134.1 Coverage

The Complainant threatened to call DWD about a complaint regarding the payment of overtime and was discharged shortly thereafter. The Respondent claimed that the Complainant was discharged for a “poor attitude that did not fit in with the culture of the business” and elaborated that the Complainant was “threat[ening] to call the State instead of working through the process with administration.” The Complainant’s discharge under these circumstances was directly related to his protected conduct. White v. Gilman Care Ctr., LLC (LIRC, 07/21/14).

The Complainant’s actions fell short of attempting to enforce a right to payment of wages. Although she contacted the ERD and obtained a fact sheet concerning the right to wages, she did not show an interest in enlisting the agency’s assistance to enforce the right by asking it to investigate, reporting the name of the employer, or asking for advice in filing a complaint. In the absence of taking any step other than obtaining the fact sheet, the Complainant’s presentation of the sheet to the Respondent was an act of self-help opposition to the Respondent’s practices, not an attempt to enforce a right by resort to a governmental agency. In addition, the evidence did not show that the Respondent ever formed the belief that the Complainant may file a wage complaint or take some other formal step to enforce her rights. Matuszewski v. Kiddie Kare Akademie (LIRC, 02/13/14).

Section 111.322(2m), Wis. Stats., is referred to as the “omnibus” anti-retaliation provision of the Wisconsin Fair Employment Act because it prohibits retaliation by employers under a number of statutes other than the Wisconsin Fair Employment Act. The statutory term “attempts to enforce any right” in that statute was intended to refer solely to formal attempts to enforce a right by resort to the governmental agency charged with enforcement of that right. The Complainant’s claim that he was “attempting to enforce his rights” to be paid vacation pay owed to him under the wage claim statutes by complaining to management was properly dismissed. Alarcon v. Ave. Bar (LIRC, 12/28/12).

The Complainant’s allegation that he was discharged in violation of sec. 111.322(2m)(d), Wis. Stats., because his employer believed that he might file a wage complaint with the Equal Rights Division was dismissed for lack of proof. Evidence that an employer believed that a Complainant planned to file a complaint or testify or assist in a proceeding to enforce a right to payment of wages does not have to include any “magic words” but can consist of other circumstantial evidence of an employee’s intent to take formal action. The question is whether the employee has given some indication that he intends to file a wage claim, and whether the record establishes that the employer believed the employee intended to take such an action. Alarcon v. Ave. Bar (LIRC, 12/28/12).

Either an employer’s actual knowledge of an employee’s filing of a wage claim or the employer’s belief that the employee may file such a claim is equally sufficient to satisfy the knowledge prong of the requirements for establishing a prima facie case. Gunty v. City of Waukesha (LIRC, 03/29/07).

The Wisconsin Family and Medical Leave Act specifies that an employee who believes his employer has interfered with the exercise of his rights or discriminated against him for opposing a practice prohibited under the Wisconsin Family and Medical Leave Act may file a complaint with the Department. An internal complaint or grievance is not a complaint filed under the FMLA; nor can it be considered an attempt to enforce a right under the FMLA. In this case the Complainant filed an internal complaint and a union grievance alleging that the Respondent had harassed her for invoking her right to take FMLA leave. This was not an attempt to enforce a right under the FMLA which would give rise to a complaint under sec. 111.322(2m), Stats. Swanson v. County of Chippewa (LIRC, 05/11/07).

The Complainant was terminated for informally pursuing with his employer his contention that he had been improperly denied the prevailing wage rate for his work on a project. However, this type of activity is “oppositional” rather than “participatory.” Sec. 111.322(2m), Stats., by its terms, applies only to formal participatory activities, not informal oppositional ones. Domini v. Jason Schultz Trucking (LIRC, 02/24/05).

Sec. 111.322(2m)(d), Stats., makes it an act of employment discrimination for an employer to discharge or otherwise discriminate against an individual because the employer believes the individual may file a complaint or attempt to enforce a right under various referenced statutes. This statute is concerned with the motives of the employer. It does not require any “magic words” by the employee. The employee is simply required to present sufficient facts and circumstances that establish that an employer has taken unlawful action because it believes he or she might file a complaint or attempt to enforce a right under the referenced statute. An employee need not make an explicit threat to file a complaint before coming under the protection of the statute. Hephner v. Rohde Bros. (LIRC, 06/30/04).

