P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)



ERD Case No. CR200701470, EEOC Case No. 26G200701252C

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.


The decision of the administrative law judge (copy attached) is affirmed.

Dated and mailed February 22, 2008
desimca . rsd : 125 : 9

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner


The respondent State of Wisconsin Department of Health and Family Services (DHFS) operates the Wisconsin Resource Center (WRC) located in Winnebago, Wisconsin and the Sand Ridge Secure Treatment Center (SRSTC) located in Mauston, Wisconsin. These are two facilities where individuals committed under Wisconsin's Sexually Violent Persons Act, Wis. Stat. ch. 980, are placed. All individuals committed under ch. 980 are initially admitted at WRC. All individuals at WRC are either newly arrived to the ch. 980 process (and have either not yet been committed, or have been committed and are deciding whether to enter into treatment) or have been committed and are currently choosing to not participate in treatment.

The complainant has been found to be "sexually violent person" (1)  and committed to WRC. An individual determined to be a sexually violent person is committed to the custody of the department for control, care and treatment until such time as the person is no longer a sexually violent person. Wis. Stat. § 980.06. Wisconsin Statute § 51.61(1)(b)1 of the Mental Health Act, which addresses individuals' (i.e., patients') right to work who have been committed under Wis. Stat. ch. 980, states that patients may voluntarily engage in therapeutic labor which is of financial benefit to the facility if such labor is compensated in accordance with a plan approved by the department and if:

a. The specific labor is an integrated part of the patient's treatment plan approved as a therapeutic activity by the professional staff member responsible for supervising the patient's treatment;

b. The labor is supervised by a staff member who is qualified to oversee the therapeutic aspects of the activity;

c. The patient has given his or her written informed consent to engage in such labor and has been informed that such consent may be withdrawn at any time; and

d. The labor involved is evaluated for its appropriateness by the staff of the facility at least once every 120 days.

The Wisconsin Resource Center has a Patient Work Program. The philosophy of WRC's work program is that work is a process in which patients are afforded an opportunity to participate in while residing at the institution and will promote institutional order by providing an incentive for good behavior.

In the early part of 2007, DHFS revised its pay scales for patients who participated in work programming. WRC patients in the work program received the following notification:

The WRC Patient work program will use a level system which will impact on the level of compensation for patient workers. Patient workers assigned to a Level D or C on their respective unit will be compensated at $2.00 per hour. Patient workers assigned to a Level B on their respective unit will be compensated at $2.25 per hour. Patient workers assigned to a Level A on their respective unit will be compensated at $2.50 per hour.

In March of 2007, DHFS revised its work program consent form. By signing the form, the patient acknowledged his or her consent to participate in the Patient Work Program, understanding of the compensation rate structure for the Program and understanding that he or she could withdraw consent to participate in the Program at any time.

The complainant was in the Patient Work Program at WRC.

In a complaint filed with the ERD, the complainant alleged that the DHFS discriminated against him with respect to compensation on the basis of disability, arrest record and conviction record. DHFS filed an answer to his complaint requesting that it be dismissed on the grounds that there was no employment relationship between DHFS and a patient in the work program, within the meaning of the WFEA.

On June 22, 2007, an equal rights officer issued a Preliminary Determination and Order dismissing the complainant's complaint due to a lack of jurisdiction because he was not an employee within the meaning of the WFEA.

The complainant filed an appeal and his case was referred to the ERD's hearing section for review by the ALJ. The ALJ determined that the "economic realities" or "hybrid" test, (2)  which was used by the federal court under Title VII in Spirides v. Reinhardt, 613 F.2d 826 (D.C. Cir. 1979) and adopted by the court in Moore v. LIRC, 175 Wis. 2d 561, 499 N.W.2d 289 (Ct. App. 1979) to determine whether an individual was an employee under the WFEA, although Moore involved the issue of whether Moore was an independent contractor, was applicable for determining whether the complainant was an employee of DHFS, and if protected by the WFEA.

Utilizing this test, the ALJ determined that the complainant was not an employee, and therefore the ERD lacked jurisdiction over his complaint. The ALJ stated the following as reason for this determination:

The working relationship between the Complainant in this case and DHFS is characterized by some of the factors delineated by the Spirides test such as the fact that the Complainant works under the supervision of a WRC employee, the fact that WRC furnishes any equipment used by the Complainant in his work and the fact that WRC provides the place of work. However, the context for the working relationship between the Complainant and WRC is entirely different from that of a voluntary employment relationship between parties characterized only by the circumstances of employment. In this case, the working relationship is uniquely defined by the circumstances of the Complainant's commitment to WRC under chapter 980. The Complainant receives no annual leave or retirement benefits as a result of his work. In addition, WRC does not withhold social security or other taxes on behalf of the Complainant and does not report the Complainant's earnings as income. Although WRC does not penalize patients who refuse to work, those patients are ineligible for "indigency" payments. Moreover, in this case, because the Complainant's relationship with DHFS arises out of his status as a patient confined to a facility operated by DHFS, it exercises control and direction over not only the Complainant's work performance, but also over the Complainant himself. The conditions under which he performs his job are functions of his confinement to WRC, not those of an employee who voluntarily enters into an employment relationship with an employer.

The commission agrees with the ALJ's analysis and determination and therefore affirms the ALJ's decision for the reasons stated by the ALJ.

On appeal, the complainant argues that he followed the instructions for filing an appeal with the EEOC by timely filing his "ADA" appeal with the U.S. EEOC's Milwaukee office, but nowhere in the December 4, 2007 (ERD ALJ's) decision is there any reference to his allegation regarding the protections afforded by the ADA. Further, he states that he has not alleged an Employer/Employee Relationship with DHFS. However, the ALJ's December 4, 2007 decision makes no reference to the complainant's ADA allegations because the ALJ's decision only addressed his claim under the WFEA. The ERD has no enforcement authority over any protections afforded under the ADA, only the protections afforded individuals under the WFEA. Further, the complainant's WFEA complaint claim that he was discriminated against on the basis of disability with respect to his compensation made it necessary to determine whether or not he was an employee of DHFS.

cc: Attorney Neil Gebhart

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(1)( Back ) " 'Sexually violent person' means a person who has been convicted of a sexually violent offense, has been adjudicated delinquent for a sexually violent offense, or has been found not guilty of or not responsible for a sexually violent offense by reason of insanity or mental disease, defect, or illness, and who is dangerous because he or she suffers from a mental disorder that makes it likely that the person will engage in one or more acts of sexual violence." Wis. Stat. 980.01(7).

(2)( Back ) This test considers the extent of the employer's right to control the "means and manner" of the worker's performance to be the most important factor but also includes consideration of additional factors, including, (1) the kind of occupation, with reference to whether the work usually is done under the direction of a supervisor or is done by a specialist without supervision; (2) the skill required in the particular occupation; (3) whether the "employer" or the individual in question furnishes the equipment used and the place of work; (4) the length of time during which the individual has worked; (5) the method of payment, whether by time or by the job; (6) the manner in which the work relationship is terminated; (7) whether annual leave is afforded; (8) whether the work is an integral part of the business of the "employer"; (9) whether the worker accumulates retirement benefits; (10) whether the "employer" pays social security taxes; and (11) the intention of the parties.


uploaded 2008/02/26