Enforcement
Under current law, an employe who believes that his or her employer has
violated the family or medical leave law may file a complaint with DILHR within 30
days after the employe knew or should have known of the violation. This bill extends
that time limit to 300 days after the date of the last event constituting the alleged
violation.
Under current law, if DILHR finds that an employer has violated the family or
medical leave law, DILHR may order the employer to take action to remedy the
violation, including providing the requested leave, reinstating the employe,
providing back pay accrued not more than 2 years before the complaint was filed and
paying reasonable actual attorney fees. This bill eliminates the 2-year limit on back
pay and includes among the remedies that DILHR may order promoting the employe
and providing benefits to the employe.
Under current law, an employe or DILHR may bring a civil action in circuit
court against an employer to recover damages caused by a violation of the family or
medical leave law. Currently, a civil action under the family or medical leave law
must be commenced within the later of 60 days after the completion of an
administrative proceeding, including judicial review, for the violation or 12 months
after the violation occurred or the employe or DILHR reasonably should have known
that the violation occurred, or be barred. This bill permits an employe or DILHR to
bring an action on behalf of the employe, or on behalf of the employe and other
employes similarly situated. The bill also eliminates the 12-month period within
which an action must be commenced so that an action must be commenced within
60 days after the completion of administrative proceedings. Finally, the bill specifies
that, if the circuit court finds that an employer has violated the family and medical
leave law, the circuit court may order the employer to take action to remedy the
violation and to pay the following damages:
1. Damages equal to the amount of compensation the employe lost because of
the violation or, if the employe did not lose any compensation, any actual monetary
loss sustained as a direct result of the violation up to a sum equal to 12 weeks of wages
or salary.
2. As liquidated damages, an amount equal to the damages described in
paragraph 1., except that the court may reduce the amount of damages to the amount
described in paragraph 1. if the court finds that the violation was committed in good
faith and that the employer had reasonable grounds to believe that his or her act or
omission was not a violation of the family or medical leave law.
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:
AB614, s. 1
1Section
1. 103.10 (1) (a) (intro.) of the statutes is amended to read:
AB614,4,42
103.10
(1) (a) (intro.) "Child" means a natural, adopted, foster or treatment
3foster child, a stepchild or a legal ward
, or an individual for whom an employe stands
4in the place of a parent, to whom any of the following applies:
AB614, s. 2
5Section
2. 103.10 (1) (a) 2. of the statutes is amended to read:
AB614,4,86
103.10
(1) (a) 2. The individual is 18 years of age or older and
cannot care for
7himself or herself is incapable of self-care because of a
serious health condition 8mental or physical disability.
AB614, s. 3
9Section
3. 103.10 (1) (c) of the statutes is amended to read:
AB614,5,9
1103.10
(1) (c)
Except as provided in sub. (14) (b), "employer" "Employer" means
2a person engaging in any activity, enterprise or business in this state employing at
3least 50 individuals
on a permanent basis for each working day during each of 20 or
4more calendar weeks in the current or preceding year. "Employer" includes the state
5and any office, department, independent agency, authority, institution, association,
6society or other body in state government created or authorized to be created by the
7constitution or any law, including the legislature and the courts.
"Employer" also
8includes any person who acts, directly or indirectly, in the interest of an employer
9with respect to an employe and any successor in interest of an employer.
AB614, s. 4
10Section
4. 103.10 (1) (d) of the statutes is amended to read:
AB614,5,1611
103.10
(1) (d) "Employment benefit" means
an insurance, leave or retirement 12a benefit
which that an employer
provides or makes available to an employe
,
13including group life insurance, health insurance, disability insurance, sick leave,
14annual leave, educational benefits and pensions, regardless of whether those
15benefits are provided by a practice or policy of the employer or through an employe
16benefit plan, as defined in 29 USC 1002 (3).
AB614, s. 5
17Section
5. 103.10 (1) (f) of the statutes is amended to read:
AB614,5,2118
103.10
(1) (f) "Parent" means a natural parent, foster parent, treatment foster
19parent, adoptive parent, stepparent or legal guardian of an employe or an employe's
20spouse
or a person who stood in the place of a parent of the employe or the employe's
21spouse when the employe or spouse was a child.
