The bill makes the following changes to the family and medical leave law:
1. Requires employers that employ 25 or more employees on a permanent basis
to comply with the family and medical leave law.
2. Decreases the number of hours an employee is required to work before
qualifying for family and medical leave to 680 hours during the preceding 52 weeks.
3. Extends the time period in which an employee may file a complaint with
DWD to 300 days after either the violation occurs or the employee should reasonably
have known that the violation occurred, whichever is later.
4. Requires employers covered under the law to permit employees to take
family leave to provide care for a grandparent, grandchild, or sibling who has a
serious health condition.
5. Removes the age restriction from the definition of “child” for various
purposes under the family and medical leave law.
6. Requires employers to permit employees to take family leave to care for the
employee's child, spouse, domestic partner, parent, grandparent, grandchild, or
sibling who is in medical isolation and requires employers to permit employees to
take medical leave when the employee is in medical isolation. The bill defines
“medical isolation” to include when a local health officer or DHS advises that an
individual isolate or quarantine; when a health care professional, a local health
officer, or DHS advises that the individual seclude herself or himself when awaiting
the result of a diagnostic test for a communicable disease or when the individual is
infected with a communicable disease; and when an individual's employer advises
that an individual not come to the workplace due to a concern that the individual may
have been exposed to or infected with a communicable disease.
7. Requires employers to permit employees to take family leave in the instance
of the unexpected closure of the child care provider or school that the employee's
child, grandchild, or sibling attends or because of a qualifying exigency as to be
determined by DWD related to covered active duty, as defined in the bill, or
notification of an impending call or order to covered active duty of a child, spouse,
domestic partner, parent, grandparent, grandchild, or sibling who is a member of the
U.S. armed forces.
8. Requires employers to permit employees to take family leave to provide
caregiving services to a child, spouse, domestic partner, sibling, parent, grandparent,
or grandchild of the employee if the child, spouse, domestic partner, sibling, parent,
grandparent, or grandchild suffers from a chronic condition. The bill defines “chronic
condition” as a health condition, illness, impairment, or physical or mental condition
that involves any of the following: 1) a condition or disease that is persistent or
otherwise long-lasting in its effects; 2) a condition or disease that lasts for at least
three months; 3) a condition or disease that requires the individual to have
assistance with one or more essential daily activities; or 4) outpatient care that
requires continuing treatment or supervision by a health care provider. The bill also
includes adult children who suffer from a chronic condition in the definition of “child”
for the purposes of taking family leave for caregiving.
Small Business Retirement Savings Board; retirement savings program
The bill creates a Small Business Retirement Savings Board attached to DFI
and requires the board to establish and oversee a small business retirement savings
program for certain privately employed individuals who are not eligible for an
employer-sponsored retirement plan. The board must contract with a vendor
(investment administrator) to provide specified services in administering the
program, including investment services and record-keeping services.
Under the bill, the board consists of the following nine members: the state
treasurer or his or her designee; the secretary of financial institutions or his or her
designee; two members appointed by the governor; two members appointed,
respectively, by the speaker of the assembly and president of the senate; one member
appointed by the state treasurer; one member appointed by the State of Wisconsin
Investment Board; and one member appointed by the other members. The bill
requires certain members to possess specified attributes or experience, and all
members except the state treasurer and secretary of financial institutions, or their
designees, serve four-year terms.
Under the bill, the board must design the program to meet certain
requirements. Among these, the program must allow eligible employees to
contribute to their accounts through payroll deductions and require participating
employers to withhold from employees' wages, through payroll deductions,
employees' account contributions and remit those contributions directly to the
investment administrator. A “participating employer” is a private employer that
does not offer a retirement savings plan to all employees; has at least one employee
who is a resident of this state; provides notice to the board of its election to participate
in the program; and certifies that, on the date of this notice, it had 50 or fewer
employees. An “eligible employee” is an individual who resides in this state and who
is employed by a private employer that does not offer a retirement savings plan in
which the individual may participate. The bill defines “account” as a retirement
savings account established for an eligible employee under the program. Other
requirements of the program are that the administrative costs must be low and the
fee that the investment administrator may charge an eligible employee is limited to
a fixed monthly fee in an amount approved by the board. The program must also
allow an eligible employee who has established an account to continue the account
after separating from employment with a participating employer if the account is
maintained with a positive balance.
Under the bill, after electing to participate in the program, a participating
employer must provide notice to each of its eligible employees of the eligible
employee's right to opt out of the program. Unless the eligible employee opts out, the
participating employer must enroll the eligible employee in the program and begin
making payroll deductions, the amounts of which are remitted to the investment
administrator as account contributions of the employee. Unless a different account
type is offered and the employee selects another option, these contributions are made
to a Roth IRA for the employee. Unless the employee directs otherwise, during the
employee's first year of enrollment in the program, the participating employer must
make a payroll deduction each pay period at a rate of 5 percent of the employee's gross
wages, with this rate increasing by 1 percent per year until a maximum rate of 10
percent is reached. Under the program, the eligible employee must have certain
investment options within each account type, including a stable value or capital
preservation fund and a target date index fund or age-based fund. An eligible
employee's first $1,000 of contributions must be deposited in a stable value or capital
preservation fund, and thereafter, unless the employee selects a different
investment option, the employee's contributions must be deposited in a target date
index fund or age-based fund.
The bill specifies that, in establishing the program, the board may create or
impose any requirement or condition not inconsistent with the bill's requirements
that the board considers necessary for the effective functioning and widespread
utilization of the program. The bill also authorizes the board to enter into contracts
for services necessary for establishing and overseeing the program, including
services of financial institutions, attorneys, investment advisers, accountants,
consultants, and other professionals. The board may promulgate rules related to the
program. DFI must provide the board with assistance necessary for the program,
including staff, equipment, and office space. The board may delegate to DFI
responsibility for carrying out any day-to-day board function related to the
program.
Employment discrimination based on conviction record
The bill provides that it is employment discrimination because of conviction
record for a prospective employer to request conviction information from a job
applicant before the applicant has been selected for an interview. The bill, however,
does not prohibit an employer from notifying job applicants that an individual with
a particular conviction record may be disqualified by law or under the employer's
policies from employment in particular positions.
Employment discrimination based on gender expression and gender identity
Current law prohibits discrimination in employment on the basis of a person's
sex or sexual orientation. The bill prohibits employers from discriminating against
an employee on the basis of the employee's gender identity or gender expression.
“Gender expression” is defined in the bill as an individual's actual or perceived
gender-related appearance, behavior, or expression, regardless of whether these
traits are stereotypically associated with the individual's assigned sex at birth.
“Gender identity” is defined in the bill an individual's internal understanding of the
individual's gender, or the individual's perceived gender identity.
Civil actions regarding employment discrimination
Under current fair employment law, an individual who alleges that an
employer has violated employment discrimination, unfair honesty testing, or unfair
genetic testing laws may file a complaint with DWD seeking action that will
effectuate the purpose of the fair employment law, including reinstating the
individual, providing back pay, and paying costs and attorney fees.
The bill permits DWD or an individual who is alleged or was found to have been
discriminated against or subjected to unfair honesty or genetic testing to bring an
action in circuit court to recover compensatory and punitive damages caused by the
act of discrimination, unfair honesty testing, or unfair genetic testing, in addition to
or in lieu of filing an administrative complaint. The action in circuit court must be
commenced within 300 days after the alleged discrimination, unfair honesty testing,
or unfair genetic testing occurred. The bill does not allow such an action for damages
to be brought against a local governmental unit or against an employer that employs
fewer than 15 individuals.
Under the bill, if the circuit court finds that a defendant has committed
employment discrimination, unfair honesty testing, or unfair genetic testing, the
circuit court may award back pay and any other relief that could have been awarded
in an administrative proceeding. In addition, the circuit court must order the
defendant to pay to the individual found to have been discriminated against or found
to have received unfair genetic testing or unfair honesty testing compensatory and
punitive damages in the amount that the circuit court finds appropriate, except that
the total amount of damages awarded for future economic losses and for pain and
suffering, emotional distress, mental anguish, loss of enjoyment of life, and other
noneconomic losses and punitive damages is subject to the following limitations:
1. If the defendant employs 100 or fewer employees, no more than $50,000.
2. If the defendant employs more than 100 but fewer than 201 employees, no
more than $100,000.
3. If the defendant employs more than 200 but fewer than 501 employees, no
more than $200,000.
4. If the defendant employs more than 500 employees, no more than $300,000.
The bill requires DWD to annually revise these amounts on the basis of the
change in the consumer price index in the previous year, if any positive change has
occurred.
Worker classification notices and information
The bill requires DWD to design and make available to employers a notice
regarding worker classification laws, requirements for employers and employees,
and penalties for noncompliance. Under the bill, all employers in this state must post
the notice in a conspicuous place where notices to employees are customarily posted.
The bill provides a penalty of not more than $100 for an employer that does not post
the notice as required. DWD must also establish and maintain on DWD's website
information regarding worker classification laws, requirements for employers and
employees, penalties for noncompliance, and contact information at each state
agency that administers worker classification laws.
Substance abuse prevention; employer registration
With certain exceptions, current law prohibits employees from using,
possessing, attempting to possess, distributing, delivering, or being under the
influence of a drug, or from using or being under the influence of alcohol, while
performing certain work on a project of public works or public utility project, and
requires that, before an employer may commence work on a project of public works
or a public utility project, the employer have in place a written employee substance
abuse program.
The bill specifically allows DWD to enforce these provisions and requires
employers subject to these provisions to register with DWD. The bill allocates
registration fees to DWD's substance abuse prevention administration and
enforcement activities.
Unemployment insurance
Drug testing
Current state law requires DWD to establish a program to test certain
claimants who apply for unemployment insurance (UI) benefits for the presence of
controlled substances that is consistent with federal law. A claimant who tests
positive for a controlled substance for which the claimant does not have a
prescription is ineligible for UI benefits until certain requalification criteria are
satisfied or unless he or she enrolls in a substance abuse treatment program and
undergoes a job skills assessment, and a claimant who declines to submit to a test
is simply ineligible for benefits until he or she requalifies. The bill repeals the
requirement to establish the drug testing program.
Also under current law, an employer may voluntarily submit to DWD the
results of a preemployment test for the presence of controlled substances that was
conducted on an individual as a condition of an offer of employment or notify DWD
that an individual declined to submit to such a test. If DWD then verifies that
submission, the employee may be ineligible for benefits until he or she requalifies.
However, a claimant who tested positive may maintain eligibility by enrolling in a
substance abuse treatment program and undergoing a job skills assessment. The bill
repeals these preemployment drug testing provisions.
Benefit rates
Under current law, a person who qualifies for UI receives a weekly benefit equal
to a percentage of that person's past earnings, but the weekly benefit is capped at
$370. The bill changes the maximum weekly benefit in the following ways:
1. For benefits paid for weeks of unemployment beginning on or after January
2, 2022, but before January 1, 2023, the maximum weekly benefit is capped at $409.
2. For benefits paid for weeks of unemployment beginning on or after January
1, 2023, but before December 31, 2023, the maximum weekly benefit is capped at 50
percent of the state's annual average weekly wages.
3. For benefits paid for weeks of unemployment beginning on or after December
31, 2023, the maximum weekly benefit is capped at 75 percent of the state's annual
average weekly wages, or the maximum weekly benefit amount from the previous
year, whichever is greater.
Under the bill, DWD is required to calculate the state's annual average weekly
wage for each year based on quarterly wage reports that are submitted to DWD. The
state's annual average weekly wage is calculated by June 30 of each year and is used
to calculate the following year's maximum weekly benefit amount.
Waiting period
Currently, a claimant must wait one week after becoming eligible to receive UI
benefits before the claimant may receive benefits for a week of unemployment,
except for periods during which the waiting period is suspended. The waiting period
does not affect the maximum number of weeks of a claimant's benefit eligibility. The
bill deletes the one-week waiting period, thus permitting a claimant to receive UI
benefits beginning with his or her first week of eligibility.
Social security disability insurance payments
Under current law, in any week in any month that a claimant is issued a benefit
under the federal social security disability insurance program (SSDI benefits), that
claimant is ineligible for UI benefits. The bill repeals that prohibition and instead
requires DWD to reduce a claimant's UI benefit payments by the amount of SSDI
payments. The bill requires DWD to allocate a monthly SSDI payment by allocating
to each week the fraction of the payment attributable to that week.
Work search and registration
Under current law, a claimant for UI benefits is generally required to register
for work and to conduct a work search for each week in order to remain eligible.
Current law requires DWD to waive these requirements under certain
circumstances, for example, if a claimant who is laid off from work reasonably
expects to be recalled to work within 12 weeks, will start a new job within four weeks,
routinely obtains work through a labor union referral, or is participating in a
training or work-share program. Under current law, DWD may modify the statutory
waivers or establish additional waivers by rule only if doing so is required or
specifically allowed by federal law.
The bill removes the waiver requirements from statute and instead allows
DWD to establish waivers for the registration for work and work search
requirements by rule. The bill also specifies that the work search requirement does
not apply to a claimant who has been laid off but DWD determines that the claimant
has a reasonable expectation to be recalled to work.
Acceptance of suitable work
Under current law, if a claimant for UI benefits fails, without good cause, to
accept suitable work when offered, the claimant is ineligible to receive benefits until
he or she earns wages after the week in which the failure occurs equal to at least six
times the claimant's weekly UI benefit rate in covered employment. Current law
specifies what is considered “suitable work” for purposes of these provisions, with
different standards applying depending on whether six weeks have elapsed since the
claimant became unemployed. Once six weeks have elapsed since the claimant
became unemployed, the claimant is required to accept work that pays lower and
involves a lower grade of skill.
The bill modifies these provisions described above so that the claimant is not
required to accept less favorable work until 10 weeks have elapsed since the claimant
became unemployed.
Termination due to substantial fault
Under current law, a claimant for UI benefits whose work is terminated by his
or her employer for substantial fault by the claimant connected with the claimant's
work is ineligible to receive UI benefits until the claimant qualifies through
subsequent employment. With certain exceptions, current law defines “substantial
fault” to include those acts or omissions of a claimant over which the claimant
exercised reasonable control and that violate reasonable requirements of the
claimant's employer. The bill repeals this provision on substantial fault.
Quits due to nonsuitable work
Under current law, unless an exception applies, if a claimant for UI benefits
quits his or her job, the claimant is generally ineligible to receive unemployment
insurance benefits until he or she qualifies through subsequent employment. Under
one such exception, if a claimant quits his or her job and 1) the claimant accepted
work that was not suitable work under the UI law or work that the claimant could
have refused; and 2) the claimant terminated the work within 30 calendar days after
starting the work, the claimant remains eligible to collect UI benefits. Under the bill,
this exemption applies if the claimant terminated that work within
10 weeks after
starting the work.
Quits due to relocations
Under current law, if an employee's spouse is a member of the U.S. armed forces
on active duty and is relocated, and the employee quits his or her job in order to
relocate with his or her spouse, the employee remains eligible to collect UI benefits.
The bill expands this exception so that it applies to an employee who quits
employment in order to relocate with a spouse who is required by any employer, not
just the U.S. armed forces, to relocate.
Worker misclassification penalties
Current law requires DWD to assess an administrative penalty against an
employer engaged in construction projects or in the painting or drywall finishing of
buildings or other structures who knowingly and intentionally provides false
information to DWD for the purpose of misclassifying or attempting to misclassify
an individual who is an employee of the employer as a nonemployee under the UI law.
The penalty under current law is $500 for each employee who is misclassified, not
to exceed $7,500 per incident. Current law additionally requires DWD to assess an
administrative penalty against such an employer who, through coercion, requires an
individual to adopt the status of a nonemployee in the amount of $1,000 for each
individual so coerced, but not to exceed $10,000 per calendar year. Penalties are
deposited in the unemployment program integrity fund.
The bill removes the $7,500 and $10,000 limitations on these penalties and
provides that the penalties double for each act occurring after the date of the first
determination of a violation. The bill also removes the limitations on the types of
employers to which the penalties apply, allowing them to be assessed against any
type of employer that violates the above prohibitions.
Wage threshold for receipt of benefits
Under current law, a claimant for UI benefits is generally ineligible to receive
any benefits for a week if the claimant receives or is considered to have received
wages or other amounts from employment totaling more than $500. The bill repeals
this ineligibility provision. However, the bill does not affect the partial benefits
formula, which reduces a claimant's weekly UI benefit payment by a certain
percentage of wages earned in a week by the claimant.
Electronic transactions with DWD
Currently, with certain exceptions, each employer that has employees who are
engaged in employment covered by the UI law must file quarterly contribution (tax)
and employment and wage reports and make quarterly payment of its contributions
to DWD. An employer of 25 or more employees or an employer agent that files reports
on behalf of any employer must file its reports electronically. Current law also
requires each employer that makes contributions for any 12-month period ending
on June 30 equal to a total of at least $10,000 to make all contribution payments
electronically in the following year. Finally, current law allows DWD to provide a
secure means of electronic interchange between itself and employing units,
claimants, and other persons that, upon request to and with prior approval by DWD,
may be used for transmission or receipt of any document specified by DWD that is
related to the administration of the UI law in lieu of any other means of submission
or receipt.
