Wisconsin 2023-2024 Regular Session

Wisconsin Assembly Bill AB537 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 537
5	5	October 18, 2023 - Introduced by Representatives SINICKI, SHANKLAND, OHNSTAD,
6	6	NEUBAUER, HAYWOOD, SUBECK, GOYKE, CONLEY, JOERS, HONG, STUBBS, CABRERA,
7	7	DOYLE, SNODGRASS, SHELTON, EMERSON, RATCLIFF, ORTIZ-VELEZ, J. ANDERSON,
8	8	CONSIDINE, C. ANDERSON, MOORE OMOKUNDE and PALMERI, cosponsored by
9	9	Senators L. JOHNSON, SMITH, LARSON, HESSELBEIN, ROYS, CARPENTER, WIRCH,
10	10	SPREITZER and PFAFF. Referred to Committee on Judiciary.
11	11	*AUTHORS SUBJECT TO CHANGE*
12	12	AN ACT to amend 111.39 (4) (d), 111.39 (5) (b) and 814.04 (intro.); and to create
13	13	111.39 (5) (d) and 111.397 of the statutes; relating to: actions in circuit court
14	14	alleging discrimination in employment, unfair honesty testing, or unfair
15	15	genetic testing.
16	16	Analysis by the Legislative Reference Bureau
17	17	Under current fair employment law, an individual who alleges that an
18	18	employer has violated employment discrimination, unfair honesty testing, or unfair
19	19	genetic testing laws may file a complaint with the Department of Workforce
20	20	Development seeking action to enforce fair employment law, including reinstating
21	21	the employee, providing back pay, and paying costs and attorney fees.
22	22	This bill permits DWD or an individual who is alleged or was found to have been
23	23	discriminated against or subjected to unfair honesty or genetic testing to, in addition
24	24	to or in lieu of filing an administrative complaint, bring an action in circuit court to
25	25	recover compensatory and punitive damages caused by the act of discrimination,
26	26	unfair honesty testing, or unfair genetic testing. The action in circuit court must be
27	27	commenced within 300 days after the alleged discrimination, unfair honesty testing,
28	28	or unfair genetic testing occurred.
29	29	Under the bill, if the circuit court finds that a defendant has committed an act
30	30	of employment discrimination, unfair honesty testing, or unfair genetic testing, the
31	31	circuit court may award back pay and any other relief that could have been awarded
32	32	in an administrative proceeding. In addition, the circuit court must order the
33	33	defendant to pay to the individual found to have been discriminated against or found
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39	39	ASSEMBLY BILL 537
40	40	to have received unfair genetic testing or unfair honesty testing compensatory and
41	41	punitive damages in the amount that the circuit court finds appropriate, except that
42	42	the total amount of damage awarded for future economic losses and for pain and
43	43	suffering, emotional distress, mental anguish, loss of enjoyment of life, and other
44	44	noneconomic losses and punitive damages is subject to the following limitations:
45	45	1. If the defendant employs 100 or fewer employees, no more than $50,000.
46	46	2. If the defendant employs more than 100 but fewer than 201 employees, no
47	47	more than $100,000.
48	48	3. If the defendant employs more than 200 but fewer than 501 employees, no
49	49	more than $200,000.
50	50	4. If the defendant employs more than 500 employees, no more than $300,000.
51	51	The bill requires DWD to annually revise these amounts on the basis of the
52	52	change in the consumer price index in the previous year, if any positive change has
53	53	occurred.
54	54	For further information see the state fiscal estimate, which will be printed as
55	55	an appendix to this bill.
