Collective bargaining for state and local employees; employee rights
Under current law, state and local governments are prohibited from collectively
bargaining with employees except as expressly provided in the statutes. Current law
allows certain protective occupation participants under the Wisconsin Retirement
System, known as public safety employees, and certain municipal transit employees
to collectively bargain over wages, hours, and conditions of employment. Under
current law, other state and municipal employees may collectively bargain only over
a percentage increase in base wages that does not exceed the percentage increase in
the consumer price index. In addition, under current law, the Employment Relations
Commission assigns employees to collective bargaining units, but current law
requires that public safety employees and municipal transit employees be placed in
separate collective bargaining units.
The bill adds frontline workers to the groups that may collectively bargain over
wages, hours, and conditions of employment. In the bill, “frontline workers” are state
or municipal employees with regular job duties that include interacting with
members of the public or with large populations of people or that directly involve the
maintenance of public works. Under the bill, the Wisconsin Employment Relations
Commission (WERC) determines which state and municipal employees meet the
criteria. Also, the bill allows WERC to place in the same collective bargaining unit
both frontline workers and employees who are not frontline workers. If WERC places
employees of both types in a collective bargaining unit, the entire collective
bargaining unit is treated as if all members are frontline workers and all members
may collectively bargain over wages, hours, and conditions of employment.
Under current law, state or municipal employees in a collective bargaining unit
elect their representative. The representative for a unit containing public safety
employees or transit employees requires the support of the majority of the employees
who are voting in the election, and the representative for a unit containing other
employees requires the support of the majority of all of the employees who are in the
collective bargaining unit. Under the bill, the representative for any collective
bargaining unit containing any state or municipal employees requires the support
of the majority of the employees who are voting in the election regardless of the
number of employees who are in the collective bargaining unit.
Under current law, WERC must conduct an annual election to certify each
representative of a collective bargaining unit representing state or municipal
employees who are not public safety employees or transit employees. At the election,
if a representative fails to receive at least 51 percent of the votes of all of the members
of the collective bargaining unit, the representative is decertified and the employees
are unrepresented. The bill eliminates this annual recertification process.
The bill requires state and municipal employers to consult about wages, hours,
and conditions of employment with their employees who are not public safety
employees, transit employees, or frontline workers. The employers must consult
either when policy changes that affect wages, hours, or conditions are proposed or
implemented or, in the absence of policy changes, at least quarterly.
The bill adds that employees of authorities, such as the UW Hospitals and
Clinics Authority, WHEDA, and WEDC, may collectively bargain as state employees.
Eliminating the right-to-work law
Current law prohibits a person from requiring, as a condition of obtaining or
continuing employment, an individual to refrain or resign from membership in a
labor organization, to become or remain a member of a labor organization, to pay
dues or other charges to a labor organization, or to pay any other person an amount
that is in place of dues or charges required of members of a labor organization. The
bill repeals these prohibitions and the associated misdemeanor offense.
The bill also explicitly provides that, when an all-union agreement is in effect,
it is not an unfair labor practice to encourage or discourage membership in a labor
organization or to deduct labor organization dues or assessments from an employee's
earnings. The bill sets conditions under which an employer may enter into an
all-union agreement. The bill also sets conditions for the continuation or
termination of all-union agreements, including that, if WERC determines there is
reasonable ground to believe employees in an all-union agreement have changed
their attitude about the agreement, WERC is required to conduct a referendum to
determine whether the employees wish to continue the agreement. WERC is
required to terminate an all-union agreement if it finds the union unreasonably
refused to admit an employee into the union.
