) or (c) or (4g). The reimbursement owed under this
105	105	subsection is due within 30 days after the date on which the department notifies the
106	106	uninsured employer that the reimbursement is owed. Interest shall accrue on
107	107	amounts not paid when due at the rate of 1 percent per month.
108	108	SECTION 6. 103.08 of the statutes is created to read:
109	109	103.08 Abusive work environments. (1) DEFINITIONS. In this section:
110	110	(a) “Abusive conduct" means conduct, including acts or omissions, by an
111	111	employer or employee that a reasonable person would find to be abusive on the basis
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139	139	of the severity, nature, and frequency of the conduct. “Abusive conduct" includes
140	140	repeated infliction of verbal abuse such as derogatory remarks, insults, and epithets;
141	141	verbal, nonverbal, or physical conduct that is threatening, intimidating, or
142	142	humiliating; sabotage or undermining of an employee's work performance; or, as an
143	143	aggravating factor, exploitation of an employee's known psychological or physical
144	144	illness or disability. “Abusive conduct" does not include a single act unless that act
145	145	is especially severe or egregious.
146	146	(b) “Abusive work environment" means a work environment in which an
147	147	employer or one or more of its employees, acting with intent to cause pain or distress
148	148	to an employee, subjects that employee to abusive conduct that causes physical harm
149	149	or psychological harm to that employee.
150	150	(c) “Adverse employment action" means an action taken by an employer with
151	151	respect to an employee that has the effect, in whole or in part, of a penalty, including
152	152	dismissal or suspension from employment, demotion, denial of a promotion,
153	153	unfavorable transfer or reassignment, reduction in compensation, or denial of
154	154	increased compensation. “Adverse employment action" also includes a constructive
155	155	discharge.
156	156	(d) “Aggrieved employee" means an employee who brings an action under sub.
157	157	(3) alleging that he or she has been injured by an unlawful employment practice.
158	158	(e) “Constructive discharge" means a situation in which an employee resigns
159	159	from employment because the employee reasonably believes that he or she was
160	160	subjected to an abusive work environment and, prior to the employee resigning, the
161	161	employer was aware of the abusive conduct that gave rise to the abusive work
162	162	environment and the employer failed to stop the abusive conduct.
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189	189	SECTION 6
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191	191	(f) Notwithstanding s. 103.001 (5), “employee" means an individual employed
192	192	by an employer.
193	193	(g) Notwithstanding s. 103.001 (6), “employer" means a person engaging in any
194	194	activity, enterprise, or business in this state that employs one or more persons on a
195	195	permanent basis. “Employer" includes the state and any office, department,
196	196	independent agency, authority, institution, association, society, or other body in state
197	197	government created or authorized to be created by the constitution or any law,
198	198	including the legislature and the courts.
199	199	(h) “Physical harm" means the impairment of an individual's physical health
200	200	or bodily integrity.
201	201	(i) “Psychological harm" means the impairment of an individual's mental
202	202	health.
203	203	(j) “Retaliate" means to take an action that negatively affects the terms,
204	204	conditions, and privileges of an employee's employment.
205	205	(k) “Unlawful employment practice" means an unlawful employment practice
206	206	prohibited under sub. (2) (a) or (b).
207	207	(2) ABUSIVE WORK ENVIRONMENT PROHIBITED. (a) It is an unlawful employment
208	208	practice for an employer or employee to subject an employee to an abusive work
209	209	environment.
210	210	(b) It is an unlawful employment practice for an employer or employee to
211	211	retaliate or threaten to retaliate in any manner against an employee for any of the
212	212	following reasons:
213	213	1. The employee opposed an unlawful employment practice.
214	214	2. The employee initiated, testified in, assisted in, or in any other manner
215	215	participated in an investigation, action, or proceeding to enforce a right under this
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243	243	section, including any internal investigation or proceeding, any mediation or
244	244	arbitration proceeding, or any court action.
245	245	3. The employer believes that the employee engaged in conduct described in
246	246	subd. 1. or 2.
247	247	(c) The prohibitions under pars. (a) and (b) may be enforced only by a civil cause
248	248	of action brought under sub. (3).
249	249	(3) CIVIL ACTION. In addition to any other remedy provided by law, an employee
250	250	who alleges that he or she has been injured by an unlawful employment practice may
251	251	bring an action in circuit court against the employer and, if applicable, the employee
252	252	who allegedly engaged in the unlawful employment practice for any relief under sub.
253	253	(5) the court considers appropriate. An employee must commence an action under
254	254	this subsection within one year after the last act constituting the unlawful
255	255	employment practice occurred or be barred from commencing an action.
256	256	(4) AFFIRMATIVE DEFENSES. (a) If the alleged unlawful employment practice did
257	257	not result in an adverse employment action against the aggrieved employee, the
258	258	employer may plead as an affirmative defense that all of the following are true:
259	259	1. The employer exercised reasonable care to prevent and promptly correct the
260	260	abusive conduct that is the basis for the aggrieved employee's cause of action.
261	261	2. The aggrieved employee unreasonably failed to take advantage of
262	262	appropriate preventive or corrective opportunities the employer provided to prevent
263	263	or correct the abusive conduct described under subd. 1.