56	56	The people of the state of Wisconsin, represented in senate and assembly, do
57	57	enact as follows:
58	58	SECTION 1. 111.39 (4) (d) of the statutes is amended to read:
59	59	111.39 (4) (d) The department shall serve a certified copy of the findings and
60	60	order on the respondent, the order to have the same force as other orders of the
61	61	department and be enforced as provided in s. 103.005. The department shall also
62	62	serve a certified copy of the findings and order on the complainant, together with a
63	63	notice advising the complainant about the right to seek, and the time for seeking,
64	64	review by the commission under sub. (5); about the right to bring, and the time for
65	65	bringing, an action for judicial review under s. 111.395; and about the right to bring,
66	66	and the time for bringing, an action under s. 111.397 (1) (a). Any person aggrieved
67	67	by noncompliance with the order may have the order enforced specifically by suit in
68	68	equity. If the examiner finds that the respondent has not engaged in discrimination,
69	69	unfair honesty testing, or unfair genetic testing as alleged in the complaint, the
70	70	department shall serve a certified copy of the examiner's findings served on the
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86	86	SECTION 1
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88	88	complainant, together with shall be accompanied by an order dismissing the
89	89	complaint.
90	90	SECTION 2. 111.39 (5) (b) of the statutes is amended to read:
91	91	111.39 (5) (b) If no petition is filed the respondent or complainant does not file
92	92	a petition under par. (a) within 21 days from the date that a copy of the findings and
93	93	order of the examiner is mailed to the last-known address of the respondent served
94	94	on that party, the findings and order shall be considered final for purposes of
95	95	enforcement under sub. (4) (d). If a timely petition is filed, the commission, on review,
96	96	may either affirm, reverse, or modify the findings or order in whole or in part, or set
97	97	aside the findings and order and remand to the department for further proceedings.
98	98	Such actions shall be based on a review of the evidence submitted. If the commission
99	99	is satisfied that a respondent or complainant has been prejudiced because of
100	100	exceptional delay in the receipt of a copy of any findings and order it, the commission
101	101	may extend the time another 21 days for filing the petition with the department.
102	102	SECTION 3. 111.39 (5) (d) of the statutes is created to read:
103	103	111.39 (5) (d) The commission shall serve a certified copy of the commission's
104	104	decision on the respondent. The commission shall also serve a certified copy of the
105	105	commission's decision on the complainant, together with a notice advising the
106	106	complainant about the right to bring, and the time for bringing, an action for judicial
107	107	review under s. 111.395 and about the right to bring, and the time for bringing, an
108	108	action under s. 111.397 (1) (a).
109	109	SECTION 4. 111.397 of the statutes is created to read:
110	110	111.397 Civil action. (1) (a) Except as provided in this paragraph, the
111	111	department or an individual alleged or found to have been discriminated against or
112	112	subjected to unfair honesty testing or unfair genetic testing may bring an action in
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139	139	SECTION 4 ASSEMBLY BILL 537
140	140	circuit court requesting the relief described in sub. (2) (a) against an employer, labor
141	141	organization, or employment agency that is alleged or found to have engaged in that
142	142	discrimination, unfair honesty testing, or unfair genetic testing.
143	143	(b) If a petition for judicial review of the findings and order of the commission
144	144	concerning the same violation as the violation giving rise to the action under par. (a)
145	145	is filed, the circuit court shall consolidate the proceeding for judicial review and the
146	146	action under par. (a).
147	147	(c) An individual alleged or found to have been discriminated against or
148	148	subjected to unfair honesty testing or unfair genetic testing is not required to file a
149	149	complaint under s. 111.39 or seek review under s. 111.395 in order for the department
150	150	or the individual to bring an action under par. (a).
151	151	(d) An action under par. (a) shall be commenced within 300 days after the
152	152	alleged discrimination, unfair honesty testing, or unfair genetic testing occurred.
153	153	(2) (a) Subject to pars. (b) and (c), in an action under sub. (1) (a), if the circuit
154	154	court finds that discrimination, unfair honesty testing, or unfair genetic testing has
155	155	occurred, or if such a finding has been made by an examiner or the commission and
156	156	not been further appealed, the circuit court may order any relief that an examiner
157	157	would be empowered to order under s. 111.39 (4) (c) after a hearing on a complaint
158	158	filed under s. 111.39. In addition, the circuit court shall order the defendant to pay
159	159	to the individual discriminated against or subjected to unfair honesty testing or
160	160	unfair genetic testing any other compensatory damages, and punitive damages
161	161	under s. 895.043 that the circuit court or jury finds appropriate, plus reasonable costs
162	162	and attorney fees incurred in the action. If any relief was ordered under s. 111.39 or
163	163	111.395, the circuit court shall specify whether the relief ordered under this
164	164	paragraph is in addition to or replaces the relief ordered under s. 111.39 or 111.395.
