Lathrop GPM

1

GENERAL PRINCIPLES

Forums For Adjudicating Employment Disputes

Employment disputes may be adjudicated in either federal or state courts, depending upon the legal claims involved. Discrimination, harassment, and retaliation claims are handles first by either Wisconsin’s state agency, the Equal Rights Division or the Equal Employment Opportunity Commission. An aggrieved employee can choose to remove his or her case to federal or state court after they have received an initial determination by the state’s investigator. Unemployment law and workers’ compensation disputes are handled first in the administrative agencies. Decisions of the administrative agencies may be appealed to the state courts.


The Main Sources Of Employment Law

All employment arrangements are governed by general common law principles of contract law, but there are statutory requirements which over-ride those general principles in some instances. Individual contracts (whether written or oral), collective bargaining agreements and common practice all form part of the contractual employment relationship.


National Law And Employees Working For Foreign Companies

Statutory rights of Wisconsin apply to all individuals physically working in Wisconsin, regardless of nationality and regardless of the law governing their contract of employment. Contractual law may also apply in appropriate cases.


National Law And Employees Of National Companies Working In Another Jurisdiction

Federal law generally applies to all employees working in the United States and, in some circumstances, to employees outside of the United States who work for U.S.-based companies.


Data privacy

Wisconsin privacy laws require an entity that collects personal information in the ordinary course of its business to notify any individuals whose personal information has been acquired by an unauthorized entity. “Personal information” includes an individual’s name, driver’s license or state identification number, financial account information, credit card information, DNA profile, fingerprint, voice print, retina or iris image, or any other unique physical representation

2

HIRING THE EMPLOYEE

Applicants

Although Wisconsin has not passed “Ban the Box” legislation, Wisconsin’s non-discrimination statute prohibits an employer from discriminating against an applicant or employee who has been arrested for a criminal violation. Employers may defer consideration of an applicant until a time after the criminal proceedings have been completed. Employers may only refuse to hire an applicant who has been convicted of a crime if the circumstances of the crime substantially relate to the job duties that would be performed in the position being filled.


Legal Requirements As To The Form Of Agreement

Agreements can be oral or written, but oral contracts must terminate within one year in order to be recognized by Wisconsin courts.


Mandatory Requirements
  • Trial Period

    • Trial periods are not mandatory in Wisconsin.

  • Hours Of Work

    • Wisconsin law mirrors federal law, which requires overtime to be paid at a rate of one-and-a-half times the regular rate of pay for all hours that an employee classified as “non-exempt” works in excess of 40 hours per week. The state overtime law applies to most Wisconsin employers, including state and local units of government, but not necessarily to each individual worker.

  • Special Rules For Part-time Work

    • Wisconsin allows less frequent pay periods for part-time fire fighters or part-time emergency medical services practitioners who are members of a volunteer fire department or emergency medical services program.

  • Earnings

    • Effective July 24, 2009, the federal minimum wage is USD $7.25 an hour.

    Wisconsin also maintains minimum wage restrictions, requiring $5.90 an hour for “Opportunity Employees,” or employees not yet 20 years old who have been employed for 90 or fewer consecutive days from the date of hiring, and USD $7.25 an hour for “Non-Opportunity Employees.” In addition, tipped employees in Wisconsin may be paid less -USD $2.13 for “Opportunity Employees” and USD $2.33 per hour for “Non-Opportunity Employees.” Wisconsin law also provides special wage and hour requirements for certain disabled workers.

  • Holidays/Rest Periods

    • Wisconsin does not require an employer to provide employees with rest periods or holiday allowance. However, if an employer does provide vacation pay and does not include a written forfeiture provision, the employer must pay employees for any earned, unused vacation pay at termination.

    An employer in Wisconsin must provide minors who work six or more hours with a 30-minute meal period scheduled as close as possible to normal mealtimes. The Wisconsin Administrative Code recommends, but does not require, a similar policy for employees over the age of 18.

    In addition, Wisconsin law provides that all employees in certain occupations, including factories and mercantile establishments, must receive 24 consecutive hours of rest in each calendar week.

  • Minimum/Maximum Age

    • Wisconsin child labor law provisions apply to employees under the age of 18. The minimum age for employment depends on the occupation. Some occupations or fields of employment prohibit the employment of minors altogether, but generally the minor must be at least 14 years of age to begin working. The Wisconsin Department of Workforce Development regulates the number of hours and times of day that minors may work. Work permits must be obtained before anyone under the age of 16 years is allowed to work in any job, with the exception of agriculture and domestic service work.

