Wisconsin 2023-2024 Regular Session

Wisconsin Assembly Bill AB583 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 583
5	5	October 31, 2023 - Introduced by Representatives J. ANDERSON, C. ANDERSON,
6	6	BALDEH, BARE, DRAKE, MOORE OMOKUNDE, OHNSTAD, SINICKI, SUBECK and
7	7	JACOBSON, cosponsored by Senators ROYS, AGARD, CARPENTER, L. JOHNSON,
8	8	LARSON and SPREITZER. Referred to Committee on Labor and Integrated
9	9	Employment.
10	10	*AUTHORS SUBJECT TO CHANGE*
11	11	AN ACT to amend 111.322 (2m) (a) and 111.322 (2m) (b); and to create 103.035
12	12	of the statutes; relating to: the rights of employees to request and receive work
13	13	schedule changes; predictable work schedules for retail, food service, and
14	14	cleaning employees; granting rule-making authority; and providing a penalty.
15	15	Analysis by the Legislative Reference Bureau
16	16	This bill provides that an employee who works for an employer, including the
17	17	state and political subdivision employers, that employs at least 15 employees has the
18	18	right to request and receive changes to the employee's work schedule under certain
19	19	circumstances. The bill also provides rights regarding work scheduling for
20	20	employees in certain retail, food service, or cleaning occupations, or other
21	21	occupations designated by the Department of Workforce Development.
22	22	Employee right to request and receive work schedule changes
23	23	Under the bill, an employer must negotiate in good faith with an employee to
24	24	accommodate changes the employee requests to his or her work schedule. Further,
25	25	unless an employer has a bona fide business reason for denying the request, the
26	26	employer must approve an employee's request if it is directly related to any of the
27	27	following:
28	28	1. A serious health condition of the employee.
29	29	2. Responsibilities of the employee as a caregiver for a family member.
30	30	3. Enrollment of the employee in certain educational or training programs.
31	31	4. A part-time employee's work scheduling conflicts with the employee's other
32	32	employment.
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38	38	ASSEMBLY BILL 583
39	39	If an employer denies an employee's request for a schedule change, the
40	40	employer must inform the employee of the reasons for denial, including whether any
41	41	of the reasons is a bona fide business reason as defined in the bill.
42	42	Service employee right to predictable work schedule
43	43	The bill requires an employer that employs an employee in certain service
44	44	industry occupations, including retail, food service, and cleaning occupations to
45	45	provide the service employee a written copy of the employee's work schedule on or
46	46	before the service employee's first day of work. With certain exceptions, if an
47	47	employer changes the service employee's work schedule, the employer must provide
48	48	the new work schedule to the employee at least 14 days in advance.
49	49	The bill also requires that if an employer changes a service employee's work
50	50	schedule with fewer than 14 days' notice, the employer must pay the service
51	51	employee an amount equal to the employee's regular rate of pay for one hour of work.
52	52	Exceptions to this requirement include when the employee consents to the change
53	53	or when the employer requires the service employee to work additional time because
54	54	another employee was scheduled to work that time and is unexpectedly unavailable
55	55	to work.
56	56	The bill also requires the following for employers that use certain scheduling
57	57	practices:
58	58	1. If the service employee reports to work and the employer does not allow the
59	59	employee to work all time scheduled, the employer must provide the employee with:
60	60	1) full compensation as if the employee had worked the full shift; or 2) if the employee
61	61	is scheduled to work more than four hours and works less than four hours, an amount
62	62	equal to the employee's regular rate of pay for the difference between four hours and
63	63	the amount of time the employee actually works.
64	64	2. If the employer requires the service employee to contact the employer, or wait
65	65	to be contacted by the employer less than 24 hours before a work shift to determine
66	66	whether the employee must report to work, the employer must pay the employee an
67	67	amount equal to the employee's regular rate of pay for one hour of work.
68	68	3. If the employer requires the service employee to work a split shift, the
69	69	employer must pay the employee an amount equal to the employee's regular rate of
70	70	pay for one hour of work.
71	71	If a service employee experiences more than one type of these scheduling
72	72	practices with respect to a particular work shift, the employer must pay only one type
73	73	of compensation, whichever is greatest.