A complaint that the Complainant was discharged by the Respondent in retaliation for having attached written comments to a personnel record is not cognizable under the Wisconsin Fair Employment Act. Section 103.13, Stats., affords employees the right to inspect and make copies of certain personnel records and to attach corrections and comments to personnel records with which they disagree. Section 103.13(7m), Stats., provides as follows: “Sec. 111.322(2m) [of the Wisconsin Fair Employment Act] applies to discharge or other discriminatory acts in connection with any proceeding under this section.” The Labor and Industry Review Commission has consistently held that sec. 111.322(2m), Stats., recognizes only the “participation” form of protected activity. The Complainant in this case did not contend that she instituted or threatened to institute any type of proceeding aimed at enforcing her rights under the Personnel Record Law. The fact that the Personnel Record Law contains a civil forfeiture provision (sec. 103.13(8), Stats.) suggests that an employee can seek enforcement for her employer’s failure to abide by the law by instituting a proceeding before the district attorney. If the Complainant in this case had attempted to institute a proceeding before the district attorney or any other appropriate forum and believed that she was discharged as a result, she would have been able to state a claim for which relief could be granted under the Wisconsin Fair Employment Act. The Complainant’s concerns regarding the lack of protection afforded those employees who exercise the rights conferred by the Personnel Records Law are more appropriately addressed to the legislature, which has the authority to draft corrective legislation, should it deem this necessary. Corry v. Multiple Listing Serv. (LIRC, 07/21/95).

Section 101.055(8)(a), Stats., prohibits retaliation against a public employee who has exercised a right afforded by sec. 101.055, Stats., related to occupational safety and health. The method of analysis applied in Public Employee Health and Safety retaliation cases is similar to that applied in the context of retaliation claims filed under the Wisconsin Fair Employment Act. To establish a prime facie case of Public Employee Health and Safety retaliation, there must be evidence that (1) the Complainant engaged in a protected activity and the alleged retaliator was aware of this activity; (2) the Complainant was “discharged or otherwise discriminated” against (sec. 101.055(8)(b), Stats.); and (3) there is a causal connection between (1) and (2). McKibbins v. UW-Milwaukee (Wis. Pers. Comm’n, 04/04/95).

Unlike sec. 111.322(3), Wis. Stats., which protects both opposition and participation, the more recently enacted sec. 111.322 (2m), Wis. Stats., recognizes only the participation form of protected activity. It makes it unlawful to discharge or otherwise discriminate against an individual because that individual filed a complaint or attempted to enforce any right or testified or assisted in any action or proceeding held under or to enforce any right under the referenced statutes (or is believed by the employer to have engaged in such activity). The language “attempts to enforce a right” under the statute refers solely to formal attempts to enforce a right by resort to the governmental agency charged with enforcement of that right. In this case, there was no “action or proceeding” before the Equal Rights Division at any time prior to the allegedly retaliatory discharge. The Complainant had never filed a complaint with or otherwise attempted to invoke the authority of the Equal Rights Division at any time prior to the allegedly retaliatory discharge. The Complainant’s complaint to a municipal building inspector and to OSHA cannot be viewed as attempts to enforce a right under the Employee’s Right to Know Law because neither municipal building inspectors nor OSHA have any role in the enforcement of that law. Therefore, the Complainant’s conduct was not protected under sec. 111.322(2m), Wis. Stats. Pampuch v. Bally’s Vic Tanny Health & Racquetball Club (LIRC, 03/07/94).

Only retaliation because of acts of participation under the listed statutes is made unlawful under the omnibus anti-retaliation provision of the Wisconsin Fair Employment Act, sec. 111.322(2m), Stats. Roncaglione v. Peterson Builders (LIRC, 08/11/93), aff’d sub nom. Roncaglione v. LIRC (Dane Co. Cir. Ct., 05/06/94).

The Wisconsin Family and Medical Leave Act prohibits discharging or discriminating against an individual for opposing a practice prohibited under the Act. Other kinds of retaliation relating to the Family and Medical Act are now defined as discrimination under the omnibus anti-retaliation provision of the Wisconsin Fair Employment Act, sec. 111.322(2m), Stats. These cases are appealable to the Labor and Industry Review Commission, rather than to Circuit Court. Roncaglione v. Peterson Builders (LIRC, 08/11/93), aff’d sub nom. Roncaglione v. LIRC (Dane Co. Cir. Ct., 05/06/94).

The Public Employee Safety and Health Act does not have the same presumption of retaliation or the same definition of discipline found in the Whistleblower Law. Sadlier v. DHSS (Wis. Pers. Comm’n, 03/30/89).