Prevailing wage
The bill requires that laborers, workers, mechanics, and truck drivers
employed on the site of certain projects of public works be paid the prevailing wage
and not be required or allowed to work a greater number of hours per day and per
week than the prevailing hours of labor unless they are paid overtime for all hours
worked in excess of the prevailing hours of labor. Projects subject to the bill include
state and local projects of public works, including state highway projects, with
exceptions including projects below certain cost thresholds, minor service or
maintenance work, and certain residential projects. Under the bill, “prevailing wage
rate” is defined as the hourly basic rate of pay, plus the hourly contribution for bona
fide economic benefits, paid for a majority of the hours worked in a trade or
occupation in the area in which the project is located, except that, if there is no rate
at which a majority of those hours is paid, “prevailing wage rate” means the average
hourly basic rate of pay, plus the average hourly contribution for bona fide economic
benefits, paid for the highest-paid 51 percent of hours worked in a trade or
occupation in the area. “Prevailing hours of labor" is defined as 10 hours per day and
40 hours per week, excluding weekends and holidays. The bill requires DWD to
conduct investigations and hold public hearings as necessary to define the trades or
occupations that are commonly employed on projects that are subject to the
prevailing wage law and to inform itself of the prevailing wage rates in all areas of
the state for those trades or occupations, in order to determine the prevailing wage
rate for each trade or occupation. The bill contains certain other provisions
regarding the calculation of prevailing wage rates by DWD, including provisions
allowing persons to request recalculations or reviews of the prevailing wage rates
determined by DWD.
The bill requires contracts and notices for bids for projects subject to the bill to
include and incorporate provisions ensuring compliance with the requirements. The
bill also establishes a requirement that state agencies and local governments post
prevailing wage rates and hours of labor in areas readily accessible to persons
employed on the project or in sites regularly used for posting notices.
The bill makes a contractor that fails to pay the prevailing wage rate or
overtime pay to an employee as required under the prevailing wage law liable to the
affected employee for not only the amount of unpaid wages and overtime pay, but also
for liquidated damages in an amount equal to 100 percent of the unpaid wages and
overtime pay.
Finally, the bill includes, for both state and local projects of public works,
provisions regarding coverage, compliance, enforcement, and penalties, including 1)
requirements for affidavits to be filed by contractors affirming compliance with the
prevailing wage law; 2) record retention requirements for contractors regarding
wages paid to workers and provisions allowing for the inspection of those records by
DWD; 3) liability and penalty provisions for certain violations, including criminal
penalties; and 4) provisions prohibiting contracts from being awarded to persons who
have failed to comply with the prevailing wage law.
Family and medical leave expansion
Under the current family and medical leave law, an employer that employs at
least 50 individuals on a permanent basis must permit an employee who has been
employed by the employer for more than 52 consecutive weeks and who has worked
for the employer for at least 1,000 hours during the preceding 52 weeks to take family
leave to care for the employee's child, spouse, domestic partner, or parent who has
a serious health condition. Employers covered under the law must also permit an
employee covered under the law to take up to two weeks of medical leave in a
12-month period when that employee has a serious health condition. An employee
may file a complaint with DWD regarding an alleged violation of the family and
medical leave law within 30 days after either the violation occurs or the employee
should reasonably have known that the violation occurred, whichever is later.
The bill makes the following changes to the family and medical leave law:
1. Requires employers covered under the law to permit employees covered
under the law to take family leave to provide for a grandparent, grandchild, or sibling
who has a serious health condition.
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. Increases the amount of weeks an employee is able to take in family and
medical leave for any eligible reason to 12 weeks.
4. 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.
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 in the instance
of an unforeseen or unexpected gap in childcare for an employee's child, grandchild,
or sibling 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 an employee's child, spouse, domestic partner, parent,
grandparent, grandchild, or sibling who is a member of the U.S. armed forces.
7. Requires employers to permit employees to take family leave to address
issues related to the employee or the employee's child, spouse, domestic partner,
parent, grandparent, grandchild, or sibling being the victim of domestic abuse,
sexual abuse, or stalking.
8. Requires employers to permit employees to take family leave to care for a
child, spouse, domestic partner, parent, grandparent, grandchild, or sibling of an
employee who is in medical isolation and requires employers to permit employees to
take medical leave when an 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 an individual seclude himself or herself when awaiting
the results 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 the individual not come to the workplace due to a concern that the individual
may have been exposed to or infected with a communicable disease.
Family and medical leave benefits insurance program
The bill creates a family and medical leave benefits insurance program, to be
administered by DWD, under which a covered individual who is on certain family or
medical leave is eligible, beginning on January 1, 2025, to receive up to 12 weeks of
family or medical leave insurance benefits as specified in the bill from the family and
medical leave benefits insurance trust fund created under the bill. For purposes of
the bill, the following definitions apply:
1. A “covered individual" is an individual who worked for the same employer
for at least 680 hours in the calendar year prior to the year in which the covered
individual claims family or medical leave insurance benefits (application year) or a
self-employed individual who elects coverage under the program.
