EMINENT DOMAIN
Condemnation authority for nonmotorized paths
The bill allows certain entities, such as a county board, village board, or DOT, to use the power of condemnation to acquire land or interests in land for the purpose of establishing or extending recreational trails, bicycle ways or lanes, or pedestrian ways. Current law prohibits the exercise of condemnation power to acquire land or interests in land for those purposes.
EMPLOYMENT
Employment regulation
Minimum wage increase
The bill annually raises the minimum wage to be paid to most employees, from the effective date of the bill through January 1, 2027. After that date, the bill requires DWD to determine the percentage difference between the consumer price index for the preceding 12-month period and the consumer price index for the 12 months before the preceding 12-month period, adjust the minimum wages then in effect by that percentage difference, and publish that amount in the Wisconsin Administrative Register and on the DWD website.
The bill requires the secretary of workforce development to establish a committee to study options to achieve a $15 per hour minimum wage and other options to increase compensation for workers in this state. Under the bill, the committee consists of nine members, with five appointed by the governor, and one each appointed by the speaker of the assembly, the assembly minority leader, the senate majority leader, and the senate minority leader. The committee is required to submit a report containing its recommendations for options to achieve a $15 per hour minimum wage and other options to increase compensation to the governor and the appropriate standing committees of the legislature no later than October 1, 2024.
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.
