AB265: Bill Text

If a service employee is entitled to more than one type of compensation related to employer scheduling practices with respect to a particular work shift, the employer must pay only one type of compensation, whichever is greatest.

The bill provides that, during any period in which the employer's regular operations are suspended due to an event outside of the employer's control, the employer is not required to comply with the service employee work scheduling requirements created in the bill.

The bill authorizes DWD to promulgate rules to apply the protections afforded under the bill to additional occupations if DWD determines that at least 10 percent of the individuals employed in an occupation either typically receive notice of changes to their work schedules less than 14 days before the changes take effect or regularly experience fluctuations in the number of hours the individuals are scheduled to work on a daily, weekly, or monthly basis.

Enforcement

The bill provides that an employer may not interfere with, restrain, or deny the exercise of the right of an employee created in the bill and may not discharge or discriminate against an employee for enforcing the employee's rights under the bill. An employee whose rights are violated may file a complaint with DWD, and DWD must process the complaint in the same manner that employment discrimination complaints are processed under current law. That processing may include the ordering of back pay, reinstatement, compensation in lieu of reinstatement, and costs and attorney fees.

The bill also provides that DWD or an employee whose rights are violated may bring an action in circuit court against the employer without regard to exhaustion of any administrative remedy. If the circuit court finds that a violation has occurred, the employer is liable to the employee for compensatory damages, reasonable attorney fees and costs, and, under certain circumstances, liquidated damages equal to 100 percent of the amount of compensatory damages awarded to the employee. In addition to any damages imposed on an employer in an administrative proceeding or circuit court action, an employer that willfully violates the protections created in the bill may be required to forfeit not more than $1,000 for each violation.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB265,1 Section 1. 103.035 of the statutes is created to read:

AB265,3,3 103.035 Work schedule flexibility and predictability. (1) Definitions. In this section:

AB265,3,6 (a) “Bona fide business reason” means a reason that justifies an employer's action and that is based on the employer's determination that taking a different action would have any of the following results:

AB265,4,3 1. Additional costs to the employer, including costs of lost employee productivity, retaining or hiring employees, or transferring employees between work locations.

AB265,4,5 2. A significant detrimental effect on the employer's ability to meet organizational needs or customer demand.

AB265,4,7 3. A significant inability of the employer, despite the employer's best efforts, to reorganize work among other employees.

AB265,4,8 4. A significant detrimental effect on the employer's business performance.

AB265,4,9 5. Insufficient work during the period an employee proposes to work.

AB265,4,12 6. Unfairness to other employees who request changes to work schedules if granting all requests would have a significant detrimental effect on the employer's ability to meet organizational needs.

AB265,4,13 (b) “Child” means an individual who is all of the following:

AB265,4,15 1. A biological, adopted, or foster child; a stepchild; a legal ward; or a child of a person standing in the place of a parent with respect to that child.

AB265,4,16 2. An individual to whom any of the following applies:

AB265,4,17 a. The individual is less than 18 years of age.

AB265,4,19 b. The individual is 18 years of age or older and is incapable of self-care because of a mental or physical disability.

AB265,4,20 (c) “Domestic partner” has the meaning given in s. 40.02 (21c) or 770.01 (1).

AB265,4,21 (d) “Employee” means an employee who is employed by an employer.

AB265,5,2 (e) “Employer” means an employer that employs at least 15 employees. “Employer” includes the state, its political subdivisions, and any office, department, independent agency, authority, institution, association, society, or other body in state or local government created or authorized to be created by the constitution or any law, including the legislature and the courts.

AB265,5,3 (f) “Family member” means any of the following:

AB265,5,4 1. A spouse or domestic partner of an employee.

AB265,5,6 2. A parent, child, sibling, brother-in-law, sister-in-law, grandparent, or grandchild of an employee or of an employee's spouse or domestic partner.

AB265,5,10 3. Any other individual who is related by blood, marriage, or adoption to an employee or to an employee's spouse or domestic partner and whose close association with the employee, spouse, or domestic partner makes the individual the equivalent of a family member of the employee, spouse, or domestic partner.

AB265,5,11 (g) “Grandchild” means the child of a child.

AB265,5,12 (h) “Grandparent” means the parent of a parent.

AB265,5,15 (i) “Nonexempt employee” means an employee who is not employed in a bona fide executive, administrative, or professional capacity, as described in 29 USC 213 (a) (1).

AB265,5,18 (j) “Parent” means a biological parent, foster parent, adoptive parent, stepparent, or legal guardian of an employee or of an employee's spouse or domestic partner.

AB265,5,20 (k) “Part-time employee” means an employee who works on average fewer than 30 hours per week for a particular employer.

AB265,5,25 (L) “Service employee” means a nonexempt employee who is employed in an occupation designated by the department under sub. (3) (g) or in any of the occupations classified under the following codes set forth in the Standard Occupational Classification system, 2010 edition, published by the bureau of labor statistics of the U.S. department of labor:

AB265,6,2 1. Major group code 35-0000 — Food preparation and serving related occupations.

AB265,6,3 2. Broad occupation code 37-2010 — Building cleaning workers.

AB265,6,5 3. Detailed occupation code 41-1011 — First-line supervisors of retail sales workers.

AB265,6,6 4. Minor group code 41-2000 — Retail sales workers.

AB265,6,8 (m) “Sibling” means a brother, sister, half brother, half sister, stepbrother, stepsister, foster brother, or foster sister, whether by blood, marriage, or adoption.

AB265,6,11 (n) “Split shift” means a work shift that consists of work time that is not continuous. For purposes of determining whether a work shift is continuous, any of the following breaks in work time are not considered:

AB265,6,12 1. One or more breaks for meals that total one hour or less.

AB265,6,13 2. A break that is requested by the employee.

AB265,6,16 (o) “Work schedule” means the days and times during each successive work period when an employee is required by an employer to perform duties of employment.

AB265,6,18 (p) “Work shift” means the specific times during a day that an employer requires an employee to work.

AB265,6,20 (q) “Written” does not include a communication that is transmitted or received by electronic means.

AB265,6,24 (2) Employee right to request and receive work schedule changes. (a) Employee right to request work schedule changes. 1. An employee may request a change in the terms and conditions of employment related to any of the following work schedule issues:

AB265,6,25 a. The number of hours the employee is required to work or be on call for work.

AB265,7,2 b. The days or times when the employee is required to work or be on call for work.

AB265,7,3 c. The location where the employee is required to work.

AB265,7,5 d. The amount of notification the employee receives regarding changes to the employee's work schedule.

AB265,7,7 e. Minimizing fluctuations in the number of hours the employee is scheduled to work on a daily, weekly, or monthly basis.

AB265,7,9 2. An employee who makes a request under subd. 1. shall specify in the request whether it is related to any of the following:

AB265,7,10 a. A serious health condition, as defined under s. 103.10 (1) (g), of the employee.

AB265,7,14 b. The employee's responsibilities as a significant provider of ongoing care, including responsibility for securing ongoing care, of the employee's child, family member with a serious health condition, as defined under s. 103.10 (1) (g), or parent who is 65 years of age or older.

AB265,7,16 c. The employee's responsibilities as a significant provider of education, including responsibility for securing education, of the employee's child.

AB265,7,18 d. The employee's enrollment in an educational or training program or program of study that leads to a recognized postsecondary credential.

AB265,7,20 e. If the employee is a part-time employee, conflicts with the employee's other employment.

AB265,8,3 (b) Evaluating requests for work schedule changes. If an employer receives a request from an employee under par. (a), the employer shall either grant the request without modification or negotiate in good faith with the employee to find a compromise that meets the employee's and the employer's work scheduling needs, including by considering any alternative proposals offered by the employee. If the employer denies the request and any alternative proposals offered, the employer shall inform the employee of the reasons for denial, including whether any of the reasons is a bona fide business reason.

AB265,8,8 (c) Requests related to serious health conditions, caregiving, education, or other part-time employment. Notwithstanding par. (b), if an employer receives a request from an employee under par. (a) that is directly related to any of the issues described under par. (a) 2., the employer shall grant the request unless the employer has a bona fide business reason for denying the request.

AB265,8,13 (d) Verification of reasons for requested changes. If an employer receives a request from an employee under par. (a), the employer may require the employee to provide additional information to clarify or explain the reasons for the employee's requested work schedule change if the employer needs that information to properly evaluate the request under par. (b) or (c).

AB265,8,17 (3) Predictable work schedules for retail, food service, and cleaning employees. (a) Advance notice of work schedules required. 1. On or before the first day of work of a new service employee, an employer shall provide the service employee with a written copy of the service employee's work schedule.

AB265,8,21 2. Except as provided in pars. (b) and (c), if an employer changes a work schedule provided to a service employee under subd. 1. or this subdivision, the employer shall provide the service employee with a written copy of the new work schedule no later than 14 days before the new work schedule begins.

AB265,8,23 3. An employer shall post a copy of a work schedule provided under this paragraph in any of the following ways:

AB265,8,25 a. In one or more conspicuous places where notices to employees are customarily posted.

AB265,9,1 b. On an Internet site accessible by all of the employer's employees.

AB265,9,3 4. If an employer changes a work schedule after it is posted under subd. 3., the employer shall revise the posted work schedule to reflect those changes.

AB265,9,12 (b) Employer-initiated changes to work schedules without advance notice. 1. An employer may change, without the advance notice required under par. (a) 2., a work schedule provided to a service employee under par. (a) 1. or 2. as provided in this paragraph. Except as provided under subd. 2., if the employer changes a work schedule provided to a service employee under par. (a) 1. or 2. less than 14 days before the new work schedule begins, the employer shall provide the service employee compensation for the change in an amount equal to the service employee's regular rate of pay for one hour of work in addition to any other compensation earned by the service employee.

