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2023 ASSEMBLY BILL 583
October 31, 2023 - Introduced by Representatives J. ANDERSON, C. ANDERSON,
BALDEH, BARE, DRAKE, MOORE OMOKUNDE, OHNSTAD, SINICKI, SUBECK and
JACOBSON, cosponsored by Senators ROYS, AGARD, CARPENTER, L. JOHNSON,
LARSON and SPREITZER. Referred to Committee on Labor and Integrated
Employment.
***AUTHORS SUBJECT TO CHANGE***
AN ACT to amend 111.322 (2m) (a) and 111.322 (2m) (b); and to create 103.035
of the statutes; relating to: the rights of employees to request and receive work
schedule changes; predictable work schedules for retail, food service, and
cleaning employees; granting rule-making authority; and providing a penalty.
Analysis by the Legislative Reference Bureau
This bill provides that an employee who works for an employer, including the
state and political subdivision employers, that employs at least 15 employees has the
right to request and receive changes to the employee's work schedule under certain
circumstances. The bill also provides rights regarding work scheduling for
employees in certain retail, food service, or cleaning occupations, or other
occupations designated by the Department of Workforce Development.
Employee right to request and receive work schedule changes
Under the bill, an employer must negotiate in good faith with an employee to
accommodate changes the employee requests to his or her work schedule. Further,
unless an employer has a bona fide business reason for denying the request, the
employer must approve an employee's request if it is directly related to any of the
following:
1. A serious health condition of the employee.
2. Responsibilities of the employee as a caregiver for a family member.
3. Enrollment of the employee in certain educational or training programs.
4. A part-time employee's work scheduling conflicts with the employee's other
employment.
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If an employer denies an employee's request for a schedule change, the
employer must inform the employee of the reasons for denial, including whether any
of the reasons is a bona fide business reason as defined in the bill.
Service employee right to predictable work schedule
The bill requires an employer that employs an employee in certain service
industry occupations, including retail, food service, and cleaning occupations to
provide the service employee a written copy of the employee's work schedule on or
before the service employee's first day of work. With certain exceptions, if an
employer changes the service employee's work schedule, the employer must provide
the new work schedule to the employee at least 14 days in advance.
The bill also requires that if an employer changes a service employee's work
schedule with fewer than 14 days' notice, the employer must pay the service
employee an amount equal to the employee's regular rate of pay for one hour of work.
Exceptions to this requirement include when the employee consents to the change
or when the employer requires the service employee to work additional time because
another employee was scheduled to work that time and is unexpectedly unavailable
to work.
The bill also requires the following for employers that use certain scheduling
practices:
1. If the service employee reports to work and the employer does not allow the
employee to work all time scheduled, the employer must provide the employee with:
1) full compensation as if the employee had worked the full shift; or 2) if the employee
is scheduled to work more than four hours and works less than four hours, an amount
equal to the employee's regular rate of pay for the difference between four hours and
the amount of time the employee actually works.
2. If the employer requires the service employee to contact the employer, or wait
to be contacted by the employer less than 24 hours before a work shift to determine
whether the employee must report to work, the employer must pay the employee an
amount equal to the employee's regular rate of pay for one hour of work.
3. If the employer requires the service employee to work a split shift, the
employer must pay the employee an amount equal to the employee's regular rate of
pay for one hour of work.
If a service employee experiences more than one type of these scheduling
practices with respect to a particular work shift, the employer must pay only one type
of compensation, whichever is greatest.
The bill also provides that, during any period in which the employer's regular
operations are suspended due to an event outside of the employer's control, the
employer is not required to comply with the service employee work scheduling
requirements created in the bill.
The bill authorizes DWD to promulgate rules to apply the protections afforded
under the bill to additional occupations if DWD determines that at least 10 percent
of the individuals employed in an occupation either typically receive notice of
changes to their work schedules less than 14 days before the changes take effect or
regularly experience fluctuations in the number of hours the individuals are
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Enforcement
The bill provides that an employer may not interfere with, restrain, or deny the
exercise of the right of an employee created in the bill and may not discharge or
discriminate against an employee for enforcing the employee's rights under the bill.
