2017 - 2018 LEGISLATURE
January 19, 2018 - Introduced by Representatives Hebl, Anderson, Berceau,
Crowley, Ohnstad, Sargent, Sinicki, Spreitzer, Subeck and C. Taylor,
cosponsored by Senator Hansen. Referred to Committee on Labor.
1An Act to amend
111.322 (2m) (a) and 111.322 (2m) (b); and to create
of the statutes; relating to: the rights of employees to request and receive work
3schedule changes; predictable work schedules for retail, food service, and
4cleaning 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 subdivisions, that employs at least 15 employees (employer) 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
The bill provides that an employee may request changes to the employee's work
schedule, and an employer must negotiate in good faith with the employee to
accommodate the employee's request while also meeting the employer's needs.
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
1. A serious health condition of the employee.
2. Responsibilities of the employee as a caregiver for a child or other family
3. Enrollment of the employee in an educational or training program or
program of study that leads to a recognized postsecondary credential.
4. Work scheduling conflicts of an employee who is part time with the
employee's other employment.
If an employer denies an employee's request, the employer must inform the
employee of the reasons for denial, including whether any of the reasons is a bona
fide business reason. The term “bona fide business reason” is defined in the bill.
Predictable work schedules for retail, food service, and cleaning employees
The bill provides that an employer that employs an employee in certain retail,
food service, or cleaning occupations (service employee) must provide the service
employee with a written copy of the service employee's work schedule on or before
the service employee's first day of work. With certain exceptions, if an employer
changes a service employee's work schedule, the employer must provide the new
work schedule no later than 14 days in advance.
If an employer changes a service employee's work schedule with less than
14-days' advance notice, the employer must pay the service employee an amount
equal to the service employee's regular rate of pay for one hour of work, unless 1) the
service employee consents to the change or 2) 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 do so.
If an employer uses the following scheduling practices, the employer must
compensate a service employee subjected to those practices as follows:
1. If the service employee reports to work and the employer does not allow the
service employee to work all time scheduled, the employer shall provide the service
employee with the following compensation: a) if the service employee is scheduled
to work four hours or less, an amount equal to the service employee's regular rate of
pay for all time the service employee is scheduled to work but does not work; or b)
if the service employee is scheduled to work more than four hours and works less
than four hours, an amount equal to the service employee's regular rate of pay for the
difference between four hours and the amount of time the service employee actually
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 service employee must report to work, the employer must pay the
service employee an amount equal to the service 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 service employee an amount equal to the service employee's
regular rate of pay for one hour of work.
If a service employee is entitled to more than one type of compensation related
to employer scheduling practices with respect to a particular work shift, the
employer must pay only one type of compensation, whichever is greatest.
The bill 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 change takes effect or
regularly experience fluctuations in the number of hours the individuals are
scheduled to work on a daily, weekly, or monthly basis.
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 is 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:
103.035 of the statutes is created to read:
2103.035 Work schedule flexibility and predictability. (1) Definitions. 3
In this section:
(a) “Bona fide business reason” means a reason that justifies an employer's 5
action and that is based on the employer's determination that taking a different 6
action would have any of the following results:
1. Additional costs to the employer, including costs of lost employee 2
productivity, retaining or hiring employees, or transferring employees between work 3
2. A significant detrimental effect on the employer's ability to meet 5
organizational needs or customer demand.
3. A significant inability of the employer, despite the employer's best efforts, 7
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 11
granting all requests would have a significant detrimental effect on the employer's 12
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 15
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 19
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. 23
“Employer” includes the state, its political subdivisions, and any office, department, 24
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 2
law, including the legislature and the courts.
(f) “Family member” means any of the following: