By: Alan E. Seneczko
On June 8, 2009, Governor Doyle signed into law S.B. 20, which amends the Wisconsin Fair Employment Act to provide for the recovery of compensatory and punitive damages upon a finding of discrimination, unfair honesty testing or unfair genetic testing by an ALJ or LIRC. Under the new law, the Equal Rights Division is required to notify employees who prevail in discrimination claims of their right to recover compensatory and punitive damages in circuit court. The employee then has 60 days to initiate the claim.
Once a claim for damages is filed, the circuit court is required to award compensatory and punitive damages "in an amount that the circuit court or jury finds appropriate," plus costs and attorney fees - regardless of whether the violation was "willful," "with malice," or with "reckless indifference" to an employee's rights under the law, standards applicable to similar claims under federal law. The award is subject to statutory maximums based upon the size of the employer (e.g., < 100 employees, $50,000.00; 101 - 200, $100,000.00; 201 - 500, $200,000.00; >500, $300,000.00).
This amendment reflects a drastic change for employers in Wisconsin and is certain to have a dramatic impact on litigation and related settlement negotiations. Previously, employers defending claims under the Wisconsin Fair Employment Act faced only potential damages centered on making an aggrieved employee "whole," such as reinstatement, back pay, etc. Now, the prospect of mandatory compensatory and punitive damages will become a required part of the equation.
Questions? Please contact WS Shareholder and Senior Attorney Alan Seneczko in our Oconomowoc office at (262) 560-9696, or alseneczko@wesselssherman.com.
