832 Front pay

The Wisconsin Fair Employment Act does not authorize the award of front pay in cases other than those implicating sec. 111.322(2m), Stats. The mention of front pay in the Act only for sec. 111.322(2m), Stats., retaliation cases implies that that remedy is not available in other cases. An administrative agency has only those powers which are expressly conferred or which are fairly implied from the four corners of the statute under which it operates. Therefore, any reasonable doubt as to the existence of an implied power should be resolved against the exercise of such authority, and liberal construction does not give a court or administrative agency the right to expand the terms of the legislation. Legislative history supports the conclusion that the Wisconsin Fair Employment Act does not authorize front pay as a remedy for discrimination. Suttle v. DOC (LIRC, 05/22/09), aff’d sub nom. DOC & Suttle v. LIRC (Dane Co. Cir. Ct., 06/02/10).

Front pay in lieu of reinstatement is unavailable to a prevailing Complainant under the Wisconsin Fair Employment Act, except in claims under sec. 111.322(2m), Stats. Venneman v. UW-La Crosse (LIRC, 12/17/09).

The Labor and Industry Review Commission takes the position that sec. 111.39(4)(c), Wis. Stats., does not authorize the award of front pay in cases other than those implicating sec. 111.322(2m), Wis. Stats. The Legislature did not intend to permit front pay awards in cases other than those involving retaliation. Current anti-retaliation laws are adequate to protect individuals from further retaliation if they are required to return to their former workplace. Achilli v. Sienna Crest Assisted Living (LIRC, 07/18/08).

In a wrongful discharge case, Kempfer v. Automated Finishing, Inc., 211 Wis. 2d 100, 564 N.W.2d 692 (1997), the Court noted that in those situations where reinst atement is not feasible an award of front pay is still limited by the concepts of foreseeability and mitigation. Assuming it appropriate to award front pay, it is necessary in any particular case to determine the extent of front pay, if any, foreseeable under the circumstances of the case and what effect the Complainant’s mitigation of damages will have on the award of front pay. Kaczynski v. WSR Corp. (LIRC, 10/29/97).

The Department has the authority to award front pay in appropriate cases. In part, a decision to order front pay would need to consider whether it would be reasonable for the Complainant to return to the workplace. This would depend to some extent on whether the employer had now remedied the situation that caused the Complainant to leave in the first place. Oak-Dale Hardwood Prod. v. LIRC (Pierce Co. Cir. Ct., 02/16/96).