134.3 Cases

The Complainant’s statement to her employer that she wanted to be paid for unpaid overtime hours was not an “attempt to enforce a right” to overtime pay under Wis. Stat. § 103.02, nor did the Complainant establish that the employer believe she intended to do so. Radtke v. Vaportek, Inc. (LIRC, 12/30/22), rev'd Radtke v. LIRC and Vaportek, Inc. (Jefferson Co. Cir. Ct., 01/15/24).

In the context of an ongoing dispute about reimbursement for insurance payments the Complainant’s statement to the Respondent that “I am on the warpath against you by every legal and lawful means available” was construed as expressing an intent to file a wage claim. However, the Respondent discharged the Complainant based upon insubordinate conduct and not because it believed he engaged in protected conduct. Ball v. A-1 Express Trucking, Inc. (LIRC, 07/30/21).

Shortly after the employee told her supervisor that if the Department of Health Services (DHS) heard what was happening in the facility it would shut them down, DHS conducted an unannounced inspection of the employer’s facility. Even though the employee’s supervisor stated that DHS did not tell her who filed the complaint, it can be presumed that she guessed it was the employee and understood the employee had engaged in protected conduct. The employer’s decision to discharge the employee a week later with no intervening misconduct on the employee’s part supported a finding of probable cause to believe that unlawful retaliation occurred. Brunette v. Cardinal Ridge Residential Care, LLC (LIRC, 02/22/19).

The Complainant filed a wage and hour complaint while off work on a seasonal lay-off. The fact that the Complainant was discharged two months later was not shown to be due to discriminatory animus where the Respondent rehired the Complainant after he filed the complaint and increased his salary, and where the Respondent presented evidence to indicate that it was genuinely dissatisfied with the Complainant’s work performance. Archibald v. All Green Corp. (LIRC, 06/04/18).

None of the anti-retaliation statutes enforced by the Equal Rights Division apply to the Complainant’s allegations of mistreatment by the individual she was caring for. Both Wis. Stat. §§ 55.043 and 46.90(4)(b) are designed to protect individuals who attempt to act in the interest of a certain class of vulnerable adults. Where the Complainant did not report that the Respondent was abused, financially exploited, or neglected, but instead made a series of allegations against the Respondent, such allegations are not covered by the statutes. Banda v. Estate of Barbara J. Fickau (LIRC, 05/31/17).

The employer’s decision to discharge the employee after she threatened to contact the DA regarding illegal deductions from her wages amounted to unlawful retaliation. LIRC rejected the employer’s argument that it did not know the deductions were illegal. Peterson v. TCAT Corp. (LIRC, 04/30/15), aff’d sub nom. TCAT Corporation v. LIRC and Peterson (Richland Co. Cir. Ct. 04/29/16), aff’d (Ct. App., Dist. IV, per curiam, 08/24/2017).

An employee need not prove that she made an explicit threat to file a wage complaint, but merely needs to show facts and circumstances demonstrating that the employer believed she might. The fact that the employee’s husband, who was also her co-worker and subject to the same wage reductions as the employee was, threatened to file a wage claim, was sufficient to give rise to a belief that the employee intended to file a similar claim. White, Janice v. Gilman Care Ctr., LLC (LIRC, 07/21/14).

It is unlawful under the HCWPA to terminate the employment of a doctor because he complained about another doctor’s practices. The fact that the doctor being complained of was no longer employed by the Respondent at the time did not put the claim outside of the coverage of the HCWPA. Siegel v. Marshfield Clinic (LIRC, 10/31/13).

The Respondent discharged the Complainant and handed him a paycheck, from which $1,110 had been deducted to offset damages to the truck that the Complainant had driven during his employment. The Complainant immediately informed the Respondent that he would be filing a wage complaint challenging the deduction, but the Respondent had no belief prior to the discharge that the Complainant might file a wage claim. The act of discharging the Complainant was not a retaliatory act, because it occurred before a wage complaint was filed and before the possibility of the filing of a wage complaint was contemplated. When, a few weeks later, the Respondent reversed course by issuing a check to the Complainant in settlement of the wage claim that the Complainant did in fact file, it was not retaliation by the employer to make payroll deductions from that check, even though it was incorrect to do so, because the mistake appeared to result from reliance by the Respondent on the advice of the Labor Standards Investigator. Sowle v. Somniak (LIRC, 10/14/13).