The bill makes use of these electronic methods mandatory in all cases, unless
the employer or other person demonstrates good cause for being unable to use the
electronic method, as determined by DWD by rule. The bill also provides that DWD
may permit the use of electronic records and electronic signatures for any document
specified by DWD that is related to the administration of the UI law.
State employment
Paid sick leave for limited term employees
Under current law, permanent and project state employees receive the
following paid leave: vacation; personal holidays; sick leave; and legal holidays. The
bill requires the state to provide paid sick leave to limited term employees of the state
at the same rate as to permanent and project state employees.
Paid parental leave
The bill requires the administrator of the Division of Personnel Management
in DOA to develop a program for paid parental leave for most state employees. The
bill requires the administrator to submit the plan for approval as a change to the
state compensation plan to the Joint Committee on Employment Relations. If
JCOER approves the plan, the plan becomes effective immediately.
The bill also requires the Board of Regents of the UW System to develop a plan
for a program for paid parental leave for employees of the system and requires the
board to submit the plan to the administrator of the Division of Personnel
Management in DOA with its compensation plan changes for the 2021-23 biennium.
Vacation hours for state employees
The bill provides additional annual leave hours to state employees during their
third, fourth, and fifth years of service.
Under current law, state employees who are in nonexempt status under the
federal Fair Labor Standards Act earn annual leave at the rate of 104 hours per year
of continuous service during the first five years of service and, on an employee's fifth
anniversary of continuous service, the rate increases to 144 hours of annual leave per
year of continuous service. Under the bill, beginning on the employee's second
anniversary, a state employee in nonexempt status begins earning vacation hours at
the rate of 120 hours per year of service.
Under current law, state employees who are in exempt status under the federal
Fair Labor Standards Act earn annual vacation at the rate of 120 hours per year of
continuous service during the first five years of service and, on the fifth anniversary
of continuous service, the rate increases to 160 hours of annual leave per year of
continuous service. Under the bill, beginning on the employee's second anniversary,
a state employee in exempt status begins earning vacation hours at the rate of 136
hours per year of service.
Merit pay raises for state public defenders
Under current law, there is an assistant state public defender pay progression
plan, which consists of 17 hourly salary steps, with each step equal to
one-seventeenth of the difference between the lowest hourly salary and the highest
hourly salary. The plan provides that no salary adjustment under the plan may
increase an assistant state public defender's salary by more than 10 percent of his
or her base pay during a fiscal year.
The bill allows the state public defender board to provide merit-based pay
raises under the assistant state public defender pay progression plan in fiscal year
2022 that may exceed 10 percent of an assistant state public defender's base pay for
assistant state public defenders who were employed by the state public defender
board before July 1, 2021.
Director of the Legislative Technology Services Bureau
The director of the Legislative Technology Services Bureau is currently
assigned to executive salary group five, which, effective January 3, 2021, has an
annual pay range of $89,045 to $146,931. The bill reassigns the director to executive
salary group six, which, effective January 3, 2021, has an annual pay range of
$96,179 to $158,704. Within this range, the Joint Committee on Legislative
Organization determines the director's annual salary.
Jobs and job training
Worker connection program
The bill requires DWD to establish a worker connection program to be
administered by DWD to help prospective employee participants prepare for and
enter quality jobs in targeted employment sectors identified by DWD as having high
opportunities for career growth.
Pandemic recovery grants
The bill requires DWD to establish and operate a program to provide grants to
local workforce development boards to fund pandemic recovery efforts to emphasize
training, skill development, and economic recovery for individuals and businesses.
The grants may be used for virtual and in-person job training, employment
navigators or coaches, skill assessment, transportation, soft skill development,
career or talent search services, and other programs to return employees to the labor
market.
Pandemic workforce training program grants
The bill creates a pandemic workforce training program to be administered by
DWD. Under the program, DWD is required to award grants to public and private
organizations for the development and implementation of pandemic workforce
training programs. The grants may be used for virtual and in-person job training,
employment navigators or coaches, skill assessment, transportation, soft skill
development, career or talent search services, and other programs to return
employees to the labor market. The bill also permits DWD to require a public or
private organization, as a condition of receiving a grant, to provide matching funds
at a percentage to be determined by DWD.
