LRB-5181/1
MIM:amn
2023 - 2024 LEGISLATURE
2023 ASSEMBLY BILL 1006
January 25, 2024 - Introduced by Representatives BARE, JOERS, C. ANDERSON, J.
ANDERSON, CLANCY, CONLEY, CONSIDINE, EMERSON, MADISON, MYERS, PALMERI,
RATCLIFF, SHELTON, SUBECK, SINICKI and NEUBAUER, cosponsored by Senators
CARPENTER, HESSELBEIN, AGARD and SPREITZER. Referred to Committee on
Labor and Integrated Employment.
***AUTHORS SUBJECT TO CHANGE***
AN ACT to amend 102.03 (2), 102.81 (5), 102.82 (1) and 814.04 (intro.); and to
create 102.80 (1) (dm), 102.81 (4g) and 103.08 of the statutes; relating to:
prohibiting abusive work environments and creating a cause of action.
Analysis by the Legislative Reference Bureau
This bill prohibits abusive work environments and allows an individual who
has been subjected to such an environment to bring a civil action.
Under current law, worker's compensation is generally the exclusive remedy of
an employee against his or her employer, a coemployee, or the employer's worker's
compensation insurer for an injury sustained while performing services from and
incidental to employment.
This bill provides an exception to that exclusive remedy provision. Under the
bill, an employee who alleges that he or she has been injured by being subjected to
an abusive work environment or by being subjected to retaliation or a threat of
retaliation for opposing an abusive work environment or for initiating, or in any
manner participating in, an investigation, action, or proceeding to enforce the right
not to be subjected to an abusive work environment (“unlawful employment
practice") may bring an action in circuit court against the employer or employee who
allegedly engaged in the unlawful employment practice for relief the court considers
appropriate. The aggrieved employee must commence an action within one year
after the last act constituting the unlawful employment practice occurred.
If the circuit court finds that an employer or employee has engaged in an
unlawful employment practice, the court may enjoin the employer or employee from
1
2
3 - 2 -2023 - 2024 Legislature LRB-5181/1
MIM:amn
ASSEMBLY BILL 1006
engaging in that practice and may grant other relief the court considers appropriate,
including reinstatement of the aggrieved employee, removal of the person who
engaged in the abusive conduct from the aggrieved employee's work area, medical
expenses, back pay, front pay, compensation for pain and suffering, compensation for
emotional distress, punitive damages, and reasonable costs and attorney fees. If the
circuit court orders payment of money because of an unlawful employment practice
engaged in by an employee, the employer of the employee is liable for that payment.
If an employer is found to have engaged in an unlawful employment practice that did
not result in an adverse employment action against the aggrieved employee, the
employer is not liable for compensation for emotional distress or punitive damages
unless the abusive conduct was extreme and outrageous.
For further information see the state fiscal estimate, which will be printed as
an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
SECTION 1. 102.03 (2) of the statutes is amended to read:
102.03 (2) Where such Except as provided in this subsection, when those
conditions exist the right to the recovery of compensation under this chapter shall
be the exclusive remedy against the employer, any other employee of the same
employer, and the worker's compensation insurance carrier. This section does not
limit the right of an employee to bring action against any coemployee for an assault
intended to cause bodily harm, or against a coemployee for negligent operation of a
motor vehicle not owned or leased by the employer, against the employer or a
coemployee for an unlawful employment practice under s. 103.08 (3), or against a
coemployee of the same employer to the extent that there would be liability of a
governmental unit to pay judgments against employees under a collective
bargaining agreement or a local ordinance.
SECTION 2. 102.80 (1) (dm) of the statutes is created to read:
102.80 (1) (dm) Amounts received under s. 103.08 (6) (a) 1.
SECTION 3. 102.81 (4g) of the statutes is created to read:
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15 - 3 -2023 - 2024 Legislature
LRB-5181/1
MIM:amn
SECTION 3
ASSEMBLY BILL 1006
102.81 (4g) If an injured employee who received one or more payments under
sub. (1) begins an action against the employee's employer or a coemployee under s.
103.08 (3) for an unlawful employment practice arising out of the same underlying
behavior as the behavior giving rise to the injury that is compensable under sub. (1),
the injured employee shall provide to the department a copy of all papers filed by any
party to the action. If the injured employee is awarded medical expenses, back pay,
or front pay under s. 103.08 (5) (a), the employer shall reimburse the department as
provided in s. 103.08 (6) (a) 1.
SECTION 4. 102.81 (5) of the statutes is amended to read:
102.81 (5) The department of justice may bring an action to collect a payment
under sub. (4) (b) or (c) or (4g).
SECTION 5. 102.82 (1) of the statutes is amended to read:
102.82 (1) Except as provided in sub. (2) (ar), an uninsured employer shall
reimburse the department for any payment made under s. 102.81 (1) to or on behalf
of an employee of the uninsured employer or to an employee's dependents and for any
expenses paid by the department in administering the claim of the employee or
dependents, less amounts repaid by the uninsured employer, employee, or
dependents under s. 102.81 (4) (b) or (c) or (4g). The reimbursement owed under this
subsection is due within 30 days after the date on which the department notifies the
uninsured employer that the reimbursement is owed. Interest shall accrue on
amounts not paid when due at the rate of 1 percent per month.