2. “Family leave" means leave from employment, self-employment, or
availability for employment for the birth or adoptive placement of a new child; to care
for a family member who has a serious health condition or is in medical isolation; for
covered active duty; or to address issues related to being the victim of domestic abuse,
sexual abuse, or stalking.
3. “Medical leave" means leave from employment, self-employment, or
availability for employment when a covered individual is in medical isolation or has
a serious health condition that makes the employee unable to perform his or her
employment duties.
Under the bill, the amount of family or medical leave insurance benefits for a
week for which those benefits are payable is as follows:
1. For the amount of the covered individual's average weekly earnings that are
less than 50 percent of the state annual median wage in the calendar year before the
individual's application year, 90 percent of that individual's average weekly
earnings.
2. For the amount of the covered individual's average weekly earnings that are
more than 50 percent of the state annual median wage in the calendar year before
the individual's application year, 50 percent of that individual's average weekly
earnings.
Beginning on January 1, 2025, the bill generally requires each individual
employed in this state by an employer that regularly employs at least 50 individuals,
including an individual employed by the state, and any self-employed individual
who elects coverage under the family and medical leave benefits insurance program
to contribute to the trust fund a percentage of his or her wages from employment or
income from self-employment. Under the bill, each employer must contribute the
same amount as an employee. The bill requires DWD to collect those contributions
in the same manner as DWD collects contributions to the unemployment reserve
fund under current law.
The bill, however, provides that an employer that provides paid family and
medical leave benefits that are identical to or more generous than those provided
under the program may request an exemption from participation in the program.
The bill requires DWD to promulgate administrative rules to provide exemptions
from participation in the program.
The bill further does the following:
1. Requires DWD to promulgate administrative rules providing for a right to
a hearing in cases of disputes involving an individual's eligibility for benefits or
status as a covered individual under the program.
2. Requires DWD to promulgate administrative rules providing for a right to
a hearing in cases involving the liability of employers for contributions under the
program.
3. Allows DWD to seek repayment of family or medical leave insurance benefits
that are paid erroneously or as a result of willful misrepresentation. The bill allows
DWD to establish other procedures for recovering overpayments and allows DWD to
utilize procedures under the unemployment insurance law.
Solicitation of compensation information
The bill prohibits certain employer conduct related to compensation
information of current and prospective employees. The bill prohibits an employer
from doing any of the following with respect to a prospective employee:
1. Relying on or soliciting information about the prospective employee's current
or prior compensation. Under current law, an employer may solicit information
about a prospective employee's current or prior compensation. The bill repeals that
provision.
2. Requiring that the prospective employee's current or prior compensation
meet certain criteria in order for the prospective employee to be considered for
employment.
3. Refusing to hire the prospective employee for exercising his or her rights
relating to compensation information.
The bill also prohibits an employer from discharging or discriminating against
a current employee for disclosing the details of the employee's compensation,
discussing the compensation of other employees, asking other employees for details
regarding their compensation, or taking certain actions to enforce an employee's
rights under the bill.
The bill requires employers to post notices, where notices to employees are
customarily posted and on any electronic job posting, regarding employees' and
prospective employees' rights under the bill and provides a penalty for an employer's
failure to do so.
State and local employment regulations; repeal preemption of local
employment regulations
The bill repeals certain preemptions and prohibitions of local governments and
the state from enacting or enforcing ordinances related to various employment
matters. See Local Government.
Worker classification notice and information
Current law requires DWD to perform certain duties related to worker
classification, including for purposes of promoting and achieving compliance by
employers with state employment laws. 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. Finally, the bill provides a penalty of not more
than $100 for an employer who does not post the notice as required.
The bill also requires DFI to provide informational materials and resources on
worker misclassification to each person who files with DFI documents forming a
business corporation, nonstock corporation, limited liability company, limited
liability partnership, or limited partnership.
