The Wisconsin Equal Rights (ER) Decision Digest -- Sections 831.9-836.43
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831.9Back pay; Miscellaneous
The Complainant failed to provide a basis for voiding the settlement agreement in his case where he argued that the Respondent had made misrepresentations regarding the tax consequences of the settlement. The Respondent correctly informed the Complainant that the settlement amount was taxable as income. Sec. 104(a)(2), of the Internal Revenue Code, provides a statutory exception for taxation of gross income for the amount of any damages (other than punitive damages) which are received (whether by suit or agreement, and whether as lump sums or as periodic payments) on account of personal physical injuries or physical sickness. The Complainant in this case did not receive income from the settlement on account of personal physical injuries or physical sickness. The amount which he received as the settlement amount represented a cash payment in lieu of paid leave following his resignation, a cash payment for his overtime hours and accrued vacation and personal holiday accounts, and severance pay equal to one and one-quarter times his annual salary. For this, and other reasons, the Administrative Law Judge appropriately dismissed the Complainant’s claims that the settlement agreement should be voided. Sullivan v. UW - Marathon County (LIRC, 09/27/07).
The fact that the Complainant received social security disability benefits following her discharge by the Respondent does not necessarily render her ineligible for back pay. While the Complainant's disability may have been sufficiently severe to entitle her to social security benefits, the Respondent in this case did not establish that her disability would have prevented her from continuing her employment with the Respondent or from attempting to find other employment. Even if the Complainant was completely unable to work, this would not constitute proof that she failed to make a good-faith effort to mitigate her damages. Crivello v. Target Stores (LIRC, 08/14/96), aff'd. sub nom. Target Stores v. LIRC and Crivello, 217 Wis.2d 1, 576 N.W. 2d 545 (Ct. App. 1998).
An employer was not to reduce the wages of a male employe to comply with an equal pay order for females. Allison v. Jessen's Cleaner's (DILHR, 06/14/74); also, Biermann v. Larson Pallet (DILHR, 11/02/73).
832 Remedies which may be provided; Front pay
Front pay in lieu of reinstatement is unavailable to a prevailing Complainant under the Wisconsin Fair Employment Act, except in claims under sec. 111.322(2m), Stats. Venneman v. UW-La Crosse (LIRC, 12/17/09).
The Wisconsin Fair Employment Act does not authorize the award of front pay in cases other than those implicating sec. 111.322(2m), Stats. The mention of front pay in the Act only for sec. 111.322(2m), Stats., retaliation cases implies that that remedy is not available in other cases. An administrative agency has only those powers which are expressly conferred or which are fairly implied from the four corners of the statute under which it operates. Therefore, any reasonable doubt as to the existence of an implied power should be resolved against the exercise of such authority, and liberal construction does not give a court or administrative agency the right to expand the terms of the legislation. Legislative history supports the conclusion that the Wisconsin Fair Employment Act does not authorize front pay as a remedy for discrimination. Suttle v. Department of Corrections (LIRC, 05/22/09), aff?d. sub nom Department of Corrections and Suttle v. LIRC (Dane Co. Cir. Ct., 06/02/10).
The Labor and Industry Review Commission takes the position that sec. 111.39(4)(c), Wis. Stats., does not authorize the award of front pay in cases other than those implicating sec. 111.322(2m), Wis. Stats. The Legislature did not intend to permit front pay awards in cases other than those involving retaliation. Current anti-retaliation laws are adequate to protect individuals from further retaliation if they are required to return to their former workplace. Achilli v. Sienna Crest Assisted Living (LIRC, 07/18/08).
In a wrongful discharge case, Kempfer v. Automated Finishing, Inc., 211 Wis. 2d 100, 564 N.W.2d 692 (1997), the Court noted that in those situations where reinstatement is not feasible an award of front pay is still limited by the concepts of foreseeability and mitigation. Assuming it appropriate to award front pay, it is necessary in any particular case to determine the extent of front pay, if any, foreseeable under the circumstances of the case and what effect the Complainants mitigation of damages will have on the award of front pay. Kaczynski v. WSR Corp. (LIRC, 10/29/97).
The Department has the authority to award front pay in appropriate cases. In part, a decision to order front pay would need to consider whether it would be reasonable for the Complainant to return to the work place. This would depend to some exent on whether the employer had now remedied the situation that caused the Complainant to leave in the first place. Oak-Dale Hardwood Products v. LIRC (Pierce Co. Cir. Ct., 02/16/96).
The legislature did not intend to permit front pay awards in cases other than those involving retaliation under sec. 111.322(2m), Stats. Miller v. Oak-Dale Hardwood Products (LIRC, 12/13/94).
833 Remedies which may be provided; Reinstatement; hire
The employer eliminated the Complainants’ jobs and created new jobs which the Complainants were strongly discouraged from applying for, and for which they did not apply. The Administrative Law Judge found discrimination based upon the Complainants’ ages, but did not order reinstatement or back pay because the Complainants had not applied for the new jobs despite not having been prohibited from doing so. However, failure to apply for the newly posted jobs does not preclude a remedy. Where a Complainant is discouraged from applying for a job based upon discriminatory factors, he or she should be eligible for instatement and back pay unless the Respondent can establish by clear and convincing evidence that, due to a neutral, non-discriminatory reason, the Complainant would not have been hired for the position. Brown, et al. v. Chippewa Valley Technical College (LIRC, 11/28/14).
Front pay in lieu of reinstatement is unavailable to a prevailing Complainant under the Wisconsin Fair Employment Act. Reinstatement (or, ?instatement,? in the case where an individual was unlawfully denied hire) is the preferred remedy in discrimination cases. Reinstatement is not required where the result would be a working relationship fraught with hostility and friction. However, an employer must not be able to use its anger or hostility toward the Complainant for having filed a lawsuit as an excuse to avoid the Complainant?s reinstatement. In this case, the Respondent argued that the Complainant would not enjoy the confidence and approval of the current provost and chancellor of the university. However, there are factors which should lessen the Respondent?s stated concern. First of all, the Complainant already had a long history of employment with the Respondent. Secondly, since the current provost and chancellor are relatively new in their positions at the university, there is no reason to believe that there would be any obstacle preventing them from gaining confidence in the Complainant. If the Respondent was not ordered to reinstate the Complainant, the Complainant would not be made whole for the Respondent?s discriminatory conduct against him. A failure to order instatement should be considered only in the most unusual circumstances, which did not exist in this case. Venneman v. UW-La Crosse (LIRC, 12/17/09).
There was some evidence that reinstatement would be unreasonable for both parties in this case. However, the Labor and Industry Review Commission determined that front pay is not available as an alternative to reinstatement, except in cases under sec. 111.322(2m), Stats. If the Respondent was not ordered to reinstate the Complainant and an award of front pay is unavailable as remedial relief, the Complainant would not be made 'whole' for the Respondent's discriminatory conduct. Furthermore, to not require the Respondent to reinstate the Complainant would only serve to reward the Respondent for its discriminatory conduct. In this case, the Complainant indicated that he would be willing to return to work for the Respondent. Under these circumstances, an order of reinstatement was appropriate. Suttle v. Department of Corrections (LIRC, 05/22/09) , aff'd. sub nom Department of Corrections and Suttle v. LIRC (Dane Co. Cir. Ct., 06/02/10).
