Amendment SSA1-AB116

LRBs0465/1

GMM:cjs:jf

2009 - 2010 LEGISLATURE

SENATE SUBSTITUTE AMENDMENT 1, TO 2009 ASSEMBLY BILL 116

April 21, 2010 - Offered by Senator Vinehout.

AB116-SSA1,1,3 An Act to amend 36.11 (17) (b), 111.322 (2m) (a), 111.322 (2m) (b), 111.91 (2) (f), 111.998 (2) (c), 230.35 (2), 230.35 (2m) and 253.10 (3) (d) 1.; and to create 103.11 and 893.963 of the statutes; relating to: school activities leave.

Analysis by the Legislative Reference Bureau

Under current law, an employer, including the state, employing at least 50 individuals on a permanent basis in this state must permit an employee who has been employed by the employer for more than 52 consecutive weeks and who has worked for the employer for at least 1,000 hours during the preceding 52-week period to take six weeks of family leave in a 12-month period and two weeks of medical leave in a 12-month period. Family leave may be taken for the birth or adoptive placement of a new child or to care for a child, spouse, or parent who has a serious health condition. Medical leave may be taken when the employee has a serious health condition that makes the employee unable to perform the employee's employment duties. An employee is not entitled to receive wages or salary while taking family or medical leave, but may substitute, for portions of family or medical leave, other types of paid or unpaid leave provided by the employer. An employee who intends to take family or medical leave for the birth or adoptive placement of a child or for planned medical treatment must give the employer advance notice of the birth or adoptive placement or planned medical treatment. In addition, for planned medical treatment, the employee must make a reasonable effort to schedule the medical treatment so that it does not unduly disrupt the operations of the employer.

This substitute amendment allows any employee of an employer, including the state, employing at least 50 individuals on a permanent basis in this state to take no more than 40 hours of leave in a 12-month period to attend school activities of the employee's child, but allows an employee to take no more than eight of those hours in any given month. Under the substitute amendment, an employee must use accrued vacation leave, personal leave, compensatory time off, or any other leave or time off that may be granted to the employee for purposes of school activities leave, except that an employee may not use sick leave or disability leave for purposes of school activities leave. An employee may also use unpaid leave for purposes of school activities leave, if permitted by his or her employer. An employee who intends to take leave to attend a school activity must give the employer advance notice of the activity and must make a reasonable effort to schedule the activity so that it does not unduly disrupt the operations of the employer. When an employee returns from school activities leave, the employer may require the employee to provide, in a reasonable and practicable manner, documentation from his or her child's school stating no more than that the employee was attending a school activity on a specific date and at a particular time.

For purposes of the substitute amendment, "child" includes, in addition to a natural child, an adopted or foster child, a stepchild, a legal ward, or a grandchild in the legal custody of his or her grandparent, and "school" includes, in addition to a public or private school that provides an educational program for one or more grades between kindergarten and 12, a child care provider or a public or private preschool or prekindergarten.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB116-SSA1, s. 1 Section 1. 36.11 (17) (b) of the statutes is amended to read:

AB116-SSA1,2,6 36.11 (17) (b) Only one sabbatical leave may be granted for each 6 years of full-time instructional service in the system with preference given to those who have been making significant contributions to teaching and have not had a leave of absence except under s. 103.10 or 103.11, regardless of source of funding, in the previous 4 years.

AB116-SSA1, s. 2 Section 2. 103.11 of the statutes is created to read:

AB116-SSA1,2,8 103.11 School activities leave. (1) Definitions. In this section:

AB116-SSA1,3,3 (a) "Child" means a natural, adopted, or foster child, a stepchild, a legal ward, or a grandchild in the legal custody of his or her grandparent who is enrolled in a school.

AB116-SSA1,3,4 (b) "Employee" has the meaning given in s. 103.10 (1) (b).

AB116-SSA1,3,5 (c) "Employer" has the meaning given in s. 103.10 (1) (c).

AB116-SSA1,3,10 (d) "School" means a child care provider, as defined in s. 49.001 (1), a public or private preschool or prekindergarten, or a public or private school that provides an educational program for one or more grades between kindergarten and 12 and that is commonly known as a kindergarten, elementary school, middle school, junior high school, senior high school, or high school.

AB116-SSA1,3,13 (2) Scope. Nothing in this section prohibits an employer from providing employees with rights to school activities leave that are more generous to the employee than the rights provided under this section.

AB116-SSA1,3,17 (3) School activities leave. (a) Subject to pars. (b) to (d) and sub. (4), an employee may take no more than 40 hours of school activities leave in a 12-month period to attend school activities relating to the employee's child, but may take no more than 8 of those hours in any given month.

AB116-SSA1,3,23 (b) An employee shall use accrued vacation leave, personal leave, compensatory time off, or any other leave or time off that may be granted to the employee for purposes of school activities leave, except that an employee may not use sick leave or disability leave for purposes of school activities leave. An employee may also use unpaid leave for purposes of school activities leave, if permitted by his or her employer.

AB116-SSA1,4,2 (c) If more than one employee employed by the same employer at the same worksite is entitled to take school activities leave relating to the same child, only one of those employees may take school activities leave relating to that child at any one time, unless the employer permits otherwise.

AB116-SSA1,4,5 (d) If an employer provides all of its permanent, full-time employees with vacation leave that occurs at the same time, an employee may not use that accrued vacation leave at any other time for purposes of school activities leave.

AB116-SSA1,4,7 (4) Notice to employer. If an employee intends to take leave under sub. (3) for the purpose of attending a school activity, the employee shall do all of the following:

AB116-SSA1,4,9 (a) Make a reasonable effort to schedule the activity so that it does not unduly disrupt the employer's operations.