Worker's compensation
Expansion of PTSD coverage for first responders
The bill makes changes to the conditions of liability for worker's compensation
benefits for emergency medical responders, emergency medical services
practitioners, volunteer fire fighters, correctional officers, emergency dispatchers,
coroners and coroner staff members, and medical examiners and medical examiner
staff members who are diagnosed with post-traumatic stress disorder (PTSD).
Under current law, if a law enforcement officer or full-time fire fighter is
diagnosed with PTSD by a licensed psychiatrist or psychologist and the mental injury
that resulted in that diagnosis is not accompanied by a physical injury, that law
enforcement officer or fire fighter can bring a claim for worker's compensation
benefits if the conditions of liability are proven by the preponderance of the evidence
and the mental injury is not the result of a good faith employment action by the
person's employer. Also under current law, liability for such treatment for a mental
injury is limited to no more than 32 weeks after the injury is first reported.
Under current law, an injured emergency medical responder, emergency
medical services practitioner, volunteer fire fighter, correctional officer, emergency
dispatcher, coroner, coroner staff member, medical examiner, or medical examiner
staff member who does not have an accompanying physical injury must demonstrate
a diagnosis based on unusual stress of greater dimensions than the day-to-day
emotional strain and tension experienced by all employees as required under School
District No. 1 v. DILHR, 62 Wis. 2d 370, 215 N.W.2d 373 (1974) in order to receive
worker's compensation benefits for PTSD. Under the bill, such an injured emergency
medical responder, emergency medical services practitioner, volunteer fire fighter,
correctional officer, emergency dispatcher, coroner, coroner staff member, medical
examiner, or medical examiner staff member is not required to demonstrate a
diagnosis based on that standard, and instead must demonstrate a diagnosis based
on the same standard as law enforcement officers and fire fighters. Finally, under
the bill, an emergency medical responder, emergency medical services practitioner,
volunteer fire fighter, correctional officer, emergency dispatcher, coroner, coroner
staff member, medical examiner, or medical examiner staff member is restricted to
compensation for a mental injury that is not accompanied by a physical injury and
that results in a diagnosis of PTSD three times in his or her lifetime irrespective of
a change of employer or employment in the same manner as law enforcement officers
and fire fighters.
Penalties for uninsured employers
Under current law, an employer who requires an employee to pay for any part
of worker's compensation insurance or who fails to provide mandatory worker's
compensation insurance coverage is subject to a forfeiture. If the employer violates
those requirements, for the first 10 days, the penalty under current law is not less
than $100 and not more than $1,000 for such a violation. If the employer violates
those requirements for more than 10 days, the penalty under current law is not less
than $10 and not more than $100 for each day of such a violation.
Under the bill, the forfeitures for an employer who requires an employee to pay
for worker's compensation coverage or fails to provide the coverage (violation) are as
follows:
1. For a first violation, $1,000 per violation or the amount of the insurance
premium that would have been payable, whichever is greater.
2. For a second violation, $2,000 per violation or two times the amount of the
insurance premium that would have been payable, whichever is greater.
3. For a third violation, $3,000 per violation or three times the amount of the
insurance premium that would have been payable, whichever is greater.
4. For a fourth or subsequent violation, $4,000 per violation or four times the
amount of the insurance premium that would have been payable, whichever is
greater.
Under current law, if an employer who is required to provide worker's
compensation insurance coverage provides false information about the coverage to
his or her employees or contractors who request information about the coverage, or
fails to notify a person who contracts with the employer that the coverage has been
canceled in relation to the contract, the employer is subject to a forfeiture of not less
than $100 and not more than $1,000 for each such violation.
Under the bill, the penalty for a first or second such violation remains as
specified under current law, the penalty for a third violation is $3,000, and the
penalty for a fourth or subsequent violation is $4,000.
Currently, an uninsured employer must pay to DWD an amount that is equal
to the greater of the following: 1) twice the amount that the uninsured employer
would have paid for worker's compensation coverage during periods in which the
employer was uninsured in the preceding three years or 2) $750 or, if certain
conditions apply, $100 per day.
