Wisconsin Employee Rights 101
Wisconsin Employee Rights 101
At Hale Skemp we frequently receive phone calls from individuals who have been recently terminated from their employment or feel they have been unfairly treated at work. One of the most common questions we receive is whether there are employee protections, and if so, what are they.
This article will: (1) breakdown what rights you have as an employee; and, (2) guide you through the process of filing a complaint with the Wisconsin Department of Workforce Development (“DWD”).
The Wisconsin Fair Employment Act (“WFEA”)
The state of Wisconsin, like many other states, is an employment at-will state. This means that an employee or employer may unilaterally terminate the employment relationship at any time, for any reason, absent a prior agreement to the contrary. However, the caveat is that termination cannot violate state or federal statutory law.
Wisconsin Statute Section 111.31(1), better known as the Wisconsin Fair Employment Act (“WFEA”), prohibits employers from discriminating against employees and job applicants because of:
– Arrest and/or conviction record;
– Ancestry, color, national origin or race;
– Genetic testing;
– Honesty testing;
– Marital status;
– Military status;
– Pregnancy or childbirth;
– Sexual orientation; and/or
– Use of non-use of lawful products off the employer’s premises during nonworking hours.
Additionally, Wisconsin law prohibits discrimination by an employer in: (1) recruitment and hiring; (2) job assignments; (3) pay, leave or benefits; (4) promotion; (5) licensing; (6) union membership; (7) training; and, (8) layoff and firing. See Wis. Stat. § 111.322(1).
A Guide Through the Complaint Process
If you believe you have been discriminated against because of one of the aforementioned reasons, you have a right to file a complaint with the Equal Rights Division (“ERD”). However, you must do so within three hundred (300) days of the alleged discrimination. Once your complaint is filed with the ERD, the complaint is assigned to an equal rights officer (“investigator”) to be investigated. The role of the investigator is to act impartially and independently.
Once the complaint has been assigned to an investigator, a copy of the complaint is then sent to the respondent (i.e., the person or entity in which you are filing the complaint against), who must then provide a written answer to the complaint. Upon receiving an answer, it is very likely that the investigator will want to contact the complainant, other party, and/or any witnesses to gather any additional information. This part of the process may take a few weeks to a few months.
After the investigator has reviewed all the information, the investigator will typically ask the parties if they want to settle. If the parties do not come to an agreement to settle, the investigator will proceed to the next step of the investigation and determine whether there is “probable cause” (i.e., meaning there is enough believable information about the discrimination) or “no probable cause” (i.e., meaning there was not enough evidence of discrimination to believe the law has been violated). If the investigator finds probable cause, the case will be set for a hearing on the merits. On the other hand, if the investigator finds no probable cause, then complainant may file a written appeal within thirty (30) days.
A discrimination hearing is like a court proceeding. Both parties are sworn in under oath before an Administrative Law Judge (“ALJ”) and presented evidence. Each party will have the opportunity to testify and/or bring forth any witnesses. After the hearing, the ALJ will review the evidence and testimonies and issue a decision whether the discrimination occurred. This decision-making process may take up to several months to one (1) year to make.
If discrimination is proven, the ALJ may make the complainant “whole” by awarding back pay, reinstatement, lost benefits, interest and attorney’s fees and costs. However, an ALJ will not award punitive damages, such as damages for humiliation or emotional pain.
It is also important to take note that employees are protected against retaliation for filing a discrimination complaint, for assisting with a complaint, or for opposing discrimination in the workplace.
If you believe that you have been discriminated against or harassed based on a protected status, you may want to consider consulting with one of Hale Skemp’s attorneys to determine whether you have a potential discrimination claim.