1. What legal protection does Wisconsin provide private sector employees in regard to whistleblowing and retaliation?
The general rule is that most employees may be fired at any time for any reason or for no reason at all under what is known as the at-will employment doctrine. However, in the past half-century, many exceptions to the general rule have emerged. Exceptions to this general rule can come from two sources: (1) courts, which modify and make “common law protections” or (2) the legislature, which enacts “statutory protections.” Statutory protections tend to be specific, addressing certain subject areas (such as discrimination, workers’ compensation, etc.). Yet, legislators often lack the foresight to address every possible situation of retaliation. Common law protections, on the other hand, tend to “fill the gaps” where no statute exists for a given situation.
Common Law Protections
Wisconsin recognizes a public policy exception to the at-will employment doctrine. An employer may not discharge an employee for a reason that is contrary to a fundamental and well-defined public policy. An employee has a cause of action in other words, the employee may sue for wrongful discharge when the motivation for the discharge violates public policy.
To determine what constitutes public policy, Wisconsin courts will look to statutes and constitutional provisions (among other sources) to determine if a given practice has been endorsed (e.g. the right to collect workers’ compensation benefits) or prohibited (e.g. criminal laws prohibiting perjury). So, for example, because a Wisconsin statute endorses an employee’s right to collect workers’ compensation benefits, an employer who retaliates against an employee for invoking that right would be contravening public policy. On the other side of the same coin, because criminal statutes prohibit perjury, an employer who coerces an employee to commit perjury by threats of reprisal is also contravening Wisconsin’s public policy. In both situations, employees are protected from retaliatory discharge. Unfortunately for whistleblowers, Wisconsin courts have yet to extend the public policy exception to whistleblower situations.
In addition, the Wisconsin Legislature has adopted statutory protections for certain activities. Wisconsin, however, does not have any general whistleblower protection statute. Employees who engage in protected activities (usually filing a complaint or testifying) under laws in the following subject areas are protected from retaliation: discrimination (Fair Employment Act), health care employees, elderly care, toxic substances, and workers’ compensation.
In addition to the above state protections, federal law provides workers with additional protections. Furthermore, a private contract or collective bargaining agreement may also protect employees from certain forms of retaliation.
2. What activities does state law protect, and to whom does this protection apply?
Common Law Protections
An employee may not be discharged for a reason that violates a fundamental and well-defined public policy. Employers may not require employees to violate a statute or constitutional provision. While Wisconsin courts have not yet recognized a general whistleblower protection, employers may not discharge employees who fulfill a statutory obligation to prevent wrongdoing by reporting the wrongdoing to appropriate authorities (e.g. reporting abuse of patients).
Fair Employment Act – Discrimination: An employee may not be discharged (or discriminated against) in retaliation for opposing an unlawful discriminatory practice. Nor may an employee be discharged (or discriminated against) in retaliation for filing a complaint, testifying, or assisting in a proceeding under the Wisconsin Fair Employment Act (WFEA). The WFEA prohibits discrimination in employment on the basis of age, race, creed, color, disability, marital status, sex, national origin, ancestry, arrest record, conviction record, membership in the national guard, state defense force, or any reserve component of the military forces of the United States or Wisconsin, or use or nonuse of lawful products off the employers premises during nonworking hours. Wis. Stat § 111.322(3).
In addition, WFEA protects employees from retaliation when an employee files a complaint, attempts to enforce a right, testifies in a proceeding, or assists in a proceeding concerning the following laws:
- Hours of labor ⚖
- Family or medical leave ⚖
- Right to inspect employee’s personnel records ⚖
- Minors under the age of 12 years engaged in street trades ⚖
- Recovery of unpaid wages owed to a minor ⚖
- Unauthorized deductions from employee’s wages for faulty workmanship, loss, theft, or damage ⚖
- Prevailing wage rates and hours of labor for employees of highway contractors ⚖
- Minimum wage ⚖
- Wage claims ⚖
- Wage claims by employer who decides upon a business closing or mass layoff ⚖
- Health care benefits claims ⚖
- Health care worker whistleblowers ⚖
- Employees’ Right to Know Law ⚖
- Employment of minors ⚖
- Municipal prevailing wage and hour scales ⚖
- Wage rate on state work ⚖
- Prevailing wage rates on local professional football stadiums ⚖
Government Employees: An employee of the government may not be discharged (or retaliated against) for disclosing information about a violation of law, mismanagement or abuse of authority, waste of public funds, or a danger to public health and safety. Wis. Stat. § 230.90.
Health Care Employees: An employee of a health care facility or health care provider may not be disciplined in retaliation for reporting illegal conduct (under both state and federal law) or medical malpractice that poses a potential risk to public health/safety. Nor may an employee be disciplined in retaliation for initiating, participating in, or testifying in proceedings concerning the enforcement. Wis. Stat. § 146.997(3).
Elder Care: An employee may not be discharged (or discriminated against) in retaliation for reporting suspicions of abuse (physical pain or injury, or unreasonable confinement), material abuse (misuse of property or financial resources), or neglect of an elderly person (defined as a person age 60 or older who is “subject to the infirmities of aging”). The report must be made to a state official or the county agency responsible for receiving such complaints. Note that the employee’s suspicions need not be factually accurate, only that a reasonable person would believe abuse, material abuse, or neglect had occurred. Wis. Stat. § 46.90(4)(b).
Migrant Workers: A migrant worker may not be discharged (or discriminated against) in retaliation for exercising rights secured by Wisconsin Law or the United States. Wis. Stat. § 103.96.
Toxic Substances: An employee may not be discharged (or discriminated against) in retaliation for exercising rights under Wisconsin laws concerning toxic substances, infectious agents, or pesticides. Employees have a right to know about toxic substances in the workplace. Wis. Stat. § 101.595(2).
Workers’ Compensation: An employee may not be discharged (or discriminated against) in retaliation for filing a workers’ compensation claim. Wis. Stat. § 102.35.
3. How do I file a whistleblower or retaliation claim in Wisconsin?
Generally: An employee may file a wrongful discharge lawsuit in an appropriate court. The lawsuit must be filed within 6 years ⚖ of the retaliatory action, unless otherwise specified by statute. If a statute permits an employee to file a complaint with a state agency, an employee must generally attempt to resolve the matter through the administrative agency proceedings before filing a lawsuit in court (known as exhausting administrative remedies). If you believe you have a claim, you should contact a lawyer.
Fair Employment Act Discrimination: An employee may file a complaint with the Wisconsin Department of Workforce Development (DWD). A complaint must be filed within 300 days of the retaliatory conduct. If you believe you have a claim, you should contact the DWD immediately.
The DWD’s Equal Rights Division, Civil Rights Bureau web site provides information on how to file a complaint, along with downloadable complaint forms. In addition, contact information for the Equal Rights Division is available online.
Health Care Employees: An employee may file a complaint with the Wisconsin Department of Workforce Development (DWD). A complaint must be filed within 300 days of the retaliatory action. If you believe you have a claim, you should contact the DWD immediately.
Elder Care: An employee may file a complaint with the Wisconsin Department of Workforce Development (DWD). A complaint must be filed within 300 days of the retaliatory action. If you believe you have a claim, you should contact the DWD immediately. The DWD has made a complaint form available on their web site.
Government Employee Disclosures: An employee may file a complaint within 2 years of the retaliatory action in the appropriate circuit court.
Toxic Substances: An employee may file a complaint with the Wisconsin Department of Workforce Development (DWD). A complaint must be filed within 300 days of the retaliatory conduct. If you believe you have a claim, you should contact the DWD immediately. The DWD has made a complaint form available on their web site.