An employee whose rights are violated may file a complaint with DWD, and DWD
must process the complaint in the same manner that employment discrimination
complaints are processed under current law. That processing may include the
ordering of back pay, reinstatement, compensation in lieu of reinstatement, and costs
and attorney fees.
The bill also provides that DWD or an employee whose rights are violated may
bring an action in circuit court against the employer without regard to exhaustion
of any administrative remedy. If the circuit court finds that a violation has occurred,
the employer may be liable to the employee for compensatory damages, reasonable
attorney fees and costs, and, under certain circumstances, liquidated damages equal
to 100 percent of the amount of compensatory damages awarded to the employee.
In addition to any damages imposed on an employer in an administrative proceeding
or circuit court action, an employer that willfully violates the protections created in
the bill may be required to forfeit not more than $1,000 for each violation.
For further information see the state and local fiscal estimate, which will be
printed as an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
SECTION 1. 103.035 of the statutes is created to read:
103.035 Work schedule flexibility and predictability. (1) DEFINITIONS.
In this section:
(a) “Bona fide business reason” means a reason that justifies an employer's
action and that is based on the employer's determination that taking a different
action would have any of the following results:
1. Additional costs to the employer, including costs of lost employee
productivity, retaining or hiring employees, or transferring employees between work
locations.
2. A significant detrimental effect on the employer's ability to meet
organizational needs or customer demand.
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3. A significant inability of the employer, despite the employer's best efforts,
to reorganize work among other employees.
4. A significant detrimental effect on the employer's business performance.
5. Insufficient work during the period an employee proposes to work.
6. Unfairness to other employees who request changes to work schedules if
granting all requests would have a significant detrimental effect on the employer's
ability to meet organizational needs.
(b) “Child” means an individual who is all of the following:
1. A biological, adopted, or foster child; a stepchild; a legal ward; or a child of
a person standing in the place of a parent with respect to that child.
2. An individual to whom any of the following applies:
a. The individual is less than 18 years of age.
b. The individual is 18 years of age or older and is incapable of self-care because
of a mental or physical disability.
(c) “Domestic partner” has the meaning given in s. 40.02 (21c) or 770.01 (1).
(d) “Employee” means an employee who is employed by an employer.
(e) “Employer” means an employer that employs at least 15 employees.
“Employer” includes the state, its political subdivisions, and any office, department,
independent agency, authority, institution, association, society, or other body in state
or local government created or authorized to be created by the constitution or any
law, including the legislature and the courts.
(f) “Family member” means any of the following:
1. A spouse or domestic partner of an employee.
2. A parent, child, sibling, brother-in-law, sister-in-law, grandparent, or
grandchild of an employee or of an employee's spouse or domestic partner.
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3. Any other individual who is related by blood, marriage, or adoption to an
employee or to an employee's spouse or domestic partner and whose close association
with the employee, spouse, or domestic partner makes the individual the equivalent
of a family member of the employee, spouse, or domestic partner.
(g) “Grandchild” means the child of a child.
(h) “Grandparent” means the parent of a parent.
(i) “Nonexempt employee” means an employee who is not employed in a bona
fide executive, administrative, or professional capacity, as described in 29 USC 213
(a) (1).
(j) “Parent” means a biological parent, foster parent, adoptive parent,
stepparent, or legal guardian of an employee or of an employee's spouse or domestic
partner.
(k) “Part-time employee” means an employee who works on average fewer than
30 hours per week for a particular employer.
(L) “Service employee” means a nonexempt employee who is employed in an
occupation designated by the department under sub. (3) (g) or in any of the
occupations classified under the following codes set forth in the Standard
Occupational Classification system, 2018 edition, published by the bureau of labor
statistics of the U.S. department of labor:
1. Major group code 35-0000 — Food preparation and serving related
occupations.
2. Broad occupation code 37-2010 — Building cleaning workers.
3. Detailed occupation code 41-1011 — First-line supervisors of retail sales
workers.
4. Minor group code 41-2000 — Retail sales workers.
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(m) “Sibling” means a brother, sister, half brother, half sister, stepbrother,
stepsister, foster brother, or foster sister, whether by blood, marriage, or adoption.
(n) “Split shift” means a work shift that consists of work time that is not
continuous. For purposes of determining whether a work shift is continuous, any of
the following breaks in work time are not considered:
1. One or more breaks for meals that total one hour or less.
2. A break that is requested by the employee.
(o) “Work schedule” means the days and times during each successive work
period when an employee is required by an employer to perform duties of
employment.
(p) “Work shift” means the specific times during a day that an employer
requires an employee to work.
(q) “Written” does not include a communication that is transmitted or received
by electronic means.
(2) EMPLOYEE RIGHT TO REQUEST AND RECEIVE WORK SCHEDULE CHANGES. (a)
Employee right to request work schedule changes. 1. An employee may request a
change in the terms and conditions of employment related to any of the following:
a. The number of hours the employee is required to work or be on call for work.
b. The days or times when the employee is required to work or be on call for
work.
c. The location where the employee is required to work.
d. The amount of notification the employee receives regarding changes to the
employee's work schedule.
e. Minimizing fluctuations in the number of hours the employee is scheduled
to work on a daily, weekly, or monthly basis.
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2. An employee who makes a request under subd. 1. shall specify in the request
whether it is related to any of the following:
a. A serious health condition, as defined under s. 103.10 (1) (g), of the employee.
b. The employee's responsibilities as a significant provider of ongoing care,
including responsibility for securing ongoing care, of the employee's child, family
member with a serious health condition, as defined under s. 103.10 (1) (g), or parent
who is 65 years of age or older.
c. The employee's responsibilities as a significant provider of education,
including responsibility for securing education, of the employee's child.
d. The employee's enrollment in an educational or training program or program
of study that leads to a recognized postsecondary credential.
e. If the employee is a part-time employee, conflicts with the employee's other
employment.
(b) Evaluating requests for work schedule changes. If an employer receives a
request from an employee under par. (a), the employer shall either grant the request
without modification or negotiate in good faith with the employee to find a
compromise that meets the employee's and the employer's work scheduling needs,
including by considering any alternative proposals offered by the employee. If the
employer denies the request and any alternative proposals offered, the employer
shall inform the employee of the reasons for denial, including whether any of the
reasons is a bona fide business reason.
(c) Requests related to serious health conditions, caregiving, education, or other
part-time employment. Notwithstanding par. (b), if an employer receives a request
from an employee under par. (a) that is directly related to anything specified under
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par. (a) 2., the employer shall grant the request unless the employer has a bona fide
business reason for denying the request.
(d) Verification of reasons for requested changes. If an employer receives a
request from an employee under par. (a), the employer may require the employee to
provide additional information to clarify or explain the reasons for the employee's
requested work schedule change if the employer needs that information to properly
evaluate the request under par. (b) or (c).
(3) PREDICTABLE WORK SCHEDULES FOR RETAIL, FOOD SERVICE, AND CLEANING
EMPLOYEES. (a) Advance notice of work schedules required. 1. On or before the first
day of work of a new service employee, an employer shall provide the service
employee with a written copy of the service employee's work schedule.
2. Except as provided in pars. (b) and (c), if an employer changes a work
schedule provided to a service employee under subd. 1. or this subdivision, the
employer shall provide the service employee with a written copy of the new work
schedule no later than 14 days before the new work schedule begins.
3. An employer shall post a copy of a work schedule provided under this
paragraph in at least one of the following ways:
a. In one or more conspicuous places where notices to employees are
customarily posted.
b. On an Internet site accessible by all of the employer's employees.
4. If an employer changes a work schedule after it is posted under subd. 3., the
employer shall revise the posted work schedule to reflect those changes.
(b) Employer-initiated changes to work schedules without advance notice. 1.
An employer may change, without the advance notice required under par. (a) 2., a
work schedule provided to a service employee under par. (a) 1. or 2. as provided in
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this paragraph. Except as provided under subd. 2., if the employer changes a work
schedule provided to a service employee under par. (a) 1. or 2. less than 14 days before
the new work schedule begins, the employer shall provide the service employee
compensation for the change in an amount equal to the service employee's regular
rate of pay for one hour of work in addition to any other compensation earned by the
service employee.
