Labor and Employment Law Overview: Wisconsin
Federal law and guidance on this subject should be reviewed together with this section.
Author: Susan Tahernia
- Wisconsin law prohibits discrimination in employment on the basis of arrests and convictions. See Preemployment Screening and Testing.
- Wisconsin law prohibits employers from discriminating against employees based on a variety of factors and establishes protected classes not recognized under federal antidiscrimination laws. See Unlawful Discrimination.
- When discontinuing health care benefits, certain employers must provide advance notice to certain individuals. See Employee Benefits.
- Certain employers are required to provide family leave to their employees. See Leaves of Absence.
- Different minimum wage rates apply to different categories of workers. See Employee Compensation.
- Wisconsin law allows employers to make wage deductions for loss, theft, damage or poor workmanship only in limited situations. See Employee Compensation.
- Wisconsin employers must pay employees for certain breaks. Meal breaks for minors must be a certain length and provided within a certain timeframe. See Hours Worked: Meal and Rest Periods.
- Under state law, covered employees must be given 24 consecutive hours of rest within a specific timeframe. See Hours Worked: Meal and Rest Periods.
- In the event of a business closing or mass layoff, Wisconsin employers must comply with the notice requirements set forth under state law. See Termination of employment.
- Certain separated employees are entitled to continuation of health care coverage under Wisconsin law. See Termination of employment.
Preemployment Screening and Testing
Arrests and Convictions
Wisconsin law prohibits discrimination in employment on the basis of arrests and convictions. employers may not ask about arrests, but can ask about pending charges. employers may deny employment to an applicant based on pending criminal charges substantially related to the position sought by the applicant. In addition to inquiring about pending criminal charges, employers may inquire about prior criminal convictions. Prior criminal convictions substantially related to the position sought by the applicant may be considered by the employer. If a pending criminal charge or prior conviction is not substantially related to the position, employers are barred from considering that information.
In general, employers are prohibited from using HIV testing as a basis for employment or continued employment. The only exception is where the state epidemiologist determines, and the secretary of health services states, individuals may, through employment, pose a risk of infection to others.
See +Wis. Stat. § 103.15;
Lie Detector or "Honesty" Tests
State law prohibits employers from:
- Asking applicants or employees to submit to a lie detector/honesty test; and
- Conditioning employment, or continued employment, upon the results of a lie detector/honesty test.
The following exceptions apply:
- Law enforcement agencies; and
- Employers may test current employees who are reasonable suspects in a pending investigation into economic loss by, or economic injury to, the employer.
Medical examinations are not prohibited under state law, but must comply with state and federal laws prohibiting discrimination on the basis of disabilities and/or perceived disabilities. employers who administer medical examinations must pay the costs related to the exam and are barred from charging applicants or employees for the testing.
See +Wis. Stat. § 103.37;
Discontinuation of Health Benefits
When deciding to stop offering health care benefits, employers with 50 or more employees in the state must provide 60 days' advance notice to any affected:
- Retirees; or
- Other dependents.
The cessation of health care benefits provision applies to situations in which employers completely eliminate their entire package of health care benefits for broad categories of workers or retirees. It does not apply to the following:
- Employment termination; or
- Modifications of continuing plans.
Unlawful Discrimination and Retaliation
Wisconsin Equal Rights Division
The Wisconsin Equal Rights Division (Division) is the primary civil rights agency in the state. In addition to its other responsibilities, the Division is responsible for enforcing Wisconsin's Fair employment Law, which prohibits certain forms of discrimination in employment.
The Wisconsin Fair employment Law establishes protected classes not recognized by federal antidiscrimination laws and prohibits employers from discriminating against any qualified person on the basis of the following:
- Age (40 years and older);
- National origin;
- Sexual orientation;
- Marital status;
- Arrest and conviction record;
- Military status;
- Declining to attend a meeting or participate in any communication about religious or political matters;
- Use of lawful products; and
- Genetic testing.
Employer means the following:
- The state;
- Each state agency; and
- Except as provided, any other person engaging in any activity, enterprise or business employing at least one individual.
In this provision, agency means the following:
- Independent agency;
- Society; or
- Other state government body, including the legislature and the courts.
Employers are prohibited from retaliating against any employee who does any of the following:
- Files a complaint concerning unlawful labor practices (e.g., discrimination by the employer, unauthorized withholding of wages, etc.);
- Attempts to enforce a right permitted by a labor statute;
- Testifies in a case concerning unlawful labor practices; or
- Assists in a case under the state's labor standards laws, such as the following:
- Child labor;
- Minimum wage;
- Hours of work and overtime;
- Wage payment and collection; and
- Prevailing wage rate laws.
This law's protections also apply if an employer takes an adverse employment action against the employee because that employer merely believes the employee has exercised any of the above rights.
Political Influence by Employers
employers may not attempt to influence an employee's vote in an election. Impermissible means of influence by an employer include:
- Threatening to discharge an employee if the employee fails to exercise his or her vote in a particular manner;
- Threatening to reduce the employee's wages if the employee fails to exercise his or her vote in a particular manner; or
- Agreeing to increase an employee's wages subject to the employee exercising his or her vote in a particular manner.
See +Wis. Stat. § 103.18.
Leaves of Absence
Family and Medical Leave
Wisconsin's Family and Medical Leave Law requires employers with 50 or more permanent employees to provide eligible employees with the following:
- Six weeks of leave for the birth or adoption of a child;
- Two weeks of leave to care for a parent, child, spouse or domestic partner with a serious health condition; and
- Two weeks of leave for the employee's own serious health condition.