74	74	The bill also provides that, during any period in which the employer's regular
75	75	operations are suspended due to an event outside of the employer's control, the
76	76	employer is not required to comply with the service employee work scheduling
77	77	requirements created in the bill.
78	78	The bill authorizes DWD to promulgate rules to apply the protections afforded
79	79	under the bill to additional occupations if DWD determines that at least 10 percent
80	80	of the individuals employed in an occupation either typically receive notice of
81	81	changes to their work schedules less than 14 days before the changes take effect or
82	82	regularly experience fluctuations in the number of hours the individuals are
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87	87	Enforcement
88	88	The bill provides that an employer may not interfere with, restrain, or deny the
89	89	exercise of the right of an employee created in the bill and may not discharge or
90	90	discriminate against an employee for enforcing the employee's rights under the bill.
91	91	An employee whose rights are violated may file a complaint with DWD, and DWD
92	92	must process the complaint in the same manner that employment discrimination
93	93	complaints are processed under current law. That processing may include the
94	94	ordering of back pay, reinstatement, compensation in lieu of reinstatement, and costs
95	95	and attorney fees.
96	96	The bill also provides that DWD or an employee whose rights are violated may
97	97	bring an action in circuit court against the employer without regard to exhaustion
98	98	of any administrative remedy. If the circuit court finds that a violation has occurred,
99	99	the employer may be liable to the employee for compensatory damages, reasonable
100	100	attorney fees and costs, and, under certain circumstances, liquidated damages equal
101	101	to 100 percent of the amount of compensatory damages awarded to the employee.
102	102	In addition to any damages imposed on an employer in an administrative proceeding
103	103	or circuit court action, an employer that willfully violates the protections created in
104	104	the bill may be required to forfeit not more than $1,000 for each violation.
105	105	For further information see the state and local fiscal estimate, which will be
106	106	printed as an appendix to this bill.
107	107	The people of the state of Wisconsin, represented in senate and assembly, do
108	108	enact as follows:
109	109	SECTION 1. 103.035 of the statutes is created to read:
110	110	103.035 Work schedule flexibility and predictability. (1) DEFINITIONS.
111	111	In this section:
112	112	(a) “Bona fide business reason” means a reason that justifies an employer's
113	113	action and that is based on the employer's determination that taking a different
114	114	action would have any of the following results:
115	115	1. Additional costs to the employer, including costs of lost employee
116	116	productivity, retaining or hiring employees, or transferring employees between work
117	117	locations.
118	118	2. A significant detrimental effect on the employer's ability to meet
119	119	organizational needs or customer demand.
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133	133	3. A significant inability of the employer, despite the employer's best efforts,
134	134	to reorganize work among other employees.
135	135	4. A significant detrimental effect on the employer's business performance.
136	136	5. Insufficient work during the period an employee proposes to work.
137	137	6. Unfairness to other employees who request changes to work schedules if
138	138	granting all requests would have a significant detrimental effect on the employer's
139	139	ability to meet organizational needs.
140	140	(b) “Child” means an individual who is all of the following:
141	141	1. A biological, adopted, or foster child; a stepchild; a legal ward; or a child of
142	142	a person standing in the place of a parent with respect to that child.
143	143	2. An individual to whom any of the following applies:
144	144	a. The individual is less than 18 years of age.
145	145	b. The individual is 18 years of age or older and is incapable of self-care because
146	146	of a mental or physical disability.
147	147	(c) “Domestic partner” has the meaning given in s. 40.02 (21c) or 770.01 (1).
148	148	(d) “Employee” means an employee who is employed by an employer.
149	149	(e) “Employer” means an employer that employs at least 15 employees.
150	150	“Employer” includes the state, its political subdivisions, and any office, department,
151	151	independent agency, authority, institution, association, society, or other body in state
152	152	or local government created or authorized to be created by the constitution or any
153	153	law, including the legislature and the courts.
154	154	(f) “Family member” means any of the following:
155	155	1. A spouse or domestic partner of an employee.
156	156	2. A parent, child, sibling, brother-in-law, sister-in-law, grandparent, or
157	157	grandchild of an employee or of an employee's spouse or domestic partner.
