Wisconsin 2023-2024 Regular Session

Wisconsin Senate Bill SB577 Compare Versions

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

Old	New	Differences
1	1	LRB-4903/1
2	2	MIM:emw&amn
3	3	2023 - 2024 LEGISLATURE
4	4	2023 SENATE BILL 577
5	5	October 30, 2023 - Introduced by Senators L. JOHNSON, SMITH, LARSON, HESSELBEIN,
6	6	ROYS, CARPENTER, WIRCH, SPREITZER and P FAFF, cosponsored by
7	7	Representatives SINICKI, SHANKLAND, OHNSTAD, NEUBAUER, HAYWOOD, SUBECK,
8	8	GOYKE, CONLEY, JOERS, HONG, STUBBS, CABRERA, DOYLE, SNODGRASS, SHELTON,
9	9	EMERSON, RATCLIFF, ORTIZ-VELEZ, J. ANDERSON, CONSIDINE, C. ANDERSON,
10	10	MOORE OMOKUNDE, PALMERI and JACOBSON. Referred to Committee on Labor,
11	11	Regulatory Reform, Veterans and Military Affairs.
12	12	AN ACT to repeal 103.36; to amend 111.322 (2m) (a), 111.322 (2m) (b) and 814.04
13	13	(intro.); and to create 103.135 of the statutes; relating to: prohibiting an
14	14	employer from relying on information about a prospective employee's
15	15	compensation when making employment decisions or inquiring about a
16	16	prospective employee's compensation and from restricting an employee's right
17	17	to disclose compensation information, allowing actions in circuit court, and
18	18	providing a penalty.
19	19	Analysis by the Legislative Reference Bureau
20	20	This bill prohibits certain employer conduct related to the compensation
21	21	information of current and prospective employees.
22	22	The bill prohibits an employer from doing any of the following with respect to
23	23	a prospective employee:
24	24	1. Soliciting information about the prospective employee's current or prior
25	25	compensation before making an offer of employment. The bill also repeals a
26	26	provision that gives employers the right to solicit such information.
27	27	2. Relying on information regarding the prospective employee's current or prior
28	28	compensation when determining whether to make an offer of employment or setting
29	29	compensation when making an offer of employment to that prospective employee.
30	30	1
31	31	2
32	32	3
33	33	4
34	34	5
35	35	6
36	36	7 - 2 -2023 - 2024 Legislature LRB-4903/1
37	37	MIM:emw&amn
38	38	SENATE BILL 577
39	39	3. Requiring that the prospective employee's current or prior compensation
40	40	meet certain criteria in order for the prospective employee to be considered for
41	41	employment.
42	42	4. Refusing to hire the prospective employee for exercising his or her rights
43	43	relating to compensation information.
44	44	The bill also prohibits an employer from discharging or discriminating against
45	45	a current employee for disclosing the details of the employee's compensation,
46	46	discussing the compensation of other employees, asking other employees for details
47	47	regarding their compensation, or taking certain actions to enforce an employee's
48	48	rights under the bill.
49	49	The bill requires employers to post notices, where notices to employees are
50	50	customarily posted and on any electronic job posting, regarding employees' and
51	51	prospective employees' rights under the bill and provides a penalty for an employer's
52	52	failure to do so.
53	53	The bill allows the Department of Workforce Development or an individual who
54	54	is alleged or was found to have been discriminated against on the basis of
55	55	compensation information to bring an action in circuit court in addition to or in lieu
56	56	of filing an administrative complaint.
57	57	Under the bill, if the circuit court finds that a defendant has committed an act
58	58	of discrimination, the circuit court may award back pay and any other relief that
59	59	could have been awarded in an administrative proceeding. In addition, the circuit
60	60	court must order the defendant to pay to the individual discriminated against
61	61	compensatory and punitive damages that the circuit court finds appropriate, except
62	62	that the total amount of damages awarded for future economic losses and for pain
63	63	and suffering, emotional distress, mental anguish, loss of enjoyment of life, and other
64	64	noneconomic losses and punitive damages is subject to the following limitations:
65	65	1. If the defendant employs 100 or fewer employees, no more than $50,000.
66	66	2. If the defendant employs more than 100 but fewer than 201 employees, no
67	67	more than $100,000.
68	68	3. If the defendant employs more than 200 but fewer than 501 employees, no
69	69	more than $200,000.
70	70	4. If the defendant employs more than 500 employees, no more than $300,000.
71	71	The bill requires DWD to annually revise these amounts based upon the change
72	72	in the consumer price index in the previous year, if any positive change has occurred.
73	73	Under current fair employment law, an individual who alleges discrimination
74	74	in employment may file a complaint with DWD seeking action that will effectuate
75	75	the purpose of the fair employment law, including reinstating the employee,
76	76	providing back pay, and paying costs and attorney fees.
77	77	For further information see the state and local fiscal estimate, which will be
78	78	printed as an appendix to this bill.
79	79	The people of the state of Wisconsin, represented in senate and assembly, do
80	80	enact as follows: - 3 -2023 - 2024 Legislature
81	81	LRB-4903/1
82	82	MIM:emw&amn
83	83	SECTION 1
84	84	SENATE BILL 577
85	85	SECTION 1. 103.135 of the statutes is created to read:
86	86	103.135 Compensation information of employees and prospective
87	87	employees. (1) UNLAWFUL EMPLOYER CONDUCT RELATED TO PROSPECTIVE EMPLOYEE
88	88	COMPENSATION INFORMATION. (a) No employer may directly or indirectly do any of the
89	89	following:
90	90	1. Subject to par. (b), solicit from a prospective employee or a prospective
91	91	employee's current or former employer information about the prospective employee's
92	92	current or prior compensation before making an offer of employment.
93	93	2. Require that a prospective employee's current or prior compensation meet
94	94	certain criteria in order for the prospective employee to be considered for
95	95	employment.
96	96	3. Refuse to hire or employ or otherwise discriminate against a prospective
97	97	employee in compensation or in the terms, conditions, or privileges of employment
98	98	for opposing a practice prohibited under this paragraph, filing or indicating an intent
99	99	to file a complaint or otherwise attempting to enforce any right under this paragraph,
100	100	or testifying, assisting, or participating in any manner in any investigation, action,
101	101	or proceeding to enforce any right under this paragraph.
102	102	4. Subject to par. (b), notwithstanding the provisions of subch. II of ch. 230
103	103	regarding state civil service, rely on information obtained from any source regarding
104	104	a prospective employee's current or prior compensation when determining whether
105	105	to make an offer of employment or setting compensation when making an offer of
106	106	employment to that prospective employee.
107	107	(b) After an employer has offered employment to a prospective employee and
108	108	the details of compensation have been agreed upon, the employer may obtain the
109	109	1
110	110	2
111	111	3
112	112	4
113	113	5
114	114	6
115	115	7
116	116	8
117	117	9
118	118	10
119	119	11
120	120	12
121	121	13
122	122	14
123	123	15
124	124	16
125	125	17
126	126	18
127	127	19
128	128	20
129	129	21
130	130	22
131	131	23
132	132	24 - 4 -2023 - 2024 Legislature LRB-4903/1
133	133	MIM:emw&amn
134	134	SECTION 1 SENATE BILL 577
135	135	prospective employee's written consent for the employer to solicit information about,
136	136	or take action to confirm, the prospective employee's current or prior compensation.
137	137	(2) DISCLOSURE OF COMPENSATION INFORMATION BY EMPLOYEES. (a) An employee
138	138	may disclose the details of the employee's compensation to anyone and, subject to par.
139	139	(d), may discuss the compensation of other employees of the same employer and may
140	140	ask other employees of the same employer for details regarding their compensation.
141	141	(b) Except as provided in par. (d), no employer may interfere with, restrain, or
142	142	deny the exercise of the right of an employee to disclose, discuss, or inquire about
143	143	compensation as provided in par. (a).