Since the Respondent operates several other facilities in Wisconsin, the fact that it no longer operates the facility in which the Complainants were employed did not serve as a bar to an offer of reinstatement. The tone and content of the hearing record suggested that there was some degree of mistrust and antagonism between the Complainants and the owners of the Respondent. However, given the protections of the Wisconsin Fair Employment Act and other anti-retaliatory statutes, this suggestion alone was an insufficient basis upon which to conclude that reinstatement would not be a viable remedy. Achilli v. Sienna Crest Assisted Living (LIRC, 07/18/08).
A valid offer of reinstatement will end the accrual of back pay. To be valid, an offer of reinstatement must be specific and unconditional. It must be for the same position, or a substantially equivalent position. Further, the employee must be afforded a reasonable time to respond to the offer of reinstatement. In addition, the offer should come directly from the employer or its agent who is authorized to hire and fire, rather than from another employee or other unauthorized individual. In this case, there was no indication what type of job the Respondent's attorney had discussed with the Complainant prior to the hearing. Further there was some suggestion that there was some impediment as a reason for the Complainant's unwillingness to go back to work for the Respondent. Further, the record failed to disclose whether the Respondent's attorney had the authority to make an offer of reinstatement to the Complainant. Therefore, the Complainant's statement prior to the hearing that he declined to return to the job did not cut off his back pay as of the date of the hearing. Goldsworthy v. Elite Marble (LIRC, 10/15/04).
There is precedent under federal law for displacing (i.e., "bumping") an incumbent employee in order to reinstate an individual who has been unlawfully discriminated against. One federal court case set forth a number of factors to consider in determining whether bumping is appropriate. They include the following: (1) the effect on the Complainant of the refusal to displace the incumbent; (2) the culpability of the incumbent; (3) the disruption to the incumbent; (4) the degree of culpability of the employer; (5) the uniqueness of the position and the availability of comparable positions; (6) the Complainant’s diligence in taking steps to assure that the position remains available should he prevail; and (7) whether there would be undue disruption of the employer’s business. Ramos v. Stoughton Trailers (LIRC, 08/16/01).
The criteria stated in the Wisconsin Family and Medical Leave Act relating to "equivalent employment positions" is not the same standard that is applied in cases under the Wisconsin Fair Employment Act, which requires that an offer of reinstatement be for a position which is "substantially equivalent." Ramos v. Stoughton Trailers (LIRC, 08/16/01).
A Complainant's decision to relocate to another state does not sever her entitlement to a back pay award. In this case, the Respondent did not establish that the Complainant failed to exercise reasonable diligence in seeking employment after she moved out of state. Further, the Respondent did not establish that it ever extended her an offer of reinstatement either before or after her move. Miller v. Oak-Dale Hardwood Products (LIRC, 12/13/94).
An Administrative Law Judge's award of reinstatement and back pay up to the time of reinstatement was improper where the Complainant expressly stated at the hearing that she was only asking that she be awarded back pay up to the time of the hearing. Given the Complainant's waiver of reinstatement, the Complainant was only entitled to be awarded back pay up to the time of the hearing. Marquardt v. Wal-Mart Stores (LIRC, 06/14/93).
An employe who was discriminated against in violation of the Wisconsin Fair Employment Act is not entitled to back pay and reinstatement after voluntarily quitting a job without being actually or constructively discharged by the employer. A voluntary resignation terminates the accrual of back pay and the employer's obligation to reinstate. Marten Transport v. DILHR, 176 Wis. 2d 1012, 501 N.W.2d 391 (1993).
An employe who was unable to perform her job because of permanent medical restrictions was not entitled to reinstatement where the employer could not reasonably accommodate her restrictions. Macara v. Consumer Co-op of Walworth County (LIRC, 02/14/92).
If an employer is no longer operating a second shift, the Department's order directing that the Complainant be reinstated to her second shift head inspector position does not require the employer to displace a head inspector on a different shift. The order requires that the employer place the Complainant in a substantially equivalent position if the second shift is no longer operating. Olson v. Phillips Plating (LIRC, 02/11/92).
In order to be a valid offer of reinstatement, the offer must be for the same or a substantially equivalent position. Comparability in salary is only one factor to be considered. In this case, the Respondent's offer of a stripper position to the Complainant did not satisfy its obligation to reinstate the Complainant as a head inspector because the Complainant was not able to perform the stripper position due to a back problem. Olson v. Phillips Plating (LIRC, 02/11/92).
The Commission denied the Respondent's request that the Commission modify its decision to add a requirement that the Complainant be required to pass a physical examination before reinstatement. Elemental fair play requires that the Complainant, having proven that the Respondent refused to hire him on the basis of a handicap which did not render him unable to perform the duties of the job, must be made whole with the next available opening and not merely another opportunity to run another medical gauntlet to get what should have been his in the first place. Hansen v. City of Kenosha (LIRC, 07/06/88).
Where the Commission found that the Complainant had been terminated because of his race, and awarded back pay to continue through reinstatement, the Commission did not order immediate reinstatement because such an order, which would probably displace a current employe, would be likely to result in animosities and other problems. Rather, the Commission ordered that the Complainant be reinstated in the next available position substantially equivalent to the position he held prior to his discharge, with back pay to continue until such time. Taylor v. Hampton Shell (LIRC, 06/27/88).
Back pay was awarded, but not reinstatement, because the employe was now employed elsewhere and was earning more than he did before his discharge, and because the animosity of the employer would prevent desirable working conditions. Krejci v. Jonathan Furniture (LIRC, 11/06/81).
A rule requiring pregnant employes to take a leave in their fifth month regardless of their physical or medical condition was arbitrary and sex-biased where the employer could not demonstrate a compelling interest in the rule, and an employe discharged for violating the five month rule should be reinstated even where the employer could also have discharged her for unsatisfactory work performance. Nursing Homes v. DILHR (Dane Co. Cir. Ct., 01/22/74).
834 Remedies which may be provided; Other remedial orders
834.1 Remedies for insurance benefit denial
Had the Complainant not been discharged, he would have continued to receive health insurance and pension contributions. The Complainant does not have the burden to establish the specific cost of his health care or the value of his pension benefits at the hearing. Those are matters the parties can resolve during the compliance phase of the litigation. Smith v. Wisconsin Bell (LIRC, 04/19/12).
A Respondent is liable for the Complainant's out-of-pocket medical expenses if they would have been covered had the Complainant not been discharged in violation of the Wisconsin Fair Employment Act. However, the Respondent in this case was not liable for medical expenses for which the Complainant did not submit a bill since the Respondent had little opportunity to defend that claim. Bodoh v. US Paper Converters (LIRC, 11/14/95) , aff'd. sub nom. U. S. Paper Converters v. LIRC, Outagamie Co. Cir. Ct., 06/14/96; aff'd. on other grounds, U. S. Paper Converters v. LIRC and Bodoh, 208 Wis. 2d 523, 561 N.W.2d 756 (Ct. App. 1997).