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192	192	SECTION 4
193	193	ASSEMBLY BILL 537
194	194	The sum of the amount of compensatory damages for future economic losses and for
195	195	pain and suffering, emotional distress, mental anguish, loss of enjoyment of life, and
196	196	other noneconomic losses and the amount of punitive damages that a circuit court
197	197	may order may not exceed the following:
198	198	1. In the case of a defendant that employs 100 or fewer employees for each
199	199	working day in each of 20 or more calendar weeks in the current or preceding year,
200	200	$50,000.
201	201	2. In the case of a defendant that employs more than 100 but fewer than 201
202	202	employees for each working day in each of 20 or more calendar weeks in the current
203	203	or preceding year, $100,000.
204	204	3. In the case of a defendant that employs more than 200 but fewer than 501
205	205	employees for each working day in each of 20 or more calendar weeks in the current
206	206	or preceding year, $200,000.
207	207	4. In the case of a defendant that employs more than 500 employees for each
208	208	working day in each of 20 or more calendar weeks in the current or preceding year,
209	209	$300,000.
210	210	(b) If the circuit court orders a payment under par. (a) because of a violation of
211	211	s. 111.321, 111.37, or 111.372 by an individual employed by an employer, the
212	212	employer of that individual is liable for the payment.
213	213	(c) 1. In this paragraph, “consumer price index" means the average of the
214	214	consumer price index for all urban consumers, U.S. city average, as determined by
215	215	the bureau of labor statistics of the federal department of labor.
216	216	2. Except as provided in this subdivision, beginning on July 1, 2024, and on
217	217	each July 1 after that, the department shall adjust the amounts specified in par. (a)
218	218	1., 2., 3., and 4. by calculating the percentage difference between the consumer price
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245	245	SECTION 4 ASSEMBLY BILL 537
246	246	index for the 12-month period ending on December 31 of the preceding year and the
247	247	consumer price index for the 12-month period ending on December 31 of the year
248	248	before the preceding year and adjusting those amounts by that percentage
249	249	difference. The department shall publish the adjusted amounts calculated under
250	250	this subdivision in the Wisconsin Administrative Register, and the adjusted amounts
251	251	shall apply to actions commenced under sub. (1) (a) beginning on July 1 of the year
252	252	of publication. This subdivision does not apply if the consumer price index for the
253	253	12-month period ending on December 31 of the preceding year did not increase over
254	254	the consumer price index for the 12-month period ending on December 31 of the year
255	255	before the preceding year.
256	256	SECTION 5. 814.04 (intro.) of the statutes is amended to read:
257	257	814.04 Items of costs. (intro.) Except as provided in ss. 93.20, 100.195 (5m)
258	258	(b), 100.30 (5m), 106.50 (6) (i) and (6m) (a), 111.397 (2) (a), 115.80 (9), 767.553 (4) (d),
259	259	769.313, 802.05, 814.245, 895.035 (4), 895.044, 895.443 (3), 895.444 (2), 895.445 (3),
260	260	895.446 (3), 895.506, 943.212 (2) (b), 943.245 (2) (d), 943.51 (2) (b), and 995.10 (3),
261	261	when allowed costs shall be as follows:
262	262	SECTION 6.0Initial applicability.
263	263	(1) EMPLOYMENT DISCRIMINATION DAMAGES. This act first applies to acts of
264	264	employment discrimination, unfair honesty testing, or unfair genetic testing
265	265	committed on the effective date of this subsection.
266	266	(END)
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