SECTION 6. 103.08 of the statutes is created to read:
103.08 Abusive work environments. (1) DEFINITIONS. In this section:
(a) “Abusive conduct" means conduct, including acts or omissions, by an
employer or employee that a reasonable person would find to be abusive on the basis
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25 - 4 -2023 - 2024 Legislature LRB-5181/1
MIM:amn
SECTION 6 ASSEMBLY BILL 1006
of the severity, nature, and frequency of the conduct. “Abusive conduct" includes
repeated infliction of verbal abuse such as derogatory remarks, insults, and epithets;
verbal, nonverbal, or physical conduct that is threatening, intimidating, or
humiliating; sabotage or undermining of an employee's work performance; or, as an
aggravating factor, exploitation of an employee's known psychological or physical
illness or disability. “Abusive conduct" does not include a single act unless that act
is especially severe or egregious.
(b) “Abusive work environment" means a work environment in which an
employer or one or more of its employees, acting with intent to cause pain or distress
to an employee, subjects that employee to abusive conduct that causes physical harm
or psychological harm to that employee.
(c) “Adverse employment action" means an action taken by an employer with
respect to an employee that has the effect, in whole or in part, of a penalty, including
dismissal or suspension from employment, demotion, denial of a promotion,
unfavorable transfer or reassignment, reduction in compensation, or denial of
increased compensation. “Adverse employment action" also includes a constructive
discharge.
(d) “Aggrieved employee" means an employee who brings an action under sub.
(3) alleging that he or she has been injured by an unlawful employment practice.
(e) “Constructive discharge" means a situation in which an employee resigns
from employment because the employee reasonably believes that he or she was
subjected to an abusive work environment and, prior to the employee resigning, the
employer was aware of the abusive conduct that gave rise to the abusive work
environment and the employer failed to stop the abusive conduct.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24 - 5 -2023 - 2024 Legislature
LRB-5181/1
MIM:amn
SECTION 6
ASSEMBLY BILL 1006
(f) Notwithstanding s. 103.001 (5), “employee" means an individual employed
by an employer.
(g) Notwithstanding s. 103.001 (6), “employer" means a person engaging in any
activity, enterprise, or business in this state that employs one or more persons on a
permanent basis. “Employer" includes the state and any 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.
(h) “Physical harm" means the impairment of an individual's physical health
or bodily integrity.
(i) “Psychological harm" means the impairment of an individual's mental
health.
(j) “Retaliate" means to take an action that negatively affects the terms,
conditions, and privileges of an employee's employment.
(k) “Unlawful employment practice" means an unlawful employment practice
prohibited under sub. (2) (a) or (b).
(2) ABUSIVE WORK ENVIRONMENT PROHIBITED. (a) It is an unlawful employment
practice for an employer or employee to subject an employee to an abusive work
environment.
(b) It is an unlawful employment practice for an employer or employee to
retaliate or threaten to retaliate in any manner against an employee for any of the
following reasons:
1. The employee opposed an unlawful employment practice.
2. The employee initiated, testified in, assisted in, or in any other manner
participated in an investigation, action, or proceeding to enforce a right under this
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25 - 6 -2023 - 2024 Legislature LRB-5181/1
MIM:amn
SECTION 6 ASSEMBLY BILL 1006
section, including any internal investigation or proceeding, any mediation or
arbitration proceeding, or any court action.
3. The employer believes that the employee engaged in conduct described in
subd. 1. or 2.
(c) The prohibitions under pars. (a) and (b) may be enforced only by a civil cause
of action brought under sub. (3).
(3) CIVIL ACTION. In addition to any other remedy provided by law, an employee
who alleges that he or she has been injured by an unlawful employment practice may
bring an action in circuit court against the employer and, if applicable, the employee
who allegedly engaged in the unlawful employment practice for any relief under sub.
(5) the court considers appropriate. An employee must commence an action under
this subsection within one year after the last act constituting the unlawful
employment practice occurred or be barred from commencing an action.
(4) AFFIRMATIVE DEFENSES. (a) If the alleged unlawful employment practice did
not result in an adverse employment action against the aggrieved employee, the
employer may plead as an affirmative defense that all of the following are true:
1. The employer exercised reasonable care to prevent and promptly correct the
abusive conduct that is the basis for the aggrieved employee's cause of action.
2. The aggrieved employee unreasonably failed to take advantage of
appropriate preventive or corrective opportunities the employer provided to prevent
or correct the abusive conduct described under subd. 1.
