Labor and Employment Law Overview: Wisconsin

Labor and Employment Law Overview requirements for other states

Federal law and guidance on this subject should be reviewed together with this section.

Author: XpertHR Editorial Team

Summary

  • Wisconsin law prohibits employers from discriminating against employees based on a variety of factors. See EEO, Diversity and Employee Relations.
  • A Wisconsin employer must meet certain conditions in order to conduct preemployment criminal background checks, medical exams, credit checks and lie detector tests. An employer is generally prohibited from conducting genetic and HIV tests. See Recruiting and Hiring.
  • In Wisconsin, there are many requirements relating to the minimum wage, overtime, meal breaks and child labor. See Wage and Hour.
  • Wisconsin has a number of laws relating to employee pay and benefits, including pay frequency, wage deductions and health care continuation. See Pay and Benefits.
  • Under Wisconsin law, employees are entitled to a number of leaves, including family and medical leave, bone marrow and organ donation leave, voting leave, military leave, civil air patrol leave, volunteer emergency responder leave and time off for jury duty. See Attendance and Leave.
  • Wisconsin law prohibits smoking in the workplace and allows employers to prohibit weapons in the workplace. See Health and Safety.
  • Wisconsin employers must abide by termination pay requirements and generally enjoy immunity for providing job references in good faith. An employer must also provide advance notice of a business closing or mass layoff. See Organizational Exit.

Introduction to Employment Law in Wisconsin

Wisconsin is generally considered an employee-friendly state.

Select Wisconsin employment requirements are summarized below to help an employer understand the range of employment laws affecting the employer-employee relationship in the state. An employer must comply with both federal and state law.

An employer must also comply with applicable municipal law obligations affecting the employment relationship, in addition to complying with state and federal requirements.

EEO, Diversity and Employee Relations

Key Wisconsin requirements impacting EEO, diversity and employee relations are:

Wisconsin Fair Employment Act

The Wisconsin Fair Employment Act (WFEA) prohibits employers from discriminating against any qualified person on the basis of:

  • Age (40 years and older);
  • Ancestry;
  • Arrest and conviction record;
  • Creed;
  • Color;
  • Disability;
  • Genetic testing;
  • Marital status;
  • Military service;
  • National origin;
  • Nonparticipation in religious or political meetings or communications;
  • Race;
  • Sex (including pregnancy, childbirth, maternity leave or related conditions);
  • Sexual orientation; or
  • Use or nonuse of lawful products off the employer's premises during nonworking time.

Retaliation

It is unlawful to terminate or otherwise discriminate against any individual because he or she has opposed a discriminatory practice, made a complaint, or testified or assisted in any proceeding under the WFEA.

Employers are also prohibited from retaliating against an employee who files a complaint, attempts to enforce a right, or testifies or assists in a case involving any Wisconsin law relating to employment, such as laws regulating child labor, wages and hours and employee leave.

Be aware that where there is overlap between federal, state and/or local law, complying with the law that offers the greatest rights or benefits to the employee will generally apply.

Additional information on EEO, diversity and employee relations practices in Wisconsin can be found in the Wisconsin Employee Handbook Table of Contents, Disabilities (ADA): Wisconsin, EEO - Discrimination: Wisconsin, EEO - Harassment: Wisconsin, EEO - Retaliation: Wisconsin, Wisconsin Workplace Labor and Employment Law Posters and Does This Law Apply to My Organization in Wisconsin? Federal requirements can be found in Disabilities (ADA): Federal, EEO - Discrimination: Federal, EEO - Harassment: Federal and EEO - Retaliation: Federal.

Recruiting and Hiring

Key Wisconsin requirements impacting recruiting and hiring are:

Criminal Background Checks

Wisconsin employers may ask applicants about criminal convictions and pending charges. If a pending charge is substantially related to the job sought, an employer may suspend its employment decision until the charge is resolved. If a conviction is substantially related to the job sought, the employer may refuse to hire the applicant.

Drug and Alcohol Tests

Employers are generally allowed to conduct drug and alcohol testing of job applicants but must apply testing policies consistently to avoid disability discrimination claims.

Medical Exams

Wisconsin law allows employers to use medical testing to identify a candidate's fitness to perform a certain job, but only after an employment offer is extended. Employers must require the same testing of all employees in the same job category and must cover the costs of any required medical testing.

Genetic Tests

Wisconsin generally prohibits an employer from soliciting, requiring or administering genetic tests as a condition of employment.

HIV Tests

Wisconsin generally prohibits an employer from requiring applicants to submit to HIV testing.

Credit Checks

Employers may request a consumer credit report with the job applicant's written authorization. The employer must inform the applicant of the source of the report and provide an opportunity to request a copy of the report. If the applicant was not hired due to information in the report, then the employer must inform the applicant of that fact and provide the credit reporting agency's contact information.

Lie Detector or Honesty Tests

An applicant may be asked to submit to a voluntary test if the job sought involves:

  • Direct access to the manufacture, storage, distribution or sale of controlled substances; or
  • Certain security services, such as installing and maintaining alarm systems or working as armored car or security personnel.

Employers may not base an employment decision solely upon the results of a polygraph examination but may deny employment if an admission made during a test provides a legitimate, nondiscriminatory reason.

Be aware that where there is overlap between federal, state and/or local law, complying with the law that offers the greatest rights or benefits to the employee will generally apply.

Additional information on recruiting and hiring practices in Wisconsin can be found in Preemployment Screening and Testing: Wisconsin and Wisconsin Workplace Labor and Employment Law Posters. Federal requirements can be found in Preemployment Screening and Testing: Federal.

Wage and Hour

Key Wisconsin requirements impacting wages and hours are:

Minimum Wage

Wisconsin's minimum wage is the same as the federal minimum wage, $7.25 per hour. Tipped employees may be paid $2.33 per hour as long as they reach the state minimum wage once tips are included.

An employer may take an allowance for providing an employee with meals (up to 30 percent of what the employee would be paid for a 40-hour week) and lodging (up to 20 percent of what an employee would be paid for a 40-hour week).

Subminimum wages may be paid to camp counselors, golf caddies, employees with disabilities, school training program workers between the ages of 14 and 18, and employees under 20 years of age who are employed for 90 or fewer consecutive calendar days.

Overtime

Wisconsin generally requires that nonexempt workers be paid one-and-one-half times the regular rate of pay for all hours worked in excess of 40 hours per week.

Break Periods

If an employer offers a meal break, the time must be paid if:

  • The break is under 30 minutes;
  • The employee is not completely relieved of duties; or
  • The employee is not free to leave the employer's premises.

One Day of Rest in Seven Law

Under Wisconsin's One Day of Rest in Seven Law, owners and operators of factory or mercantile establishments must provide employees with 24 consecutive hours of rest in every seven consecutive days. An employee may work during this 24-hour period only if there is an emergency requiring the employee's immediate services to prevent serious bodily injury, property damage or suspension of necessary operations. The law exempts janitors, security personnel, hotel and restaurant workers and certain other specified occupations.

Child Labor

Child labor laws in Wisconsin restrict the occupations in which minors may be employed and the number of hours and times during which they may work.

State law prohibits employment of minors in occupations or workplaces that are considered dangerous or harmful to the life, health, safety or welfare of a minor or where a minor's employment may be dangerous or harmful to the life, health, safety or welfare of other employees or individuals.

All minors are generally prohibited from working in the following occupations:

  • In adult bookstores;
  • In operating, assisting to operate, erecting, dismantling, setting up, adjusting, repairing, oiling or cleaning any rides or machinery, or loading or unloading passengers, in the operation of amusement park rides, ski hills, street carnivals or traveling shows (except 16- and 17-year-olds may load or unload passengers on water slides);
  • In occupations or duties involving exposure to:
    • Asbestos, chrysotile, crocidolite, amosite, tremolite, anthophyllite or actinolite;
    • Infectious agents;
    • Lead; and
    • Radioactive substances and ionizing radiations;
  • Performing duties related to the operation of power-driven:
    • Bakery machines;
    • Hoisting apparatus;
    • Woodworking machines; and
    • Paper-products machines;
  • In conducting or assisting in the operation of a bingo game;
  • In occupations involved in the manufacture of clay construction products and silica refractory products (except office work);
  • In confined spaces;
  • In coal mines (except refuse picking, work in an office or work in a repair or maintenance shop located above the surface of the coal mining plant);
  • In excavation operations;
  • As an exotic dancer;
  • In any occupation in or about plants or establishments manufacturing or storing explosives or articles containing explosive components (except in retail establishments, in certain occupations in plants or establishment that manufacture or store small arms ammunition, and in areas separated from the explosives area);
  • As lifeguards, swimming instructors and aides, except 16- and 17-year-olds who have successfully completed a bona fide lifesaving course;
  • In establishments where liquor is present, in occupations involving serving, selling, dispensing or giving away liquor, or acting as bouncers, crowd controllers or identification checkers;
  • In logging, sawmills, lath mills, shingle mills or cooperage-stock mills, with exceptions;
  • In certain occupations in or about slaughtering and meat packing establishments; rendering plants; or wholesale, retail or service establishments;
  • In operating or helping to operate, or setting up, adjusting, repairing, oiling or cleaning, metal-forming, punching and shearing power-driven machines;
  • In mining, other than coal, with exceptions;
  • As a motor vehicle driver or outside helper on any public road; highway; in or about a mine, including an open pit mine or quarry; in a place where logging or sawmill operations are in progress; or in any excavation (with exceptions for incidental and occasional driving by 17-year-olds);
  • In roofing operations or on or about a roof;
  • In operating, helping to operate, setting up, adjusting, repairing, oiling or cleaning:
    • Circular saws;
    • Band saws;
    • Guillotine shears; and
    • Chain saws;
  • In any occupations or activities, including picketing, performed in or on the premises of any establishment where a strike or lockout is in active progress; and
  • In any occupation in wrecking, demolition and ship-breaking operations.

Additional restrictions apply to minors under the age of 16.

Minors under 14 years of age are generally prohibited from working, except that minors 12 years of age and older may be employed:

  • In school lunch programs;
  • In street trades;
  • As golf course caddies;
  • In a parent or guardian's business;
  • As sideline officials at high school football games; or
  • As officials for athletic events involving participants of the same age or younger.

Minors 14 or 15 years old, except those employed in domestic service, farm labor or public exhibitions, may work:

  • Up to three hours on a school day;
  • Up to eight hours on a nonschool day;
  • Up to 18 hours in a school week;
  • Up to 40 hours in a nonschool week;
  • Up to six days per week; and
  • From 7:00 a.m. to 7:00 p.m. from the day after Labor Day to May 31 (to 9:00 p.m. from June 1 to Labor Day).

Minors may not work more than six consecutive hours without a meal period of at least 30 minutes.

Be aware that where there is overlap between federal, state and/or local law, complying with the law that offers the greatest rights or benefits to the employee will generally apply.

Additional information on wage and hour practices in Wisconsin can be found in the Wisconsin Employee Handbook Table of Contents, Minimum Wage: Wisconsin, Overtime: Wisconsin, Hours Worked: Wisconsin, Child Labor: Wisconsin, Wisconsin Workplace Labor and Employment Law Posters and Does This Law Apply to My Organization in Wisconsin? Federal requirements can be found in Minimum Wage: Federal, Overtime: Federal, Hours Worked: Federal and Child Labor: Federal.

Pay and Benefits

Key Wisconsin requirements impacting pay and benefits are:

Pay Frequency

State law requires employers to pay employee wages at least once per month. Exceptions apply.

Wage Deductions

An employer may deduct from an employee's wages:

  • State and federal taxes and FICA withholdings;
  • Creditor garnishments under a court order; and
  • Child support under an income withholding order.

Deductions may be made for loss, theft, damage or faulty workmanship under certain conditions.

Pay Statements

Employers are required to include with employees' pay a statement of number of hours worked, rate of pay and amount of and reason for any deductions taken.

Employers are not required to list miscellaneous wage deductions that are of a personal nature and were authorized by the employee in writing.

Health Care Continuation

Wisconsin's health care continuation coverage law applies to employers of any size. Eligible employees and dependents may elect to receive continued health care coverage after the employee voluntarily or involuntarily terminates employment (unless terminated for misconduct), the employee dies or the employee's marriage ends in divorce or annulment. Unlike federal COBRA, Wisconsin's law does not include a maximum coverage period, but provides the circumstances under which coverage will end (e.g., the individual moves out of state or becomes eligible for other comparable coverage).

Be aware that where there is overlap between federal, state and/or local law, complying with the law that offers the greatest rights or benefits to the employee will generally apply.

Additional information on pay and benefits practices in Wisconsin can be found in Payment of Wages: Wisconsin, Involuntary and Voluntary Pay Deductions: Wisconsin, Health Care Continuation (COBRA): Wisconsin, Wisconsin Workplace Labor and Employment Law Posters and Does This Law Apply to My Organization in Wisconsin? Federal requirements can be found in Payment of Wages: Federal, Involuntary and Voluntary Pay Deductions: Federal and Health Care Continuation (COBRA): Federal.