144	144	(c) An employer may not discharge or discriminate against an employee in
145	145	promotion, in compensation, or in the terms, conditions, or privileges of employment
146	146	for disclosing, discussing, or inquiring about compensation as provided in par. (a),
147	147	opposing a practice prohibited under par. (b), filing or indicating an intent to file a
148	148	complaint or otherwise attempting to enforce any right under par. (a), or testifying,
149	149	assisting, or participating in any manner in any investigation, action, or proceeding
150	150	to enforce any right under par. (a).
151	151	(d) Subject to s. 19.35, an employer may prohibit a human resources or payroll
152	152	employee, a supervisor, or any other employee whose job responsibilities require or
153	153	allow the employee access to other employees' compensation information from
154	154	disclosing information about any other employee's compensation without that
155	155	employee's prior written consent.
156	156	(3) ENFORCEMENT. Any employee or prospective employee who is refused
157	157	employment, terminated, discharged, or otherwise discriminated against in
158	158	violation of sub. (1) (a) or (2) (a) to (c) may do any of the following:
159	159	1
160	160	2
161	161	3
162	162	4
163	163	5
164	164	6
165	165	7
166	166	8
167	167	9
168	168	10
169	169	11
170	170	12
171	171	13
172	172	14
173	173	15
174	174	16
175	175	17
176	176	18
177	177	19
178	178	20
179	179	21
180	180	22
181	181	23
182	182	24 - 5 -2023 - 2024 Legislature
183	183	LRB-4903/1
184	184	MIM:emw&amn
185	185	SECTION 1
186	186	SENATE BILL 577
187	187	(a) File a complaint with the department, and the department shall process the
188	188	complaint in the same manner that employment discrimination complaints are
189	189	processed under s. 111.39. If the department finds that a violation has occurred, the
190	190	department may order the employer to take action to remedy the violation, including
191	191	reinstating the employee, providing compensation in lieu of reinstatement,
192	192	providing back pay accrued not more than 2 years before the complaint was filed, and
193	193	paying reasonable actual costs and, notwithstanding s. 814.04 (1), reasonable
194	194	attorney fees to the complainant.
195	195	(b) Bring an action in circuit court under sub. (4).
196	196	(4) CIVIL ACTION. (a) Except as provided in this paragraph, the department or
197	197	an individual alleged or found to have been discriminated against under sub. (1) or
198	198	(2) may bring an action in circuit court requesting the relief described in par. (d)
199	199	against an employer that is alleged or found to have engaged in that discrimination.
200	200	(b) If a petition for judicial review of the findings and order of the department
201	201	concerning the same violation as the violation giving rise to the action under par. (a)
202	202	is filed, the circuit court shall consolidate the proceeding for judicial review and the
203	203	action under par. (a).
204	204	(c) An individual alleged or found to have been discriminated against under
205	205	sub. (1) or (2) is not required to file a complaint under sub. (3) (a) or seek review under
206	206	s. 111.395 in order for the department or the individual to bring an action under par.
207	207	(a).
208	208	(d) Subject to pars. (e) and (f), in an action under par. (a), if the circuit court finds
209	209	that discrimination has occurred, or if such a finding has been made by an examiner
210	210	and not been further appealed, the circuit court may order any relief that an
211	211	examiner would be empowered to order under s. 111.39 (4) (c) after a hearing on a
212	212	1
213	213	2
214	214	3
215	215	4
216	216	5
217	217	6
218	218	7
219	219	8
220	220	9
221	221	10
222	222	11
223	223	12
224	224	13
225	225	14
226	226	15
227	227	16
228	228	17
229	229	18
230	230	19
231	231	20
232	232	21
233	233	22
234	234	23
235	235	24
236	236	25 - 6 -2023 - 2024 Legislature LRB-4903/1
237	237	MIM:emw&amn
238	238	SECTION 1 SENATE BILL 577
239	239	complaint filed under s. 111.39. In addition, the circuit court shall order the
240	240	defendant to pay to the individual discriminated against any other compensatory
241	241	damages and punitive damages under s. 895.043 that the circuit court or jury finds
242	242	appropriate, plus reasonable costs and attorney fees incurred in the action. If any
243	243	relief was ordered under sub. (3) (a) or s. 111.395, the circuit court shall specify
244	244	whether the relief ordered under this paragraph is in addition to or replaces the relief
245	245	ordered under sub. (3) (a) or s. 111.395. The sum of the amount of compensatory
246	246	damages for future economic losses and for pain and suffering, emotional distress,
247	247	mental anguish, loss of enjoyment of life, and other noneconomic losses and the
248	248	amount of punitive damages that a circuit court may order may not exceed the
249	249	following:
250	250	1. In the case of a defendant that employs 100 or fewer employees for each
251	251	working day in each of 20 or more calendar weeks in the current or preceding year,
252	252	$50,000.