  • Illness/Disability

    • There are no mandatory requirements for employers to address illness or disability in an employment agreement. However, the Wisconsin Family Leave Act (WFLA) requires employers of 50 or more permanent employees during at least 6 of the last 12 months to permit qualified employees to take unpaid family or medical leave for designated numbers of weeks per calendar year under certain circumstances. To be eligible, employees must have worked for the employer for at least one year and must have worked at least 1,000 hours during the 12 months preceding the leave request.

    State and federal law prohibit discrimination on the basis of disability and require reasonable accommodation of qualified disable individuals.

  • Location Of Work/Mobility

    • There are no specific requirements placed on the employer or employee with regards to the location of work or mobility of the employee.

  • Pension Plans

    • There are no pension plan requirements in Wisconsin.

  • Parental Rights (Pregnancy/ Maternity/ Paternity/ Adoption)

    • The federal Family and Medical Leave Act requires employers to provide unpaid parental leave under certain conditions. The Wisconsin Family Leave Act (WFLA) requires employers of 50 or more employees to permit employees to take up to six weeks of unpaid leave in a twelve-month period for the birth or adoption of a child if the leave begins within 16 weeks of the child’s birth.

  • Compulsory Terms

    • There are no compulsory terms of employment in Wisconsin.

  • Non-Compulsory Terms

    • Parties are free to agree to other non-compulsory terms. However, certain other terms may not be enforceable if they are contrary to public policy.


Types Of Agreement

Wisconsin law does not provide different rules for different types of agreements. However, many categories of employees are protected from discrimination (see below). Collective bargaining agreements in the private sector are generally subject to the jurisdiction of the National Labor Relations Board under the federal labor law known as the National Labor Relations Act, which requires that where a union has been certified to represent employees, the union and the employer must bargain in good faith for agreement on terms and conditions of employment and other matters. In addition, certain provisions of such agreements are considered unlawful subjects for bargaining.


Secrecy/Confidentiality

For information that is confidential in nature and is highly-sensitive but does not rise to the level of a trade secret, a non-disclosure agreement is permissible. In Wisconsin, a two-year restriction generally appears reasonable. If confidential information includes a formula, pattern, compilation, program, device, method, technique, or process, it is likely to be a “trade secret,” and a covenant is not necessary. The Trade Secrets Act protects such materials from disclosure. Wisconsin employers may not request or require employees or applicants to provide access information for or allow observation of their personal Internet account.


Ownership of Inventions/Other Intellectual Property (IP) Rights

There are no specific rules in Wisconsin about ownership of inventions or other intellectual property rights.


Pre-Employment Considerations
  • Wisconsin law prohibits an employer from misrepresenting the nature or duties of the job, the compensation, or the safety and related conditions of the employment in a job advertisement.
  • There are no Wisconsin laws or regulations that preclude an employer from conducting background checks on prospective employees. However, employers are prohibited from discriminating against individuals because they have an arrest record or a conviction record unless there is a substantial relationship between the circumstances of the crime and the job duties. An employer may consider an arrest record if there is a pending charge and only where there is a nexus to the particular job.
  • Wisconsin does not regulate drug and alcohol testing.
  • [Employers generally cannot require honesty testing (such as polygraph tests) or genetic testing as part of the application process. Genetic testing is allowed if requested by the employee and is for the investigation of a workers’ compensation claim or used to determine an employee’s susceptibility or exposure to potentially toxic chemicals or substances in the workplace.

Hiring Non-Nationals

There are no specific rules unique to Wisconsin about hiring non-nationals. Federal law exclusively governs the hiring of non-nationals. Under federal law, employers may hire non-nationals only if they are authorized to work in the United States; but may not discriminate against any person so authorized on the basis of his or her national origin. Authorization to work in the United States may be granted as a direct result of immigration status or may require the non-national and/or employer to apply individually for employment authorization.

 

Hiring Specified Categories Of Individuals

There are no specific rules in Wisconsin about hiring specified categories of individuals.


Outsourcing And/Or Sub-Contracting

There are no restrictions placed on outsourcing and subcontracting unless a collective bargaining agreement contains such restrictions. In such cases, the agreement would be governed by the federal labor law as noted above.

