By Attorney Tamara B. Packard
Cullen Weston Pines & Bach LLP
If you ever find yourself in a dispute with your employer over your wages and hours, your first resort should be to the WPPA, of course. There may be occasions, however, when your union is unable to assist you, such as when the dispute is over an occurrence that happened too long ago (many collective bargaining agreements (“CBAs”) require that a grievance be filed within a fairly short time after the situation grieved occurred), or when the dispute is over something not governed by the collective bargaining agreement. In such cases, you will be glad to know that many of those disputes may be governed by a group of Wisconsin laws and administrative rules collectively referred to as the “labor standards laws.” This article discusses some of the rights you have under these laws and how to enforce your rights, if necessary, either by filing a complaint with the Labor Standards Bureau of the Equal Rights Division of the Wisconsin Department of Workforce Development (“the ERD”) or by filing a lawsuit in state court.
Q: I left my job five weeks ago and still haven’t received my final paycheck. What are my rights?
A: Unless your CBA provides otherwise, under the Wage Payment and Collection Law (Chapter 109 Wis. Stats.) you are entitled to be paid in full by no later than the next regular pay day after you leave employment. Wis. Stat. §109.03(2). Your final paycheck should include not just your regular and overtime pay but also all other kinds of “wages” which you have earned, including vacation pay and any supplemental unemployment benefit plan payments required under your CBA. Wis. Stat. §109.01(3).
Q: I just realized that for the last eight months, my employer has not been paying me to attend the 15-minute-long shift briefings that occur just prior to the official start of my shift, when supervisors give important information to the oncoming shift about the status of investigations, warrants, problems in the community over the past 48 hours, and other information that helps me do my job safely and effectively. Is that legal?
A: Probably not. Under both the Federal Fair Labor Standards Act (“FLSA”) and the Wisconsin Minimum Wage law (Chapter 104 Wis. Stats. and Wis. Admin. Code Ch. DWD 272), those pre-shift briefings fit the definition of work for which you are entitled to be paid. See 29 C.F.R. §553.221(b); DWD §272.12(1). According to the United States Supreme Court, “time worked” is “all time spent in physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer or his business.” Tennessee Coal, Iron & R.R. Co. v. Muscoda Local No. 123, 321 U.S. 590 (1944); also adopted in DWD §272.12(1). Under both State and Federal law, compensable hours of work include all of the time during which an employee is on the employer’s premises, on duty, or at a prescribed work place, as well as all other time during which the employee is suffered or permitted to work for the employer. 29 C.F.R. §553.221; DWD §272.12(1) and (2). Even if no one ever told you that these briefings are “mandatory,” because your supervisors give these briefings, know when your shift is supposed to begin, and “suffered or permitted” you to work, you are entitled to pay. The State recognizes that “[I]t is the duty of the management to exercise its control and see that work is not performed if it does not want it to be performed. It cannot sit back and accept the benefits without compensating employees for them. The mere promulgation of a rule against such work is not enough.” DWD §272.12(2)(a)3.
Q: My work schedule provides for a 30 minute unpaid meal break, but I usually have to use that time to catch up on paperwork or perform other work duties, grabbing bites of a sandwich while I work. My supervisor is aware that I do this and knows that I am not paid for my meal time. Am I entitled to pay for this time?
A: Yes, under the Wisconsin Hours of Work and Overtime law (Wis. Stats. § 103.01-.03 and Wis. Admin. Code Ch. DWD 274). DWD §274.02 provides that “The employer shall pay all employes for on-duty meal periods, which are to be counted as work time. An on-duty meal period is a meal period where the employer does not provide at least 30 minutes free from work. Any meal period where the employe is not free to leave the premises of the employer will also be considered an on-duty meal period.” As in the previous answer, because your employer knows that this is occurring and has not ever tried to stop it, she/he is “suffering or permitting” you to work. Thus, the employer must pay you for this on-duty meal period.
Q: How do I collect my final paycheck or other wages owed to me (such as for on-duty meals and attendance at pre-shift briefings)?
A: You should first make a written demand for payment directed to the employer, explaining why you believe you are entitled to wages for the time at issue and demanding that pay. You may wish to do that with your union representative’s involvement, and, if applicable, in the form of a grievance. As always, you should date and sign your demand and keep a copy for your records. If this does not resolve the dispute, you have two options under Wisconsin law to enforce your rights (in addition to any contractual rights you have under your CBA): you may file a complaint with the ERD pursuant to Wis. Stat. §109.09 or you may file a lawsuit in state court pursuant to Wis. Stat. §109.03(5). You must pursue one or the other of these routes within two years of the date you earned the pay in dispute or your claim is extinguished. Wis. Stat. §893.44(1) and §109.09(1).
Q: What is involved in filing and pursuing a complaint with the ERD?
A: You must complete the form titled “Labor Standards Complaint,” which is available from the ERD and also downloadable from the Wisconsin Department of Workforce Development website (http://www.dwd.state.wi.us). That form asks for basic contact information for you and your employer, a summary of the facts of your complaint, and relevant documentation. There is also a series of questions about your wages, hours, and job duties. You must sign and date the complaint form. That form must be filed with either the Milwaukee or Madison office of the ERD, depending on the county in which your employer is located. Within fifteen (15) days of the date you file your complaint, an employee from the Wage Claim office will write to the employer and ask for its side of the story, and will also give the employer an opportunity to pay the amount in dispute. Of course, if the employer gives in at this point, the payment is forwarded to you and the case is closed. If the employer contests your claim, however, you and your employer may each be asked for additional documentation and information. The investigator will try to bring the parties to a voluntary resolution. If the case is not voluntarily resolved, the investigator makes a written determination as to validity, and, if valid, indicates the amount of wages that are due.
If either party disagrees with the investigator’s determination, that party may (in writing) request an administrative review of the determination. That review is of the written record thus far collected, plus any additional written arguments and documentation the parties provide, but there is no hearing. The reviewer issues a “final” written determination. If you disagree, you may take your case to circuit court, as described below. Please note: there is no requirement that you first pursue your case through the ERD; you can go directly to state court if you wish. Wis. Stat. §109.03(5).
If the employer disagrees with the administrator’s determination, it may elect not to pay you, in which case the ERD may sue the employer in state court on your behalf, pursuant to its authority under Wis. Stat. §109.09. However, the ERD apparently does not exercise this authority. In its own publications about this process, the ERD explains that it refers these cases to your county District Attorney for civil or criminal prosecution in state court, which is another option that the ERD has under §109.09. See ERD-8784-P (R. 01/2003); ERD-10721-P (R. 10/98); Wis. Stat. §109.11(2) and (3). The District Attorney has the discretion to prosecute or not prosecute the claim. 78 Op. Atty Gen. 171 (1989). A judge can award the same monetary damages in those proceedings as are available to you if you bring a lawsuit yourself (see below).
One advantage to pursuing your claim through the ERD is that it is relatively quick and less expensive to you. It is also easier to pursue claims without the assistance of an attorney in this forum, as opposed to in court. If this process does not resolve your case, however, you can always pursue your case in court with or without an attorney’s assistance. So long as you file your lawsuit in state court within two (2) years of the date you earned the wages in dispute, you can choose to try the ERD process first.
Q: How do I pursue my case in state court and what can a judge award?
A: Each employee has the right to sue the employer in state court on his or her own behalf for the full amount of wages due, plus penalties of up to 100 percent of that amount. Wis. Stat. §109.03(5); §109.11(2). If the amount in dispute is under $5000, your case may be pursued in small claims court. The advantages to pursuing any case in small claims court are similar to those in the ERD forum: the process moves faster in small claims court than in circuit court and it is relatively easy to pursue a claim without hiring an attorney. When the amount in dispute is more than $5000, however, the lawsuit must be brought in circuit court. We recommend that you retain the services of an attorney if you plan to file your lawsuit in circuit court due to the complexities involved in that forum. If you prevail on your claim after trial (whether in small claims or circuit court), in addition to awarding the unpaid wages plus penalties, the judge may also award costs and reasonable attorney’s fees. Wis. Stat. §109.03(6). Thus, if you win, your employer may have to pay not only your unpaid wages and penalties, but also many of the expenses of the lawsuit, including the cost of your attorney.
One advantage to pursuing your wage claim in court, rather than with the ERD, is that you remain in control of the case throughout the process, and do not risk that the District Attorney or ERD will decide not to pursue your case on your behalf, despite a finding that your employer owes wages to you. A disadvantage of proceeding in circuit court is that it can take a year or, perhaps, substantially more, before trial.
Q: Management will be very upset with me if I file a complaint or a lawsuit against my employer. Am I protected from retaliation?
A: Yes. An employer is prohibited from retaliating against an employee who files a complaint, attempts to enforce his/her rights under law, testifies in his/her own case or anyone else’s case, or otherwise assists in a case brought under any of the Wisconsin labor standards laws. An employer also cannot retaliate against an employee whom it believes has done any of these things, even if the employee has not. Wis. Stat. §109.03(7), §103.02, and §111.322(2m). A complaint of retaliation may be pursued through the ERD, under the provisions of the Wisconsin Fair Employment law. Wis. Stat. §111.31, et seq. Retaliation claim proceedings are beyond the scope of this article, but are different than those for wage claims and can include one or more hearings before an Administrative Law Judge.
Contact information for the two Equal Rights Division offices is as follows:
201 E. Washington Ave., Room A300
P.O. Box 8928
Madison, WI 53708
819 N. 6th Street
Milwaukee, WI 53203
Regular office hours are 7:45 a.m. to 4:30 p.m., Monday through Friday.
Even though many of the claims that are described in this article may not arise under your collective bargaining agreement, you can contact your WPPA business agent for a referral to an attorney who can help you pursue your private claim. Your business agent may work with the WPPA Legal Department to assist you in finding an attorney.