520 EMPLOYEES' RIGHT TO KNOW LAW (Secs. 101.58-101.599, Stats.)

[Pursuant to sec. 101.599, Stats., an employee or employee representative who has not been afforded his rights by an employer in violation of the Employees’ Right To Know Law may file a complaint with the department alleging the violation. The department shall investigate the complaint and shall attempt to resolve the complaint by conference, conciliation or persuasion. If the complaint is not resolved and the department finds probable cause to believe a violation has occurred, the department shall proceed with notice and a hearing on the complaint as provided in ch. 227, Stats. If the department finds a violation, it may order such action as will remedy the effects of the violation.]

Pursuant to sec. 111.322(2m), Stats., it is an act of employment discrimination to discharge or otherwise discriminate against any individual because he files a complaint or attempts to enforce any right under the Wisconsin Employees’ Right to Know Law (secs. 101.58 to 101.599, Stats.). Presumably, the 300-day filing requirement stated in sec. 111.39(1), Stats., would apply to charges filed pursuant to this provision. Prior to his termination on June 16, 2003, the Complainant in this case filed requests for information pursuant to the Employees’ Right to Know Law with his employer. The requests for information related to substances to which he was being exposed in the course of his employment. The employee suspected that these substances were causing or exacerbating certain medical problems he was experiencing at that time. The Complainant asserted that he was unaware until November of 2004 of his right to file a charge of retaliation based upon his exercise of rights under the Employees’ Right to Know law. However, ignorance of the law does not toll the statutory filing period. The Complainant also indicated that he did not believe that the Respondent had acted improperly until he learned from OSHA in December of 2004 that the Respondent “had an overexposure record of a hazardous chemical.” However, the belief that the Complainant asserted he first formed in December of 2004 was not the belief that he had been retaliated against when he was disciplined and discharged by the Respondent (which would be the only basis for invoking the jurisdiction of the Equal Rights Division), but instead the belief that the Respondent had violated the Employees’ Right to Know law by withholding information from him as to the nature and level of substances to which he had been exposed. The limitations period for filing the complaint began to run on the date that the Complainant received notice of his termination on or before June 16, 2003. No basis was established for tolling the statute of limitations in this case. Van Deraa v. Asten Johnson (LIRC, 06/30/05).

The Employees’ Right to Know Law is a broad and comprehensive statutory scheme designed to protect public employees’ health, safety, and welfare. This legislation ensures that employees receive adequate information and training necessary to protect them. Thus, the legislation is remedial in nature and must be read broadly to effect its purpose. Door County Highway Dep't v. DILHR, 137 Wis. 2d 280, 404 N.W.2d 548 (Ct. App. 1987).

The Respondent’s baling facility was processing hazardous materials including pesticides, herbicides, and infectious materials. The baling facility was also accepting asbestos, a known carcinogen and toxic substance. The compacting of these materials during the baling process released hazardous and toxic substances into the workplace. The Respondent failed to comply with sec. 101.581, Stats., and post a sign advising employees of their right to know of the existence of hazardous materials in the workplace. The Respondent also failed to comply with sec. 101.597, Stats., and provide the Complainant with an education or training program to ensure his safety. The Respondent also failed to notify the Complainant of his rights under sec. 101.055, Stats. Two of the rights granted by that statutory provision are the employee’s right to request a Department inspection of a workplace if the employee believes a hazardous situation exists, and the right to reasonably refuse to work in such a situation. Door County Highway Dep't v. DILHR, 137 Wis. 2d 280, 404 N.W.2d 548 (Ct. App. 1987).

The Respondent’s failure to educate and train the Complainant in the use of equipment that would ensure his safety was a critical factor in the Complainant’s decision not to return to work. Because the Respondent’s violation of the Employees’ Right to Know Law was directly responsible for the Complainant’s ultimate termination, reinstatement with back pay was an appropriate remedy. Door County Highway Dep't v. DILHR, 137 Wis. 2d 280, 404 N.W.2d 548 (Ct. App. 1987).

The Respondent persistently failed to comply with the provisions of the Employees’ Right to Know Law, even after complaints had been made and it was made aware of its obligations under those provisions. The Respondent’s continued disregard for the Complainant’s welfare and his rights afforded under those statutory provisions was willful. Therefore, the Department was empowered under sec. 101.599(3)(b), Stats., to impose a $10,000 forfeiture. The Department’s order imposing the forfeiture or, alternatively, requiring the Respondent to install a ventilation booth, was an appropriate incentive for the Respondent to remedy the violation. Door County Highway Dep't v. DILHR, 137 Wis. 2d 280, 404 N.W.2d 548 (Ct. App. 1987).