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
The bill requires DWD to establish and operate a program to provide grants to regional organizations to design and implement plans to address their region’s workforce challenges that arose during or were exacerbated by the COVID-19 pandemic.
Green jobs training program grants
The bill creates a green jobs 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 green jobs training programs. The bill defines “green jobs” as jobs that produce goods or provide services that benefit the environment or conserve natural resources. The bill also allows 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.
Clean energy training and reemployment
The bill requires DWD to establish and administer a clean energy training and reemployment program to connect workers with employers and use other apprenticeship and technical college programs to deliver training for clean energy jobs.
Discrimination
Fair employment; civil actions
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 allows 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 damage 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.
Fair employment; discrimination based on conviction record
The bill provides that it is employment discrimination because of conviction record under the fair employment law 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 the employer’s policies from employment in particular positions.
Fair employment; discrimination based on gender expression and gender identity
Current fair employment law prohibits discrimination in employment on the basis of a person’s sex or sexual orientation. The bill also so prohibits discrimination on the basis of an individual’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 as an individual’s internal understanding of the individual’s gender, or the individual’s perceived gender identity.
Administration and finance
Worker’s compensation uninsured employers fund
Under current law, the uninsured employers fund (UEF) is used to pay worker’s compensation benefits on claims filed by employees who are injured while working for uninsured employers in this state. The money for the UEF comes from, among various sources, penalties assessed against uninsured employers. The bill changes the appropriation for the UEF from a sum sufficient appropriation to a continuing appropriation.
Reimbursements for supplemental worker’s compensation benefits
Under current law, insurers are required to pay supplemental benefits to certain employees who were permanently disabled by an injury that is compensable under the worker’s compensation law. DWD is authorized to collect up to $5,000,000 from insurers that provide worker’s compensation insurance to provide those supplemental benefits. This money must be used exclusively to provide reimbursements to insurers that pay those supplemental benefits and that request reimbursements.
The bill creates a new, separate appropriation in the worker’s compensation operations fund to provide these reimbursements. The bill does not increase revenue to DWD or collections from insurers.
Migrant labor fees
