Employee Handbooks - Work Rules - Employee Conduct: Wisconsin
Federal law and guidance on this subject should be reviewed together with this section.
Author Kristofor L. Hanson, Lindner & Marsack, S.C.
- Wisconsin is an employment at-will state. Accordingly, employment relationships generally can be terminated by either the employee or employer at any time for any lawful reason. See Impact on Employment At-Will.
- Employee handbooks can alter the employment at-will relationship in Wisconsin. Therefore, employers must be careful to include disclaimers to protect them from creating contractual obligations. See Impact on Employment At-Will.
- Employers should be sure to inform employees of their intent to abide by all anti-discrimination and anti-harassment laws. See Antidiscrimination and Harassment Provisions.
- Wisconsin employers may monitor employees' use of its equipment, including telephones and computers, but must notify employees of their intent to do so. See Electronic Monitoring.
- Employees must be notified of grooming and dress requirements at the time of hire under Wisconsin law. See Dress and Appearance.
- Wisconsin allows licensed individuals to carry concealed weapons, but employers may prohibit the carrying of weapons in the workplace with proper notification. See Firearms in the Workplace.
- Wisconsin employers generally cannot take action against an employee for his or her use of lawful products on their own time. See . Use of Lawful Products.
- Alcoholism is considered a disability under Wisconsin law. Therefore, employers must be careful to limit discipline for alcohol abuse to only those situations where the alcohol abuse negatively impacts and employee's ability to do his or her job. See Alcohol and Drugs.
Impact on Employment At-Will
Wisconsin is an employment at-will state. Therefore, unless employees have given some consideration to their employer beyond the performance of the services they have agreed to provide, the employment relationship may be terminated at any time by either the employee or the employer. See Forrer v. Sears, Roebuck & Co., +36 Wis. 2d 388, +153 N.W.2d 587 (1967). The mere issuance of an employee handbook does not modify the employment at-will relationship. See Clay v. Horton Mfg. Co., +172 Wis. 2d 349, +493 N.W.2d 379 (Ct. App. 1992).
However, an at-will relationship can be modified by an employee handbook. See Ferraro v. Koelsch, +124 Wis. 2d 154, +368 N.W.2d 666 (1985) (an express contract was created by an employee handbook incorporating a just-cause standard for the termination of employment). For an employee handbook to convert an at-will relationship to a relationship contractual in nature, the employee and employer must have made mutual promises that bound the parties to the terms of the handbook beyond the terms of service. See Mursch v. Van Dorn Co., +851 F.2d 990 (7th Cir. 1988). Any promises impacting the at-will nature of the employment relationship must be expressly included in the handbook. See Olson v. 3M Co., +188 Wis. 2d 25, +523 N.W.2d 578 (Ct. App. 1994). If the additional consideration or mutual promises are not present, however, employee handbooks serve as guidelines, not contracts, in Wisconsin. See Helland v. Kurtis A. Froedert Memorial Lutheran Hosp., +229 Wis. 2d 751, +601 N.W.2d 318 (Ct. App. 1999).
To protect themselves from altering an at-will relationship, employers should be careful to include specific language in employee handbooks that explicitly states the employment relationship is at-will and nothing in the employee handbook is designed to change that relationship. In addition, inclusion of the employer's right to unilaterally change the terms of employment will generally preserve the at-will relationship. See Bantz v. Montgomery Estates, Inc., +163 Wis. 2d 973, +473 N.W.2d 506 (Ct. App. 1991). This can be the case even if the employee handbook contains a progressive disciplinary scheme that includes a just-cause standard. See Helland v. Kurtis A. Froedtert Memorial Lutheran Hosp., +229 Wis. 2d 751, +601 N.W.2d 318 (Ct. App. 1999). Employers should be aware, however, that such disclaimers are not a cure-all, as the at-will relationship may be altered if management explicitly represents to employees that the employer is bound by the handbook. See Clay v. Horton Mfg. Co., +172 Wis. 2d 349, +493 N.W.2d 379 (Ct. App. 1992). Therefore, in addition to the appropriate disclaimers identified above, it is advisable for employers to avoid using terms such as just cause in all circumstances where it is possible.
Antidiscrimination and Harassment Provisions
Employers should be sure to include in any employee handbook that the employer prohibits harassment of any nature and intends to comply with the laws prohibiting discrimination in employment. +Wis. Stat. §§ 111.31 et seq. Antidiscrimination policies normally provide that decisions related to recruitment, hiring, transfers, assignments, evaluations, promotions, discipline and discharge will be based on legitimate business needs and not based on race, age, creed, color, disability, marital status, sex, national origin, ancestry, arrest or conviction record, sexual orientation, membership in the military, genetic traits or disposition, use or nonuse of lawful products during nonworking hours off the employers premises, or any other characteristics protected by law. +Wis. Stat. §§ 111.31 et seq.