Where, among other things, the Complainant's testimony on the issue was contradictory, the Complainant failed to prove entitlement to an alleged insurance cost differential between what he paid when employed by the Respondent and what he paid at a subsequent job. Holbrook v. Coffee Systems (LIRC, 04/10/92).
Amounts which a Respondent would have paid for insurance covering a Complainant are not to be figured in the back pay award. Actual out-of-pocket medical expenses incurred by a Complainant, or amounts expended by a Complainant to purchase substitute insurance coverage, may be included in such an award. Woolridge v. Chicago Northwestern Transp. Co. (LIRC, 08/22/86).
Where the employe was discriminatorily denied medical insurance, the employer must reimburse the employe for the amount of the least expensive insurance premium paid on a monthly basis by the employer and for any out-of-pocket medical expenses incurred by the employe that would have been covered by the employer's medical insurance program had the employe been allowed to participate. LeDoux v. Wisconsin Book Bindery (LIRC, 04/10/81).
A black employe who was discriminatorily denied group health insurance was entitled to reimbursement for his out-of-pocket medical expenses accrued during the period of the denial. Howard v. Cassel Box (DILHR, 09/28/76).
834.2 Other remedial orders; Remedies for loss of seniority
An award of retroactive seniority to the date an applicant would have been hired but for handicap discrimination did not exceed DILHR's authority. The expectations of other employes which may have arisen from the seniority system are superseded by the Act, which furthers a strong public policy interest. Milwaukee County v. LIRC (Lade) (Dane Co. Cir. Ct., 09/07/78); Soo Line R.R. v. LIRC (Bergeman) (Dane Co. Cir. Ct., 09/07/78).
Two females who had forfeited their seniority under discriminatory transfer rules should have that seniority reinstated. Haug v. Ohio Medical Products (DILHR, 08/05/75).
Where an employer maintained unlawful seniority units and a no- transfer policy, female employes who had been denied transfers could bid on any job on a plantwide seniority basis, and one female employe whose transfer bid had been denied in favor of a less senior male was allowed that transfer. Bruce v. Parker Pen (DILHR, 11/14/72).
834.3 Other remedial orders; Remedies for loss of fringe benefits; Remedies for loss of compensation and benefits not incident to termination
The remedy provided in this case does not include payment of the costs of the health care that would have been paid by the insurance the Complainant would have had, because she did not take reasonable steps to mitigate her loss by attempting to obtain insurance comparable to that by which she would have been covered if the Respondent had not discriminated against her. Hill v. Stanton Optical (LIRC, 09/26/14).
The respondent discriminated against the complainant in compensation on the basis of disability by failing to pay her for hours worked.� Because, however, it was clear that the underpayment of wages was the subject of a separate wage and hour complaint which had been settled with a payment to the complainant, the complainant was not entitled to any monetary relief on her discrimination complaint.� Even though there was no evidence that the complainant executed a release of her discrimination claim when she accepted the settlement of the wage claim, the complainant is not entitled to a second recovery for the same underpayment. Schloemer v. Cupola House (LIRC, 06/14/13).
Had the Complainant not been discharged, he would have continued to receive health insurance and pension contributions. The Complainant does not have the burden to establish the specific cost of his health care or the value of his pension benefits at the hearing. Those are matters the parties can resolve during the compliance phase of the litigation. Smith v. Wisconsin Bell (LIRC, 04/19/12).
The Complainant was not entitled to compensation for loss of paid vacation because such a loss was not financial. If someone was entitled to 52 weeks of back pay and would have been eligible for two weeks of paid vacation with the employer that discharged him, the fact that the Complainant may not have been entitled to any paid vacation with a subsequent employer was a non-financial loss that could not be quantified and remedied. The Complainant would have received back pay for the entire period including the controverted two weeks and would have lost only the vacation; i.e., the right not to have worked for the controverted two weeks of pay. Holbrook v. Coffee Systems (LIRC, 04/10/92).
It would go beyond the boundaries of the Act to award a cash payment in lieu of restoration of sick leave and vacation days. Ray v. U.W.-LaCrosse (Wis. Personnel Comm., 07/07/83).
Where an employer had an informal policy of paying employes for sick leave except for pregnancy-related absences, an employe disabled for 37 days because of her pregnancy was awarded sick pay for 30 days, the use of vacation time for the remainder of the days, and was credited with vacation time where she would not have had to use vacation time had she been treated like employes with other temporary disabilities. Payrow-Ouia v. Marshall & Ilsley (LIRC, 05/15/79).
An unlawfully discharged firefighter was entitled to all the benefits he would have received absent the discrimination, including outside part-time earnings, lost medical expenses incurred after his health insurance coverage lapsed and veteran's benefits he would have received if he had been allowed to complete his probationary period. Berndt v. City of Wis. Rapids (DILHR, 12/01/76), aff'd. sub nom., City of Wis. Rapids v. DILHR (Wood Co. Cir. Ct., 08/23/77).
834.4 Other remedial orders; Remedies for emotional harm in administrative forum (See sec. 900 regarding damages available in court under sec. 111.397, Stats.)
Legal damages, as opposed to equitable relief, are not available under the Wisconsin Fair Employment Act. The Act provides for "make whole" remedies such as back pay only. Hentges v. Department of Regulation and Licensing (LIRC, 01/12/96).
There is no authority for awards of damages for emotional distress and similar injuries under the Wisconsin Fair Employment Act. The Act provides for "make whole" type remedies such as back pay only. Kesterson v. DILHR (Wis. Personnel Comm., 04/04/88).
The Act does not provide a remedy, either from DILHR or through a private cause of action, for emotional distress resulting from discrimination. While Yanta v. Montgomery Ward, 66 Wis. 2d 53 (1974) indicates that recovery for emotional harm in the absence of physical injuries may be possible if certain criteria are met, that recovery is separate and distinct from any remedy sanctioned by the Act. Bachand v. Connecticut General Life, 101 Wis. 2d 617, 305 N.W.2d 149 (Ct. App. 1981).
834.5 Miscellaneous remedial orders
834.51 Clearing file, neutral references
An employe who was unlawfully discharged because of a handicap was entitled to an order correcting the employer's records concerning her discharge. Macara v. Consumer Co-op of Walworth County (LIRC, 02/14/92).
An employer was ordered to reinstate an unlawfully discharged employe, instructed to remove all documents and entries from his personnel file that related to the discharge and mention only the nature and duration of his employment if requested to give references. Coates v. Guardsmark (LIRC, 08/04/77).
834.52 Miscellaneous remedial orders; Post order, notices
In a case in which an employer retaliated against an employe for her protests concerning sexual harassment by a supervisor, it was an appropriate remedy to order the employer to post in its premises a notice stating that it had been found to have violated the Act and that it would take corrective action. Giessel v. Glaze Dental Lab (LIRC, 11/20/85).
