103.10 Cross-reference
Cross-reference: See also ch.
DWD 225, Wis. adm. code.
103.10 Annotation
"Disabling" in sub. (1) (g) includes incapacitation or inability to pursue an occupation because of physical or mental impairment. "Continuing treatment or supervision by a health care provider" requires direct, continuous contact with a health care provider. MPI Wisconsin Machining Division v. DILHR,
159 Wis. 2d 358,
464 N.W.2d 79 (Ct. App. 1990).
103.10 Annotation
Sub. (6) (b) requires no advance notice when a leave is unplanned or unintended. MPI Wisconsin Machining Division v. DILHR,
159 Wis. 2d 358,
464 N.W.2d 79 (Ct. App. 1990).
103.10 Annotation
No formal application or detailed information need be provided to an employer to invoke FMLA's protection; an employer must have reasonable notice. Jicha v. State,
164 Wis. 2d 94,
473 N.W.2d 578 (Ct. App. 1991).
103.10 Annotation
As a symptom of pregnancy, morning sickness may be considered a "serious health condition." Haas v. DILHR,
166 Wis. 2d 288,
479 N.W.2d 229 (Ct. App. 1991).
103.10 Annotation
Sub. (2) (c) does not require an employee to be employed for the 52 consecutive weeks preceding the disputed action, but any consecutive 52 weeks. Butzlaff v. Wisconsin Personnel Commission,
166 Wis. 2d 1028,
480 N.W.2d 559 (Ct. App. 1992).
103.10 Annotation
"Equivalent employment" under sub. (8) (a) requires a return to the former level of job status, responsibility, and authority. Kelley Company, Inc. v. Marquardt,
172 Wis. 2d 234,
493 N.W.2d 68 (1992).
103.10 Annotation
The only prerequisite for reinstatement and backpay is that the employer violated this section; backpay should be reduced by interim earnings and amounts earnable. Kelley Company, Inc. v. Marquardt,
172 Wis. 2d 234,
493 N.W.2d 68 (1992).
103.10 Annotation
A complainant may recover attorney fees for successful representation in circuit court on review of a department order although the complainant could have relied on the justice department's representation of the department. An award of attorney fees is not precluded because the complainant is furnished counsel at no personal expense. Richland School District v. DILHR,
174 Wis. 2d 878,
498 N.W.2d 827 (1993).
103.10 Annotation
Sub. (5) (b) allows an employee to substitute paid leave accumulated under a collective bargaining agreement for unpaid leave under this section when the employee has not met the conditions of leave set forth in the agreement. Richland School District v. DILHR,
174 Wis. 2d 878,
498 N.W.2d 827 (1993).
103.10 Annotation
A request for medical leave need only be reasonably calculated to advise the employer that the employee is requesting medical leave and of the reason for the request. Upon receipt of the request, the employer may approve, disapprove, or request more information under the certification process under sub. (7). Sieger v. Wisconsin Personnel Commission,
181 Wis. 2d 845,
512 N.W.2d 230 (Ct. App. 1994).
103.10 Annotation
Settlement of an employee's worker's compensation claim for a work related injury precluded the assertion of the employee's claim that she was entitled to leave for the injury under this section. Finell v. DILHR,
186 Wis. 2d 187,
519 N.W.2d 731 (Ct. App. 1994).
103.10 Annotation
Each increment of leave under sub. (3) (b) 1. must begin within 16 weeks of the child's birth. Schwedt v. DILHR,
188 Wis. 2d 500,
525 N.W.2d 130 (Ct. App. 1994).
103.10 Annotation
The posting requirements under sub. (14) require readily visible notice in a place where an employee would reasonably expect the notice and with which the employee is familiar through long use or acquaintance. In-Sink-Erator v. DILHR,
200 Wis. 2d 770,
547 N.W.2d 792 (Ct. App. 1996),
95-1468.
103.10 Annotation
The federal Labor Management Relations Act did not preempt an employee's right under sub. (5) (b) to substitute accrued paid sick leave for unpaid leave that was unambiguously granted under a collective bargaining agreement. Miller Brewing Co. v. DILHR,
210 Wis. 2d 26,
563 N.W.2d 460 (1997),
94-1628.
103.10 Annotation
By including "the state" as an employer under sub. (1) (c), the state has waived its sovereign immunity from suit under this section. Butzlaff v. DHFS,
223 Wis. 2d 673,
590 N.W.2d 9 (Ct. App. 1998),
98-0453.
103.10 Annotation
A party who does not prevail in administrative proceedings under sub. (12) may not file a civil action for damages under sub. (13). Butzlaff v. DHFS,
223 Wis. 2d 673,
590 N.W.2d 9 (Ct. App. 1998),
98-0453.
103.10 Annotation
Leave is "accrued" if it: 1) arises from a contract; 2) is specified and quantifiable; 3) has a "draw-down feature" that reduces the amount available as it is used; and 4) accumulates over time. Sick leave that renews annually and increases with seniority accumulates over time. That an employee must be sick several days before receiving paid sick leave does not render the benefit indefinite or incalculable. Kraft Foods, Inc. v. DWD,
2001 WI App 69,
242 Wis. 2d 378,
625 N.W.2d 658,
00-1918.
103.10 Annotation
An employee whose substitution of sick leave, rather than vacation leave, for family leave resulted in the loss of benefits under a collective bargaining agreement was not forced to choose to use vacation leave in violation of this section. Although the effect of the interaction of the bargaining agreement and this section may result in a dilemma for the employee, the contractual consequences are collateral and there is no restraint or denial of rights under this section. Heibler v. DWD,
2002 WI App 21,
250 Wis. 2d 152,
639 N.W.2d 776,
01-0794.
103.10 Annotation
This section does not confer an implied statutory right to a jury trial in a civil action to recover damages for a violation of this section, nor does Article I, Section 5, of the Wisconsin constitution afford the right to a jury trial in a civil action to recover damages for a violation of this section. Harvot v. Solo Cup Company,
2009 WI 85,
320 Wis. 2d 1,
768 N.W.2d 176,
07-1396.
103.10 Annotation
Quagmire or Quantum Leap? The Wisconsin Family and Medical Leave Act. Goeldner and Nelson-Glode. Wis. Law. April 1992.
103.10 Annotation
Family & Medical Leave Acts. Sholl and Krupp-Gordon. Wis. Law. Aug. 1993.
103.10 Annotation
Family Responsibility Discrimination: Making Room at Work for Family Demands. Finerty. Wis. Law. Nov. 2007.
103.13
103.13
Records open to employee. 103.13(1)
(1)
Definition. In this section, "employee" includes former employees.
103.13(2)
(2) Open records. Every employer shall, upon the request of an employee, which the employer may require the employee to make in writing, permit the employee to inspect any personnel documents which are used or which have been used in determining that employee's qualifications for employment, promotion, transfer, additional compensation, termination or other disciplinary action, and medical records, except as provided in
subs. (5) and
(6). An employee may request all or any part of his or her records, except as provided in
sub. (6). The employer shall grant at least 2 requests by an employee in a calendar year, unless otherwise provided in a collective bargaining agreement, to inspect the employee's personnel records as provided in this section. The employer shall provide the employee with the opportunity to inspect the employee's personnel records within 7 working days after the employee makes the request for inspection. The inspection shall take place at a location reasonably near the employee's place of employment and during normal working hours. If the inspection during normal working hours would require an employee to take time off from work with that employer, the employer may provide some other reasonable time for the inspection. In any case, the employer may allow the inspection to take place at a time other than working hours or at a place other than where the records are maintained if that time or place would be more convenient for the employee.
103.13(3)
(3) Personnel record inspection by representative. An employee who is involved in a current grievance against the employer may designate in writing a representative of the employee's union, collective bargaining unit or other designated representative to inspect the employee's personnel records which may have a bearing on the resolution of the grievance, except as provided in
sub. (6). The employer shall allow such a designated representative to inspect that employee's personnel records in the same manner as provided under
sub. (2).
103.13(4)
(4) Personnel record correction. If the employee disagrees with any information contained in the personnel records, a removal or correction of that information may be mutually agreed upon by the employer and the employee. If an agreement cannot be reached, the employee may submit a written statement explaining the employee's position. The employer shall attach the employee's statement to the disputed portion of the personnel record. The employee's statement shall be included whenever that disputed portion of the personnel record is released to a 3rd party as long as the disputed record is a part of the file.
103.13(5)
(5) Medical records inspection. The right of the employee or the employee's designated representative under
sub. (3) to inspect personnel records under this section includes the right to inspect any personal medical records concerning the employee in the employer's files. If the employer believes that disclosure of an employee's medical records would have a detrimental effect on the employee, the employer may release the medical records to the employee's physician or through a physician designated by the employee, in which case the physician may release the medical records to the employee or to the employee's immediate family.
103.13(6)
(6) Exceptions. The right of the employee or the employee's designated representative under
sub. (3) to inspect his or her personnel records does not apply to:
103.13(6)(a)
(a) Records relating to the investigation of possible criminal offenses committed by that employee.
103.13(6)(c)
(c) Any portion of a test document, except that the employee may see a cumulative total test score for either a section of the test document or for the entire test document.
103.13(6)(d)
(d) Materials used by the employer for staff management planning, including judgments or recommendations concerning future salary increases and other wage treatments, management bonus plans, promotions and job assignments or other comments or ratings used for the employer's planning purposes.
103.13(6)(e)
(e) Information of a personal nature about a person other than the employee if disclosure of the information would constitute a clearly unwarranted invasion of the other person's privacy.
103.13(6)(f)
(f) An employer who does not maintain any personnel records.
103.13(6)(g)
(g) Records relevant to any other pending claim between the employer and the employee which may be discovered in a judicial proceeding.
103.13(7)
(7) Copies. The right of the employee or the employee's representative to inspect records includes the right to copy or receive a copy of records. The employer may charge a reasonable fee for providing copies of records, which may not exceed the actual cost of reproduction.
103.13(7m)
(7m) Employment discrimination. Section 111.322 (2m) applies to discharge and other discriminatory acts in connection with any proceeding under this section.
103.13(8)
(8) Penalty. Any employer who violates this section may be fined not less than $10 nor more than $100 for each violation. Each day of refusal or failure to comply with a duty under this section is a separate violation.
103.14
103.14
Grooming requirement; notification. Each employer shall, at the time of hiring, notify each employee about any hairstyle, facial hair or clothing requirement.
103.15
103.15
Restrictions on use of an HIV test. 103.15(1)(a)
(a) "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.
103.15(1)(am)
(am) "HIV" means any strain of human immunodeficiency virus, which causes acquired immunodeficiency syndrome.
103.15(1)(b)
(b) "HIV infection" means the pathological state produced by a human body in response to the presence of HIV.
103.15(1)(c)
(c) "State epidemiologist" means the individual designated by the secretary of health services as the individual in charge of communicable disease control for this state.
103.15(2)
(2) Notwithstanding
ss. 227.01 (13) and
227.10 (1), unless the state epidemiologist determines and the secretary of health services declares under
s. 250.04 (1) or
(2) (a) that individuals who have HIV infections may, through employment, provide a significant risk of transmitting HIV to other individuals, no employer or agent of an employer may directly or indirectly:
103.15(2)(a)
(a) Solicit or require an HIV test as a condition of employment of any employee or prospective employee.
103.15(2)(b)
(b) Affect the terms, conditions or privileges of employment or terminate the employment of any employee who obtains an HIV test, as defined in
s. 252.01 (2m).
103.15(3)
(3) Any agreement by an employer or agent of the employer and an employee or prospective employee offering employment or any pay or benefit to an employee or prospective employee in return for taking an HIV test is prohibited, except as provided under
sub. (2) (intro.).
103.15 Annotation
A police and fire commission is an "employer" under this section and may not test paramedic candidates for the HIV virus.
77 Atty. Gen. 181.
103.15 Annotation
The rights of an AIDS victim in Wisconsin. 70 MLR 55 (1986).
103.16
103.16
Seats for employees; penalty. Every employer employing employees in any manufacturing, mechanical or mercantile establishment in this state shall provide suitable seats for its employees, and shall permit the use of those seats by its employees when the employees are not necessarily engaged in the active duties for which they are employed. Any employer who violates this section may be fined not less than $10 nor more than $30 for each offense.
103.16 History
History: 1975 c. 94 s.
91 (17);
1997 a. 253.
103.165
103.165
Employee's cash bonds to be held in trust; duty of employer; penalty. 103.165(1)
(1) Where any person requests any employee to furnish a cash bond, the cash constituting such bond shall not be mingled with the moneys or assets of such person demanding the same, but shall be deposited by such person in a bank, trust company, savings bank or savings and loan association doing business in this state whose deposits or shares are insured by a federal agency to the extent of $10,000, as a separate trust fund, and it shall be unlawful for any person to mingle such cash received as a bond with the moneys or assets of any such person, or to use the same. No employer shall deposit more than $10,000 with any one depository. The bank book, certificate of deposit or other evidence thereof shall be in the name of the employer in trust for the named employee, and shall not be withdrawn except after an accounting had between the employer and employee, said accounting to be had within 10 days from the time relationship is discontinued or the bond is sought to be appropriated by the employer. All interest or dividends earned by such sum deposited shall accrue to and belong to the employee and shall be turned over to said employee as soon as paid out by the depository. Such deposit shall at no time and in no event be subject to withdrawal except upon the signature of both the employer and employee or upon a judgment or order of a court of record.
