German v. DOT

Decision Date21 June 2000
Docket NumberNo. 98-0250.,98-0250.
Citation612 N.W.2d 50,235 Wis.2d 576,2000 WI 62
PartiesJoan A. GERMAN, Arnold Merkle and Bryan Vergin, Plaintiffs-Respondents, v. WISCONSIN DEPARTMENT OF TRANSPORTATION, Division of State Patrol, State of Wisconsin, Charles Thompson and William L. Singletary, Defendants-Appellants-Petitioners.
CourtWisconsin Supreme Court

For the defendants-appellants-petitioners the cause was argued by Richard Briles Moriarty, assistant attorney general, with whom on the briefs was James E. Doyle, attorney general.

For the plaintiffs-respondents there was a brief by Bruce M. Davey and Lawton & Cates, S.C., Madison, and oral argument by Bruce M. Davey.

Amicus Curiae brief was filed by Bruce Meredith and Marilyn Windschiegl, Madison, on behalf of Wisconsin Education Association Council.


Petitioner, the Wisconsin Department of Transportation (DOT)1 seeks review of a published decision of the court of appeals, German v. DOT, 223 Wis. 2d 525, 589 N.W.2d 651 (Ct. App. 1998). The court of appeals affirmed an order of the circuit court denying DOT's motion to dismiss a wage claim brought by officers of the Wisconsin State Patrol (officers). The officers brought a claim based upon Wis. Stat. § 109.03(5)(1995-96),2 alleging that they are on-duty during their lunch break and are therefore owed wages for that time pursuant to Wis. Admin. Code. § DWD 274.02(3) (May, 1997). This section of the administrative code requires employers to pay employees for meal periods that are not free from work.

¶ 12. The first issue is whether the officers can bring a claim under Wis. Stat. § 109.03(5) seeking wages for on-duty meal periods, or whether the officers' exclusive remedy is the administrative procedures in Wis. Stat. § 103.005. If we determine the action may be brought under Wis. Stat. ch. 109, then the second issue we must decide is whether the legislature has waived sovereign immunity in ch. 109 for this type of claim.

¶ 3. We hold that Wis. Stat. § 103.005 is not the exclusive means to enforce a wage claim grounded upon Wis. Admin. Code § DWD 274.02(3) and that the right of action created by Wis. Stat. § 109.03(5) allows for claims based upon the hours and overtime regulations to be brought in circuit court without first obtaining administrative review by the Department of Workforce Development (DWD). In addition, we agree with the court of appeals that the legislature has waived the state's immunity in Wis. Stat. ch. 109. Accordingly, we affirm the decision of the court of appeals.

Facts and Procedural History

¶ 4. In 1996 officers of the Wisconsin State Patrol filed suit against their employer, the DOT, in Dane County Circuit Court. The officers asserted they were neither relieved from duty during their 30-minute lunch breaks, nor compensated for this on-duty time as required by Wis. Admin. Code § DWD 274.02(3).3 As a result, the officers alleged that they were entitled to compensation for these hours worked. Their suit to compel payment of wages due was filed pursuant to Wis. Stat. §§ 109.01 and 109.03, the Wage Payments, Claims and Collections Law (wage claim law).

¶ 5. The DOT moved to dismiss the suit. This motion was denied by the Dane County Circuit Court, the Honorable P. Charles Jones presiding.4

¶ 6. The DOT sought expedited review by the court of appeals. The court of appeals affirmed the order of the circuit court. The DOT appealed to this court pursuant to Wis. Stat. § 808.10 (1997-98), which we granted.

Standard of Review

[1, 2]

¶ 7. We are asked to review denial of a motion to dismiss. To determine the sufficiency of the complaint, we must examine the statutory authority cited by the plaintiffs as the basis for their claim to determine two issues. First, we must determine whether Wis. Stat. ch. 109 is a vehicle to enforce Wis. Admin. Code § DWD 274.01(3), a rule promulgated by the authority vested in the DWD under the hours and overtime law, Wis. Stat. § 103.02, or whether this administrative code section can only be enforced by the administrative review procedures in Wis. Stat. ch. 103. Second, we must determine if the legislature has waived sovereign immunity in ch. 109. Statutory interpretation is a question of law which we review de novo. Morris v. Juneau County, 219 Wis. 2d 543, 550, 579, N.W.2d 690 (1998). Our goal in interpreting a statute is to discern the intent of the legislature. Id.


