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836.17 Proceedings on appeal

The briefing schedule issued by LIRC contained express instructions that any request for additional attorney’s fees for work performed in connection with the petition for review was to be included along with the Complainant’s initial brief, but the prevailing Complainant’s brief did not include a request for additional attorney’s fees. LIRC therefore concluded that the Complainant had waived the right to request additional attorney’s fees, and ordered no additional fees. Krueger v. County of Waupaca (LIRC, 08/22/18).

Where a prevailing Complainant has been given instructions to request additional attorney fees related to the petition for Commission review when filing the Complainant’s brief, but does not do so, the Commission will consider that the right to request additional attorney fees has been waived. 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).

The Respondent contended that because the Labor and Industry Review Commission assumed responsibility for handling the matter on appeals through the Supreme Court, the briefing and oral argument done by the Complainant’s personal attorney were unnecessary. The Respondent maintained that the Complainant should be denied any fees for the time expended briefing and preparing her oral argument. This argument was rejected by the Supreme Court in Richland School District v. DILHR, 174 Wis. 2d 878, 914-15, 498 N.W.2d 826 (1993). In that case, involving the Wisconsin Family and Medical Leave Act, the Department joined in at the court level to defend its administrative rules and its interpretation of the FMLA. The court held that the Complainant had a right to participate in the judicial review proceedings and that he was not required to rely on the agency to represent his interests. Roytek v. Hutchinson Tech. (LIRC, 02/15/05).

In addition to attorney’s fees for work prior to the issuance of the Administrative Law Judge’s decision, the Complainant is also entitled to attorney’s fees in conjunction with a petition for review to LIRC. Fields v. Cardinal TG Co. (LIRC, 02/16/01).

The record indicated that both parties were responsible for the long delay in resolving the damage issues after the Labor and Industry Review Commission’s initial order. LIRC rejected the Respondent’s argument that no attorney’s fees should be awarded for that time period. Olson v. Phillips Plating (LIRC, 02/11/92).

The motion by the Complainant’s attorney for additional fees to cover the cost of his legal representation of the Complainant on appeal was granted. Dushek v. LIRC (Radloff) (Brown Co. Cir. Ct., 11/02/89).

The Labor and Industry Review Commission awarded additional attorney’s fees for the Complainant’s attorney’s work in connection with responding to a petition for review filed by the Respondent. LIRC’s reversal of one portion of the Administrative Law Judge’s decision which had found in favor of the Complainant did not warrant a reduction in the attorney’s fees award. Savage v. Stroh Container (LIRC, 09/20/89).