3

MAINTAINING THE EMPLOYEE RELATIONSHIP

Changes To The Contract

Most employment relationships are “at-will” and in these cases employers are free to prospectively alter the terms and conditions of the employment relationship.


Change In Ownership Of The Business

There are no specific rules that apply or specific steps that need to be followed in the event of a change of ownership in a business. If only the assets of a business are sold, as opposed to its stock, employees do not necessarily retain their employment. Rather, whether to continue employment in an asset transaction is within the new owner’s control.


Social Security Contributions

Federal law provides for compulsory social security contributions from both the employer and the employee in the form of taxes paid by both the employer and employee, with the employee’s half withheld from the employee’s wages.


Accidents At Work

Workers’ compensation law may apply if the employee is injured while at work. Other laws may also apply to the employer’s treatment of an employee as a result of the injury, including disability laws and access to leave.


Discipline And Grievance

Unless a collective bargaining agreement or a specific contract provision applies, state and federal law do not govern discipline or grievance procedures.


Harassment/Discrimination/Equal pay

The Wisconsin Fair Employment Act (WFEA) prohibits discrimination based on age, race, creed, religious observance or practice, colour, disability, marital status, sex, national origin, ancestry, arrest record, conviction record, military service (including membership in the National Guard, state defence force or any reserve component of the military forces of the United States or Wisconsin), the use or non-use of lawful products off the employer’s premises during non-working hours, or declining to participate or participating in any communication about religious or political matters. Additionally, employees may not be terminated based on the results of any lie detector or genetic test. Retaliation for exercising rights under the WFEA is forbidden.

Sex discrimination includes discrimination against a woman on the basis of pregnancy, childbirth, maternity leave or related medical conditions, and includes discriminatory actions concerning fringe benefit programs covering illnesses and disability. Sexual discrimination also includes sexual harassment, which is defined as “unwelcome sexual advances, unwelcome requests for sexual favours, unwelcome physical contact of a sexual nature or unwelcome verbal or physical conduct of a sexual nature.”


Compulsory Training Obligations

There are no rules relating to compulsory training obligations.


Offsetting Earnings

Employers generally may not make deductions from wages except as authorized by statute. For example, an employer may not withhold or otherwise deduct funds from an employee’s final pay for faulty workmanship or lost, stolen, or damaged property, without the employee’s written consent.


Payments For Maternity And Disability Leave

There are no statutory requirements for an employer to provide an employee with paid maternity or disability leave.


Compulsory Insurance

Wisconsin law does not require an employer to offer health insurance benefits to its employees, although coverage must be offered to all “eligible employees” and their dependents if an employer purchases a group health benefit plan from an insurer. Most employers must participate in state-administered insurance plans for work-related injuries and for unemployment.


Absence For Military Or Public Service Duties

Federal law provides that employers must allow employees to take leave where an employee is a specific military service member. In certain circumstances leave should also be afforded to employees whose, family member(s) is required to go on military service. Employees who are required to care of someone who has been injured as a result of military service should be afforded leave. Wisconsin law also provides leave for jury duty, court appearances, and voting time under certain circumstances.


Works Councils or Trade Unions

There are no Wisconsin laws relating to works councils or trade unions.


Employees’ Right To Strike

Private workers in Wisconsin generally have the right to strike or take other work-based actions if contract negotiations with an employer reach a stalemate.


Employees On Strike

Under federal law, the employer can hire and employ temporary replacements for striking workers. The employer also has a somewhat more limited right to permanently replace striking workers. Workers cannot, however, be fired because they have been on strike or otherwise engaged in protected concerted activities.


Employers’ Responsibility For Actions Of Their Employees

Employers may be vicariously liable to third parties for acts committed by their employees within the scope of their employment duties. In addition, employers may be directly liable for their own negligence in failing to ascertain an employee’s propensity to inflict injury.

4

FIRING THE EMPLOYEE

Procedures For Terminating the Agreement

Unless otherwise specified in a collective bargaining agreement or employment contract, there are no specific rules relating to the specific forum for terminating the agreement or specific procedures which have to be followed.


Instant Dismissal

In the absence of contractual, statutory, or public policy limitations, an employer has the right to end the employment relationship with or without cause and without notice at any time.


Employee's Resignation

An agreement can be terminated by the employee’s resignation.