Attendance and Leave

Key Wisconsin requirements impacting attendance and leave are:

Wisconsin Family and Medical Leave Act

The Wisconsin Family and Medical Leave Act (WFMLA) requires employers with 50 or more permanent employees to provide eligible employees with:

  • 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.

An eligible employee is one who has worked for a covered Wisconsin employer for more than 52 consecutive weeks and for at least 1,000 hours during that period.

Other Leave Laws Affecting Wisconsin Employers

In addition to the WFMLA, a Wisconsin employer is also required to comply with several other leave laws, such as:

  • Bone marrow and organ donation leave (covering employers with 50 or more employees);
  • Voting leave;
  • Election official leave;
  • Military leave;
  • Civil air patrol leave (covering employers with 11 or more employees);
  • Volunteer emergency responder leave;
  • Jury duty leave; and
  • Witness leave.

Be aware that where there is overlap between federal, state and/or local law, complying with the law that offers the greatest rights or benefits to the employee will generally apply.

Additional information on attendance and leave practices in Wisconsin can be found in the Wisconsin Employee Handbook Table of Contents, FMLA: Wisconsin, Jury Duty: Wisconsin, USERRA: Wisconsin, Other Leaves: Wisconsin, Wisconsin Workplace Labor and Employment Law Posters and Does This Law Apply to My Organization in Wisconsin? Federal requirements can be found in FMLA: Federal, Jury Duty: Federal, USERRA: Federal and Other Leaves: Federal.

Health and Safety

Key Wisconsin requirements impacting health and safety are:

Smoking

Wisconsin law prohibits smoking in the workplace. The ban extends to any enclosed place that employees normally frequent, including not only the employees' immediate workspace but also all surrounding areas such as hallways, stairways, conference or meeting rooms, employee lounges, break rooms, cafeterias and other common areas.

If an employer wants to set up a smoking area, it must be in an area that is not enclosed.

Employers also are required to post signs notifying employees of the prohibition and to take other reasonable efforts to prohibit people from smoking in the prohibited areas.

Weapons

An employer may prohibit an employee from carrying guns or weapons into the workplace or during the employee's regular duties, even if the employee has a concealed carry permit.

However, an employer may not prohibit the holder of a concealed carry permit from storing a weapon in the employee's personal motor vehicle, even if the employee uses that vehicle in the course of employment or the vehicle is driven or parked on employer property.

Be aware that where there is overlap between federal, state and/or local law, complying with the law that offers the greatest rights or benefits to the employee will generally apply.

Additional information on health and safety practices in Wisconsin can be found in the Wisconsin Employee Handbook Table of Contents, Employee Health: Wisconsin and Workplace Security: Wisconsin. Federal requirements can be found in Employee Health: Federal and Workplace Security: Federal.

Organizational Exit

Key Wisconsin requirements impacting organizational exit are:

Termination Pay

Employees who quit or are terminated must be paid by the employee's next regular payday.

An employee must be paid within 24 hours of termination resulting from:

  • Merger;
  • Liquidation;
  • Cessation of business operations, in whole or in part; or
  • Relocation of all or part of the employer's operations.

References

A Wisconsin employer that provides a prospective employer information regarding an employee's job performance or qualifications for employment is presumed to be acting in good faith and enjoys qualified immunity from civil liability.

An employee who shows, with reasonable certainty, that the employer was not acting in good faith may proceed with a court claim. An employee may show bad faith by proving the following:

  • The employer knowingly provided false information;
  • The employer made the reference maliciously; or
  • The employer made the reference in a discriminatory manner.

Business Closing and Mass Layoff Notification Law

Wisconsin's version of the federal WARN Act requires employers with 50 or more employees in the state to give 60 days' notice of a business closing (affecting 25 or more employees) or mass layoff (affecting the greater of 25 percent of the employer's workforce or 25 employees, or termination of 500 or more employees) to:

  • Affected employees;
  • Union representatives;
  • The highest official of the municipality in which the employer is located; and
  • The Department of Workforce Development.

Be aware that where there is overlap between federal, state and/or local law, complying with the law that offers the greatest rights or benefits to the employee will generally apply.

Additional information on organizational exit practices in Wisconsin can be found in Payment of Wages: Wisconsin, Involuntary Terminations: Wisconsin, Employee Communications: Wisconsin, Wisconsin Workplace Labor and Employment Law Posters and Does This Law Apply to My Organization in Wisconsin? Federal requirements can be found in Payment of Wages: Federal, Involuntary Terminations: Federal and Employee Communications: Federal.