253	253	2. In the case of a defendant that employs more than 100 but fewer than 201
254	254	employees for each working day in each of 20 or more calendar weeks in the current
255	255	or preceding year, $100,000.
256	256	3. In the case of a defendant that employs more than 200 but fewer than 501
257	257	employees for each working day in each of 20 or more calendar weeks in the current
258	258	or preceding year, $200,000.
259	259	4. In the case of a defendant that employs more than 500 employees for each
260	260	working day in each of 20 or more calendar weeks in the current or preceding year,
261	261	$300,000.
262	262	1
263	263	2
264	264	3
265	265	4
266	266	5
267	267	6
268	268	7
269	269	8
270	270	9
271	271	10
272	272	11
273	273	12
274	274	13
275	275	14
276	276	15
277	277	16
278	278	17
279	279	18
280	280	19
281	281	20
282	282	21
283	283	22
284	284	23 - 7 -2023 - 2024 Legislature
285	285	LRB-4903/1
286	286	MIM:emw&amn
287	287	SECTION 1
288	288	SENATE BILL 577
289	289	(e) If the circuit court orders a payment under par. (d) because of a violation of
290	290	sub. (1) or (2) by an individual employed by an employer, the employer of that
291	291	individual is liable for the payment.
292	292	(f) 1. In this paragraph, “consumer price index" means the average of the
293	293	consumer price index for all urban consumers, U.S. city average, as determined by
294	294	the bureau of labor statistics of the federal department of labor.
295	295	2. Except as otherwise provided in this subdivision, beginning on July 1, 2024,
296	296	and on each July 1 after that, the department shall adjust the amounts specified in
297	297	par. (d) 1., 2., 3., and 4. by calculating the percentage difference between the
298	298	consumer price index for the 12-month period ending on December 31 of the
299	299	preceding year and the consumer price index for the 12-month period ending on
300	300	December 31 of the year before the preceding year and adjusting those amounts by
301	301	that percentage difference. The department shall publish the adjusted amounts
302	302	calculated under this subdivision in the Wisconsin Administrative Register, and the
303	303	adjusted amounts shall apply to actions commenced under par. (a) beginning on July
304	304	1 of the year of publication. This subdivision does not apply if the consumer price
305	305	index for the 12-month period ending on December 31 of the preceding year did not
306	306	increase over the consumer price index for the 12-month period ending on December
307	307	31 of the year before the preceding year.
308	308	(5) NOTICE POSTED. (a) Each employer shall provide notice to employees and
309	309	prospective employees of their rights under this section by doing all of the following:
310	310	1. Posting, in one or more conspicuous places where notices to employees are
311	311	customarily posted, a notice in a form approved by the department setting forth
312	312	employees' and prospective employees' rights under this section.
313	313	1
314	314	2
315	315	3
316	316	4
317	317	5
318	318	6
319	319	7
320	320	8
321	321	9
322	322	10
323	323	11
324	324	12
325	325	13
326	326	14
327	327	15
328	328	16
329	329	17
330	330	18
331	331	19
332	332	20
333	333	21
334	334	22
335	335	23
336	336	24 - 8 -2023 - 2024 Legislature LRB-4903/1
337	337	MIM:emw&amn
338	338	SECTION 1 SENATE BILL 577
339	339	2. Including on each listing for a job vacancy or other employment opportunity
340	340	that is advertised by email and posting on a website, or other electronic means, a
341	341	notice that includes all of the following information:
342	342	a. A statement that the employer is prohibited from relying on a prospective
343	343	employee's current or former compensation when determining whether to make an
344	344	offer of employment or setting compensation or when making an offer of
345	345	employment.
