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



ERD Case No. 200602390

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, except that it makes the following modifications:

The language after the word "Complainant" in paragraph 1 of the ORDER is deleted.

The second sentence of paragraph 2 of the ORDER is modified to read as follows:

Respondent shall make the Complainant whole by paying him the amount he would have earned (including overtime compensation) from July 11, 2006, to September 6, 2007, the date of hearing.

Paragraph 4 of the ORDER is deleted and the following paragraph is substituted therefore:

Within 30 days of the expiration of time within which an appeal may be taken herein, the Respondent shall submit a compliance report which provides details of the specific action it has taken to comply with the commission's decision. The compliance report shall be directed to the attention of Kendra DePrey, Labor and Industry Review Commission, P.O. Box 8126, Madison, Wisconsin 53708. Wis. Stat. § § 111.395, 103.005(11) and (12) provide that every day during which an employer fails to observe and comply with any order of the commission shall constitute a separate and distinct violation of the order and that, for each such violation, the employer shall forfeit not less than $10 nor more than $100 for each offense.


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

Dated and mailed February 28, 2008
metzgst . rmd : 115 : 9

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner


In its arguments to the commission, the respondent relies upon various documents and other information not included in the hearing record, including documents it attached to its arguments and documents it represents are in the case file.

The commission, however, is limited to the evidence of record in reaching its decision, and this consists of the evidence offered and received at the hearing before the administrative law judge. See, Valdes v. Harley-Davidson Motor Co., Inc., ERD Case No. CR200203820 (LIRC Oct. 27, 2006).

The respondent failed to appear at the hearing before the administrative law judge, and implies in its argument that it should be granted further hearing because this failure was due to the negligence of a former employee. However, the actions of an employer's staff, even if they involve neglect or malfeasance, are generally imputed to the employer. The respondent has offered no persuasive reason for not doing so here.

In its arguments challenging the remedy ordered by the administrative law judge, the respondent focuses on the complainant's time sheets, and entitlement to overtime pay, in June and July of 2006. However, these arguments relate to the merits of the complainant's wage claim which is not before the department or the commission as a part of this matter.

Although the respondent also contends that the "ALJ abused his discretion in awarding Metzger $11,000 in lieu of reinstatement," it fails to explain or justify this contention. This award is consistent with the language of Wis. Stat. 111.39(4)(c),  (1)   i.e., the retaliation prohibition found to have been violated here is Wis. Stat. § 111.322(2m), and the complainant requested an award in lieu of reinstatement at hearing. The respondent has failed to explain why the ALJ's award of 1,000 times the complainant's hourly wage is an abuse of discretion, and the commission, taking into account the evidence of record, agrees with the ALJ.

As the ALJ held, the record shows blatant retaliation by the respondent's owner based upon the complainant's stated intent to file a wage claim in regard to overtime pay he believed he was owed. Although the respondent now offers other explanations for the complainant's discharge, including an unsatisfactory disciplinary history and attendance record, the record does not establish that the complainant had an unsatisfactory disciplinary history or attendance record, or that these were the actual reasons for his discharge.

The commission has modified the ALJ's order to clarify that the accrual of back pay ceased when the complainant stated at hearing that he was not seeking reinstatement. See, Grulke v. Q & E Construction, ERD Case No. 200302581 (LIRC Aug. 10, 2006).

The commission has also modified the ALJ's order to restrict its reach to the complainant, since neither the department nor the commission has the authority under the WFEA to entertain a class action. See, Jones v. Central Regional Dental Testing Service, et al., ERD Case No. 9352630 (LIRC Feb. 29, 1996); Rowser v. Upper Lakes Foods, ERD Case No. 200300509 (LIRC Oct. 29, 2004).


cc: Attorney John P. D'Angelo

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(1)( Back ) If the examiner finds a respondent violated s. 111.322(2m), the examiner shall award compensation in lieu of reinstatement if requested by all parties and may award compensation in lieu of reinstatement if requested by any party. Compensation in lieu of reinstatement for a violation of s. 111.322(2m) may not be less than 500 times nor more than 1,000 times the hourly wage of the person discriminated against when the violation occurred.


uploaded 2008/03/10