STEVEN CHRISTOPHER FELDMANN, Complainant
STATE OF WISCONSIN, Respondent
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
feldmst . 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. Once an individual signs a "Consent to Treatment" form, a treatment assessment is completed to determine what treatment track will best meet the individual's needs when transferred to SRSTC.
The complainant has been found to be a "sexually violent person" (1) and committed to SRSTC. 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 Sand Ridge Secure Treatment Center has a Patient Work Program. SRSTC's work program states that its purpose is to provide the opportunity for a patient to work as a component of the treatment program focusing on vocational skills and related behaviors. It is also designed to provide patients an opportunity to acquire or improve independent living skills.
In the early part of 2007, DHFS revised its pay scales for patients who participated in work programming. Included in the notice given to SRSTC work program patients about the revised pay scale was the following:
The wage rate for patient work will be reduced from its current level (i.e., the amount patients would be entitled to receive if they were covered under the federal or state minimum wage laws) down to a tiered wage system (Tier 1 = $2.00/hour; Tier 2 = $2.50/hour), where the wage rate will be determined by the nature of the work, meeting competencies and receiving good work evaluations.
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 SRSTC.
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 the 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 SRSTC employee, the fact that SRSTC furnishes any equipment used by the Complainant in his work and the fact that SRSTC provides the place of work. However, the context for the working relationship between the Complainant and SRSTC 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 SRSTC under chapter 980. The Complainant receives no annual leave or retirement benefits as a result of his work. In addition, SRSTC does not withhold social security or other taxes on behalf of the Complainant and does not report the Complainant's earnings as income. Patients who refuse to work in any assignment 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 SRSTC, 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 encloses a copy of his SRSTC "Treatment Learning Plan" and argues that there is no mention of the labor he performs in the kitchen in his treatment learning plan, nor any reference made that this labor is an integrated part of his treatment plan approved as a therapeutic activity. Further, with respect to his work in the kitchen, he questions the clinical and professional qualifications of those supervising his work to oversee the therapeutic aspects of his labor. Finally, the complainant argues that he is not at SRSTC for punishment, but there for treatment, and that since all work is voluntary he should be compensated at the minimum wage. The complainant's arguments fail. The case file contains evidence which identifies kitchen work duties as therapeutic activity included in the Patient Work Program. The mere assertion by the complainant that he questions the qualifications of his supervisors to oversee the therapeutic aspects of his work is not proof that his supervisors were not qualified to oversee the therapeutic aspects of his work activity. Finally, because the complainant was not an employee of SRSTC within the meaning of the WFEA, ERD does not have jurisdiction over his claim regarding the compensation he receives at SRSTC.
cc: Attorney Neil Gebhart
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