346	346	b. A statement that the employer is prohibited from asking about a prospective
347	347	employee's compensation until after the employer has offered the prospective
348	348	employee employment and they have agreed upon the details of compensation.
349	349	c. A statement that the employer is prohibited from requiring that a
350	350	prospective employee's current or prior compensation meet certain criteria in order
351	351	for the prospective employee to be considered for employment.
352	352	d. Information, or a hyperlink to information, regarding prohibited bases of
353	353	discrimination under subch. II of ch. 111.
354	354	(b) Any employer that violates par. (a) shall forfeit not more than $100 for each
355	355	offense.
356	356	SECTION 2. 103.36 of the statutes is repealed.
357	357	SECTION 3. 111.322 (2m) (a) of the statutes is amended to read:
358	358	111.322 (2m) (a) The individual files a complaint or attempts to enforce any
359	359	right under s. 103.02, 103.10, 103.11, 103.13, 103.135, 103.28, 103.32, 103.34,
360	360	103.455, 104.12, 109.03, 109.07, 109.075, 146.997, or 995.55, or ss. 101.58 to 101.599
361	361	or 103.64 to 103.82.
362	362	SECTION 4. 111.322 (2m) (b) of the statutes is amended to read:
363	363	1
364	364	2
365	365	3
366	366	4
367	367	5
368	368	6
369	369	7
370	370	8
371	371	9
372	372	10
373	373	11
374	374	12
375	375	13
376	376	14
377	377	15
378	378	16
379	379	17
380	380	18
381	381	19
382	382	20
383	383	21
384	384	22
385	385	23
386	386	24 - 9 -2023 - 2024 Legislature
387	387	LRB-4903/1
388	388	MIM:emw&amn
389	389	SECTION 4
390	390	SENATE BILL 577
391	391	111.322 (2m) (b) The individual testifies or assists in any action or proceeding
392	392	held under or to enforce any right under s. 103.02, 103.10, 103.11, 103.13, 103.135,
393	393	103.28, 103.32, 103.34, 103.455, 104.12, 109.03, 109.07, 109.075, 146.997, or 995.55,
394	394	or ss. 101.58 to 101.599 or 103.64 to 103.82.
395	395	SECTION 5. 814.04 (intro.) of the statutes is amended to read:
396	396	814.04 Items of costs. (intro.) Except as provided in ss. 93.20, 100.195 (5m)
397	397	(b), 100.30 (5m), 103.135 (4) (d), 106.50 (6) (i) and (6m) (a), 115.80 (9), 767.553 (4) (d),
398	398	769.313, 802.05, 814.245, 895.035 (4), 895.044, 895.443 (3), 895.444 (2), 895.445 (3),
399	399	895.446 (3), 895.506, 943.212 (2) (b), 943.245 (2) (d), 943.51 (2) (b), and 995.10 (3),
400	400	when allowed costs shall be as follows:
401	401	SECTION 6.0Initial applicability.
402	402	(1) EMPLOYMENT DISCRIMINATION DAMAGES. This act first applies to acts of
403	403	employment discrimination under s. 103.135 committed on the effective date of this
404	404	subsection.
405	405	(2) COLLECTIVE BARGAINING AGREEMENT. This act first applies to an employee
406	406	who is affected by a collective bargaining agreement that contains provisions
407	407	inconsistent with this act on the day on which the collective bargaining agreement
408	408	expires or is extended, modified, or renewed, whichever occurs first.
409	409	SECTION 7.0Effective date.
410	410	(1) This act takes effect on the first day of the 6th month beginning after
411	411	publication.
412	412	(END)
413	413	1
414	414	2
415	415	3
416	416	4
417	417	5
418	418	6
419	419	7
420	420	8
421	421	9
422	422	10
423	423	11
424	424	12
425	425	13
426	426	14
427	427	15
428	428	16
429	429	17
430	430	18
431	431	19
432	432	20
433	433	21
434	434	22