The statute prohibiting retaliation is concerned with the motives of the employer. While the law does not require any “magic words” and an employee need not make an explicit threat to file a wage claim, she must nonetheless present some evidence that would warrant a conclusion that the Respondent formed the belief that she might do so. In this case, during an argument about the Complainant’s unemployment insurance and worker’s compensation cw Judge determined that the Complainant had been unlawfully retaliated against because she had filed a complalaims, the Respondent told the Complainant that she would not receive “a cent” and that she would “never work again.” The Complainant responded that she was going to “take it to Equal Rights” and “take it downtown to [her] lawyer.” The Complainant maintained that the Respondent should have known that she was referring to filing a wage claim. However, the facts in this case fell short of warranting a finding that the Complainant had engaged in protected activity. Freeman v. Animal Motel (LIRC, 07/18/11).

The Administrative Laint under the Wisconsin Family and Medical Leave Act. The Complainant was not entitled to back pay because she had already resigned prior to the retaliatory conduct, and had lost no wages or benefits as a result of the Respondent’s conduct. Subsequent to the hearing on the merits, the Complainant filed a motion for a continued hearing on damages, at which she wanted to present evidence establishing that the Respondent had publicized a poor separation report and that this had cost her other employment opportunities. This request was rejected because it was a separate claim occurring subsequent to the facts at issue in this case, rather than a question of damages. Swanson v. County of Chippewa (LIRC, 05/11/07).

The Complainant in this case established sufficient competent evidence to establish a prima facie case that he was discriminated against because he had filed, or the Respondent believed he would file, a wage claim under sec. 109.03, Stats. He presented evidence which included: (1) that an alderman had been overheard saying, “We’ll fire that motherfucker if he files that claim,” (2) that shortly after he filed his wage claim an alderman announced that he wanted to form a committee for the purpose of reducing the pension fund by eliminating staff, (3) that as a result of this, the Complainant was the only one who lost his position, (4) that, according to the mayor, the city did not save a significant amount of dollars by eliminating the Complainant’s position, and (5) that the Complainant was told by the council president that the elimination of his position “was nothing personal to him, although it may have been a factor with other aldermen.” This evidence was sufficient to cause the burden to shift to the Respondent to articulate through its witnesses a legitimate, non-discriminatory reason for the Complainant’s discharge. Gunty v. City of Waukesha (LIRC, 03/29/07).

The Complainant’s daughter filed a claim for unpaid vacation and overtime. The Respondent’s owner was visibly upset upon receiving notice of that complaint, and she discharged the Complainant the same day. Given the timing of the events, and considering that the Respondent knew that the Complainant was also banking unpaid overtime, one could reasonably draw the inference that the Respondent believed that the Complainant might file a wage claim and discharged her for that reason. Klatt v. Hallie Chiropractic (LIRC, 08/28/06).

It is true that the law does not require an employee to utter any “magic words,” and that an employee need not make an explicit threat to file a wage claim. However, a Complainant must nonetheless present some evidence which would warrant a conclusion that the employer formed the belief that she might do so and, further, that it discharged her for that reason. In this case, the Complainant did not tell the Respondent that she had been in contact with the Equal Rights Division or that she intended to do so. Nor is there any evidence to suggest that the Respondent formed the belief that the Complainant was planning to file a wage claim against it. The Complainant’s comment that another worker had gone to the Equal Rights Division with regard to a separate wage dispute, while possibly establishing that the Complainant was aware that she had recourse to the Equal Rights Division and could file a wage claim, does not in and of itself warrant a conclusion that the Complainant was planning to do so. Without more, this was insufficient to have put the Respondent on notice of any such intention. Jancik v. Advantage Learning Sys. (LIRC, 09/16/05)

The owner of the Respondent was unaware that minors were prohibited from operating equipment such as a meat slicer in the deli. He took immediate action to discontinue the practice before the Complainant was discharged. As a result, at the time of the discharge he was in compliance and he would have had no reason to believe that the Complainant (who had not initiated an enforcement action when the Respondent was out of compliance with the requirements of the laws relating to the employment of minors) would initiate or take part in a future enforcement action within the meaning of sec. 111.322(2m)(d), Stats. Therefore, there was no violation of sec. 111.322(2m)(d), Stats. Schulz v. Arms Corp. (LIRC, 06/14/05), aff’d sub nom. Schulz v. LIRC (Waukesha Co. Cir Ct., 12/20/05).

In this case, the Complainant did not claim that she had filed a prevailing wage complaint with the Equal Rights Division or that she had otherwise invoked the authority of the Division, nor did she testify or assist in any prevailing wage action or proceeding. The Respondent’s owner believed that the Complainant intended to file a small claims action in regard to concerns she had about increases in group health insurance costs. The record did not establish that the Respondent’s owner believed, or had reason to believe, that the Complainant had filed a prevailing wage claim with the Equal Rights Division or intended to file such a claim, or that he was even aware that such a right or process existed. Smith v. Carpet Warehouse & Design Ctr. (LIRC, 04/13/05).