AB614, s. 6
22Section
6. 103.10 (1) (g) (intro.) of the statutes is amended to read:
AB614,5,2523
103.10
(1) (g) (intro.) "Serious health condition" means
a disabling physical or
24mental an illness, injury, impairment or
physical or mental condition involving any
25of the following:
AB614, s. 7
1Section
7. 103.10 (1) (g) 2. of the statutes is amended to read:
AB614,6,32
103.10
(1) (g) 2.
Outpatient care that requires continuing Continuing 3treatment
or supervision by a health care provider.
AB614, s. 8
4Section
8. 103.10 (2) (c) of the statutes is amended to read:
AB614,6,85
103.10
(2) (c) This section only applies to an employe who has been employed
6for more than 52 consecutive weeks by the
same employer
for more than 52
7consecutive weeks from whom leave under sub. (3) is requested and who worked for
8the that employer for at least 1,000 hours during the preceding 52-week period.
AB614, s. 9
9Section
9. 103.10 (3) (title) of the statutes is amended to read:
AB614,6,1010
103.10
(3) (title)
Family
Entitlement to leave.
AB614, s. 10
11Section
10. 103.10 (3) (a) 1. of the statutes is renumbered 103.10 (3) (intro.)
12and amended to read:
AB614,6,1513
103.10
(3) (intro.) In a 12-month period
no an employe may take
more than 6 1412 weeks of
family leave
under par. (b) 1. and 2. for any one or more of the following
15reasons:
AB614, s. 11
16Section
11. 103.10 (3) (a) 2. of the statutes is repealed.
AB614, s. 12
17Section
12. 103.10 (3) (a) 3. of the statutes is repealed.
AB614, s. 13
18Section
13. 103.10 (3) (b) (intro.) of the statutes is repealed.
AB614, s. 14
19Section
14. 103.10 (3) (b) 1. of the statutes is renumbered 103.10 (3) (a) and
20amended to read:
AB614,6,2321
103.10
(3) (a)
The Because of the birth of the employe's natural child,
if the
22leave is taken to care for the child and if the leave begins within
16 weeks of 12
23months after the child's birth.
AB614, s. 15
24Section
15. 103.10 (3) (b) 2. of the statutes is renumbered 103.10 (3) (b) and
25amended to read:
AB614,7,4
1103.10
(3) (b)
The Because of the placement of a child with the employe for
2adoption or as a precondition to adoption under s. 48.90 (2), but not both,
or for foster
3care, if the leave
is taken to care for the child and if the leave begins within
16 weeks
4of 12 months after the child's placement.
AB614, s. 16
5Section
16. 103.10 (3) (b) 3. of the statutes is renumbered 103.10 (3) (c).
AB614, s. 17
6Section
17. 103.10 (3) (c) of the statutes is repealed.
AB614, s. 18
7Section
18. 103.10 (3) (d) of the statutes is renumbered 103.10 (4g) (a).
AB614, s. 19
8Section
19. 103.10 (4) (title) of the statutes is repealed.
AB614, s. 20
9Section
20. 103.10 (4) (a) of the statutes is renumbered 103.10 (3) (d) and
10amended to read:
AB614,7,1411
103.10
(3) (d)
Subject to pars. (b) and (c), an employe who has Because of a
12serious health condition
which that makes the employe unable to perform
his or her
13employment duties may take medical leave for the period during which he or she is
14unable to perform those the duties
of the employe's position.
AB614, s. 21
15Section
21. 103.10 (4) (b) of the statutes is repealed.
AB614, s. 22
16Section
22. 103.10 (4) (c) of the statutes is renumbered 103.10 (4g) (b).
AB614, s. 23
17Section
23. 103.10 (4g) (title) of the statutes is created to read:
AB614,7,1818
103.10
(4g) (title)
Scheduling of leave.
AB614, s. 24
19Section
24. 103.10 (6) (a) of the statutes is amended to read:
AB614,8,220
103.10
(6) (a) If an employe intends to take
family leave
for the reasons in under 21sub. (3)
(b) 1. or 2. (a) or (b) that is foreseeable because of the expected birth or
22placement of a child, the employe shall
, in a reasonable and practicable manner, give
23the employer
advance notice of the
expected birth or placement employe's intention
24to take that leave not less than 30 days before the date the leave is to begin, except
25that if the date of the birth or placement requires the leave to begin in less than 30
1days, the employe shall provide notice to the employer in a reasonable and
2practicable manner.
AB614, s. 25
3Section
25. 103.10 (6) (b) (intro.) of the statutes is amended to read:
AB614,8,84
103.10
(6) (b) (intro.) If an employe intends to take
family leave
under sub. (3)
5(c) or (d) because of the planned medical treatment
or supervision of
the employe or
6of a child, spouse or parent
or intends to take medical leave because of the planned
7medical treatment or supervision of the employe, the employe shall do all of the
8following:
AB614, s. 26
9Section
26. 103.10 (6) (b) 1. of the statutes is amended to read:
AB614,8,1210
103.10
(6) (b) 1. Make a reasonable effort to schedule the medical treatment
11or supervision so that it does not unduly disrupt the employer's operations, subject
12to the approval of the health care provider of the child, spouse, parent or employe.
AB614, s. 27
13Section
27. 103.10 (6) (b) 2. of the statutes is amended to read:
AB614,8,1814
103.10
(6) (b) 2. Give the employer
advance notice of the
medical treatment or
15supervision employe's intention to take that leave not less than 30 days before the
16leave is to begin, except that if the date of the treatment requires the leave to begin
17in less than 30 days, the employe shall provide notice to the employer in a reasonable
18and practicable manner.
AB614, s. 28
19Section
28. 103.10 (7) (a) of the statutes is amended to read:
AB614,8,2520
103.10
(7) (a) If an employe requests
family leave
for a reason described in 21under sub. (3)
(b) 3. or requests medical leave (c) or (d), the employer may require the
22employe to provide certification, as described in par. (b), issued by the health care
23provider or Christian Science practitioner of the child, spouse, parent or employe,
24whichever is appropriate
, and the employe shall provide a copy of that certification
25to the employer in a timely manner.
AB614, s. 29
1Section
29. 103.10 (7) (b) 3m. of the statutes is created to read:
AB614,9,52
103.10
(7) (b) 3m. If the employe requests leave under sub. (3) (c), a statement
3that the employe is needed to care for a child, spouse or parent who has a serious
4health condition and an estimate of the amount of time that the employe is needed
5to care for the child, spouse or parent.
AB614, s. 30
6Section
30. 103.10 (7) (b) 4. of the statutes is amended to read:
AB614,9,97
103.10
(7) (b) 4. If the employe requests
medical leave
, an explanation of the
8extent to which under sub. (3) (d), a statement that the employe is unable to perform
9his or her employment the duties
of the employe's position.
AB614, s. 31
10Section
31. 103.10 (7) (c) of the statutes is renumbered 103.10 (7) (c) 1. and
11amended to read:
AB614,9,1512
103.10 (7) (c) 1.
The If the employer has reason to doubt the validity of a
13certification provided under par. (a), the employer may require the employe to obtain
14the opinion of a 2nd health care provider,
chosen
designated, or approved, and paid
15for by the employer, concerning any information certified under par. (b).
AB614, s. 32
16Section
32. 103.10 (7) (c) 2. of the statutes is created to read:
AB614,9,1817
103.10
(7) (c) 2. A health care provider designated or approved under subd. 1.
18may not be employed on a regular basis by the employer.
AB614, s. 33
19Section
33. 103.10 (7) (d) of the statutes is created to read:
AB614,9,2520
103.10
(7) (d) If a 2nd opinion obtained under par. (c) 1. differs from the opinion
21in the certification provided under par. (a), the employer may require the employe
22to obtain the opinion of a 3rd health care provider, designated, or approved, by the
23employer and employe jointly and paid for by the employer, concerning any
24information certified under par. (b). The employer and employe shall accept the 3rd
25opinion obtained under this paragraph as final and binding upon them.
AB614, s. 34
1Section
34. 103.10 (7) (e) of the statutes is created to read:
AB614,10,32
103.10
(7) (e) The employer may require that an employe obtain
3recertifications after the original certification under par. (b) on a reasonable basis.
AB614, s. 35
4Section
35. 103.10 (8) (a) of the statutes is amended to read:
AB614,10,85
103.10
(8) (a) Subject to par.
(c)
(d), when an employe
returns from who takes 6family leave or medical leave
for the purpose for which that leave is intended returns
7from that leave, his or her employer shall immediately place the employe in an
8employment position as follows:
AB614,10,119
1.
If In the employment position which the employe held
immediately before 10when the family leave or medical leave began
is vacant when the employe returns,
11in that position.
AB614,10,1612
2.
If the employment position which the employe held immediately before the
13family leave or medical leave began is not vacant when the employe returns, in In 14an equivalent employment position having equivalent compensation,
employment 15benefits
, working shift, hours of employment and other terms and conditions of
16employment.
AB614, s. 36
17Section
36. 103.10 (8) (b) of the statutes is amended to read:
AB614,10,2118
103.10
(8) (b) No employer may, because an employe received family leave or
19medical leave, reduce or deny an employment benefit which accrued to the employe
20before his or her leave began
or, consistent with sub. (9), accrued after his or her leave
21began.
AB614, s. 37
22Section
37. 103.10 (8) (c) of the statutes is repealed and recreated to read:
AB614,10,2523
103.10
(8) (c) An employer may require an employe who is on family or medical
24leave to report periodically to the employer on the employe's status and intention of
25returning to work.
AB614, s. 38
1Section
38. 103.10 (8) (d) of the statutes is created to read:
AB614,11,52
103.10
(8) (d) Notwithstanding par. (a), an employer may adopt a uniformly
3applied practice or policy that requires an employe who is returning from leave under
4sub. (3) (d) to obtain a certification from the employe's health care provider that the
5employe is able to return to work.
AB614, s. 39
6Section
39. 103.10 (9) (b) of the statutes is amended to read:
AB614,11,157
103.10
(9) (b) Subject to par. (c), during a period
that an employe takes family
8leave or medical leave, his or her employer shall maintain group health insurance
9coverage
at the level and under the conditions that
applied immediately before the
10family leave or medical leave began. If the employe continues making any
11contribution required for participation in the group health insurance plan, the
12employer shall continue making group health insurance premium contributions as
13if the employe had not taken the family leave or medical the employer would have
14provided coverage if the employe had continued in employment continuously during
15that leave.
AB614, s. 40
16Section
40. 103.10 (9) (c) of the statutes is repealed and recreated to read:
AB614,11,2317
103.10
(9) (c) An employer may recover from an employe the premium paid by
18the employer to maintain group health insurance coverage for the employe during
19a period of unpaid family leave or medical leave if the employe fails to return from
20that leave after the period of leave to which the employe is entitled has expired for
21a reason other than the continuation, recurrence or onset of a serious health
22condition that entitles the employe to leave under sub. (3) (c) or (d) or other
23circumstances beyond the control of the employe.
AB614, s. 41
24Section
41. 103.10 (9) (d) of the statutes is repealed and recreated to read:
AB614,12,10
1103.10
(9) (d) If an employe claims that he or she is unable to return to work
2because of the continuation, recurrence or onset of a serious health condition as
3described in par. (c), the employer may require the employe to provide certification
4issued by the health care provider or Christian Science practitioner of the child,
5spouse, parent or employe, whichever is appropriate, that the employe was needed
6to care for his or her child, spouse or parent on the day that the employe's leave
7expired or that a serious health condition prevented the employe from being able to
8perform the duties of the employe's position on the day that the employe's leave
9expired. The employe shall provide a copy of the certification under this paragraph
10to the employer in a timely manner.
AB614, s. 42
11Section
42. 103.10 (11) (c) of the statutes is repealed and recreated to read:
AB614,12,1512
103.10
(11) (c) 1. No person may discharge or in any manner discriminate
13against any individual for filing a complaint or attempting to enforce any right under
14this section or for testifying or assisting in any action or proceeding to enforce any
15right under this section.
AB614,12,1816
2. No person may discharge or in any manner discriminate against any
17individual because that person believes that the individual has engaged or may
18engage in an activity described in subd. 1.
AB614, s. 43
19Section
43. 103.10 (11) (d) of the statutes is created to read: