The Fair Labor Standards Act defines the workweek as a fixed and recurring period of 168 hours comprised of seven consecutive 24-hour periods that do not need to coincide with the calendar week. It is adjustable only if the change is designed to be permanent. Each week is considered on its own for purposes of calculating overtime. The hours of two or more weeks may not be averaged.
Under state law, employees must be paid for all time spent in physical or mental exertion controlled or required by an employer and for the employer’s benefit. Working time ordinarily includes all time employees are required to be on the employer’s premises, on duty, or at a prescribed workplace.
State law also specifies that employees in factory or mercantile establishments are entitled to at least 24 consecutive hours of rest every seven consecutive days. Work on the seventh day is permitted in the case of a breakdown of machinery or equipment requiring immediate services of experienced and competent labor to prevent serious injury to people, damage to property or suspension of essential operation. This provision does not apply to janitors; security personnel; employees of dairy product manufacturers, canneries, and freezers; bakery and flour mill employees; hotel and restaurant workers; persons whose duties include no Sunday work except for caring for animals or maintaining fires; and certain employees of paper and pulp mills.
Employees covered by Wisconsin’s overtime law must be paid 1.5 times their regular rates for hours worked in excess of 40 per week.
Rest periods of short duration (less than 30 minutes) are considered hours worked and may not be offset against other working time such as waiting or on-call time. Employees who work in a factory or retail establishments must receive one day off (24 consecutive hours) per calendar week (Sunday through Saturday) unless an exception applies.
Breast Feeding Break
2009 Wis. Laws, Act 148 provides that a mother may breastfeed her child in any public or private location where the mother and child are otherwise authorized to be. The law specifies that in such a location, no person may prohibit a mother from breastfeeding her child, direct a mother to move to a different location to breastfeed her child, direct a mother to cover her child or breast while breastfeeding, or otherwise restrict a mother from breastfeeding her child.
State law does not require employers to provide any type of employee fringe benefits such as holiday pay, PTO, vacation pay, etc. to their employees. However, when an employer chooses to provide such benefits that the employer is responsible for establishing a written policy outlining how those benefits are earned and paid.
Employers must pay employees covered by Wisconsin’s minimum wage law at least $7.25 an hour.
Employers must pay student-learners at least 75 percent of the minimum wage. Employers can pay a commensurate wage to workers with a disability whose earning capacity is impaired to the extent that they are unable to earn the minimum wage, provided employers have secured a license from the Workforce Development Department.
Employers must pay non-opportunity tipped employees a cash wage of $2.33 an hour; opportunity tipped employees must be paid a cash wage of $2.13 an hour. Employers must have a tip declaration signed by tipped employees each pay period to take the tip credit and payroll records showing that the tips plus wages added up to at least the general minimum wage, depending on the age and opportunity status of employees. Tip pooling is permitted.
It is recommended that employees receive at least 30 minutes for each meal period reasonably close to the usual meal period time or near the middle of a shift. Shifts of more than six consecutive hours without a meal period should be avoided. An employee must be completely relieved from duty during the meal period; if the worker must remain at his or her workstation or on the employer’s premises during the meal time, that time is compensable. If an employer does not provide at least 30 minutes for the meal period it is an on-duty meal break and must be paid. These provisions are mandatory for minors under age 18.
Employers must pay employees for ‘on duty’ meal periods. An ‘on duty’ meal period is one where the worker is not provided at least 30 consecutive minutes free from work, or where the worker is not free to leave the employer’s premises. Employers may not deduct from a worker’s wages for authorized breaks of less than 30 consecutive minutes. If the break is at least 30 consecutive minutes and the employee is completely relieved of duty and free to leave the premises, the break time does not need to be paid.
Minors younger than age 18 may not be employed or permitted to work more than six consecutive hours without a meal period of at least 30 minutes. Meal breaks must commence reasonably close to 6 am, 12 noon, 6 pm or 12 midnight or approximately midway through a work period.