AB116-SSA1,4,11 (b) Give the employer advance notice of the activity in a reasonable and practicable manner.

AB116-SSA1,4,18 (5) Documentation. When an employee returns from school activities leave, the employer may require the employee to provide, in a reasonable and practicable manner, documentation from his or her child's school stating no more than that the employee was attending a school activity on a specific date and at a particular time. The documentation shall consist of such written verification of the employee's attendance at the school activity as the school considers to be reasonable and appropriate.

AB116-SSA1,4,21 (6) Employee benefits. No employer may reduce or deny an employment benefit, as defined in s. 103.10 (1) (d), that has accrued to an employee because the employee took school activities leave.

AB116-SSA1,4,23 (7) Prohibited acts. (a) No person may interfere with, restrain, or deny the exercise of any right provided under this section.

AB116-SSA1,4,25 (b) No person may discharge or in any other manner discriminate against any individual for opposing a practice prohibited under sub. (6).

AB116-SSA1,5,2 (c) Section 111.322 (2m) applies to discharge or other discriminatory acts arising in connection with any proceeding under this section.

AB116-SSA1,5,10 (8) Administrative proceeding. (a) An employee who believes his or her employer has violated sub. (7) (a) or (b) may, within 30 days after the violation occurs or the employee should reasonably have known that the violation occurred, whichever is later, file a complaint with the department alleging the violation. Except as provided in par. (b), the department shall investigate the complaint, shall attempt to resolve the complaint by conference, conciliation, or persuasion, and, if the complaint is not resolved, shall determine whether there is probable cause to believe a violation has occurred.

AB116-SSA1,5,17 (b) The department shall waive the investigation and determination of probable cause of any complaint that is filed by a complainant under par. (a) at the complainant's request. If the department waives the investigation and probable cause determination, the department shall proceed with a hearing on the complaint as provided in par. (c). The department's waiver of an investigation and probable cause determination does not affect the department's right to attempt to resolve the complaint by conference, conciliation, or persuasion.

AB116-SSA1,5,22 (c) If the complaint is not resolved and the department finds probable cause to believe a violation has occurred or waives the investigation and probable cause determination, the department shall proceed with notice and a hearing on the complaint as provided in ch. 227. The hearing shall be held within 60 days after the department receives the complaint.

AB116-SSA1,6,3 (d) The department shall issue its decision and order within 30 days after the hearing. If the department finds that an employer violated sub. (7) (a) or (b), the department may order the employer to take action to remedy the violation, including providing the requested school activities leave, reinstating an employee, providing back pay accrued not more than 2 years before the complaint was filed, and paying reasonable actual attorney fees to the complainant.

AB116-SSA1,6,7 (9) Civil action. (a) An employee or the department may bring an action in circuit court against an employer to recover damages caused by a violation of sub. (7) after the completion of an administrative proceeding, including judicial review, concerning the same violation.

AB116-SSA1,6,9 (b) An action under par. (a) shall be commenced within the later of the following periods, or be barred:

AB116-SSA1,6,11 1. Sixty days after the completion of an administrative proceeding, including judicial review, concerning the same violation.

AB116-SSA1,6,13 2. Twelve months after the violation occurred or the department or employee should reasonably have known that the violation occurred.

AB116-SSA1,6,16 (10) Posting of notice. Each 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.

AB116-SSA1, s. 3 Section 3. 111.322 (2m) (a) of the statutes, as affected by 2009 Wisconsin Act 182, section 9, is amended to read:

AB116-SSA1,6,22 111.322 (2m) (a) The individual files a complaint or attempts to enforce any right under s. 103.02, 103.10, 103.11, 103.13, 103.28, 103.32, 103.34, 103.455, 103.50, 104.12, 106.04, 109.03, 109.07, 109.075, or 146.997 or ss. 101.58 to 101.599 or 103.64 to 103.82.

AB116-SSA1, s. 4 Section 4. 111.322 (2m) (b) of the statutes, as affected by 2009 Wisconsin Act 182, section 9, is amended to read:

AB116-SSA1,7,4 111.322 (2m) (b) The individual testifies or assists in any action or proceeding held under or to enforce any right under s. 103.02, 103.10, 103.11, 103.13, 103.28, 103.32, 103.34, 103.455, 103.50, 104.12, 106.04, 109.03, 109.07, 109.075, or 146.997 or ss. 101.58 to 101.599 or 103.64 to 103.82.

AB116-SSA1, s. 5 Section 5. 111.91 (2) (f) of the statutes is amended to read:

AB116-SSA1,7,12 111.91 (2) (f) Family leave and medical leave rights below the minimum afforded under s. 103.10 and school activities leave rights below the minimum afforded under s. 103.11. Nothing in this paragraph prohibits the employer from bargaining on rights to family leave or medical leave which that are more generous to the employee than the rights provided under s. 103.10 or from bargaining on rights to school activities leave that are more generous to the employee than the rights provided under s. 103.11.

AB116-SSA1, s. 6 Section 6. 111.998 (2) (c) of the statutes, as created by 2009 Wisconsin Act 28, is amended to read:

AB116-SSA1,7,21 111.998 (2) (c) Family leave and medical leave rights below the minimum afforded under s. 103.10 and school activities leave rights below the minimum afforded under s. 103.11. Nothing in this paragraph prohibits the board from bargaining on rights to family leave or medical leave which that are more generous to the employee than the rights provided under s. 103.10 or from bargaining on rights to school activities leave that are more generous to the employee than the rights provided under s. 103.11.

AB116-SSA1, s. 7 Section 7. 230.35 (2) of the statutes is amended to read: