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02-1701 Hubbard v. Messer

By: dmc-admin//December 9, 2002//

02-1701 Hubbard v. Messer

By: dmc-admin//December 9, 2002//

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“Section 109.11(2)(b) unambiguously indicates that for an employee to file a wage claim action, the employee must, at the time suit is commenced, allege entitlement to wages the employer has not yet paid. That is, a claim for penalty wages does not exist independently of a claim for unpaid wages. The court first awards the unpaid wages to which the employee is entitled. Then, the court can award an additional percentage up to 100% of the wages that are due and unpaid. …

“Hubbard had ample opportunity to enforce the DWD’s rulings and collect penalties. For whatever reason, he chose not to seek the remedies available to him. Once Messer paid the back wages, Hubbard no longer had a wage claim to enforce, and thus no access to court to collect penalties. Hubbard has also failed to show, with legitimate support in Wis. Stat. ch. 109, that the phrase ‘wages due and unpaid’ means anything other than the plain, ordinary meaning we have articulated. On remand, the circuit court will enter summary judgment for Messer, dismissing Hubbard’s claims with prejudice.”

Reversed and remanded with directions.

Recommended for publication in the official reports.

Dist III, Eau Claire County, Lenz, J., Hoover, P.J.

Attorneys:

For Appellant: Stephen L. Weld II, Eau Claire; Christopher R. Bloom, Eau Claire

For Respondent: Erwin H. Steiner, Eau Claire

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