As the coronavirus pandemic continues to run its course, Wisconsin employers should be prepared for an increase in claims arising from job losses caused by pandemic shutdowns and related employment decisions.
While much attention is rightfully given to federal employment laws, it is important to note that state laws can – and often do – vary considerably from federal laws. Importantly, when two or more laws apply to an employee, the employee generally receives the benefit of the most favorable provision. That said, understanding nuances between state and federal law can reduce legal liability.
This article highlights what employers should know when it comes to five key differences between Wisconsin and federal employment laws.
Family and Medical Leave
While paid leave under the Families First Coronavirus Response Act (FFCRA) will continue through the end of 2020, the FFCRA only applies to coronavirus-related illnesses and leave scenarios.
Keith Kopplin, Marquette 2005, is a shareholder with Ogletree Deakins Milwaukee, where he focuses his practice on employment litigation and employment law matters.
Marquette 2014, is an attorney with Ogletree Deakins in Milwaukee, where she focuses on labor, employment, and immigration issues at the state and federal levels.
That said, unpaid leave under the federal Family and Medical Leave Act of 1993 (FMLA) has been and will continue to be in effect for qualifying events and illnesses. So, too, with respect to unpaid leave under Wisconsin’s mini-FMLA law at Wis. Stat. sections 103.10 – 103.11 and Wis. Admin. Code Chapter DWD 225 (WFMLA). These laws are similar in concept, but different in a number of significant ways.
To be eligible for federal FMLA, an employee must have been employed for 12 months, worked for at least 1,250 hours in the preceding 12-month period, and work at a jobsite that is within 75 miles of 50 or more employees.
Wisconsin’s eligibility rules are more generous to employees in a number of ways. First, workers only need 1,000 hours in the prior 12-month period.1 Second, Wisconsin measures eligibility based on hours paid, not hours worked.2 Third and perhaps most significantly, the WFMLA is available to any Wisconsin-based employee of an employer with at least 50 employees, regardless of where the other employees live and work. That said, employers headquartered in other states can be required to provide WFMLA leave to even just a single Wisconsin-based employee.
Notwithstanding the more generous eligibility standards, WFMLA provides shorter leave entitlements, directly tied to the condition at issue. More specifically, employees are entitled only to six weeks of unpaid leave for the birth and bonding of their natural child, two weeks of unpaid leave for their own serious health condition, two weeks of unpaid leave for the serious health condition of a covered family member, and six weeks of unpaid leave for bone marrow or organ donation. Federal FMLA, by contrast, provides up to 12 weeks of unpaid leave for most conditions, and up to 26 weeks for military caregiver leave.
The WFMLA is also more generous as to intermittent leave. The federal FMLA requires intermittent leave only when it comes to an employee’s own or a family member’s serious health condition. Intermittent leave for birth or adoption of a healthy child is left to the employer’s discretion. Not so under Wisconsin law, which requires employers to permit intermittent leave following the birth or adoption of a child, provided the last increment of leave begins within 16 weeks of the child’s arrival.
Finally, employers in Wisconsin need to keep in mind that the WFLMA permits employees to elect to substitute paid or unpaid leave under their employer’s specific policies for unpaid leave. Employers cannot require that employee’s substitute paid for unpaid leave.3 In this regard, the WFMLA is more generous than the federal FMLA, which allows employers to require substitution of paid leave for unpaid FMLA.4
Much like the federal anti-discrimination framework under Title VII, the ADA, and the ADEA, the Wisconsin Fair Employment Act (WFEA) prohibits discrimination on the basis of age, race, creed, color, disability, sex, national origin, and ancestry.5
Wisconsin law provides additional protection to employees by prohibiting discrimination on a number of other bases, including:
arrest and conviction record;
use or nonuse of lawful products (such as cigarettes or alcohol) off the employer's premises during nonworking hours; and
declining to attend a meeting or to participate in any communication about religious matters or political matters.6
These additional employee protections, however, come with some qualifications. For example, protection for those with arrest and conviction records does not outright prohibit employers from making adverse employment decisions based on those records, provided the arrests and convictions are “substantially related” to the employee’s underlying job duties.
Similarly, marital status protection does not prohibit discrimination based on the identity of one’s spouse, but rather merely the status of being married.7
Use of lawful products off duty and off premises can be regulated if it substantially impairs the employee’s ability to complete their job-related responsibilities.8
And prohibiting employers from requiring employees’ attendance at political or religious meetings or requiring their participation in communications does not apply to religious and political organizations,9 nor does it ban voluntary meetings and communications.10
Finally, the procedural requirements for processing discrimination complaints filed under WFEA are different from those for charges filed with the United States Equal Employment Opportunity Commission (EEOC) under federal law. Most significantly, evidentiary hearings take place at the agency level before the Wisconsin Department of Workforce Development Equal Rights Division (ERD). Once the parties have had the opportunity to state their position in writing to the ERD, the assigned investigator will issue an initial determination of either no probable cause – which the complainant can appeal – or probable cause.
Upon a determination of probable cause, or an appeal by the complainant of a no probable cause determination, the ERD will schedule a hearing and permit the parties to undertake written discovery and depositions in order to prepare. If the hearing is on the issue of probable cause, it triggers a second hearing on the merits if the complainant succeeds. Final decisions and orders are also subject to review by the Labor and Industry Review Commission (LIRC), and LIRC decisions can be appealed to the Wisconsin circuit court.
Claims that exist under both state and federal law are generally cross-filed with the ERD and the EEOC. If the ERD investigates first, the EEOC will generally adopt its findings. If the EEOC investigates first, however, the ERD will generally offer the complainant an independent investigation with the right to a hearing as outlined above.
Wage and Hour Laws
Although modeled after the federal Fair Labor Standards Act (FLSA) and its implementing regulations, Wisconsin’s wage and hour laws differ in a few respects, some of which may significantly affect liability.
When it comes to exempt status, Wisconsin law generally tracks the job duties associated with the FLSA’s white collar exemptions, but indicates that certain exemptions require that workers not spend more than 20% of their hours of work (40% for retail or service establishments) on activities that are not directly and closely related to the job duties associated with the exemption.11 The FLSA, by contrast, requires most exempt employees to have exempt work as their “primary duty,”12 which is defined to mean their principal, main, major, or most important duty.13
One notable exception to Wisconsin’s percentage-based test is the outside sales exemption, which was amended in 2018 to mirror the FLSA.14 It is also important to note that Wis. Admin. Code § DWD 274.04 provides that “these exemptions shall be interpreted in such a manner as to be consistent with the [FLSA].”
Likely the most notable difference between Wisconsin wage and hour law and the FLSA is their respective treatment of what constitutes “work” for nonexempt employees. Although not required for employees over the age of 18, meal periods, for example, are compensable, unless the employee is completely relieved of duty for 30 consecutive minutes during which they are free to leave the premises. Captive meals are not compensable under federal law.15
Wisconsin’s rules regarding travel away from the home community also differ from federal law. More specifically, Wis. Admin. Code § DWD 272.12(2)(g) provides that certain time spent in travel may constitute compensable work, including “travel time away from the home community for business purposes that occurs for the benefit of the employer.” Under the FLSA, travel from the home community is compensable to the extent it occurs during the employee’s normal work day.16
Wisconsin law is also different from the FLSA when it comes to preliminary and postliminary donning and doffing of clothing and equipment. While the FLSA expressly permits employers and unions to bargain over the compensability of such activities,17 Wisconsin law does not.18
Wisconsin’s Mini-WARN Act
There are a number of differences between the federal Worker Adjustment and Retraining Notification Act of 1988 (WARN Act) and Wisconsin’s mini-WARN Act.
Generally speaking, Wisconsin’s mini-WARN Act has lower thresholds for reduction-in-force events to trigger obligations under the statutes. That said, Wis. Admin. Code § DWD 279.002 provides interpretive guidance where ambiguity exists between the two acts:
“Whenever possible, this chapter will be interpreted in a manner consistent with [federal WARN], the federal regulations and court decisions interpreting that Act to the extent that the provisions of federal and state law are the same.”
