AB265: Bill Text

LRB-0153/1

KRP:emw

2019 - 2020 LEGISLATURE

2019 Assembly BILL 265

June 7, 2019 - Introduced by Representatives Hebl, Anderson, Crowley, Milroy, Neubauer, Sargent, Sinicki, Spreitzer, Subeck, C. Taylor and Zamarripa, cosponsored by Senators Hansen, Carpenter, Larson, Smith and Wirch. Referred to Committee on Labor and Integrated Employment.

AB265,1,4 An Act to amend 111.322 (2m) (a) and 111.322 (2m) (b); and to create 103.035 of the statutes; relating to: the rights of employees to request and receive work schedule changes; predictable work schedules for retail, food service, and cleaning employees; granting rule-making authority; and providing a penalty.

Analysis by the Legislative Reference Bureau

This bill provides that an employee who works for an employer, including the state and political subdivisions, that employs at least 15 employees (employer) has the right to request and receive changes to the employee's work schedule under certain circumstances. The bill also provides rights regarding work scheduling for employees in certain retail, food service, or cleaning occupations or other occupations designated by the Department of Workforce Development.

Employee right to request and receive work schedule changes

The bill provides that an employee may request changes to the employee's work schedule, and an employer must negotiate in good faith with the employee to accommodate the employee's request while also meeting the employer's needs. Unless an employer has a bona fide business reason for denying the request, the employer must approve an employee's request if it is directly related to any of the following:

1. A serious health condition of the employee.

2. Responsibilities of the employee as a caregiver for a child or other family member.

3. Enrollment of the employee in an educational or training program or program of study that leads to a recognized postsecondary credential.

4. Work scheduling conflicts of an employee who is part time with the employee's other employment.

If an employer denies an employee's request, the employer must inform the employee of the reasons for denial, including whether any of the reasons is a bona fide business reason. The term “bona fide business reason” is defined in the bill.

Predictable work schedules for retail, food service, and cleaning employees

The bill provides that an employer that employs an employee in certain retail, food service, or cleaning occupations (service employee) must provide the service employee with a written copy of the service employee's work schedule on or before the service employee's first day of work. With certain exceptions, if an employer changes a service employee's work schedule, the employer must provide the new work schedule no later than 14 days in advance.

If an employer changes a service employee's work schedule with less than 14 days' advance notice, the employer must pay the service employee an amount equal to the service employee's regular rate of pay for one hour of work, unless 1) the service employee consents to the change or 2) 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.

If an employer uses the following scheduling practices, the employer must compensate a service employee subjected to those practices as follows:

1. If the service employee reports to work and the employer does not allow the service employee to work all time scheduled, the employer shall provide the service employee with the following compensation: 1) if the service employee is scheduled to work four 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; or 2) if the service employee is scheduled to work more than four hours and works less than four hours, an amount equal to the service employee's regular rate of pay for the difference between four hours and the amount of time the service employee actually works.

2. If the employer requires the 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 service employee must report to work, the employer must pay the service employee an amount equal to the service employee's regular rate of pay for one hour of work.

3. If the employer requires the service employee to work a split shift, the employer must pay the service employee an amount equal to the service employee's regular rate of pay for one hour of work.

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.