(b) If the alleged unlawful employment practice resulted in an adverse
employment action against the aggrieved employee, the employer may plead as an
affirmative defense that the aggrieved employee's complaint is based on any of the
following:
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25 - 7 -2023 - 2024 Legislature
LRB-5181/1
MIM:amn
SECTION 6
ASSEMBLY BILL 1006
1. An adverse employment action that was reasonably taken for poor
performance or misconduct by the aggrieved employee or for the employer's economic
necessity.
2. An adverse employment action that was taken in response to a reasonable
performance evaluation of the aggrieved employee.
3. A reasonable investigation of a potentially illegal or unethical activity by the
aggrieved employee.
(c) An employee who is alleged to have engaged in an unlawful employment
practice may plead as an affirmative defense that the employee engaged in that
practice at the direction of the employer under an actual or implied threat of an
adverse employment action against the employee for not engaging in that practice.
(5) RELIEF. (a) Subject to par. (b) and sub. (6) (a) 1., if the circuit court finds
that an employer or employee has engaged in an unlawful employment practice, the
court may enjoin the employer or employee from engaging in that practice and may
grant other relief the court considers appropriate, including reinstatement of the
aggrieved employee, removal of the person who engaged in the abusive conduct
giving rise to the unlawful employment practice from the aggrieved employee's work
area, medical expenses, back pay, front pay, compensation for pain and suffering,
compensation for emotional distress, punitive damages under s. 895.043, and,
notwithstanding s. 814.04, reasonable costs and attorney fees. If the circuit court
orders any payment under this paragraph because of an unlawful employment
practice engaged in by an employee, the employer of the employee who engaged in
an unlawful employment practice is liable for that payment.
(b) If an employer is found to have engaged in an unlawful employment practice
that did not result in an adverse employment action against the aggrieved employee,
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25 - 8 -2023 - 2024 Legislature LRB-5181/1
MIM:amn
SECTION 6 ASSEMBLY BILL 1006
the employer is not liable for compensation for emotional distress or punitive
damages unless the abusive conduct was extreme and outrageous.
(6) EFFECT ON OTHER LAWS. (a) This section does not relieve any person from
any duty, liability, or penalty provided by any other law except as follows:
1. If the worker's compensation insurer of an employer that is ordered to pay
medical expenses under sub. (5) (a) or the department, if the employer is uninsured,
has paid or is obligated to pay medical expenses under ch. 102 for an injury arising
out of the same underlying behavior as the behavior giving rise to the unlawful
employment practice for which the employer is liable, or if the worker's
compensation insurer of an employer that is ordered to pay back pay or front pay
under sub. (5) (a) or the department, if the employer is uninsured, has paid or is
obligated to pay disability benefits under ch. 102 for such an injury for the same
period as back or front pay is awarded under sub. (5) (a), the court shall order the
employer to reimburse the insurer or department for the amount of those expenses
or benefits paid or payable and to pay to the aggrieved employee any balance of the
amount awarded under sub. (5) (a) remaining after that reimbursement.
2. If a self-insured employer has paid or is obligated to pay medical expenses
under ch. 102 for an injury arising out of the same underlying behavior as the
behavior giving rise to the unlawful employment practice for which the employer is
liable, or a self-insured employer has paid or is obligated to pay disability benefits
under ch. 102 for such an injury for the same period as back or front pay is awarded
under sub. (5) (a), the court shall reduce the amount awarded under sub. (5) (a) for
medical expenses, back pay, or front pay by the amount of those medical expenses or
disability benefits that the employer has paid or is obligated to pay under ch. 102 and
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24 - 9 -2023 - 2024 Legislature
LRB-5181/1
MIM:amn
SECTION 6
ASSEMBLY BILL 1006
order the employer to pay to the aggrieved employee any balance of the amount
awarded under sub. (5) (a) remaining after that reduction.
(b) An aggrieved employee who has claimed worker 's compensation or
payments under s. 102.81 (1) for an injury arising out of the same underlying
behavior as the behavior giving rise to the unlawful employment practice for which
the aggrieved employee brings an action under sub. (3) shall provide notice of the
action and copies of all papers filed by a party to the action to the employer's worker's
compensation insurer or, if the employer is uninsured, to the department and shall
provide notice of the worker's compensation proceeding and copies of all papers filed
by a party to the proceeding to the court and to all parties to the action.
SECTION 7. 814.04 (intro.) of the statutes is amended to read:
814.04 Items of costs. (intro.) Except as provided in ss. 93.20, 100.195 (5m)
(b), 100.30 (5m), 103.08 (5) (a), 106.50 (6) (i) and (6m) (a), 115.80 (9), 767.553 (4) (d),
769.313, 802.05, 814.245, 895.035 (4), 895.044, 895.443 (3), 895.444 (2), 895.445 (3),
895.446 (3), 895.506, 943.212 (2) (b), 943.245 (2) (d), 943.51 (2) (b), and 995.10 (3),
when allowed costs shall be as follows:
SECTION 8.0Initial applicability.
(1) ABUSIVE WORK ENVIRONMENT. This act first applies to an unlawful
employment practice, as defined in s. 103.08 (1) (k), committed on the effective date
of this subsection.
(END)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21