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187	187	3. Any other individual who is related by blood, marriage, or adoption to an
188	188	employee or to an employee's spouse or domestic partner and whose close association
189	189	with the employee, spouse, or domestic partner makes the individual the equivalent
190	190	of a family member of the employee, spouse, or domestic partner.
191	191	(g) “Grandchild” means the child of a child.
192	192	(h) “Grandparent” means the parent of a parent.
193	193	(i) “Nonexempt employee” means an employee who is not employed in a bona
194	194	fide executive, administrative, or professional capacity, as described in 29 USC 213
195	195	(a) (1).
196	196	(j) “Parent” means a biological parent, foster parent, adoptive parent,
197	197	stepparent, or legal guardian of an employee or of an employee's spouse or domestic
198	198	partner.
199	199	(k) “Part-time employee” means an employee who works on average fewer than
200	200	30 hours per week for a particular employer.
201	201	(L) “Service employee” means a nonexempt employee who is employed in an
202	202	occupation designated by the department under sub. (3) (g) or in any of the
203	203	occupations classified under the following codes set forth in the Standard
204	204	Occupational Classification system, 2018 edition, published by the bureau of labor
205	205	statistics of the U.S. department of labor:
206	206	1. Major group code 35-0000 — Food preparation and serving related
207	207	occupations.
208	208	2. Broad occupation code 37-2010 — Building cleaning workers.
209	209	3. Detailed occupation code 41-1011 — First-line supervisors of retail sales
210	210	workers.
211	211	4. Minor group code 41-2000 — Retail sales workers.
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239	239	(m) “Sibling” means a brother, sister, half brother, half sister, stepbrother,
240	240	stepsister, foster brother, or foster sister, whether by blood, marriage, or adoption.
241	241	(n) “Split shift” means a work shift that consists of work time that is not
242	242	continuous. For purposes of determining whether a work shift is continuous, any of
243	243	the following breaks in work time are not considered:
244	244	1. One or more breaks for meals that total one hour or less.
245	245	2. A break that is requested by the employee.
246	246	(o) “Work schedule” means the days and times during each successive work
247	247	period when an employee is required by an employer to perform duties of
248	248	employment.
249	249	(p) “Work shift” means the specific times during a day that an employer
250	250	requires an employee to work.
251	251	(q) “Written” does not include a communication that is transmitted or received
252	252	by electronic means.
253	253	(2) EMPLOYEE RIGHT TO REQUEST AND RECEIVE WORK SCHEDULE CHANGES. (a)
254	254	Employee right to request work schedule changes. 1. An employee may request a
255	255	change in the terms and conditions of employment related to any of the following:
256	256	a. The number of hours the employee is required to work or be on call for work.
257	257	b. The days or times when the employee is required to work or be on call for
258	258	work.
259	259	c. The location where the employee is required to work.
260	260	d. The amount of notification the employee receives regarding changes to the
261	261	employee's work schedule.
262	262	e. Minimizing fluctuations in the number of hours the employee is scheduled
263	263	to work on a daily, weekly, or monthly basis.
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291	291	SECTION 1
292	292	ASSEMBLY BILL 583
293	293	2. An employee who makes a request under subd. 1. shall specify in the request
294	294	whether it is related to any of the following:
295	295	a. A serious health condition, as defined under s. 103.10 (1) (g), of the employee.
296	296	b. The employee's responsibilities as a significant provider of ongoing care,
297	297	including responsibility for securing ongoing care, of the employee's child, family
298	298	member with a serious health condition, as defined under s. 103.10 (1) (g), or parent
299	299	who is 65 years of age or older.
300	300	c. The employee's responsibilities as a significant provider of education,
301	301	including responsibility for securing education, of the employee's child.
302	302	d. The employee's enrollment in an educational or training program or program
303	303	of study that leads to a recognized postsecondary credential.
304	304	e. If the employee is a part-time employee, conflicts with the employee's other
305	305	employment.
