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New damages law will favor employers

By: Jack Zemlicka, [email protected]//March 15, 2012//

New damages law will favor employers

By: Jack Zemlicka, [email protected]//March 15, 2012//

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A proposal to eliminate the ability of employees to sue for compensatory or punitive damages in state court is headed to Gov. Scott Walker after both the Wisconsin Senate and Assembly passed the law.

The legislation, authored by Sen. Glenn Grothman, R-New Berlin, would repeal the law signed by Gov. Jim Doyle in 2009 that created a range of compensatory and punitive awards for discrimination cases.

“This is designed to save time and money for both businesses and plaintiffs,” Lance Burri, legislative aide for Grothman, said, “so they are not locked into a system that always holds punitive and compensatory damages out there as a potential threat.”

The bill is headed to Walker by March 22, according to Burri, after the Senate approved it Nov. 3 and the Assembly passed it Feb. 22.

Burri said he is optimistic that Walker will sign the proposal into law.

If that is the case, Milwaukee labor and employment attorney Pam Ploor, of Quarles & Brady LLP, said the change will come as a relief to employers.

While she said she isn’t aware of any cases since 2009 where plaintiffs sued in state court for compensatory or punitive damages, the process allowed for a disjointed method to unfairly hold employers liable for damages. Damages under the current law are $50,000 for defendants with 100 or fewer employees; $100,000 for defendants with 101 to 200 employees; $200,000 for defendants with 201 to 500 employees; and $300,000 for defendants with more than 500 employees.

“There was always that hammer over the heads of Wisconsin businesses,” Ploor said, “because the fact finder of liability was divorced from the process of determining damages.

The law change would still allow individuals who file a complaint with the Department of Workforce Development to seek reinstatement, back pay and attorneys’ fees and pursue compensatory or punitive damages in federal court.

Critics of the law change say it will lead to an influx of federal cases, but Ploor said that is unlikely because it is already an option available to plaintiffs.

“They have the ability to file now,” she said. “I think the change will mean that employers will not face the unfairness of a bifurcated process where the DWD determines liability and then a separate jury tells an employer what they should pay.”

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