AB265,9,15 2. An employer is not required to pay compensation to a service employee under subd. 1. for a change to the service employee's work schedule if any of the following applies to the change:

AB265,9,16 a. The service employee consents to the change.

AB265,9,19 b. The employer requires the service employee to work additional time or an additional work shift because another service employee was scheduled to work that time or work shift and is unexpectedly unavailable to do so.

AB265,9,24 (c) Employee-initiated changes to work schedules. An employer may allow a service employee to agree to work in place of another service employee if the service employees mutually agree to the change. The employer is not required to provide compensation under par. (b) 1. to a service employee with respect to a work shift trade under this paragraph.

AB265,10,5 (d) Compensation for reporting time, on-call time, and split shifts. 1. Except as provided in subd. 4., if a service employee reports to work and the service employee's employer does not allow the service employee to work all time that the service employee is scheduled to work, the employer shall provide the service employee with the following compensation:

AB265,10,9 a. If the service employee is scheduled to work 4 hours or less, an amount equal to the service employee's regular rate of pay for all time the service employee is scheduled to work but does not work in addition to any other compensation earned by the service employee for time the service employee actually works.

AB265,10,14 b. If the service employee is scheduled to work more than 4 hours and works less than 4 hours, an amount equal to the service employee's regular rate of pay for the difference between 4 hours and the amount of time the service employee actually works in addition to any other compensation earned by the service employee for time the service employee actually works.

AB265,10,21 2. Except as provided in subd. 4., if an employer requires a service employee to contact the employer, or wait to be contacted by the employer, less than 24 hours before a work shift to determine whether the employer will require the service employee to report to work for that work shift, the employer shall provide the service employee compensation in an amount equal to the service employee's regular rate of pay for one hour of work in addition to any other compensation earned by the service employee for time the service employee actually works.

AB265,11,2 3. Except as provided in subd. 4, if an employer requires a service employee to work a split shift, the employer shall provide the service employee compensation in an amount equal to the service employee's regular rate of pay for one hour of work in addition to any other compensation earned by the service employee for time the service employee actually works.

AB265,11,6 4. If a service employee is entitled to more than one type of compensation under subds. 1. to 3. with respect to a particular work shift, the employer shall pay the service employee the compensation required under subd. 1., 2., or 3., whichever is greatest.

AB265,11,12 (e) Manner of payment of additional compensation. An employer that is required to provide compensation to a service employee under par. (b) 1. or (d) shall pay that compensation on the service employee's regular paycheck or other wage payment. The employer shall identify on the paycheck, pay envelope, or paper accompanying the wage payment the amount of and reason for all additional compensation paid.

AB265,11,15 (f) Exception. An employer is not required to comply with this subsection during a period in which the employer's regular operations are suspended due to an event outside of the employer's control.

AB265,11,23 (g) Designating additional covered occupations. The department may promulgate rules to apply the protections afforded under pars. (a) to (f) to additional occupations. The department may designate an occupation under this paragraph if the department determines that at least 10 percent of the individuals employed in the occupation either typically receive notice of changes to their work schedules less than 14 days before the changes take effect or regularly experience fluctuations in the number of hours the individuals are scheduled to work on a daily, weekly, or monthly basis.

AB265,12,5 (4) Prohibited acts. (a) No employer may interfere with, restrain, or deny the exercise of the right of an employee to request and receive a change in the terms and conditions of employment as provided under sub. (2). No employer may interfere with, restrain, or deny the exercise of the right of a service employee to receive advance notice of work schedules as provided under sub. (3) (a), receive compensation as provided under sub. (3) (b) 1. and (d), or request approval to trade work shifts as provided under sub. (3) (c).

AB265,12,12 (b) No employer may discharge or discriminate against an employee in promotion, in compensation, or in the terms, conditions, or privileges of employment for exercising a right of an employee described under par. (a), opposing a practice prohibited under this section, filing or indicating an intent to file a complaint or otherwise attempting to enforce a right under this section, or testifying, assisting, or participating in any manner in any investigation, action, or proceeding to enforce a right under this section.

AB265,12,20 (5) Enforcement. (a) Administrative proceeding. An employee whose rights are interfered with, restrained, or denied in violation of sub. (4) (a) or who is discharged or discriminated against in violation of sub. (4) (b) may file a complaint with the department, and the department shall process the complaint in the same manner that employment discrimination complaints are processed under s. 111.39. If the department finds that a violation has occurred, the department may order the employer to take action to remedy the violation, including any action authorized under s. 111.39.

AB265,12,25 (b) Civil action. 1. The department or an employee whose rights are interfered with, restrained, or denied in violation of sub. (4) (a) or who is discharged or discriminated against in violation of sub. (4) (b) may bring an action in circuit court against an employer on the basis of the violation without regard to exhaustion of any administrative remedy.

AB265,13,3 2. In an action under subd. 1., if the circuit court finds that a violation of sub. (4) (a) or (b) has occurred with respect to an employee, the circuit court shall order the defendant to pay to the employee all of the following:

AB265,13,5 a. Compensatory damages in an amount that the circuit court or jury finds appropriate.