Termination On Notice

There are no minimum periods of notice required, and even contractual notice requirements for employees are not enforced under Wisconsin law. However, under both federal and Wisconsin law, workers must be given 60 days’ notice prior to certain plant closures or mass layoffs.


Termination By Reason Of The Employee's Age

The prohibition against employment discrimination on the basis of age applies only to discrimination against an individual who is age 40 or over and does not apply to the implementation of retirement plans (so long as a given plan is not a subterfuge to evade the anti-discrimination laws) or the application of varying insurance coverage according to an employee’s age


Automatic Termination In Cases Of Force Majeure

Wisconsin law does not provide for automatic termination of an agreement in cases of force majeure.


Collective Dismissals

Under Wisconsin’s Business Closing and Mass Layoff Law requires employers with 50 or more employees in Wisconsin must provide written notice 60 days prior to implementing a business closing or mass layoff in the state. A business closing occurs when 25 or more employees experience employment loss because of the permanent or temporary shutdown of a site or multiple sites operating within a single municipality. A mass layoff occurs when there is an employment loss of at least 25% of the workforce or 500 or more employees.


Termination By Parties’ Agreement

The parties are free to agree to termination on any lawful grounds.


Directors Or Other Senior Officers

There are no separate rules for firing directors or other senior officials.


Special Rules For Categories Of Employee

There are no other categories of employees for whom special rules apply on termination.


Whistleblower Laws

Employees cannot be retaliated against for reporting or filing a complaint regarding a health or safety violation in the workplace under Wisconsin’s Employee's Right-to-Know Law.


Specific Rules For Companies in Financial Difficulties

There are no specific rules which apply when a business gets into financial difficulties. However, a bankruptcy court may impose requirements in specific cases under the broad powers granted to such courts under federal law.


Special Rules For Garden Leave

Wisconsin does not have any special rules for garden leave.


Restricting Future Activities

Restrictive covenants in an employment contract are lawful and enforceable when limited to a specific geographic area and time, and when reasonably necessary to protect the employer.


Severance Payments

Normal contractual principles apply to severance payments included in the contract.


Special Tax Provisions And Severance Payments

Severance payments are normally taxed as wages.


Allowances Payable To Employees After Termination

There are no allowances payable by the employer to the employee after termination. Although most employers are required to pay a quarterly Unemployment Insurance (“UI”) tax on a certain amount of each employee’s wages. The tax is deposited in the Wisconsin UI Fund, which is used to pay unemployment benefits to eligible applicants who are unemployed.


Time Limits For Claims Following Termination

Claims under the Wisconsin Fair Employment Act must be commenced within 300 days after the occurrence of the alleged unlawful practice. The limitation period for breach of contract is six years. The limitations period of intentional torts is generally three years.

5

GENERAL

Specific Matters Which Are Important Or Unique To This Jurisdiction

Criminal Records

Under the WFEA, an employer is limited in the extent it may inquire about the criminal records of job applicants or use such criminal records in employment decisions. As stated above, generally, an employer may not ask a prospective employee about a historical arrest record except for pending charges. Additionally, an employer may not terminate an existing employee based on a conviction record or refuse to hire an applicant based solely on the arrest or conviction record. Similarly, employers may not take other adverse employment actions – such as failure to promote or compensate – based on an arrest or conviction record.

Personnel Records

State law requires that employers keep wage and hour records, workers’ compensation records, and records relating to new hires. Whatever records an employer generates, state law requires that those records be kept for at least one year while any discrimination complaint is pending. Wage and hour records must be kept for at least three years.

There are no other specific matters which are important or unique to Wisconsin.



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Neil Goldsmith
Lathrop GPM
United States


Caitlin Gehlen
Lathrop GPM
United States


Disclaimer:

© 2021, Lathrop GPM. All rights reserved by Lathrop GPM as author and the owner of the copyright in this chapter. Lathrop GPM has granted to Multilaw non-exclusive worldwide license to use and include this chapter in this guide and to sublicense Lexis Nexis, a division of RELX Inc. and its affiliates certain rights to use and distribute this Guide.

The information in the How to Hire and Fire Guide provides a general overview at the time of publication and is not intended to be a comprehensive review of all legal developments nor should it be taken as opinion or legal advice on the matters covered. It is for general information purposes only and readers should take legal advice from a Multilaw member firm.

Publication Date: June 2021