230.81 Employee disclosure.

(1) An employee with knowledge of information the disclosure of which is not expressly prohibited by state or federal law, rule or regulation may disclose that information to any other person. However, to obtain protection under s. 230.83, before disclosing that information to any person other than his or her attorney, collective bargaining representative or legislator, the employee shall do either of the following:

(a) Disclose the information in writing to the employee's supervisor.

(b) After asking the division of equal rights which governmental unit is appropriate to receive the information, disclose the information in writing only to the governmental unit that the division of equal rights determines is appropriate. The division of equal rights may not designate the department of justice, the courts, the legislature or a service agency under subch. IV of ch. 13 as an appropriate governmental unit to receive information. Each appropriate governmental unit shall designate an employee to receive information under this section.

(2) Nothing in this section prohibits an employee from disclosing information to an appropriate law enforcement agency, a state or federal district attorney in whose jurisdiction the crime is alleged to have occurred, a state or federal grand jury or a judge in a proceeding commenced under s. 968.26, or disclosing information pursuant to any subpoena issued by any person authorized to issue subpoenas under s. 885.01. Any such disclosure of information is a lawful disclosure under this section and is protected under s. 230.83.

(3) Any disclosure of information by an employee to his or her attorney, collective bargaining representative or legislator or to a legislative committee or legislative service agency is a lawful disclosure under this section and is protected under s. 230.83.

History: 1983 a. 409; 2003 a. 33.

Under sub. (1), the disclosure of information does not cover employee statements that merely voice opinions or offer criticism. This section extends protection only to the disclosure of information gained by the employee that the employee reasonably believes demonstrates one of the enumerated inappropriate activities contained in the definition of “information" in s. 230.80 (5). An employee's opinion regarding the lawfulness or appropriateness of an employer action fulfilled the second of these factors, but not the first. Department of Justice v. Department of Workforce Development, 2015 WI 114, 365 Wis. 2d 694, 875 N.W.2d 545, 13-1488.

To “disclose" information under this section, the recipient must have been previously unaware of the information at the time of the communication. Department of Justice v. Department of Workforce Development, 2015 WI 114, 365 Wis. 2d 694, 875 N.W.2d 545, 13-1488.

The Department of Workforce Development, Equal Rights Division's (ERD) interpretation of “supervisor” as used in sub. (1) (a) was reasonable. ERD has long interpreted supervisor to mean any person within an employee's supervisory chain of command. ERD's interpretation reasonably means a supervisor is any person with actual authority to take employment action or to effectively recommend such action. Under ERD's interpretation of the term “supervisor” and the phrase “an employee's supervisor,” it could be that a particular employee has more than one “chain of command.” Bethards v. Department of Workforce Development, 2017 WI App 37, 376 Wis. 2d 347, 899 N.W.2d 364, 16-0409.

The court declined to adopt the categorical rule that a human resources, or like, supervisor will never be within an employee's supervisory chain of command, even when that employee works in a different division within an organizational structure. The determination of whether a particular recipient of a disclosure is an employee's supervisor is a mixed question of law and fact. The factual findings will determine both how the employee's supervisory authority is structured and which individuals have actual authority to take employment action or effectively recommend such action, or otherwise have authority to direct an employee's job performance. Bethards v. Department of Workforce Development, 2017 WI App 37, 376 Wis. 2d 347, 899 N.W.2d 364, 16-0409.