An employer whose promotion and transfer policies were discriminatory was ordered to post the DILHR order and all subsequent job openings in conspicuous places in the plant and administration building. Haug v. Ohio Medical Products, (DILHR, 08/05/75).
834.53 Miscellaneous remedial orders; Counseling or discipline of offending supervisor
Where the employer discriminated against an employe by subjecting her to abusive sexual advances, it was required to, among other things, provide its managerial and supervisory employes with training as to what constitutes unlawful sexual harassment, and provide the personnel manager with additional counseling. While LIRC would normally order the employer to take action to discipline the employe's immediate supervisor who engaged in the sex discrimination, that supervisor had left the employer's business. Hamilton v. Appleton Elec. (LIRC, 08/08/80).
An employer was ordered to advise company supervisors how to interpret the bargaining agreement in order not to deny female employes their rights under the Act. Tyler v. Pacon (DILHR, 11/30/72).
An employer was ordered to change the job title of "housekeeper," recruit males for the position, fully explain its new transfer rules to all employes and communicate to DILHR within 90 days its compliance with the order. Bruce v. Parker Pen (DILHR, 11/14/72).
834.59 Other remedial orders; Miscellaneous
The WFEA does not contain any provision allowing LIRC to order a fine or other monetary sanction against a discriminating employer.� Vernon v. Wackenhut Corp. (LIRC, 10/31/13).
An Administrative Law Judge's order that the Respondent should cease and desist from discriminating against the Complainant or any of its employees was modified to apply only to the Complainant. Neither the Equal Rights Division nor the Labor and Industry Review Commission have the authority to entertain a class action under the Wisconsin Fair Employment Act. Metzger v. UGD Automotive (LIRC, 2/28/08).
The Administrative Law Judge improperly issued an order which required, in part, that the Respondent promulgate a policy that did not automatically exclude employees who have arrest or conviction records. This order exceeded the ALJ's scope of authority. The issue noticed for hearing was whether the Respondent had violated the Wisconsin Fair Employment Act by refusing to hire or employ the Complainant because of arrest or conviction record. An order under the Act must not be broader in its scope than the issue noticed for hearing. The issue noticed for hearing failed to specify any ongoing acts of discrimination other than that perpetrated in the complaint. Although this part of the Administrative Law Judge's order might be appropriate in regard to an action brought by or on behalf of a class of persons, the Equal Rights Division doe not have the authority to entertain a class action under the Wisconsin Fair Employment Act. Rowser v. Upper Lakes Foods (LIRC, 10/29/04).
The Administrative Law Judge was within his authority to order staffwide training on the provisions of the Wisconsin Fair Employment Act as a remedial measure. Muenzenberger v. County of Monroe (LIRC, 8/13/98).
835 Remedies which may be provided; Interest on award
Pre-judgment interest may be awarded where the amount due, though not truly liquidated, is capable of determination by some fixed standard. In the case of discrimination awards, sec. 111.39(4)(c), Stats., provides the fixed standard for calculating back pay awards and thus, allows for the calculation of interest. [Note: Sec. DWD 218.20(4), Wis. Adm. Code, provides that interest shall be computed at an annual rate of 12 percent simple interest.] Olson v. Phillips Plating (LIRC, 02/11/92).
The Respondent's argument that no interest should be awarded to the Complainant was rejected where the record indicated that both parties were responsible for the long delay in resolving the damage issues after the Department's initial order. However, the interest award was reduced for a one-year period as a result of the Complainant's attorney's failure to submit a brief to the Administrative Law Judge after the damage hearing for a period of over one year. Olson v. Phillips Plating (LIRC, 02/11/92).
Interest on back pay is to be computed on the net back pay due, i.e., after offsets are made for unemployment compensation and other amounts received. Woolridge v. Chicago Northwestern Transp. Co. (LIRC, 08/22/86).
Where the examiner's remedial order provided for interest on the back pay award at the rate of 7 percent, and where the Commission's order affirming the examiner's decision provided for interest at the rate of 12 percent because, in the interim, the Equal Rights Division had adopted an administrative rule prescribing interest at the rate 12 percent, the court held that the Commission's order of 12 percent interest was in error. Because the rate of interest deemed proper was 7 percent at the time the loss was incurred, at the time the complaint was filed, at the time the examiner's order was issued, and at the time the petition for review was filed, the Commission exceeded its authority in modifying the original order to impose the higher rate of interest. Glaze Dental Laboratory v. LIRC (Waukesha Co. Cir. Ct., 06/03/86).
The Division has the authority to increase back pay awards to reflect accrual of prejudgment interest from the date of the employe's discharge. (Interest at the rate of seven percent per annum was awarded by the court in this case.) Anderson v. LIRC, 111 Wis. 2d 245, 330 N.W.2d 594 (1983).
836 Remedies which may be provided; Attorney's fees, costs
836.1 Complainants' right to attorney's fees and costs
836.11 Complainants' right to attorney's fees and costs; generally
Attorney?s fees or costs involving the Complainant?s federal claim were not reimbursable through the proceedings before the Equal Rights Division. Therefore, the Respondent did not have to pay the time attributed to telephone calls and communications with EEOC which were claimed in the Complainant?s attorney fee petition. Venneman v. UW-La Crosse (LIRC, 12/17/09).
An attorney’s fee award should not be reduced because the Complainant declined to settle the case prior to hearing by accepting the Respondent’s offer of payment of the amount of salary he had lost. The Complainant should not be penalized because he refused to accept a cash offer which would have compensated him for his lost salary, but which did not address his interest in pursuing the question whether the Respondent had discriminated against him. Lutze v. DOT (Wis. Personnel Comm., 02/26/01).
Any attorney’s fees or costs involving the Complainant’s federal claim is not reimbursable through the proceedings before the Equal Rights Division. Fields v. Cardinal TG Co. (LIRC, 02/16/01).
Where a union successfully prevented a school district from pursuing a published official policy of unlawful employment discrimination against certain of its members it was acting as a private attorney general to implement a public policy that the legislature considered to be of major importance. Even though the policy was never implemented, this was no mere "moral" or "technical" victory. The union was properly awarded attorney's fees. Racine Unified School Dist. v. LIRC, 164 Wis. 2d 567, 476 N.W.2d 707 (Ct. App. 1991).
The employer was responsible for paying the Complainant's reasonable attorney's fees and costs because it responded inadequately when it learned of a supervisor's acts of sexual harassment against the Complainant and because the supervisor was acting under color of his authority. Sec. 111.39(4)(c), Stats., provides that the employer should pay, and there is no authority for the proposition that a supervisor who is not an employer may be ordered to make payment to the Complainant. Nelson v. Waybridge Manor (LIRC, 04/06/90).
Attorney's fees are allowable even though they were not demanded at the outset of the litigation. Rusch v. City of La Crosse Police and Fire Comm. (LIRC, 12/19/88).