264	264	(b) If the alleged unlawful employment practice resulted in an adverse
265	265	employment action against the aggrieved employee, the employer may plead as an
266	266	affirmative defense that the aggrieved employee's complaint is based on any of the
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297	297	1. An adverse employment action that was reasonably taken for poor
298	298	performance or misconduct by the aggrieved employee or for the employer's economic
299	299	necessity.
300	300	2. An adverse employment action that was taken in response to a reasonable
301	301	performance evaluation of the aggrieved employee.
302	302	3. A reasonable investigation of a potentially illegal or unethical activity by the
303	303	aggrieved employee.
304	304	(c) An employee who is alleged to have engaged in an unlawful employment
305	305	practice may plead as an affirmative defense that the employee engaged in that
306	306	practice at the direction of the employer under an actual or implied threat of an
307	307	adverse employment action against the employee for not engaging in that practice.
308	308	(5) RELIEF. (a) Subject to par. (b) and sub. (6) (a) 1., if the circuit court finds
309	309	that an employer or employee has engaged in an unlawful employment practice, the
310	310	court may enjoin the employer or employee from engaging in that practice and may
311	311	grant other relief the court considers appropriate, including reinstatement of the
312	312	aggrieved employee, removal of the person who engaged in the abusive conduct
313	313	giving rise to the unlawful employment practice from the aggrieved employee's work
314	314	area, medical expenses, back pay, front pay, compensation for pain and suffering,
315	315	compensation for emotional distress, punitive damages under s. 895.043, and,
316	316	notwithstanding s. 814.04, reasonable costs and attorney fees. If the circuit court
317	317	orders any payment under this paragraph because of an unlawful employment
318	318	practice engaged in by an employee, the employer of the employee who engaged in
319	319	an unlawful employment practice is liable for that payment.
320	320	(b) If an employer is found to have engaged in an unlawful employment practice
321	321	that did not result in an adverse employment action against the aggrieved employee,
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349	349	the employer is not liable for compensation for emotional distress or punitive
350	350	damages unless the abusive conduct was extreme and outrageous.
351	351	(6) EFFECT ON OTHER LAWS. (a) This section does not relieve any person from
352	352	any duty, liability, or penalty provided by any other law except as follows:
353	353	1. If the worker's compensation insurer of an employer that is ordered to pay
354	354	medical expenses under sub. (5) (a) or the department, if the employer is uninsured,
355	355	has paid or is obligated to pay medical expenses under ch. 102 for an injury arising
356	356	out of the same underlying behavior as the behavior giving rise to the unlawful
357	357	employment practice for which the employer is liable, or if the worker's
358	358	compensation insurer of an employer that is ordered to pay back pay or front pay
359	359	under sub. (5) (a) or the department, if the employer is uninsured, has paid or is
360	360	obligated to pay disability benefits under ch. 102 for such an injury for the same
361	361	period as back or front pay is awarded under sub. (5) (a), the court shall order the
362	362	employer to reimburse the insurer or department for the amount of those expenses
363	363	or benefits paid or payable and to pay to the aggrieved employee any balance of the
364	364	amount awarded under sub. (5) (a) remaining after that reimbursement.
365	365	2. If a self-insured employer has paid or is obligated to pay medical expenses
366	366	under ch. 102 for an injury arising out of the same underlying behavior as the
367	367	behavior giving rise to the unlawful employment practice for which the employer is
368	368	liable, or a self-insured employer has paid or is obligated to pay disability benefits
369	369	under ch. 102 for such an injury for the same period as back or front pay is awarded
370	370	under sub. (5) (a), the court shall reduce the amount awarded under sub. (5) (a) for
371	371	medical expenses, back pay, or front pay by the amount of those medical expenses or
372	372	disability benefits that the employer has paid or is obligated to pay under ch. 102 and
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401	401	order the employer to pay to the aggrieved employee any balance of the amount
402	402	awarded under sub. (5) (a) remaining after that reduction.
403	403	(b) An aggrieved employee who has claimed worker 's compensation or
404	404	payments under s. 102.81 (1) for an injury arising out of the same underlying
405	405	behavior as the behavior giving rise to the unlawful employment practice for which
406	406	the aggrieved employee brings an action under sub. (3) shall provide notice of the
407	407	action and copies of all papers filed by a party to the action to the employer's worker's
408	408	compensation insurer or, if the employer is uninsured, to the department and shall
409	409	provide notice of the worker's compensation proceeding and copies of all papers filed
410	410	by a party to the proceeding to the court and to all parties to the action.
411	411	SECTION 7. 814.04 (intro.) of the statutes is amended to read:
412	412	814.04 Items of costs. (intro.) Except as provided in ss. 93.20, 100.195 (5m)
413	413	(b), 100.30 (5m), 103.08 (5) (a), 106.50 (6) (i) and (6m) (a), 115.80 (9), 767.553 (4) (d),
414	414	769.313, 802.05, 814.245, 895.035 (4), 895.044, 895.443 (3), 895.444 (2), 895.445 (3),
415	415	895.446 (3), 895.506, 943.212 (2) (b), 943.245 (2) (d), 943.51 (2) (b), and 995.10 (3),
416	416	when allowed costs shall be as follows:
417	417	SECTION 8.0Initial applicability.
418	418	(1) ABUSIVE WORK ENVIRONMENT. This act first applies to an unlawful
419	419	employment practice, as defined in s. 103.08 (1) (k), committed on the effective date
420	420	of this subsection.
421	421	(END)
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