July 2009
It has long been claimed, by employees alleging discrimination under the Wisconsin Fair Employment Act (WFEA), that the law provides for front pay in lieu of reinstatement as a potential remedy - in an amount equal to 1,000 times the employee's hourly wage. Recently, however, the Labor and Industry Review Commission clarified that the statutory provision on which this remedy is based expressly limits awards of front pay to claims for retaliation under Wis. Stat. §111.322(2m) - and does not apply to cases of discrimination under other sections of the WFEA, such as claims for discriminatory termination. Expressing its disagreement with a prior circuit court decision to the contrary, the Commission stated that it "continues to believe that [the WFEA] does not authorize the award of front pay in cases other than those implicating [retaliation]." Suttle v. Dept. of Corrections, ERD Case No. CR200602163 (LIRC, 05/22/09).
Although an amendment to the WFEA authorizing the award of compensatory and punitive damages in cases of discrimination under the Act was signed by Governor Doyle on June 8th, the Commission's position on the issue of front pay is welcome news for Wisconsin employers.
Questions? Please contact WS Shareholder and Senior Attorney Alan Seneczko in our Oconomowoc office at (262) 560-9696, or alseneczko@wesselssherman.com.