See +Wis. Stat. § 103.10;
Military Leave for State Employees
State employees who enlist or are ordered or inducted into active duty in the US armed forces may take unpaid, job protected military leave. employees have 180 days after service has ended or, if applicable, discharge from the hospital, to seek reinstatement. employees who seek reinstate within that180 day period must be reinstated to the position held prior to the leave of absence.
State employers will be excused from their obligation to reinstate an employee returning from military leave if:
- The leave of absence was greater than four years;
- Upon return, the employee is no longer qualified for reinstatement; or
- The circumstances of the employing agency have changed in a manner that makes reinstatement impossible.
If an employee is involuntarily retained for longer than four years, the employer is not excused for its obligation to reinstate the employee.
During the leave period, employees will not continue to accumulate sick leave or vacation pay.
The following state employees who are deployed for reasons, other than training purposes, are eligible to receive their state pay and benefits while on military leave:
- Members of the Wisconsin National Guard;
- Members of a reserve unit of the US armed forces; and
- employees on inactive military status who are called to active duty.
During the military leave period, employers may adjust the employee's state pay to account for any military pay or housing allowance received by the employee. employers are only obligated to pay benefits and wages for a maximum of 179 days. However, the 179 day period may be extended by state's governor.
State law requires employers to pay employee wages, at least, once per month. employers are required to state clearly on each employee's paycheck, pay envelope or other accompanying paper the following information:
- Number of hours worked;
- Rate of pay; and
- Amount of, and reason for, any deductions taken from the employee's pay.
Wisconsin establishes separate minimum hourly wage rates employers must pay to the following categories of workers:
- Minors under age 18;
- Adults; and
- employees who receive tips or gratuities from patrons.
In Wisconsin, there is no required daily overtime pay for adults. Under the state's general overtime pay requirement, nonexempt workers must be paid one-and-one-half times the regular rate of pay for all hours worked in excess of 40 hours per week. See employee Compensation > Overtime: Wisconsin.
employers may only deduct for loss, theft, damage or poor workmanship if:
- The employee authorizes the deduction after the loss, theft, damage or poor workmanship occurs and before the deduction is taken;
- The employer and the employee's representative determine that the defective or faulty workmanship, loss, theft or damage is due to the employee's:
- Carelessness; or
- Willful and intentional conduct; or
- The employee is found guilty or held liable in a court of competent jurisdiction for one of those reasons.
Certain employers include deduction authorization forms in their new-hire package. The forms allow employers to deduct any future overpayments and other losses from employees' paychecks. However, Wisconsin employers may not require employees to complete a form authorizing deductions for losses that have not yet occurred. Instead, the deduction authorization form must be completed at the time the incident occurs. For each subsequent occurrence, a new authorization form must be completed.
employees must receive a list of all wage deductions. A separate list may accompany the employee's paycheck or the deductions may be listed directly on the employee's paycheck or pay envelope. employers are not required to list miscellaneous wage deductions that are:
- Of a personal nature; and
- Were authorized by the employee, in writing.
Hours Worked: Meal and Rest Periods
Meal and Rest Periods
Wisconsin law does not require meal or rest periods for adults who are age 18 and over. State law recommends, but does not require, employers allow 30-minute meal periods for each shift worked and encourages employers to avoid having an employee work for more than six hours without being provided with a 30-minute meal period.
employers must pay all employees for on-duty meal periods, which include meal periods that meet the following criteria:
- The employee is not provided at least 30 minutes free from work; or
- The employee is not free to leave the employer's premises.
See Wis. Admin. Code DWD § 274.02;
Wisconsin's One Day of Rest in Seven Law
Wisconsin's One Day of Rest in Seven Law provides that all covered employees must be given 24 consecutive hours of rest in each calendar week. However, the law does not provide that the rest must be given every seven days. For example, an employer may legally schedule work for 12 consecutive days within a two-week period, if the days of rest fall on the first and last days of the two-week period. Certain establishments may be exempt from coverage. See Employee Compensation > Hours Worked: Wisconsin > One Day of Rest in Seven Law.
Termination of Employment
Employees who quit or are discharged from their jobs must be paid in accordance with the employer's regularly established payroll schedule. If, however, an employee's termination results from any of the following, the employee must be paid within 24 hours of termination:
- Business ceased it operations in whole or in part; or
- Relocation of all or part of the employer's operations.
See +Wis. Stat. § 109.03;
Wisconsin's Business Closing Law
Under Wisconsin's Business Closing Law, employers with 50 or more employees in the state that are involved in a business closing or mass layoff must provide 60 days' notice to the following:
- The Department of Workforce Development;
- The employee;
- The union; and
- The highest official of the town, village or city in which the employer is located.
Mass layoff refers to a reduction in workforce impacting:
- The greater of, 25 percent of the employer's work force or 25 employees; or
- 500, or more employees.
Continuation of Health Care Coverage
employees working for smaller employers (i.e., employers with less than 20 employees) are exempt from the federal Consolidated Omnibus Budget Reconciliation Act (COBRA). Wisconsin is a state with a so called mini-COBRA law, which allows eligible employees working for employers with less than 20 employees, to elect to receive continued health care coverage after the employee's separation from employment.
employers are prohibited from providing written or verbal statements to prevent former employees from obtaining new employment. See +Wis. Stat. § 134.02. Wisconsin employers may, however, provide truthful statements about the reason for the employee's discharge to:
- The terminated employee; or
- A prospective employer of the terminated employee.
The fact that the law gives employers the right to make truthful statements does not mean employees cannot sue the employer on the basis of those statements. Therefore, to minimize the risk of litigation, employers may consider implementing a neutral reference policy.
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