The Respondent’s awareness that the work performed by the Complainant was a prevailing wage job, together with its familiarity of the Department of Transportation’s role in the enforcement of the prevailing wage law, and the fact that the Complainant was told he was trying to get the company in trouble with the DOT, all support the conclusion that the Respondent discharged the Complainant because it believed he might attempt to enforce his right to be paid the prevailing wage rate. Travis v. D.C. Nevels Trucking (LIRC, 10/07/02), aff’d sub nom. D.C. Nevels Trucking v. LIRC (Milw. Co. Cir. Ct., 06/12/03).

The employer illegally retaliated against the Complainant when it canceled the Complainant’s COBRA health insurance policy soon after it learned that the Complainant had filed a wage claim with the Equal Rights Division. Dreckman v. Henkel Transp. (LIRC, 02/16/01).

The Respondent’s practices with respect to calculation of overtime was the source of much confusion amongst employees. The Complainant informed her employer that she had checked with the Labor Standards Bureau to see what the correct procedure was for overtime pay. The employer became upset and told her that what she had done was undermining and underhanded. The Complainant was discharged the following day. The termination violated sec. 111.322(2m), Wis. Stats. which provides that it is an act of employment discrimination to discharge or otherwise discriminate against any individual because, among other things, the individual has filed a complaint or attempted to enforce any right under sec. 103.02, Wis. Stats., which deals with overtime pay. Hickman v. Milwaukee Immediate Care Ctr. (LIRC, 02/16/00), aff’d sub nom. Milwaukee Immediate Care Ctr. v. LIRC (Milwaukee Co. Cir. Ct., 11/02/00).

The Complainants failed to establish that the Respondents violated the Wisconsin Fair Employment Act by discharging them for filing a complaint or attempting to enforce a right under sec. 66.293, Wis. Stats., which is known as the Prevailing Wage Law. The Prevailing Wage Law contains a specific statutory procedure for monitoring and securing compliance with its requirements. Sec. 66.293(10)(c), Wis. Stats., provides that the Department of Workforce Development shall ensure compliance with that section. The statute contains no reference to any entity except the Department of Workforce Development as possessing the authority to monitor and secure compliance with the Prevailing Wage Law. The Complainants’ wage complaints filed with the City of Milwaukee did not constitute making a complaint or attempting to enforce a right they may have had under sec. 66.293, Wis. Stats., before the Department. Carter v. Dionne Constr. (LIRC, 05/24/99).

The Complainant failed to prove that she was discharged in retaliation for having filed a wage claim where the evidence failed to establish that the Respondent knew that she had filed a wage claim with the Equal Rights Division before it made the decision to discharge her. Hunt v. Point Publications (LIRC, 09/12/95).

The Complainant established that the Respondent discharged her because one of its agents believed that the Complainant might file a complaint with the State concerning her entitlement to minimum wage. Koll v. Hair Design (LIRC, 04/27/95).

Sec. 111.322(2m), Stats., does not protect informal “opposition” but only the types of protected activities that have generally been referred to in the retaliation area as “participation.” In this case, the Complainant alleged that he was discharged because the Respondent had heard that he had contacted the Equal Rights Division concerning his dissatisfaction at not receiving his vacation pay. The Complainant asserted that this contact was an attempt to enforce a right under sec. 109.03, Stats. Such a contact would not have constituted an attempt to enforce a right within the meaning of sec. 111.322(2m), Stats. The Complainant did not identify himself or his employer during this contact, and there would have been no way that the Equal Rights Division could have exercised its authority in response to such a contact. Werth v. TMS Carriers (LIRC, 02/09/95).

In this case, the chief jailer of the Sheriff’s Department communicated a threat to intentionally reduce the amount of work available to female jailers in retaliation for their prosecution of a wage discrimination claim. However, the fact that a threat was made is not determinative on the question of whether it was carried out. In this case, the evidence was inconclusive on the question of whether there was an intentional reduction in female prisoner population which led to a reduction in the hours worked by female jailers. While it is possible to look at the data on hours worked by female jailers and suspect that the reduction which occurred was engineered, more than a suspicion is required. The evidence considered as a whole simply does not establish this fact by a preponderance of the evidence. Blaser v. Oconto County Sheriff’s Dep’t (LIRC, 09/20/94).

The Complainant did not establish that he was retaliated against for having filed a wage claim. The Complainant did file a wage claim with the Department; however, he did not establish that the Respondent was made aware of the wage claim on or before the date the Complainant was allegedly discharged. Allen v. Robert Peeple Ass’n (LIRC, 09/15/94).