Wisconsin law does not require employers to provide any number of allowed absences or paid time off, except for those absences allowed under either federal or Wisconsin Family and Medical Leave laws or due to a disability.
Attendance policies should alert employees to the impact of repeated or excessive absenteeism or tardiness, keeping in mind that employers have a duty to reasonably accommodate employees with disabilities under both the Americans with Disabilities Act of 1990, and the amendments to it (ADAAA) as well as the Wisconsin Fair Employment Act. Both the federal and Wisconsin law may require an employer to reasonably accommodate an employee with leave beyond the limitations of an attendance policy as well as applicable family and medical leave laws.
Technology use policies should make clear that all company technology provided for employee use, as well as any data stored or transmitted using such technology, is the property of the employer. Any such policy should reserve the employer's right to monitor all use of company technology, and state that the employer will exercise that right when there is a legitimate business need to do so. See Muick v. Glenayre Elecs., +280 F.3d 741 (7th Cir. 2002).
If Wisconsin employers plan to monitor employee telephone usage, such as listening to employees' telephone calls, employers must notify employees of their intent to do so. +Wis. Stat. § 968.31. Employers should be careful that any monitoring of employee conversations does not invade or limit employees' rights to discuss the terms and conditions of their employment, thus constituting an unfair labor practice. +Wis. Stat. § 111.06; +Wis. Stat. § 111.07.
Wisconsin law prohibits requiring an employee to be implanted with a microchip. +Wis. Stat. § 146.25. Violations are subject to fine up to $10,000 and each day of continued violation constitutes a separate offense.
Dress and Appearance
Wisconsin law obligates employers to notify new employees, at the time of hire, of their grooming and dress requirements with respect to hairstyle, facial hair, and clothing. +Wis. Stat. § 103.14. The law does not address changes to dress and appearance requirements for current employees, but a common sense reading of the statute would lead to the conclusion that so long as sufficient notice is provided, employers can modify dress and appearance policies.
Employers must be mindful, however, that dress and appearance policies may create possible race, sex, and religious biases. So long as personal appearance requirements have some justification in accepted social norms and are reasonably related to the employer's business needs, such regulations are not necessarily discriminatory. See Raczek v. Pizza Hut, Wis. Equal Rights Div. Case No. 9100886 (Labor & Indus. Rev. Comm'n, May 11, 1994).
Firearms in the Workplace
Wisconsin allows the carrying of concealed weapons by residents and non-residents licensed to do so. +Wis. Stat. § 175.60. Employers may prohibit employees from doing so in the workplace, however, if they post signs at all entrances to the place of employment stating that the carrying of a firearm or weapon is prohibited. Id. Employers should include prohibitions on the possession of firearms or weapons at the workplace as well. Wisconsin employers cannot bar employees from keeping weapons in their vehicles parked on company property and cannot, as a condition of employment, prohibit a licensed employee from carrying a concealed weapon outside of the workplace.
Individuals carrying a weapon who remain in a workplace after having been notified that they are not allowed on the premises with a weapon are subject to penalty under Wisconsin's trespass statute. +Wis. Stat. § 943.13(1m)(c).
Wisconsin law prohibits smoking in certain public places, including public and private-sector workplaces. +Wis. Stat. § 101.123.
Use of Lawful Products
Wisconsin employers may not discriminate against any individual based on that person's use or nonuse of any lawful product. +Wis. Stat. § 111.31; +Wis. Stat. § 111.321; +Wis. Stat. § 111.35. Accordingly, employers cannot prohibit through work rules those activities in which an employee can lawfully engage outside of work. Nonprofit organizations dedicated to the discouragement of certain lawful activities, i.e. smoking, are exempted from this rule and may discriminate against individuals who engage in the lawful activity that the organization is dedicated to eradicating. +Wis. Stat. § 111.35.
Employers may take action against employees who use lawful products off company time, if the use of the products impairs the employee's ability to perform his or her job. +Wis. Stat. § 111.35(2).
Alcohol and Drugs
Alcoholism is considered a disability in Wisconsin. See Connecticut Gen. Life Ins. Co. v. DIHLR, +86 Wis. 2d 292, +273 N.W.2d 206 (1979). Therefore, an employee may not be disciplined or discharge simply because he or she is an alcoholic. However, an employer may discipline or discharge an employee if the employee's current use of alcohol prevents the employee from properly performing his or her job. See Squires v. LIRC, +97 Wis. 2d 648, +294 N.W.2d 48 (Ct. App. 1980). Therefore, work rules prohibiting the use of drugs and alcohol in Wisconsin should be careful to differentiate from the use of alcohol and/or drugs on company time or being under the influence of the same on company time and an employee's addiction to alcohol or drugs.
Election Day Leave
Employees are entitled to up to three consecutive hours of leave from work to vote. +Wis. Stat. § 6.76. Employers may not deny this leave, but may designate the hours the leave may be taken. Employees are obligated to notify the employer of their desire to vote ahead of election day. Employer's may deduct the time lost from an employee's pay, but may not impose any other penalty on the employee for leaving work to vote.
In addition, employers may not refuse to allow employees to serve as election officials or make any threats or offer any inducements in order to prevent employees from doing so. +Wis. Stat. § 6.76.
Employers must grant employees leaves of absence without loss of service time to serve on a jury. +Wis. Stat. § 756.255. An employer may not use an employee's jury service as a basis for discharge or disciplinary action.
Wisconsin provides leave and reinstatement rights to employees who are absent from work due to active state service, regardless of the employee's state of residence, and such rights are identical to those created by USERRA.
Active state service means any of the following:
- State active duty or active duty in the National Guard under federal law;
- Active duty in the State Defense Force;
- Active service with the state laboratory of hygiene during a state of emergency relating to public health; or
- Active duty in the National Guard of any US state or territory under an order of the governor of that state.
Eligibility for reemployment is contingent on the following conditions: the employee must provide advance notice of the period of active service, if possible; the leave does not extend beyond five years; the employee submits a petition for reemployment to the employer; and the employee's military service was not terminated for less than honorable reasons. +Wis. Stat. § 321.65.
See USERRA: Wisconsin.
Wisconsin's Fair Employment Act prohibits discrimination and retaliation against military personnel for their military status or because an employee has applied to serve in the military. +Wis. Stat. §§ 111.321.
Family and Medical Leave in Wisconsin
The Wisconsin Family and Medical Leave Act, +Wis. Stat. § 103.10, requires that employers with 50 or more employees offer certain amounts of leave for qualifying employees in the event of serious illnesses, childbirth, and adoption. Employees are generally entitled to 2 weeks of leave in a 12-month period for their own serious illnesses or to care for a child, spouse or parent suffering from such an illness. +Wis. Stat. § 103.10(3)(a)(2); +Wis. Stat. § 103.10(4). Childbirth and adoption entitle eligible employees to 6 weeks of leave in a 12-month period. +Wis. Stat. § 103.10(3)(a)(1).
Bone Marrow and Organ Donation Leave
Effective July 1, 2016, Wisconsin employers with 50 or more employees must provide up to 6 weeks of leave in a 12-month period to employees who serve as bone marrow or organ donors using unpaid leave or substituting any paid leave the employee has. An employee is eligible if he or she worked for the employer for more than 52 consecutive weeks and for at least 1,000 hours during the preceding 52-week period. Leave may be taken only for the period necessary for the employee to undergo the procedure and recovery. +2015 Bill Text WI S.B. 517; See Other Leaves: Wisconsin .
Work Schedules and Overtime
Accordingly, employers must be careful to properly identify exempt and nonexempt employees in their handbooks.
Employees in factory or mercantile establishments must be given one day of rest in every seven days. An employee may work during this 24-hour period only if there is an emergency (e.g., breakdown of machinery or equipment) requiring the employee's immediate services to prevent serious bodily injury, property damage or suspension of necessary operations, when experienced and competent labor is not otherwise immediately available.
The law contains exceptions and does not apply to various occupations Additionally, effective July 14, 2015 (or upon expiration, extension, modification or renewal of an applicable collective bargaining agreement with contrary provisions), the law also does not apply to an employee who states in writing that he or she voluntarily chooses to work without at least 24 consecutive hours of rest in seven consecutive days. +Wis. Stat. § 103.85, as amended by +2015 Bill Text WI S.B. 21.
Wisconsin law contains no provisions expressly dedicated to workplace violence. In 2011, Wisconsin enacted a law allowing licensed residents to carry concealed weapons. +Wis. Stat. § 175.60. For restrictions on the carrying of such weapons in the workplace, see the subsection devoted to firearms above.
Employers also have a common law obligation to provide employees with a safe working environment, which includes a duty to hire competent, non-dangerous employees. The Wisconsin Supreme Court has held that employers can be held liable for the negligent hiring, training, supervision, and retention of employees. See Miller v. Wal-Mart Stores, Inc., +219 Wis. 2d 250 (1998).
In other states, third party victims of workplace violence have successfully pursued negligence, assault, battery, wrongful death, emotional distress, and other tort claims against employers. Therefore, employers are wise to employ a zero tolerance policy with respect to workplace violence. Strictly and consistently applied, such a policy can provide a legitimate, nondiscriminatory means of dealing with employees who act out against co-workers. See Adams v. Henderson, +166 F.3d 1208 (4th Cir. 1998).
Breastfeeding in the Workplace
A woman is permitted to breastfeed her child in any public or private location where the mother and her child are authorized to be. +Wis. Stat. § 253.16.
There are no new developments to report at this time. Continue to check XpertHR regularly for the latest information on this and other topics.