Employee Must Do More than Ask for Unpaid Wages to Set Up a Potential Retaliation Claim

Wisconsin law prohibits employment discrimination based on protected traits and requires employers to comply with various wage and hour standards. It also prohibits retaliation against employees who complain of discrimination or wage and hour violations. However, a recent case limits which employees who are the subject of a wage and hour violation may make a retaliation claim.

Wisconsin Recognizes Broad Retaliation Protection to Employees Who Openly Oppose Discriminatory Practices

When an employee voices opposition to discrimination based on age, race, sex, or any of the other protected characteristics under the Wisconsin Fair Employment Act (WFEA), retaliation based on merely voicing opposition to the discriminatory practice is prohibited. For example, in a 1983 case brought before Wisconsin’s Labor and Industry Review Commission (LIRC) when an employee “expressed dissatisfaction” with sexual harassment and “asked [the offending party] to stop,” the worker had sufficiently opposed the discriminatory practice for the purposes of proving a retaliation claim following the employee’s termination.

Mere Opposition to Wage and Hour Violations Is Not Enough to Be Protected Against Retaliation

However, when it comes to wage and hour laws and some other employment regulations, an employee must do more than simply voice opposition to a prohibited practice in order to be protected against employer retaliation. Last month, in Radtke v. LIRC, the Wisconsin Court of Appeals addressed what kind of employee conduct met the statutory definition for an employee who “files a complaint or attempts to enforce the right.” The court of appeals held that this language requires more than “opposition” to a prohibited practice.

The Radtke Case

In Radtke, Cheryl Radtke’s employer told her that she had performance issues and then demoted her. After being told of the demotion, Ms. Radtke responded that if her pay was going to be reduced going forward, then she should be compensated for unpaid overtime that she had worked over the years. Following that meeting, the employer paid her for two years of unpaid overtime and then terminated her. Ms. Radtke filed a retaliation action, claiming that her employer had retaliated against her for complaining about the unpaid overtime wages.

Since Ms. Radtke had not filed a formal complaint in court before being terminated, the Wisconsin Court of Appeals analyzed whether her conversation with her supervisors, where she requested payment of back wages for overtime pay, made her an individual who “attempts to enforce any right” under a wage and hour law, which would still invoke protection against retaliation. The court of appeals concluded that, ‘an individual does not [attempt to] enforce [a] right’ to unpaid overtime under Wis. Stat. § 113.322(2m)(a) merely by asking his or her employer to pay it.”

How much more is required will be a fact-specific question in each case. Because deference is given to the facts found at the initial proceedings at the administrative level, the administrative law judge’s findings will be critical. The judge’s factual findings cannot be overturned so long as they are supported by substantial evidence. There is substantial evidence if “reasonable minds could arrive at the conclusion reached by the trier of fact.”

In Radtke’s case, the court of appeals explained that the finding that Ms. Radtke had not attempted to enforce her overtime pay rights was supported by the fact that “Radtke did not say anything before or on [the date of the meeting with her supervisors] to suggest that she intended to file a wage complaint related to her unpaid overtime”; and by the fact that “she did not raise the issue again at the afternoon meeting that day.” The court of appeals also explained that the finding was supported by the fact that the employer had cured its failure to pay overtime wages before terminating Ms. Radtke, and therefore the employer “had no reason to believe that [Ms. Radtke] had a basis for an unpaid overtime claim.”

In sum, the court of appeals found that Radtke had only asked her employer to pay unpaid overtime wages, and that merely asking for payment is not an attempt to enforce a wage claim. Therefore, Ms. Radtke could not make out a retaliation claim because there was no protected conduct. Radtke v. LIRC, No. 2024AP332 (Wis. Ct. App. Jan. 22, 2025).

Bottom Line

Employers are prohibited from retaliating against employees who complain of workplace discrimination based on age, race, and sex. Employers are also prohibited from retaliating against employees who file wage and hour complaints, but under the Wisconsin Court of Appeals’ ruling in Radtke v. LIRC, employees who simply ask for unpaid wages without taking any other action to enforce their wage and hour rights are not protected against employer retaliation. In order to avoid potential retaliation claims, employers should correct any wage and hour violations when they are discovered, before an employee files a complaint in court or takes any other action beyond simply noting the discrepancy.

This article, slightly modified to note recent updates, was featured online in the Great Lakes Employment Law Letter and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.