In a decision issued prior to the Watkins decision, the Commission found discrimination but denied a request for attorney's fees. That decision was affirmed in its entirety by the Circuit Court, was appealed to the Court of Appeals and ultimately affirmed, and then remanded to the Commission for determination of an appropriate remedy. In the interim, the Supreme Court decided the Watkins case, holding that prevailing Complainants were entitled to attorney's fees. On remand, it was proper for the Commission to grant attorney's fees. Brown County v. LIRC (Toonen) (Ct. App., Dist. III, unpublished decision, 02/23/88).
The Watkins decision was interpreting remedial language of the Wisconsin Fair Employment Act as it existed in 1975, and that interpretation is applicable to cases commenced under that and similar language whether or not an express prayer for attorney's fees was included in the complaint when filed. Eklund v. Tomah- Mauston Broadcasting Co. (LIRC, 09/19/86).
A Complainant who prevails on a complaint of discrimination under the Act should ordinarily be awarded attorney's fees in all but special circumstances. Eklund v. Tomah-Mauston Broadcasting Co. (LIRC, 9/19/86).
The Labor and Industry Review Commission has the authority to award attorney's fees, without a prior hearing or determination on the matter by DILHR, in cases resolved by DILHR prior to the Watkins decision and still pending before the Commission later. Retrospective application of Watkins is appropriate to cases that are still pending. Kelm v. Watertown Public Library (LIRC, 07/19/85).
The purpose of awarding attorneys fees is not only to "make whole" a prevailing Complainant who received no monetary award, but to discourage discriminatory practices as well. Ploetz v. Schirl, Inc. (LIRC, 01/28/85).
DILHR has authority to award reasonable attorney's fees to a Complainant who prevails in an action brought pursuant to the Act. The authority to award reasonable attorney's fees to a prevailing Complainant is necessary in order to fully enforce and give meaning to the rights created by the Act. One of the more invidious aspects of discrimination is that its targets are frequently the economically weak, who are often unable to afford the assistance of counsel. Without the assistance of counsel, the ability to vindicate one's rights under the Act is so impaired that it renders the existence of those rights nearly meaningless. Placing the cost of vindicating the rights of a victim of discrimination on the party responsible for denying those rights, rather than on the person discriminated against, effectuates the legislative purposes of proscribing employment discrimination because it will deter employers from engaging in conduct prohibited by the Act. Watkins v. LIRC, 117 Wis. 2d 753, 345 N.W.2d 482 (1984).
836.12 Complainant's right to attorneys' fees and costs; what is 'prevailing'; partial success
[Ed. Note: This topic collects decisions concerning the general right of complainants to receive an award of attorneys fees in the case of partial success. Decisions on the computation of awards in partial success cases are collected below at 836.45 Amount of attorneys' fees; Partial success]
The fact that the Complainant succeeded in getting an ALJ’s dismissal order overturned does not entitle him to attorney’s fees. He must be the prevailing party by proving discrimination in order to be entitled to attorney’s fees. Owens v. SBC Communications (LIRC, 08/22/14).
The Complainant succeeded in demonstrating that she was unlawfully discharged because of an arrest. She did not establish that she had been discriminated against on the basis of her race, as she had alleged in her complaint. The fact that she did not establish that she was discriminated against on multiple bases does not weaken the success of her case and has no effect on her entitlement to a remedy. Where a Complainant has obtained excellent results, the fee award should not be reduced simply because the Complainant failed to prevail on every contention raised in the complaint. Nunn v. Dollar General (LIRC, 03/14/08).
While the addition of several potential bases for discrimination does not generally add much time to the overall litigation, in those cases when time spent litigating an issue of an additional basis is quantifiable, a reduction of attorney's fees may be appropriate. Nunn v. Dollar General (LIRC, 03/14/08).
A party who proves discrimination on any issue is a prevailing party entitled to costs and attorney’s fees. It is not necessary to establish that the actual relief ordered materially altered the legal relationship between the parties by modifying the Respondent’s behavior in any way that directly benefits the Complainant. Fields v. Cardinal TG Co. (LIRC, 02/16/01).
The Court of Appeals has adopted the Supreme Court's approach in Hensley v. Eckerhart, 461 U.S. 424 (1983), which provides that a party may not be entitled to attorney's fees where only partial success is obtained. In Hensley, the Court indicated that it should focus on the "significance of the overall relief obtained by the Plaintiff in relation to the hours reasonably expended on the litigation. Where Plaintiff has obtained excellent results the fee award should not be reduced simply because the Plaintiff failed to prevail on every contention raised in the lawsuit." Racine Unified School Dist. v. LIRC, 164 Wis. 2d 567, 476 N.W.2d 707 (Ct. App. 1991).
836.13 Complainants' right to attorney's fees and costs; pro se complainants
Pro se litigants are not entitled to a monetary award as reimbursement for representing themselves. They are also not entitled to recover costs; costs are recoverable incident to an award of attorneys’ fees, and therefore they are not available to a complainant who represents himself in proceedings under the Act. Plummer v. UW (Wis. Personnel Comm., 07/30/01).
836.14 Complainants' right to attorney's fees and costs; complainant's personal costs
A Complainant's requested reimbursement for her own personal costs associated with pursuing her complaint (costs including mileage and parking expenses incurred and trips to the Equal Rights Division offices and to her attorney's, for wages lost on days she attended Equal Rights Division's investigative interview and the hearing) was denied. While the Commission has authority under the Wisconsin Fair Employment Act to order reimbursement for the costs reasonably incurred by a Complainant's attorney, the Act does not grant authority to the Commission to order reimbursement for costs personally incurred by a Complainant. Halverson v. Milwaukee County (LIRC, 05/22/87).
836.15 Complainants' right to attorney's fees and costs where legal services were not charged for
In this proceeding involving the State as an employer, the Complainant was ordered to pay a sum to the State for attorneys fees as a discovery sanction. He argued that this was inappropriate because, by relying on the services of an attorney already employed by it and paid by it on a salaried basis, the State was in essence proceeding pro se, and it did not incur any additional costs for that attorney’s services in the discovery matter. This argument was rejected. The fact that a litigant is represented by legal counsel already permanently employed by that litigant on a salaried basis, does not mean that a reasonable amount of compensation for the time counsel spent on one particular matter cannot be fairly calculated for purposes of a discovery violation sanction. State of Wisconsin v. Balele (unpublished opinion, Ct. App., Dist. IV, 07/18/02).
A prevailing Complainant who was represented by a non-profit legal organization may receive an award of attorney's fees for legal representation. Richland School Dist. v. DILHR, 174 Wis. 2d 878, 498 N.W.2d 826 (1993).
A Complainant's request for attorney's fees should not be denied because the attorney did not bill the Complainant for attorney's fees. Legal services attorneys are entitled to be compensated for their representation of a prevailing Complainant. An award of attorney's fees to a prevailing Complainant promotes the purpose of the Act to discourage discriminatory practices in employment and to deter employers from engaging in prohibited conduct. Ray v. Ramada Inn-Sands West (LIRC, 03/05/91).