103.165(2)
(2) In the event of the failure of any person, such moneys on deposit shall constitute a trust fund for the benefit of the persons who furnished such bonds and shall not become the property of the assignee, receiver or trustee of such insolvent person.
103.165(3)(a)(a) In case an employee who was required to give a cash bond dies before the cash bond is withdrawn in the manner provided in
sub. (1), the accounting and withdrawal may be effected not less than 5 days after the employee's death and before the filing of a petition for letters testamentary or other letters authorizing the administration of the decedent's estate, by the employer with any of the following, in the following order:
103.165(3)(a)2.
2. The decedent's children if the decedent leaves no surviving spouse or domestic partner under
ch. 770.
103.165(3)(a)3.
3. The decedent's father or mother if the decedent leaves no surviving spouse, domestic partner under
ch. 770, or children.
103.165(3)(a)4.
4. The decedent's brother or sister if the decedent leaves no surviving spouse, domestic partner under
ch. 770, children, or parent.
103.165(3)(b)
(b) The accounting and withdrawal under
par. (a) shall be effected in the same manner and with like effect as if such accounting and withdrawal were accomplished by and between the employer and employee as provided in
sub. (1).
103.165(3)(c)
(c) The amount of the cash bond, together with principal and interest, to which the deceased employee would have been entitled had the deceased employee lived, shall, as soon as paid out by the depository, be turned over to the person designated under
par. (a) effecting the accounting and withdrawal with the employer. The turning over shall be a discharge and release of the employer to the amount of the payment.
103.165(3)(d)
(d) If no persons designated under
par. (a) survive, the employer may apply the cash bond, or so much of the cash bond as may be necessary, to paying creditors of the decedent in the order of preference prescribed in
s. 859.25 for satisfaction of debts by personal representatives. The making of payment under this paragraph shall be a discharge and release of the employer to the amount of the payment.
103.165(4)
(4) Any person who violates this section shall be punished by a fine equal to the amount of the bond or by imprisonment for not less than 10 days nor more than 60 days, or both.
103.17
103.17
Mutual forfeit. Any employer engaged in manufacturing that requires its employees, under penalty of forfeiture of a part of the wages earned by those employees, to provide a notice of intention to leave the employer's employ shall be liable for the payment of a like forfeiture if the employer discharges, without similar notice, an employee, other than for incapacity or misconduct, except in case of a general suspension of labor in the employer's shop or factory or in the department of the employer's shop or factory in which the employee is employed.
103.17 History
History: 1993 a. 492;
1997 a. 253.
103.18
103.18
Threat or promise to influence vote. No person shall, by threatening to discharge a person from his or her employment or threatening to reduce the wages of a person or by promising to give employment at higher wages to a person, attempt to influence a qualified voter to give or withhold the voter's vote at an election.
103.18 History
History: 1993 a. 492.
103.19
103.19
Children in shows. No license may be granted for a theatrical exhibition or public show in which children under 15 years of age are employed as acrobats, as contortionists or in any feats of gymnastics or equestrianism if, in the opinion of the board of officers authorized to grant licenses, those children are employed in a manner that may corrupt their morals or impair their physical health.
103.19 History
History: 1997 a. 253.
103.20 History
History: 1985 a. 29;
1985 a. 73 s.
8.
103.21(1)
(1) Every minor selling or distributing newspapers or magazines on the streets or other public place, or from house to house, is in an "employment" and an "employee," and each independent news agency or (in the absence of all such agencies) each selling agency of a publisher or (in the absence of all such agencies) each publisher, whose newspapers or magazines the minor sells or distributes, is an "employer" of the minor. Every minor engaged in any other street trade is in an "employment" and an "employee," and each person furnishing the minor articles for sale or distribution or regularly furnishing the minor material for blacking boots is the minor's "employer".
103.21(1g)
(1g) "House-to-house employer" means an employer who employs minors, either directly or through an agent who need not be an employee of the employer, to conduct street trades from house to house through personal contact with prospective customers.
103.21(1r)
(1r) "Municipality" means a city, village or town.
103.21(2)
(2) "Nonprofit organization" means an organization described in section
501 (c) of the internal revenue code.
103.21(3)
(3) "Permit officer" means any person designated by the department to issue street trade permits.