The bill provides that the amounts an uninsured employer must pay to DWD
for a determination of a failure to carry worker's compensation insurance are as
follows:
1. For a first or second determination, the amounts specified in current law.
2. For a third determination, the greater of the following: a) three times the
amount that the uninsured employer would have paid for worker's compensation
coverage during periods in which the employer was uninsured in the preceding three
years or b) $3,000.
3. For a fourth or subsequent determination, the greater of the following: a)
four times the amount that the uninsured employer would have paid for worker's
compensation coverage during periods in which the employer was uninsured in the
preceding three years or b) $4,000.
False or fraudulent worker's compensation insurance applications
Current law specifies criminal penalties for various types of insurance fraud,
which are punishable as either a Class A misdemeanor or a Class I felony, depending
on the value of the claim or benefit. The bill adds to the list of criminally punishable
insurance fraud the following: 1) the presentation of false or fraudulent applications
for worker's compensation insurance coverage and 2) the presentation of
applications for worker's compensation insurance coverage that falsely or
fraudulently misclassify employees in order to lower premiums.
Also, under current law, if an insurer or self-insured employer has evidence
that a worker's compensation claim is false or fraudulent, the insurer or self-insured
employer must generally report the claim to DWD. If, on the basis of the
investigation, DWD has a reasonable basis to believe that criminal insurance fraud
has occurred, DWD must refer the matter to the district attorney for prosecution.
DWD may request assistance from DOJ to investigate false or fraudulent activity
related to a worker's compensation claim. If, on the basis of that investigation, DWD
has a reasonable basis to believe that theft, forgery, fraud, or any other criminal
violation has occurred, DWD must refer the matter to the district attorney or DOJ
for prosecution. The bill extends these requirements to insurers that have evidence
that an application for worker's compensation insurance coverage is fraudulent or
that an employer has committed fraud by misclassifying employees to lower the
employer's worker's compensation insurance premiums.
Unemployment insurance
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
unemployment insurance (UI) law. The penalty under current law is $500 for each
employee who is misclassified, not to exceed $7,500 per incident. In addition, current
law provides for criminal fines of up to $25,000 for employers who, after having
previously been assessed such an administrative penalty, commit another violation.
Current law additionally requires DWD to assess an administrative penalty against
such an employer who, through coercion, requires an employee to adopt the status
of a nonemployee; the penalty amount is $1,000 for each employee so coerced, but not
to exceed $10,000 per calendar year. Penalties are deposited into the unemployment
program integrity fund.
The bill does the following: 1) removes the $7,500 and $10,000 limitations on
the administrative penalties and provides that the penalties double for each act
occurring after the date of the first determination of a violation; 2) removes the
limitations on the types of employers to whom the prohibitions apply, making them
applicable to any type of employer; and 3) specifies that DWD may make referrals
for criminal prosecution for alleged criminal misclassification violations regardless
of whether an employer has been subject to any other penalty or assessment under
the UI law.
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 payment),
that claimant is ineligible for UI benefits. The bill repeals that prohibition and
instead requires DWD to reduce a claimant's 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.
Jobs and job training
Worker advancement initiative
The bill requires DWD to establish and maintain a worker advancement
initiative, through which DWD offers subsidized employment and skills training
with local employers, targeted to individuals in sectors of the workforce that have not
recovered from the loss of employees due to the COVID-19 pandemic. This program
includes targeted subprograms related to the following: 1) health-care workforce
opportunities; 2) training opportunities for jobs that require a commercial driver
license; and 3) reengaging out-of-work, barriered, and underserved individuals
through system transformation, through which DWD must find methods to more
effectively reach and serve population groups that are underserved and disconnected
from the labor force.
Grants to local workforce development boards
The bill creates a grant program administered by DWD to provide grants to
local workforce development boards for youth services and training. Under the
program, DWD must provide grants for tutoring, mentoring, supportive services,
paid and unpaid work experiences, preapprenticeship programs, internships,
on-the-job training, occupational skills training, leadership development
opportunities, counseling, financial literacy education, entrepreneurial skills
training, and education regarding labor market information, employment
information, and postsecondary education and training preparation.
The bill also creates a new continuing GPR appropriation to DWD for the
purpose of providing grants under the local workforce development board youth
services and training grant program.
Workforce innovation grant program