A prevailing Complainant who is represented by a legal services attorney is entitled to attorneys fees just the same as one who has retained a private attorney providing the same type of representation. Stark v.C & C Liquidators (LIRC, 11/27/84).
836.16 Complainants' right to award of attorney's fees and costs against the State
Attorney?s fees have long been recoverable under the Wisconsin Fair Employment Act as a ?make whole? remedy for discrimination, even though they are not specifically provided for in the Act. State agencies are expressly included in the definition of ?employer.? Therefore, their sovereign immunity against liability under the Wisconsin Fair Employment Act has been waived because the state has consented to both suit and liability. Accordingly, attorney?s fees may be recovered from state agencies. Department of Corrections and Suttle v. LIRC (Dane Co. Cir. Ct., 05/14/10).
The Department is not authorized to order a state agency to pay a Complainant’s attorney’s fees. No express statutory authority exists to tax costs and attorney’s fees against the State. Blunt v. Dept. of Corrections (LIRC, 02/04/05).
Express statutory authority is required in order to tax costs and attorney fees against the State. The Western Wisconsin Technical College is not an agency of the State. Simply because an entity is created by state law law does not mean it is "in state government" within the meaning of sec. 111.32(6)(a), Stats. Since a technical college is not a State agency, the college was liable for costs and attorney's fees. Naill v. Western Wisconsin Technical College (LIRC, 02/12/99).
No attorney's fees may be awarded against the State, or an agency of the State, even in cases where the State is acting as a licensing agency and where it has been found that the State violated the Wisconsin Fair Employment Act in denying a Complainant a license. Deshon v. Department of Regulation and Licensing (LIRC, 01/12/96).
Attorney's fees and costs cannot be taxed against the State or a state agency in an administrative proceeding absent express statutory authority. DOT v. Wis. Personnel Comm., 176 Wis. 2d 731, 500 N.W.2d 664 (1993).
The Personnel Commission, as well as the Department of Industry, Labor and Human Relations, has authority to award reasonable attorney's fees to a prevailing Complainant under the Wisconsin Fair Employment Act. Gray v. University of Wisconsin System (Wis. Personnel Comm., 05/09/85).
836.17 Complainant's right to attorneys' fees and costs; proceedings on appeal
Where a prevailing complainant has been given instructions to request additional attorney fees related to the petition for commission review when filing the complainant’s brief, but does not do so, the commission will consider that the right to request additional attorney fees has been waived. Peterson v. TCAT Corporation (LIRC, 4/30/15).
The Respondent contended that because the Labor and Industry Review Commission assumed responsibility for handling the matter on appeals through the Supreme Court, the briefing and oral argument done by the Complainant’s personal attorney were unnecessary. The Respondent maintained that the Complainant should be denied any fees for the time expended briefing and preparing her oral argument. This argument was rejected by the Supreme Court in Richland School District v. DILHR, 174 Wis. 2d 878, 914-15, 498 N.W.2d 826 (1993). In that case, involving the Wisconsin Family and Medical Leave Act, the Department joined in at the court level to defend its administrative rules and its interpretation of the FMLA. The court held that the Complainant had a right to participate in the judicial review proceedings and that he was not required to rely on the agency to represent his interests. Roytek v. Hutchinson Technology (LIRC, 02/15/05).
In addition to attorney’s fees for work prior to the issuance of the Administrative Law Judge’s decision, the Complainant is also entitled to attorney’s fees in conjunction with the petition for review to LIRC. Fields v. Cardinal TG Co. (LIRC, 02/16/01).
The record indicated that both parties were responsible for the long delay in resolving the damage issues after the Labor and Industry Review Commission's initial order. LIRC rejected the Respondent's argument that no attorney's fees should be awarded for that time period. Olson v. Phillips Plating (LIRC, 02/11/92).
The motion by Complainant's attorney for additional fees to cover the cost of his legal representation of Complainant on appeal was granted. Dushek v. LIRC (Radloff) (Brown Co. Cir. Ct., 11/02/89)
LIRC awarded additional attorney's fees for the Complainant's attorney's work in connection with responding to a petition for review filed by the Respondent. LIRC's reversal of one portion of the Administrative Law Judge's decision which had found in favor of the Complainant did not warrant a reduction in the attorney's fees award. Savage v. Stroh Container (LIRC, 09/20/89)
836.2 Respondents' right to attorney's fees and costs from complainant
[Ed. Note: Some of the decisions collected under this topic, concerning the right of respondents to receive attorneys fees and costs from a complainant as sanction for a frivolous claim, are also collected below at 860 Frivolous claims and defenses. Decisions concerning the right of either party to receive an award of attorneys fees and costs from the other party as a discovery sanction, are collected at 745 Discovery]
Complainants cannot be ordered to pay attorney's fees incurred for the defense of a discrimination claim by Respondents who have prevailed on the merits. While the purpose for allowing such orders would be the hope that they would deter persons from making frivolous complaints of discrimination, the stronger countervailing policy is that such orders could also deter persons from bringing valid complaints which might be hard to prove and, therefore, should not be issued. However, ordering a Complainant who has wrongfully refused to cooperate in discovery to pay attorney's fees incurred by a Respondent in connection with the Complainant's refusal, has different purposes than ordering payment of all of a Respondent's fees based on the fact that the Respondent prevailed in the proceeding. Such a limited attorney's fee award does not risk the effect of deterring Complainants from bringing complaints. It deters only unreasonable refusal to cooperate in discovery. Dobbs v. Super 8 Motel (LIRC, 10/15/96).
The Wisconsin Fair Employment Act does not allow the Department to order any type of relief for a prevailing employer, including an award of attorney fees. Kasonda v. Aldridge, Inc. (LIRC, 11/30/93).
Neither the Department nor the Labor and Industry Review Commission have any authority to grant attorney's fees to prevailing employers, or in fact to order any type of relief for a prevailing employer other than dismissing the complaint, irrespective of the arguable frivolousness of a claim. Sec. 814.025(1), Stats., does not apply in administrative proceedings. However, a circuit court may properly award reasonable attorney's fees to a prevailing employer if it finds that any single claim of a petitioner in an Equal Rights matter is frivolously brought before the court for judicial review. Tatum v. LIRC, 132 Wis. 2d 411, 392 N.W.2d 840 (Ct. App. 1986).
The Labor and Industry Review Commission has no authority to award attorney's fees to an employer after the Complainant withdraws her complaint of employment discrimination. Sec. 814.025, Stats., does not authorize the Commission to make determinations of frivolousness or assess costs and reasonable attorney's fees against Complainants in favor of Respondents. Jeffries v. Cameo Convalescent Center (LIRC, 08/09/85); aff'd sub nom. Cameo Convalescent Center v. LIRC (Milwaukee Co. Cir. Ct., 09/02/86).