306	306	(b) Evaluating requests for work schedule changes. If an employer receives a
307	307	request from an employee under par. (a), the employer shall either grant the request
308	308	without modification or negotiate in good faith with the employee to find a
309	309	compromise that meets the employee's and the employer's work scheduling needs,
310	310	including by considering any alternative proposals offered by the employee. If the
311	311	employer denies the request and any alternative proposals offered, the employer
312	312	shall inform the employee of the reasons for denial, including whether any of the
313	313	reasons is a bona fide business reason.
314	314	(c) Requests related to serious health conditions, caregiving, education, or other
315	315	part-time employment. Notwithstanding par. (b), if an employer receives a request
316	316	from an employee under par. (a) that is directly related to anything specified under
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343	343	par. (a) 2., the employer shall grant the request unless the employer has a bona fide
344	344	business reason for denying the request.
345	345	(d) Verification of reasons for requested changes. If an employer receives a
346	346	request from an employee under par. (a), the employer may require the employee to
347	347	provide additional information to clarify or explain the reasons for the employee's
348	348	requested work schedule change if the employer needs that information to properly
349	349	evaluate the request under par. (b) or (c).
350	350	(3) PREDICTABLE WORK SCHEDULES FOR RETAIL, FOOD SERVICE, AND CLEANING
351	351	EMPLOYEES. (a) Advance notice of work schedules required. 1. On or before the first
352	352	day of work of a new service employee, an employer shall provide the service
353	353	employee with a written copy of the service employee's work schedule.
354	354	2. Except as provided in pars. (b) and (c), if an employer changes a work
355	355	schedule provided to a service employee under subd. 1. or this subdivision, the
356	356	employer shall provide the service employee with a written copy of the new work
357	357	schedule no later than 14 days before the new work schedule begins.
358	358	3. An employer shall post a copy of a work schedule provided under this
359	359	paragraph in at least one of the following ways:
360	360	a. In one or more conspicuous places where notices to employees are
361	361	customarily posted.
362	362	b. On an Internet site accessible by all of the employer's employees.
363	363	4. If an employer changes a work schedule after it is posted under subd. 3., the
364	364	employer shall revise the posted work schedule to reflect those changes.
365	365	(b) Employer-initiated changes to work schedules without advance notice. 1.
366	366	An employer may change, without the advance notice required under par. (a) 2., a
367	367	work schedule provided to a service employee under par. (a) 1. or 2. as provided in
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395	395	SECTION 1
396	396	ASSEMBLY BILL 583
397	397	this paragraph. Except as provided under subd. 2., if the employer changes a work
398	398	schedule provided to a service employee under par. (a) 1. or 2. less than 14 days before
399	399	the new work schedule begins, the employer shall provide the service employee
400	400	compensation for the change in an amount equal to the service employee's regular
401	401	rate of pay for one hour of work in addition to any other compensation earned by the
402	402	service employee.
403	403	2. An employer is not required to pay compensation to a service employee under
404	404	subd. 1. for a change to the service employee's work schedule if any of the following
405	405	applies to the change:
406	406	a. The service employee consents to the change.
407	407	b. The employer requires the service employee to work additional time or an
408	408	additional work shift because another service employee was scheduled to work that
409	409	time or work shift and is unexpectedly unavailable to work.
410	410	(c) Employee-initiated changes to work schedules. An employer may allow a
411	411	service employee to agree to work in place of another service employee if the service
412	412	employees mutually agree to the change. The employer is not required to provide
413	413	compensation under par. (b) 1. to a service employee with respect to a work shift
414	414	agreement under this paragraph.
415	415	(d) Compensation for reporting time, on-call time, and split shifts. 1. Except
416	416	as provided in subd. 4., if a service employee reports to work and the service
417	417	employee's employer does not allow the service employee to work all time that the
418	418	service employee is scheduled to work, the employer shall provide the service
419	419	employee with the following compensation:
420	420	a. If the service employee is scheduled to work 4 hours or less, an amount equal
421	421	to the service employee's regular rate of pay for all time the service employee is
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448	448	SECTION 1 ASSEMBLY BILL 583
449	449	scheduled to work but does not work in addition to any other compensation earned
450	450	by the service employee for time the service employee actually works.