Wisconsin’s mini-WARN Act has some stark differences from its federal counterpart. To start, it provides a lower threshold requirement to be considered a covered employer. While the federal law provides that employers with 100 or more employees are covered, Wisconsin instead requires half that – 50 employees qualifies an employer to be covered under the Wisconsin law.19
Further, Wisconsin law defines a plant closing differently than the federal law. Federal WARN defines a plant closing as a permanent or temporary shutdown of a single site of employment, or one or more facilities or operating units within a single site of employment, if the shutdown results in an employment loss at the single site of employment during any 30-day period for 50 or more employees, excluding part-time employees. In Wisconsin, such an event is termed a “business closing.” However, this term applies to a permanent or temporary shutdown of an employment site or one or more facilities or operating units at an employment site or within a single municipality that affects 25 or more employees, excluding new or low-hour employees. Wis. Stat. § 109.07(1)(b). Thus, a “business closing” can be aggregated under Wisconsin law where the business’ otherwise independent operations in a single municipality are considered one under the Act.
Further, Wisconsin law provides a lower threshold than the federal law for a reduction in force to be considered a “mass layoff” and thus trigger notice under the statutes. Federal WARN defines a mass layoff as a non-plant closing in which there are either:
By contrast, a reduction in force is considered a mass layoff for purposes of the Wisconsin mini-WARN Act where, at an employment site or within a single municipality:
at least 25 percent of the employee’s workforce or 25 employees are laid off, whichever is greater; or
at least 500 employees.20
To round off the roundup, we close the discussion to note some of Wisconsin’s unique employment law features that are lacking in the federal law.
Employers that maintain personnel records must permit employees (defined to include former employees) to inspect their personnel records at least twice a year, upon written request.21
Employers are generally prohibited from deducting from an employee’s earned wages for faulty workmanship, loss, theft, or damage to property unless they secure a written authorization after the loss and before the deduction.22
Wisconsin requires employers to pay for medical exams the employer requires as a condition of employment.23
Wisconsin law requires employers to provide employees in factory or retail establishments with one day off per calendar week, unless an exception applies.24
Conclusion: Know the Laws
Understanding whether, and to what extent, Wisconsin law compels employers to treat employees and applicants differently from federal law will help to reduce liability. These differences cover many areas, including anti-discrimination mandates, leave entitlements, and wage and hour requirements.
In a post-pandemic world that presents financial challenges for businesses, recognizing and following state law nuances can mean substantial savings and even business continuity for some employers.
This article was originally published on the State Bar of Wisconsin’s Labor & Employment Law Section Blog. Visit the State Bar sections or the Labor & Employment Law Section web pages to learn more about the benefits of section membership.
1 Wis. Stat. § 103.10(2)(c).
2 Wis. Admin. Code § DWD 225.01(4).
3 Wis. Admin. Code § DWD 225.03.
4 29 CFR § 825.207.
5 Wis. Stat. §§ 111.32 - 111.395, Wis. Admin Code. § DWD 218.
6 Wis. Stat. § 111.321.
7 See Bammert v. LIRC, 2000 WI App 28, 232 Wis. 2d 365, 606 N.W.2d 620, 99-1271 (upholding LIRC’s interpretation that the statute prohibition regarding marital status discrimination protects the status of being married in general rather than the status of being married to a particular person).
8 Dable v. Petersen Health Care, ERD Case No. 9400777 (LIRC, July 30, 1997) (concluding that it was not employment discrimination to terminate an employee who used alcohol and refused to undergo an alcohol assessment, because her use of lawful products negatively affected her ability to perform her job and the employer, therefore, had a legitimate interest in determining whether or not she was capable of discharging her duties).
9 Wis. Stat. § 111.365(2)(a).
10 Wis. Stat. § 111.365(2)(c).
11 See, e.g., Wis. Admin. Code § DWD 274.04(1)(a)(5) (executive exemption).
12 29 C.F.R. § 541.100(2).
13 29 C.F.R. § 541.700.
14 See Wis. Admin. Code. § DWD 274.04(2)(b).
15 29 C.F.R. § 785.19(b).
16 29 C.F.R. § 785.39.
17 29 U.S.C. § 203(o).
18 See Piper et al., v. Jones Dairy Farm, 2020 WI 28, __ Wis. 2d __, __ N.W.2d __.
19 Wis. Stat. § 109.07(1)(d).
20 Wis. Stat. § 109.07(1)(f).
21 Wis. Stat. § 103.13(2).
22 Wis. Stat. § 103.455.
23 Wis. Stat. § 103.37(2m).
24 Wis. Stat. § 103.85.