The relationship between employer and employee is contractual in nature under Wisconsin law. The basic employment contract is that an employee provides his or her services in exchange for wages ("consideration") . Generally, unless there is a written contract between the employer and the employee, the employment relationship can be terminated at any time and for any reason. This is sometimes referred to as an "employment at will" relationship which, in essence, means that the employer can terminate the employee "at will," i.e., at any time and for any reason, or for no reason at all. Whenever an employee is terminated, he or she is generally eligible for unemployment insurance benefits unless the employee has not worked a sufficient number of weeks during the past year or the employer can prove that the employee was fired for misconduct.

Sometimes an employer will offer an employee a severance agreement when termination or resignation is being considered. Other times, an employer may be willing to consider entering into a severance agreement if properly approached by an employee.

 Although an "at will" employee can be usually terminated at any time and for any reason, an employer cannot terminate an employee for an illegal reason. The employee generally has the burden to prove that he or she was fired for an illegal reason. An illegal reason would be a reason that is contrary to law or contrary to a public policy that is embodied in a law. So, for instance, an employer cannot terminate or otherwise discriminate against or harass an employee because of his or her age, sex, color, race, religion, disability, national origin, marital status, arrest or conviction record, use or nonuse of legal substances during nonworking hours, membership in the national guard or serving in reserve forces of the military.

Similarly, an employer cannot wrongfully discharge an employee for serving on a jury, making a worker's compensation claim, refusing to commit perjury, taking family or medical leave, making a fair labor standards complaint, joining with others to negotiate wages or employment conditions, or for engaging in some other type of conduct that is protected by state or federal law. Whenever you have been terminated for an illegal reason, you should consult with an a attorney concerning your rights and remedies since the procedures and remedies that are available to you will differ depending upon the nature of your claim. You should also bear in mind that the statutes of limitations that apply to employment-related cases are often much shorter than in other types of civil cases; consequently, you may be barred from pursuing a valid claim that you may have unless you act promptly.

ERISA (the Employee Retirement Income Security Act) provides remedies if an employee is discharged or discriminated against for exercising any right under the Act or for the purpose of interfering with the attainment of any right to which a Welfare or Pension Plan participant might become entitled (such as retirement benefits or health care coverage).

Public employees generally cannot be retaliated against for exercising civil rights guaranteed by the Constitution, such as the freedom of speech or the freedom of association.

Private and public employees generally cannot be retaliated against for exercising rights guaranteed by particular employment statutes, such as complaining about failure to pay overtime,  filing a discrimination case, making a sexual harassment complaint, testifying as a witness in an employment case, and filing a wage claim.

Although most employees in Wisconsin do not have an employment contract with their employer, if an employee does have such a contract, the contract may serve as a basis for a breach of contract action. In some cases, an employee handbook can constitute an employment contract that can modify the traditional at-will relationship if certain conditions are met. Most employee handbooks have been carefully drafted by the employer's attorneys and do not actually promise much; however, if valid promises are made and then broken, there may be grounds for legal action against the employer.

More and more employment contracts contain noncompete agreements. Care should be taken before signing a noncompete agreement because it can limit an employee's ability to obtain other employment. It is possible to legally challenge a noncompete agreement that does not contain specific provisions required by Wisconsin law. 

*This guide provides very general information about employment law in Wisconsin and is not intended to be legal advice. Due to the complicated nature of employment cases, you should always consult with an attorney concerning the facts of your specific case and you should never solely rely upon this or any other guide. If you do not reside or work in Wisconsin, the law in your state may be different than what is described in this guide.

For More Information Contact:

Fair Employment Legal Services, S.C.
1800 E. Capitol Drive, Suite 2G
Tel: 414-906-1800
FAX: 414-906-1850
Internet: juelmen@ameritech.net