An employer must permit the employee to take up to 2 weeks of leave for their own serious health condition in a calendar year, up to 2 weeks for the serious health condition of a parent, child or spouse, and up to 6 weeks for the birth or adoption of a child. This leave may be taken as needed in blocks or intermittently as needed by the employee. During the leave, the employee’s health insurance must be continued under the same conditions as prior to leave. The employee must be allowed to substitute accrued paid or unpaid leave of any other type the employer provides. When an employee returns from leave, they must be restored to the same position or an equivalent position in all terms and conditions of employment. An employee covered by the Wisconsin Family Medical Leave Act may substitute any other type of paid or unpaid leave offered by the employer.
The Wisconsin and Federal FMLA leaves run concurrently, with the employee entitled to the protections of whichever law requires more favorable terms. If the federal leave extends beyond the end of the Wisconsin leave, only the terms of the federal FMLA apply to the remaining leave. An employee must qualify under the federal law to be entitled to the 12 weeks of leave. The employee must qualify under Wisconsin law to be eligible for the Wisconsin leave entitlement. Satisfaction of one law’s eligibility requirements does not necessarily mean the employee has satisfied the requirements of the other. However, an employer may use the lower of the federal and state requirements for purposes of leave administration. In such a case, the satisfaction of the lower thresholds for federal and Wisconsin leave will result in employee entitlement to such leaves. For an employee who qualifies under both the federal and Wisconsin laws for leave on a birth or adoption, the six weeks of Wisconsin and federal leave may commence prior to, on or after the birth or adoption. Wisconsin law provides that the six weeks of leave must commence within 16 weeks before or after the birth or adoption. Under federal law, up to 12 weeks of leave is available for the birth or placement for adoption provided the leave is concluded no later than 12 months after the birth or placement. The federal and Wisconsin leaves will run concurrently where an employee is entitled to both.
The Bone Marrow and Organ Donation Leave Act requires that all employers with 50 or more permanent employees must allow employees up to six (6) weeks leave in a 12-month period for the purpose of serving as a bone marrow or organ donor, if the employee provides his or her employer with written verification that the employee is to serve as a bone marrow or organ donor. Leave may be taken only for the period necessary for the employee to undergo the donation procedure and to recover from the procedure. The law applies only to an employee who has worked for the employer more than 52 consecutive weeks and for at least 1000 hours during that 52-week period. The law also requires that employees be allowed to substitute paid or unpaid leave provided by the employer for Wisconsin Family and Medical Leave. Employer may have leave policies that are more generous than leaves required by law.
An employer shall permit an employee who is a volunteer firefighter, emergency medical technician, first responder, or ambulance driver for a volunteer fire department or fire company, a public agency, or a nonprofit corporation to be late for or absent from work if the lateness or absence is due to the employee responding to an emergency that begins before the employee is required to report to work and if the employee complies the law This does not entitle an employee to receive wages or salary for the time the employee is absent from work due to responding to an emergency as provided in this subsection salary for the time the employee is absent from work due to responding to an emergency.
Wisconsin law requires every employer to grant an unpaid leave of absence to each employee who is appointed to serve as an election official if the employee who serves as an election official provides his or her employer with at least seven days’ notice. The leave is for the entire 24-hour period of each election day in which the employee serves in his or her official capacity as an election official. Upon request of any employer municipal clerks must verify appointments.
Any person entitled to vote at an election is entitled to be absent from work while the polls are open for a period not to exceed 3 successive hours to vote. The elector shall notify the affected employer before election day of the intended absence. The employer may designate the time of day for the absence.
An employer shall grant an employee a leave of absence without loss of time in service for the period of jury service. For the purpose of determining seniority or pay advancement, the status of the employee shall be considered uninterrupted by the jury service. No employer may use absence due to jury service as a basis for discharging an employee or for taking any disciplinary action against an employee.
In addition to USERRA, Wisconsin provides the following employment protections for returning military members:
An employer shall grant a leave of absence without pay to an employee to allow the employee to participate in an emergency service operation if all of the following conditions are met:
The leave of absence does not unduly disrupt the operations of the employer. No employee may take more than 5 consecutive workdays of leave or more than 15 days of leave in any year. An employer that grants a leave of absence to an employee may require the employee to provide a written statement from the employee’s commander, or the designated representative of the employee’s commander, certifying that the employee was participating in an emergency service operation at the time of the leave of absence.
Last updated on: February 7th, 2019