2. An employer is not required to pay compensation to a service employee under
subd. 1. for a change to the service employee's work schedule if any of the following
applies to the change:
a. The service employee consents to the change.
b. The employer requires the service employee to work additional time or an
additional work shift because another service employee was scheduled to work that
time or work shift and is unexpectedly unavailable to work.
(c) Employee-initiated changes to work schedules. An employer may allow a
service employee to agree to work in place of another service employee if the service
employees mutually agree to the change. The employer is not required to provide
compensation under par. (b) 1. to a service employee with respect to a work shift
agreement under this paragraph.
(d) Compensation for reporting time, on-call time, and split shifts. 1. Except
as provided in subd. 4., if a service employee reports to work and the service
employee's employer does not allow the service employee to work all time that the
service employee is scheduled to work, the employer shall provide the service
employee with the following compensation:
a. If the service employee is scheduled to work 4 hours or less, an amount equal
to the service employee's regular rate of pay for all time the service employee is
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scheduled to work but does not work in addition to any other compensation earned
by the service employee for time the service employee actually works.
b. If the service employee is scheduled to work more than 4 hours and works
less than 4 hours, an amount equal to the service employee's regular rate of pay for
the difference between 4 hours and the amount of time the service employee actually
works in addition to any other compensation earned by the service employee for time
the service employee actually works.
2. Except as provided in subd. 4., if an employer requires a service employee
to contact the employer, or wait to be contacted by the employer, less than 24 hours
before a work shift begins to determine whether the employer will require the service
employee to report to work for that work shift, the employer shall provide the service
employee compensation in an amount equal to the service employee's regular rate of
pay for one hour of work in addition to any other compensation earned by the service
employee for time the service employee actually works.
3. Except as provided in subd. 4, if an employer requires a service employee to
work a split shift, the employer shall provide the service employee compensation in
an amount equal to the service employee's regular rate of pay for one hour of work
in addition to any other compensation earned by the service employee for time the
service employee actually works.
4. If a service employee is entitled to more than one type of compensation under
subds. 1. to 3. with respect to a particular work shift, the employer shall pay the
service employee the compensation required under subd. 1., 2., or 3., whichever is
greatest.
(e) Manner of payment of additional compensation. An employer that is
required to provide compensation to a service employee under par. (b) 1. or (d) shall
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pay that compensation on the service employee's regular paycheck or other wage
payment. The employer shall identify on the paycheck, pay envelope, or paper
accompanying the wage payment the amount of and reason for all additional
compensation paid.
(f) Exception. An employer is not required to comply with this subsection
during a period in which the employer's regular operations are suspended due to an
event outside of the employer's control.
(g) Designating additional covered occupations. The department may
promulgate rules to apply the protections afforded under pars. (a) to (f) to additional
occupations. The department may designate an occupation under this paragraph if
the department determines that at least 10 percent of the individuals employed in
the occupation either typically receive notice of changes to their work schedules less
than 14 days before the changes take effect or regularly experience fluctuations in
the number of hours the individuals are scheduled to work on a daily, weekly, or
monthly basis.
(4) PROHIBITED ACTS. (a) No employer may interfere with, restrain, or deny the
exercise of the right of an employee to request and receive a change in the terms and
conditions of employment as provided under sub. (2). No employer may interfere
with, restrain, or deny the exercise of the right of a service employee to receive
advance notice of work schedules as provided under sub. (3) (a), receive
compensation as provided under sub. (3) (b) 1. and (d), or request approval to work
in place of another employee as provided under sub. (3) (c).
(b) No employer may discharge or discriminate against an employee in
promotion, in compensation, or in the terms, conditions, or privileges of employment
for exercising a right of an employee described under par. (a), opposing a practice
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prohibited under this section, filing or indicating an intent to file a complaint or
otherwise attempting to enforce a right under this section, or testifying, assisting,
or participating in any manner in any investigation, action, or proceeding to enforce
a right under this section.
(c) Section 111.322 (2m) applies to discharge or other discriminatory acts
arising in connection with any proceeding under this section.
(5) ENFORCEMENT. (a) Administrative proceeding. An employee whose rights
are interfered with, restrained, or denied in violation of sub. (4) (a) or who is
discharged or discriminated against in violation of sub. (4) (b) may file a complaint
with the department, and the department shall process the complaint in the same
manner that employment discrimination complaints are processed under s. 111.39.
If the department finds that a violation has occurred, the department may order the
employer to take action to remedy the violation, including any action authorized
under s. 111.39.
(b) Civil action. 1. The department or an employee whose rights are interfered
with, restrained, or denied in violation of sub. (4) (a) or who is discharged or
discriminated against in violation of sub. (4) (b) may bring an action in circuit court
against an employer on the basis of the violation without regard to exhaustion of any
administrative remedy.
2. In an action under subd. 1., if the circuit court finds that a violation of sub.
(4) (a) or (b) has occurred with respect to an employee, the circuit court shall order
the defendant to pay to the employee all of the following:
a. Compensatory damages in an amount that the circuit court or jury finds
appropriate.
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b. Unless the employer proves that the employer acted in good faith and had
a reasonable basis for believing that the act or omission that constituted the violation
was not a violation of this section, an additional amount as liquidated damages equal
to 100 percent of the amount of compensatory damages determined under subd. 2.
a.
c. Notwithstanding s. 814.04 (1), reasonable attorney fees and costs incurred
in the action.
3. Damages awarded under subd. 2. are in addition to any back pay or other
amounts awarded under s. 111.39 or 111.395.
(6) PENALTIES. In addition to any damages imposed under sub. (5), an employer
that willfully violates this section may be required to forfeit not more than $1,000 for
each violation. Each day of continued violation constitutes a separate offense.
(7) NOTICE POSTED. An employer shall post, in one or more conspicuous places
where notices to employees are customarily posted, a notice in a form approved by
the department setting forth employees' rights under this section. An employer that
violates this subsection shall forfeit not more than $100 for each violation.
SECTION 2. 111.322 (2m) (a) of the statutes is amended to read:
111.322 (2m) (a) The individual files a complaint or attempts to enforce any
right under s. 103.02, 103.035, 103.10, 103.11, 103.13, 103.28, 103.32, 103.34,
103.455, 104.12, 109.03, 109.07, 109.075, 146.997, or 995.55, or ss. 101.58 to 101.599
or 103.64 to 103.82.
SECTION 3. 111.322 (2m) (b) of the statutes is amended to read:
111.322 (2m) (b) The individual testifies or assists in any action or proceeding
held under or to enforce any right under s. 103.02, 103.035, 103.10, 103.11, 103.13,
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103.28, 103.32, 103.34, 103.455, 104.12, 109.03, 109.07, 109.075, 146.997, or 995.55,
or ss. 101.58 to 101.599 or 103.64 to 103.82.
SECTION 4.0Nonstatutory provisions.
(1) PREDICTABLE WORK SCHEDULES FOR RETAIL, FOOD SERVICE, AND CLEANING
EMPLOYEES; TRANSITIONAL PROVISIONS. No later than the effective date of this
subsection, an employer, as defined in s. 103.035 (1) (e), shall provide each service
employee, as defined in s. 103.035 (1) (L), with a written copy of the service
employee's work schedule, as defined in s. 103.035 (1) (o). That work schedule is
considered a work schedule provided to a service employee under s. 103.035 (3) (a)
2. for all purposes under s. 103.035, including that the employer shall post a copy of
the work schedule as provided in s. 103.035 (3) (a) 3., and, if the employer changes
that work schedule, s. 103.035 (3) (a) 2. applies to that change.
SECTION 5.0Initial applicability.
(1) This act first applies to an employee who is covered by a collective
bargaining agreement that contains provisions inconsistent with s. 103.035 on the
day on which the collective bargaining agreement expires or is extended, modified,
or renewed, whichever occurs first.
SECTION 6.0Effective date.
(1) This act takes effect on the first day of the 6th month beginning after
publication.
(END)
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