¶ 8. We first resolve whether the officers' claim is properly brought under the wage claim law, Wis. Stat. ch. 109. The plain language of ch. 109 broadly defines the word "wage" in relevant part as "remuneration payable to an employe for personal services" and cites as examples salaries, vacation pay, and overtime pay. Wis. Stat. § 109.01(3).5 The breadth of this definition encompasses the employer's obligation under Wis. Admin. Code § DWD 274.02 to pay an employee for on-duty meal break wages. This administrative code provision requires "remuneration" for "personal services," comparable to the examples listed in § 109.01(3). We see little difference between a claim under ch. 109 by an employee seeking overtime wages with the officers' claim for on-duty meal break wages. In both cases the employee asserts that work has been performed and wages are now due.


¶ 9. The DOT contends that a claim under Wis. Admin. Code § DWD 274.02(3) can only be resolved through the administrative procedures in Wis. Stat. § 103.005. Where the legislature enacts an administrative scheme to enforce a statute, the administrative mechanism is presumed exclusive unless there is an affirmative legislative indication of the contrary. Bourque v. Wausau Hosp. Center, 145 Wis. 2d 589, 594, 427 N.W.2d 433 (Ct. App. 1988). The DOT argues that resolving whether meal breaks are compensable on duty work time is an issue that arises under Wis. Stat. ch. 103, the Hours of Work Law and is to be brought forward in the administrative review procedures in that chapter—not through Wis. Stat. ch. 109.

¶ 10. The provisions of Wis. Stat. ch. 109 and Wis. Stat. § 103.02 address two sides of the same coin. Under the authority of § 103.02 the DWD has promulgated an administrative rule requiring employers to pay employees for on-duty meal periods. Wis. Admin. Code § DWD 274.02(3). In Wis. Stat. § 109.03(5), the legislature has provided employees with the right to bring an action in court against an employer for wages due without first pursuing administrative review with the DWD. As the court of appeals noted:

We acknowledge the DOT's argument that the officers are really seeking a determination of whether their lunch periods are "hours of work, "but that is part and parcel of their claim for wages due. The amount of pay-or possibly, compensatory time-the officers may ultimately be found to have due them must necessarily await a determination of whether any compensation is due them for lunch periods. Nonetheless, the essence of the officers' claim is that they are due compensation that the DOT has not paid.

German, 223 Wis. 2d at 539 n.5 (emphasis in the original). Combined, these statutory provisions create a system to assure that each employee is compensated for his or her labor.


¶ 11. Statutes on the same subject matter are interpreted in a manner that harmonizes them, giving each statute full force and effect. McDonough v. Department of Workforce Dev., 227 Wis. 2d 271, 279-80, 595 N.W.2d 686 (1999) (quoting State v. Aaron D., 214 Wis. 2d 56, 66, 571 N.W.2d 399 (Ct. App. 1997)). The DOT's argument vitiates an employees' private right of action for wages due in Wis. Stat. ch. 109. The reasoning of the court of appeals is compelling.

If an employee-initiated wage claim could not be brought under ch. 109 merely because it was disputed on hours and overtime grounds, an employer could defeat an employee's suit merely by alleging that the employee was "off-duty" during part of the time for which the employee is claiming wages due. The "off-duty" allegation would require an interpretation of WIS. ADM. CODE § DWD 272.12(12)(2)(b) (which is made applicable to hours and overtime disputes by virtue of WIS. ADM. CODE § DWD 274.045). Thus an employer could convert the employee's ch. 109 claim for wages due to a ch. 103 claim to determine whether wages were due, thereby avoiding the employee-initiated suit and the penalties provided by ch. 109.

German, 223 Wis. 2d at 543.


¶ 12. Further, and as the court of appeals notes, "the presumption that an administrative remedy is exclusive does not apply if there is legislative expression to the contrary. Id. at 538 (citing Gardner v. Gardner, 175 Wis. 2d 420, 428, 499 N.W.2d 266 (Ct. App. 1993)). Wisconsin Stat. § 103.005(14)(a) provides that the DWD shall administer laws related to employment and the regulation of employment "so far as not otherwise provided for in the statutes." We find that the plain meaning of § 103.005(14), when read together with Wis. Stat. ch. 109, is that employees are authorized by the legislature to seek enforcement of Wis. Admin. Code § 274.02(3) through Wis. Stat. § 109.03(5).

¶ 13. The relationship between Wis. Stat. ch. 103 and Wis. Stat. ch. 109 is demonstrated in legislative history. Wisconsin Stat. § 109.03 was created by ch. 380, Laws of 1975. The new law was proposed by a Special Committee on Employe Protection in Business Closing to the 1973-75 Legislative Council and consolidated existing wage payment and wage claim laws with new protections, including a plant closing notification law. The newly created § 109.03 imported most of the provisions of the former Wis. Stat. § 103.39 (1973).6 The statutory language relating to court actions on wage claims adopted in ch. 380, Laws of 1975, was substantially identical to that which had been provided in ch. 103.

¶ 14. In addition, ch. 380, Laws of 1975 § 3 provided that the department was to investigate wage claims and specifically to...

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