Wisconsin 2023-2024 Regular Session

Wisconsin Assembly Bill AB436 Compare Versions

Only one version of the bill is available at this time.

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3	3	2023 - 2024 LEGISLATURE
4	4	2023 ASSEMBLY BILL 436
5	5	September 19, 2023 - Introduced by Representatives SUBECK, C. ANDERSON,
6	6	ANDRACA, BALDEH, BARE, BEHNKE, CABRERA, CLANCY, CONLEY, CONSIDINE,
7	7	DRAKE, EMERSON, JOERS, MYERS, OHNSTAD, PALMERI, RATCLIFF, ROZAR,
8	8	SHANKLAND, SINICKI, SNODGRASS, STUBBS, TUSLER, VINING, BILLINGS and
9	9	JACOBSON, cosponsored by Senators BALLWEG, AGARD, CABRAL-GUEVARA,
10	10	CARPENTER, HESSELBEIN, JACQUE, L. JOHNSON, LARSON, ROYS, SPREITZER,
11	11	TAYLOR and WIRCH. Referred to Committee on Labor and Integrated
12	12	Employment.
13	13	*AUTHORS SUBJECT TO CHANGE*
14	14	AN ACT to amend 111.322 (2m) (a) and 111.322 (2m) (b); and to create 103.09,
15	15	106.54 (11) and 111.91 (2) (gp) of the statutes; relating to: requiring an
16	16	employer to provide reasonable break time and accommodations for an
17	17	employee who is breastfeeding the employee's child to express breast milk for
18	18	the child.
19	19	Analysis by the Legislative Reference Bureau
20	20	The federal Fair Labor Standards Act (FLSA), as amended by the 2023
21	21	Consolidated Appropriations Act, requires an employer to provide the following: 1)
22	22	a reasonable break time for an employee to express breast milk for the employee's
23	23	nursing child for one year after the child's birth each time the employee needs to
24	24	express that milk and 2) a place, other than a bathroom, that is shielded from view
25	25	and free from intrusion from coworkers and the public that may be used by an
26	26	employee to express breast milk. In addition, the FLSA permits that break time to
27	27	be unpaid, unless the employee is not completely relieved from duty during the
28	28	entirety of the break. The FLSA also provides that an employer that employs fewer
29	29	than 50 employees is exempt from these requirements if the requirements would
30	30	impose an undue hardship by causing the employer significant difficulty or expense
31	31	when considered in relation to the size, financial resources, nature, or structure of
32	32	the employer's business.
33	33	This bill codifies into the laws of this state the requirements of the FLSA with
34	34	respect to reasonable break time for employees to express breast milk for their
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41	41	ASSEMBLY BILL 436
42	42	children under one year of age and applies those requirements to all employers,
43	43	including the state, employing at least one individual. In addition, the bill 1)
44	44	requires an employer to provide access to an electrical outlet, running water, and a
45	45	refrigerator for the storage of breast milk and 2) provides that if an employee's
46	46	eligibility for an employer contribution towards the employee's health care coverage
47	47	is dependent on the number of hours that the employee works, the employer must
48	48	treat any unpaid break time taken by the employee to express breast milk as paid
49	49	work time for purposes of determining that eligibility. An employer employing fewer
50	50	than 50 employees is exempt from these requirements if the employer can
51	51	demonstrate that compliance with the requirements would pose an undue hardship
52	52	on the employer's business.
53	53	For further information see the state and local fiscal estimate, which will be
54	54	printed as an appendix to this bill.
55	55	The people of the state of Wisconsin, represented in senate and assembly, do
56	56	enact as follows:
57	57	SECTION 1. 103.09 of the statutes is created to read:
58	58	103.09 Reasonable break time for nursing employees. (1) DEFINITION.
59	59	In this section, “employer" means any person engaging in any activity, enterprise, or
60	60	business employing at least one individual. “Employer" includes the state, its
61	61	political subdivisions, and any office, department, independent agency, authority,
62	62	institution, association, society, or other body in state or local government created or
63	63	authorized to be created by the constitution or any law, including the legislature and
64	64	the courts.
65	65	(2) REASONABLE BREAK TIME REQUIRED. Subject to sub. (4), an employer shall
66	66	provide all of the following for an employee who is breastfeeding the employee's child
67	67	under one year of age:
68	68	(a) A reasonable break time to express breast milk for the child each time the
69	69	employee has a need to express that milk.
70	70	(b) A place, other than a bathroom, that is shielded from view and free from
71	71	intrusion from coworkers and the public for the employee to express breast milk.
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91	91	(c) Access to an electrical outlet, running water, and a refrigerator for the
92	92	storage of breast milk.
93	93	(3) UNPAID BREAK TIME; MAINTENANCE OF HEALTH CARE COVERAGE. (a) Subject to
94	94	pars. (b) and (c), an employer that provides break time under sub. (2) (a) for an
95	95	employee to express breast milk is not required to compensate the employee for any
96	96	work time spent for that purpose.
97	97	(b) An employer shall consider break time under sub. (2) (a) paid work time if
98	98	an employee is not completely relieved from duty during the entirety of such a break.
99	99	(c) If an employee's eligibility for an employer contribution towards the
100	100	employee's health care coverage is dependent on the number of hours that the
101	101	employee works, the employer shall treat any unpaid break time taken by the
102	102	employee to express breast milk as paid work time for purposes of determining that
103	103	eligibility.
104	104	(4) UNDUE HARDSHIP EXCEPTION. An employer that employs fewer than 50
105	105	employees on a permanent basis in this state is not subject to the requirements under
106	106	sub. (2) if the employer can demonstrate that compliance with those requirements
107	107	would pose an undue hardship on the employer's program, enterprise, or business
108	108	by causing the employer significant difficulty or expense when considered in light of
109	109	the size, financial resources, nature, or structure of the employer's business.
110	110	(5) PROHIBITED ACTS. (a) No person may interfere with, restrain, or deny the
111	111	exercise of the right of an employee who is breastfeeding the employee's child under
112	112	one year of age to take reasonable break time to express that milk as provided under
113	113	sub. (2).
114	114	(b) No person may discharge or discriminate against an employee in promotion,
115	115	in compensation, or in the terms, conditions, or privileges of employment for taking
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142	142	SECTION 1 ASSEMBLY BILL 436
143	143	reasonable break time to express breast milk for the employee's child under one year
144	144	of age as provided in sub. (2), opposing a practice prohibited under this section, filing
145	145	a complaint or attempting to enforce any right under this section, or testifying or
146	146	assisting in any action or proceeding to enforce any right under this section.
147	147	(6) ENFORCEMENT. An employee whose right to take reasonable break time to
148	148	express breast milk for the employee's child under one year of age as provided under
149	149	sub. (2) is interfered with, restrained, or denied in violation of sub. (5) (a) or who is
150	150	discharged or discriminated against in violation of sub. (5) (b) may file a complaint
151	151	with the department, and the department shall process the complaint in the same
152	152	manner that employment discrimination complaints are processed under s. 111.39.
153	153	If the department finds that an employer has violated sub. (5) (a) or (b), the
154	154	department may order the employer to take action to remedy the violation, including
155	155	reinstating the employee, providing compensation in lieu of reinstatement,
156	156	providing back pay accrued not more than 2 years before the complaint was filed, and
157	157	paying reasonable actual costs and attorney fees to the complainant.
158	158	SECTION 2. 106.54 (11) of the statutes is created to read:
159	159	106.54 (11) The division shall receive complaints under s. 103.09 (6) and shall
160	160	process the complaints in the same manner as employment discrimination
161	161	complaints are processed under s. 111.39.
162	162	SECTION 3. 111.322 (2m) (a) of the statutes is amended to read:
163	163	111.322 (2m) (a) The individual files a complaint or attempts to enforce any
164	164	right under s. 103.02, 103.09, 103.10, 103.11, 103.13, 103.28, 103.32, 103.34,
165	165	103.455, 104.12, 109.03, 109.07, 109.075, 146.997, or 995.55, or ss. 101.58 to 101.599
166	166	or 103.64 to 103.82.
167	167	SECTION 4. 111.322 (2m) (b) of the statutes is amended to read:
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195	195	SECTION 4
196	196	ASSEMBLY BILL 436
197	197	111.322 (2m) (b) The individual testifies or assists in any action or proceeding
198	198	held under or to enforce any right under s. 103.02, 103.09, 103.10, 103.11, 103.13,
199	199	103.28, 103.32, 103.34, 103.455, 104.12, 109.03, 109.07, 109.075, 146.997, or 995.55,
200	200	or ss. 101.58 to 101.599 or 103.64 to 103.82.
201	201	SECTION 5. 111.91 (2) (gp) of the statutes is created to read:
202	202	111.91 (2) (gp) The right of an employee who is breastfeeding the employee's
203	203	child under one year of age to take reasonable break time to express breast milk for
204	204	the child as provided in s. 103.09 (2).
205	205	SECTION 6.0Initial applicability.
206	206	(1) REASONABLE BREAK TIME FOR NURSING EMPLOYEES. This act first applies to an
207	207	employee who is covered by a collective bargaining agreement that contains
208	208	provisions inconsistent with s. 103.09 on the day on which the collective bargaining
209	209	agreement expires or is extended, modified, or renewed, whichever occurs first.
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