230.90 Government employer retaliation prohibited.

(1) In this section:

(a) “Disciplinary action" means any action taken with respect to an employee which has the effect, in whole or in part, of a penalty.

(b) “Employee" means any person employed by any governmental unit except:

1. A person employed by the office of the governor, the courts, the legislature or a service agency under subch. IV of ch. 13.

2. A person who is, or whose immediate supervisor is, assigned to an executive salary group under s. 20.923 or a person who has, or whose immediate supervisor has, a position specified in s. 36.115 (3m) (ae) to (f).

(c) “Governmental unit" means any association, authority, board, commission, department, independent agency, institution, office, society or other body in state government created or authorized to be created by the constitution or any law, including the legislature, the office of the governor and the courts. “Governmental unit" does not mean the University of Wisconsin Hospitals and Clinics Authority or any political subdivision of the state or body within one or more political subdivisions which is created by law or by action of one or more political subdivisions.

(d) “Information" means information gained by the employee which the employee reasonably believes demonstrates:

1. A violation of any state or federal law, rule or regulation.

2. Mismanagement or abuse of authority in state government, a substantial waste of public funds or a danger to public health and safety.

(2) An employee may bring an action in circuit court against his or her employer or employer's agent, including this state, if the employer or employer's agent retaliates, by engaging in a disciplinary action, against the employee because the employee exercised his or her rights under the first amendment to the U.S. constitution or article I, section 3, of the Wisconsin constitution by lawfully disclosing information or because the employer or employer's agent believes the employee so exercised his or her rights. The employee shall bring the action within 2 years after the action allegedly occurred or after the employee learned of the action, whichever occurs last. No employee may bring an action against the division of personnel management in the department of administration as an employer's agent.

(3) If, following the close of all evidence in an action under this section, a court or jury finds that retaliation was the primary factor in an employer's or employer's agent's decision to engage in a disciplinary action, the court or jury may not consider any evidence offered by the employer or employer's agent that the employer or employer's agent would have engaged in the disciplinary action even if the employee had not disclosed, or the employer or employer's agent had not believed the employee disclosed, the information.

(4) If the court or jury finds that the employer or employer's agent retaliated against the employee, the court shall take any appropriate action, including but not limited to the following:

(a) Order placement of the employee in his or her previous position with or without back pay.

(b) Order transfer of the employee to an available position for which the employee is qualified within the same governmental unit.

(c) Order expungement of adverse material relating to the retaliatory action or threat from the employee's personnel file.

(cm) Order the employer to pay compensatory damages.

(d) Order the employer to pay the employee's reasonable attorney fees.

(e) Order the employer or employer's agent to insert a copy of the court order into the employee's personnel file.

(f) Recommend to the employer that disciplinary or other action be taken regarding the employer's agent, including but not limited to any of the following:

1. Placement of information describing the agent's action in his or her personnel file.

2. Issuance of a letter reprimanding the agent.

3. Suspension.

4. Termination.

History: 1983 a. 409; 1985 a. 135; 1995 a. 27; 1997 a. 237; 2003 a. 33 ss. 2726, 9160; 2005 a. 74; 2005 a. 155 ss. 13, 60; Stats. 2005 s. 230.90; 2013 a. 20; 2015 a. 55.

The scope of an employee's protection under s. 895.65 is narrower than the protection afforded by the 1st amendment. Kmetz v. State Historical Society, 304 F. Supp 2d 1108 (2004).