The Wisconsin Fair Employment Act does not impliedly authorize the Commission to award attorney's fees to prevailing employers in employment discrimination actions. Sec. 814.025, Stats., relating to awards of fees for bringing a frivolous claim in courts, applies only to court proceedings. Niles v. Fleet Farm of Green Bay (LIRC, 07/25/85); aff'd sub nom. Fleet Farm of Green Bay v. LIRC (Ct. App., Dist. III, unpublished summary disposition, 07/16/86).
A prevailing employer is not entitled to an award of attorney's fees under the Wisconsin Fair Employment Act. Rick v. Fore Way Express (LIRC, 07/25/85).
DILHR is without authority to award attorneys fees to a prevailing Respondent after the Complainant's failure to appear at the hearing resulted in dismissal of the complaint. Dantzler v. Briggs & Stratton (LIRC, 02/19/85).
836.3 Attorney's fees, costs; Procedures used in determining fees
Ideally, an attorney's fee affidavit should contain some information from which the Administrative Law Judge can determine what types of fees are customarily charged in the locality by lawyers of reasonably comparable skill, experience and reputation. Anderson v. MRM Elgin (LIRC, 01/28/04).
Attorneys must maintain billing time records that are sufficiently detailed to enable a review of the reasonableness of the hours expended. It is not required that each minute be described in great detail, but counsel should at least identify the general subject matter of the time expenditures. Moore v. Cedar Grove-Belgium School Dist. (LIRC, 04/29/92).
It is not necessary that a hearing be held on the granting of, or the amount of, an award of attorneys' fees and costs. Since the ultimate issues about the appropriateness of an award of attorneys' fees and costs are principally legal, involving as they do the application of the legal standard of "reasonableness" to the claim as to hours and rate, fact litigation before the tribunal is not necessary. The submission of an affidavit supporting the request for fees provides an adequate basis for the tribunal to act. MMFHC v. South Side Spirit (LIRC, 08/26/92).
Carefully reconstructed time records can be used as proof of time expended if contemporaneous time records are not available. Racine Educ. Ass'n. v. Racine Unified School Dist. (LIRC, 07/17/89).
Where counsel for the Complainant submitted a sworn affidavit attesting to the accuracy of the pages of attached information detailing the dates, description of work performed, and time spent to the nearest tenth of an hour, and where the detail thus provided adequate to allow a reasonable evaluation of the fee request, the Respondent was denied the opportunity to have access to the Complainant's counsel's original time entries and law office accounts payable ledgers and to have an opportunity to cross- examine the Complainant's counsel at a hearing concerning the attorney fee petition. Eklund v. Tomah-Mauston Broadcasting Co. (LIRC, 09/19/86).
836.4 Attorney's fees, costs; Amount of fees
Attorney’s fee issues discussed in this case include: 'partial success' reduction for allegedly not prevailing on an arrest record discrimination theory as well as a conviction record discrimination theory; alleged lack of specificity in billing entries; lack of 'billing judgment' reductions in bills; lack of delegation of work to clerks, paralegals, junior associates; fee reduction because billing was in quarter hour units rather than tenth of an hour units; and the necessity of, and sufficiency of, affidavits from other attorneys as to prevailing rates. Hill v. Stanton Optical (LIRC, 09/26/14).
The Administrative Law Judge awarded attorney's fees to the Complainant in the amount of $137,534.20. The Respondent's contention that it was unable to find any case in which the Commission had awarded more than $18,000 in attorney's fees was rejected. There are numerous occasions in which attorney's fees well in excess of $18,000 have been made. The determination as to what amount of fees is reasonable will depend on the specific circumstances of the case. The mere fact that the Respondent incurred costs defending the litigation is not a basis to deny the Complainant's request for attorney's fees. Bowen v. Stroh Die Casting Co. (LIRC, 10/28/11).
Attorney’s fees may be awarded even if they are significantly higher than the total back pay award. Nickell v. County of Washburn (LIRC, 07/29/05)
In evaluating fees, the criterion to consider is not what the parties agreed on, but what is reasonable. Where a Complainant’s attorneys charged significantly higher hourly rates in the latter stages of the litigation as it made its way up through the Supreme Court, the fact that the Complainant may have agreed to a fee increase does not dispose of the matter. Any increase in the complexity of the case could be accounted for by the fact that the attorneys were permitted to bill for all work hours reasonably expended, including the time spent preparing for oral argument and the additional time that may have been necessary to comply with the more stringent filing requirements at the Court of Appeals and Supreme Court levels. The Complainant’s attorneys had to demonstrate that the hourly rate requested was consistent with the prevailing market rate in the community for similar services. Roytek v. Hutchinson Technology (LIRC, 02/15/05).
Any attorney’s fees or costs involving the Complainant’s federal claim is not reimbursable through the proceedings before the Equal Rights Division. Fields v. Cardinal TG Co. (LIRC, 02/16/01).
The fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates. Olson v. Phillips Plating (LIRC, 02/11/92).
An attorney's time spent in establishing entitlement to fees for the hours spent in connection with the preparation of the fee petition is normally recoverable. Donovan v. Graebel Van Lines (LIRC, 05/23/90, amended 06/08/90).
Attorney's fees of $17,761.72 were reasonable in a case pending more than seven years that went from administrative investigation to the Wisconsin Supreme Court, then to a second hearing and a second Commission review, and which made new law. Rusch v. City of La Crosse Police and Fire Comm. (LIRC, 12/19/88).
The Complainant's counsel initially sought a fee award of $650.00 for his investigation, preparation and presentation of the Complainant's case at hearing; the Administrative Law Judge awarded $325.00. The Complainant's counsel did not argue that that award was unreasonable, but did seek $1,800.00 in attorney's fees for his brief to the Commission. Considering the disparity between the amount of attorney's fees claimed for the representation before the Commission and those tacitly accepted as reasonable for representation through the hearing, and considering the relative simplicity of the issues, the brevity of the record and of the argument section of Complainant's brief (approximately five pages) and the quality of that brief, which made a number of errors, the Commission confirmed the award of $325.00 for representation through the hearing and $765.00 for representation before the Commission. Taylor v. Hampton Shell (LIRC, 06/27/88).
While the amount of back pay received by a Complainant is certainly relevant to the amount of attorney's fees to be awarded, it is only one of many factors that must be considered. The amount of attorney's fees is not to be limited by the amount of damages recovered. Thus, the Complainant was appropriately awarded the full attorney's fees she sought after prevailing on her claim for relief in a sexual harassment matter, notwithstanding that she did not receive the full back pay she sought. Collicott v. Riverside Plating Co. (LIRC, 04/01/87).
The fact that an attorney has represented a Complainant on a contingent fee basis does not establish an upper limit or otherwise control attorney's fees in equal rights cases. Collicott v. Riverside Plating Co. (LIRC, 04/01/87).
An attorney's fees award of over $18,000 was reasonable in a discrimination case in which back pay of less than $5,000 was awarded. There is no authority or persuasive reason to limit the recovery of attorney's fees and costs to the amount of the award. Since the hours claimed were not excessive, the award was appropriate. Hibbard v. Kelly Photo Service (LIRC, 09/30/85).
836.42 Amount of attorneys fees; Amount of time expended
The attorney fee applicant bears the burden of documenting the appropriate hours expended. Counsel should at least identify the general subject matter of time expenditures. Roytek v. Hutchinson Technology (LIRC, 02/15/05).
There is no precedent for comparing the Complainant’s attorneys fees to those of the Respondent’s attorney, and the question of how many hours are reasonably expended on litigation in any given case is not adjudged on that basis. The Administrative Law Judge has experience in evaluating how many hours are reasonably expended on litigation in an Equal Rights case. Fields v. Cardinal TG Co. (LIRC, 02/16/01).
Where the documentation of hours is inadequate, the attorney's fee award may be reduced accordingly. Overly general listed activities may be disallowed because they provide no means of evaluating the reasonableness of the activity. Bond v. Michael's Family Restaurant (LIRC, 03/30/94).
An award of attorney fees may be reduced where the documentation of hours is inadequate. Counsel should at least identify the general subject matter of time expenditures. Overly general listed activities that provide no indication as to the subject matter of the task provide no means of evaluating the reasonableness of the activity. Where activities are grouped, time should be appropriately apportioned. Olson v. Phillips Plating (LIRC, 02/11/92).
Where less than $2,200 in fees had been sought for all the legal work involved from the filing of the complaint through the examiner's decision two years later, and where most of the time spent after the examiner's decision went to research and brief writing, and a fair amount of the Complainant's brief to the Commission also appeared in the brief to the examiner, the Commission found a fee request of over $1,700 for work after the examiner's decision to be excessive and reduced it by 50 percent. Collins v. Madison Area Technical College (LIRC, 12/19/86).
A claim of an expenditure of 170 hours was found to be reasonable in a case which spanned ten years, two separate trips to the Wisconsin Supreme Court, and vigorous litigation at numerous other levels. Watkins v. Milwaukee County (LIRC, 07/03/85).
A claim of 70 hours of work was determined to be an unreasonable amount of time for work in a case which was not complex legally or factually. Illustrative examples of excessive charges were: over 15 hours claimed in preparation of the attorney's fee petition, and a claim for time spent conferring with the Complainant on "how to compel witnesses to testify." Jones v. Marc's Big Boy (LIRC, 05/22/85).
836.43 Amount of attorneys fees; Hourly rate
Wis. Stat. § 814.045, potentially limiting an attorney fee award in consideration of the amount of compensatory damages awarded, does not apply in cases under the WFEA, where the monetary remedy is a make-whole remedy, not compensatory damages. When a Complainant’s attorney submits her own affidavit, unaccompanied by affidavits of other attorneys to show that her fee rate is in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation, the Commission can look to the fee rate it has approved for the attorney in prior similar cases. The Respondent’s evidence based on a state bar survey did not contradict the reasonableness of the rate requested, based on past fee awards for the attorney that were found to be reasonable. Halbrucker v. Building and Landscape Services, Inc. (LIRC, 3/21/14).
Along with a fee petition, an attorney requesting payment of attorney?s fees should submit affidavits from other attorneys in the locality establishing that the requested rates are in line with those prevailing in the community for similar services for lawyers of comparable skill, experience and reputation. An hourly rate determination based on such affidavits is normally deemed to be reasonable. However, the Complainant?s attorney in this case did not submit supporting affidavits. While the Labor and Industry Review Commission has in the past referred to a State Bar of Wisconsin publication for information on the median hourly rates charged by attorneys in various parts of the state, the most recent publication does not contain such statistical information and provides no guidance in determining a reasonable hourly fee. The Respondent raised an objection to the reasonableness of the hourly rate. The Complainant?s attorney?s hourly rate was reduced from the amount requested. Harper v. Menard, Inc.. (LIRC, 09/18/09).
A reasonable fee is calculated according to the prevailing market rates in the relevant community. It is anticipated that, along with the fee petition, the attorney requesting payment will submit affidavits from other attorneys in the locality establishing that the requested rates are in line with those prevailing in the community for similar services for lawyers of comparable skill, experience and reputation. An hourly rate determined based on such affidavits is normally deemed to be reasonable. Van Den Elsen v. County of Brown (LIRC, 06/14/05).
An affidavit from an attorney who practices in a major metropolitan area located in a different state is of little value in determining the prevailing hourly rates for attorneys of comparable skill, experience and reputation providing similar services in a smaller community. Roytek v. Hutchinson Technology (LIRC, 02/15/05).
The Complainant bears the burden of demonstrating that the rate requested is prevailing in the community. Upon securing a favorable judgment, an attorney cannot reasonably request an hourly rate of reimbursement which exceeds the rate the attorney habitually charges clients for legal services. Van Den Elsen v. County of Brown (LIRC, 06/14/05).
The hourly rates requested in the Complainant's attorney's fee application will not be disturbed where there has been no showing that the hourly rates requested are outside of the prevailing rates in the community for similarly-qualified civil rights attorneys. Bond v. Michael's Family Restaurant (LIRC, 03/30/94).
Even if the hourly rate requested by the Complainant's attorney might be slightly high for the work done in the years 1988 and 1989 (the attorney's work on the case continued until 1991), this rate was certainly appropriate for the service performed by counsel during the latter years. The courts have regularly utilized a higher rate to compensate for all of the work performed by an attorney in order to compensate for the delay in payment of the attorney's fees. Neuman v. Hawk of Wisconsin (LIRC, 03/12/93).
A reasonable fee is to be calculated according to the prevailing market rates in the relevant community. An hourly rate determined based on affidavits that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation is normally deemed to be reasonable. Olson v. Phillips Plating (LIRC, 02/11/92).
Where a case has a litigation history of 11 years and the Respondent had already paid part of the attorney's fees and interest approximately half way through the case, it would be an inequitable windfall to the Complainant to allow her to recover all her remaining attorney's fees at the current hourly rate charged by her attorney. To avoid this inequitable result, the eight-year period for which fees had not been paid was split into two four-year periods. The hours during these two periods were then multiplied by different rates, with only the latter four years being multiplied by the higher current hourly rate. Olson v. Phillips Plating (LIRC, 02/11/92).
The determination whether an hourly rate is reasonable is based upon whether that rate is in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation. The rate charged by counsel for the Respondent is not necessarily relevant to this determination. Racine Educ. Ass'n. v. Racine Unified School Dist. (LIRC, 07/17/89).
A rate of $100 per hour is appropriate, notwithstanding that $75 per hour may be a median range of an hourly charge for legal activities for attorneys in general practice in the area in which the hearing was held. The law on employment discrimination is specialized and complex and often necessitates obtaining counsel with expertise in the area, and such expertise may not always be available among general practitioners in the immediate area. A Door County Complainant's choice of a Milwaukee attorney with an established reputation in the area of employment discrimination is understandable and quite reasonable under the circum- stances. Schwantes v. Orbit Resort (LIRC, 05/22/86).
Attorney's travel time may be compensated at the usual hourly rates. Schwantes v. Orbit Resort (LIRC, 05/22/86).