451	451	b. If the service employee is scheduled to work more than 4 hours and works
452	452	less than 4 hours, an amount equal to the service employee's regular rate of pay for
453	453	the difference between 4 hours and the amount of time the service employee actually
454	454	works in addition to any other compensation earned by the service employee for time
455	455	the service employee actually works.
456	456	2. Except as provided in subd. 4., if an employer requires a service employee
457	457	to contact the employer, or wait to be contacted by the employer, less than 24 hours
458	458	before a work shift begins to determine whether the employer will require the service
459	459	employee to report to work for that work shift, the employer shall provide the service
460	460	employee compensation in an amount equal to the service employee's regular rate of
461	461	pay for one hour of work in addition to any other compensation earned by the service
462	462	employee for time the service employee actually works.
463	463	3. Except as provided in subd. 4, if an employer requires a service employee to
464	464	work a split shift, the employer shall provide the service employee compensation in
465	465	an amount equal to the service employee's regular rate of pay for one hour of work
466	466	in addition to any other compensation earned by the service employee for time the
467	467	service employee actually works.
468	468	4. If a service employee is entitled to more than one type of compensation under
469	469	subds. 1. to 3. with respect to a particular work shift, the employer shall pay the
470	470	service employee the compensation required under subd. 1., 2., or 3., whichever is
471	471	greatest.
472	472	(e) Manner of payment of additional compensation. An employer that is
473	473	required to provide compensation to a service employee under par. (b) 1. or (d) shall
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503	503	pay that compensation on the service employee's regular paycheck or other wage
504	504	payment. The employer shall identify on the paycheck, pay envelope, or paper
505	505	accompanying the wage payment the amount of and reason for all additional
506	506	compensation paid.
507	507	(f) Exception. An employer is not required to comply with this subsection
508	508	during a period in which the employer's regular operations are suspended due to an
509	509	event outside of the employer's control.
510	510	(g) Designating additional covered occupations. The department may
511	511	promulgate rules to apply the protections afforded under pars. (a) to (f) to additional
512	512	occupations. The department may designate an occupation under this paragraph if
513	513	the department determines that at least 10 percent of the individuals employed in
514	514	the occupation either typically receive notice of changes to their work schedules less
515	515	than 14 days before the changes take effect or regularly experience fluctuations in
516	516	the number of hours the individuals are scheduled to work on a daily, weekly, or
517	517	monthly basis.
518	518	(4) PROHIBITED ACTS. (a) No employer may interfere with, restrain, or deny the
519	519	exercise of the right of an employee to request and receive a change in the terms and
520	520	conditions of employment as provided under sub. (2). No employer may interfere
521	521	with, restrain, or deny the exercise of the right of a service employee to receive
522	522	advance notice of work schedules as provided under sub. (3) (a), receive
523	523	compensation as provided under sub. (3) (b) 1. and (d), or request approval to work
524	524	in place of another employee as provided under sub. (3) (c).
525	525	(b) No employer may discharge or discriminate against an employee in
526	526	promotion, in compensation, or in the terms, conditions, or privileges of employment
527	527	for exercising a right of an employee described under par. (a), opposing a practice
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554	554	SECTION 1 ASSEMBLY BILL 583
555	555	prohibited under this section, filing or indicating an intent to file a complaint or
556	556	otherwise attempting to enforce a right under this section, or testifying, assisting,
557	557	or participating in any manner in any investigation, action, or proceeding to enforce
558	558	a right under this section.
559	559	(c) Section 111.322 (2m) applies to discharge or other discriminatory acts
560	560	arising in connection with any proceeding under this section.
561	561	(5) ENFORCEMENT. (a) Administrative proceeding. An employee whose rights
562	562	are interfered with, restrained, or denied in violation of sub. (4) (a) or who is
563	563	discharged or discriminated against in violation of sub. (4) (b) may file a complaint
564	564	with the department, and the department shall process the complaint in the same
565	565	manner that employment discrimination complaints are processed under s. 111.39.
566	566	If the department finds that a violation has occurred, the department may order the
567	567	employer to take action to remedy the violation, including any action authorized
568	568	under s. 111.39.
569	569	(b) Civil action. 1. The department or an employee whose rights are interfered
570	570	with, restrained, or denied in violation of sub. (4) (a) or who is discharged or
571	571	discriminated against in violation of sub. (4) (b) may bring an action in circuit court
572	572	against an employer on the basis of the violation without regard to exhaustion of any
573	573	administrative remedy.
574	574	2. In an action under subd. 1., if the circuit court finds that a violation of sub.
575	575	(4) (a) or (b) has occurred with respect to an employee, the circuit court shall order
576	576	the defendant to pay to the employee all of the following:
577	577	a. Compensatory damages in an amount that the circuit court or jury finds
578	578	appropriate.
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605	605	SECTION 1
606	606	ASSEMBLY BILL 583
607	607	b. Unless the employer proves that the employer acted in good faith and had
608	608	a reasonable basis for believing that the act or omission that constituted the violation
609	609	was not a violation of this section, an additional amount as liquidated damages equal
610	610	to 100 percent of the amount of compensatory damages determined under subd. 2.
611	611	a.
612	612	c. Notwithstanding s. 814.04 (1), reasonable attorney fees and costs incurred
613	613	in the action.
614	614	3. Damages awarded under subd. 2. are in addition to any back pay or other
615	615	amounts awarded under s. 111.39 or 111.395.
616	616	(6) PENALTIES. In addition to any damages imposed under sub. (5), an employer
617	617	that willfully violates this section may be required to forfeit not more than $1,000 for
618	618	each violation. Each day of continued violation constitutes a separate offense.
619	619	(7) NOTICE POSTED. An employer shall post, in one or more conspicuous places
620	620	where notices to employees are customarily posted, a notice in a form approved by
621	621	the department setting forth employees' rights under this section. An employer that
622	622	violates this subsection shall forfeit not more than $100 for each violation.
623	623	SECTION 2. 111.322 (2m) (a) of the statutes is amended to read:
624	624	111.322 (2m) (a) The individual files a complaint or attempts to enforce any
625	625	right under s. 103.02, 103.035, 103.10, 103.11, 103.13, 103.28, 103.32, 103.34,
626	626	103.455, 104.12, 109.03, 109.07, 109.075, 146.997, or 995.55, or ss. 101.58 to 101.599
627	627	or 103.64 to 103.82.
628	628	SECTION 3. 111.322 (2m) (b) of the statutes is amended to read:
629	629	111.322 (2m) (b) The individual testifies or assists in any action or proceeding
630	630	held under or to enforce any right under s. 103.02, 103.035, 103.10, 103.11, 103.13,
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656	656	SECTION 3 ASSEMBLY BILL 583
657	657	103.28, 103.32, 103.34, 103.455, 104.12, 109.03, 109.07, 109.075, 146.997, or 995.55,
658	658	or ss. 101.58 to 101.599 or 103.64 to 103.82.
659	659	SECTION 4.0Nonstatutory provisions.
660	660	(1) PREDICTABLE WORK SCHEDULES FOR RETAIL, FOOD SERVICE, AND CLEANING
661	661	EMPLOYEES; TRANSITIONAL PROVISIONS. No later than the effective date of this
662	662	subsection, an employer, as defined in s. 103.035 (1) (e), shall provide each service
663	663	employee, as defined in s. 103.035 (1) (L), with a written copy of the service
664	664	employee's work schedule, as defined in s. 103.035 (1) (o). That work schedule is
665	665	considered a work schedule provided to a service employee under s. 103.035 (3) (a)
666	666	2. for all purposes under s. 103.035, including that the employer shall post a copy of
667	667	the work schedule as provided in s. 103.035 (3) (a) 3., and, if the employer changes
668	668	that work schedule, s. 103.035 (3) (a) 2. applies to that change.
669	669	SECTION 5.0Initial applicability.
670	670	(1) This act first applies to an employee who is covered by a collective
671	671	bargaining agreement that contains provisions inconsistent with s. 103.035 on the
672	672	day on which the collective bargaining agreement expires or is extended, modified,
673	673	or renewed, whichever occurs first.
674	674	SECTION 6.0Effective date.
675	675	(1) This act takes effect on the first day of the 6th month beginning after
676	676	publication.
677	677	(END)
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