Use the Lexology Navigator tool to compare the answers in this article with those from 20+ other jurisdictions.
What are the requirements relating to advertising open positions?
The Wisconsin Fair Employment Act prohibits employers from printing or circulating any statement, advertisement, or publication that implies or expresses any limitation, specification, or discrimination because of:
- marital status;
- national origin;
- arrest record;
- conviction record;
- military service;
- use or non-use of lawful products; or
- refusal to attend or participate in communications about religious or political matters.
Likewise, employers may not make any inquiry with regard to prospective employment that implies or expresses any limitation, specification, or discrimination based on the foregoing protected categories (Wis. Stat. § 111.322(2)).
Employers are prohibited from influencing, inducing, or persuading individuals to accept employment by false or deceptive advertising or representations (Wis. Stat. § 103.43(1)).
An employer involved in a strike or lockout is required to disclose that fact in any advertisement for labor if the employer is attempting to fill positions vacated because of the strike or lockout at the proposed place of employment (Wis. Stat. § 103.43(1)).
If a child labor permit is required for an open position, employers are prohibited from advertising in newspapers for the services of any minor during school hours if school is in session. Further, employers are prohibited from soliciting minors in their schools or homes to leave school and enter employment (Wis. Stat. § 103.81).
What can employers do with regard to background checks and inquiries?
(a) Criminal records and arrests
Wisconsin employers are free to perform background checks and no specific limitations on the information that can be requested exist. In addition, employers that provide employment references in good faith are immune from liability (Wis. Stat. § 895.487).
With regard to arrest records, employers may ask applicants only to provide information regarding a record of a pending charge. Employers can request information regarding an applicant’s conviction record, including information regarding convictions for felonies, misdemeanors, or other offenses (Wis. Stat. §§ 111.321; 111.335). However, an employer will be liable for employment discrimination if it refuses to employ an individual because of an arrest or conviction record, unless the circumstances of the pending criminal charge or conviction substantially relate to the circumstances of the particular job sought (Wis. Stat. § 111.335).
(b) Medical history
Employers cannot solicit, require, or administer genetic tests to individuals as a condition of employment. Likewise, employers are prohibited from affecting the terms or privileges of employment or terminating the employment of individuals who obtain genetic tests (Wis. Stat. § 111.372).
(c) Drug screening
There is no general or comprehensive Wisconsin drug testing law that prohibits or regulates drug testing in the state. Private employers are permitted to screen job applicants and employees for controlled substances or alcohol.
Special testing and policy requirements exist for employers working on a public works or public utility project (Wis. Stat. § 103.503).
(d) Credit checks
No Wisconsin law expressly prohibits employers from conducting credit checks on current or prospective employees.
(e) Immigration status
No Wisconsin law regulates employer inquiries regarding immigration status.
(f) Social media
Wisconsin employers are prohibited from asking an employee or applicant to grant access to, allow observation of, or disclose information that allows access to or observation of the individual’s personal social media account. Employers are also prohibited from discharging or otherwise discriminating against an applicant or employee for exercising the right to refuse such a request (Wis. Stat. § 995.55).
Wage and hour
What are the main sources of wage and hour laws in your state?
Chapters 103, 104, and 109 of the Wisconsin Statutes and Chapters 272 and 274 of the Wisconsin Administrative Code relating to the Department of Workforce Development.
What is the minimum hourly wage?
As of July 2014, the minimum wage is $7.25 per hour.
What are the rules applicable to final pay and deductions from wages?
Payment in full is due no later than the employee's regular payday or the date of payment required by the state wage payment law—whichever is earlier. Sales agents employed on a commission basis are exempt.
Employers may not deduct from an employee's wages for defective or faulty workmanship, lost or stolen property, or damage to property, unless:
- the employee authorizes the employer in writing to make that deduction;
- the employer and a representative designated by the employee determine that the defective or faulty workmanship, loss, theft, or damage is due to the employee's negligence, carelessness, or willful and intentional conduct; or
- the employee is found guilty or held liable in a court.
Any agreement entered into between an employer and employee contrary to these provisions is void.
Hours and overtime
What are the requirements for meal and rest breaks?
Wisconsin law does not require that employers provide brief rest periods, coffee breaks, or meal periods to adult employees, although the Department of Workforce Development recommends that employers do so. Employers are encouraged, but not required, to provide breaks of at least 30 minutes at times reasonably close to the usual meal period. Such matters are to be determined directly between the employer and the employee.
Employees under 18 years of age may not work longer than six hours without at least a 30-minute duty-free meal period. Shorter breaks are not required, but may be offered.
Employers must pay employees for "on-duty" meal periods. An "on-duty" meal period is one where the employee is not provided at least 30 consecutive minutes free from work, or where he or she is not free to leave the employer's premises. Employers may not deduct from an employee’s wages for authorized breaks of less than 30 consecutive minutes. Employees must be free to leave the employer's premises during a duty-free meal period in order for that time to be non-compensable.
What are the maximum hour rules?
Covered workers must be paid time and one-half for all hours worked in excess of 40 hours per week. In factories and retail establishments, Wisconsin sets limits requiring employees to have one day of rest in each calendar week. Adults may generally work an unlimited number of hours per day and per week. However, Wisconsin law does authorize the Department of Workforce Development to develop additional industry or trade-specific rules proscribing work hours considered to be dangerous or prejudicial to a person's life, health, safety, or welfare.
How should overtime be calculated?
Generally, Wisconsin law requires that non-exempt employees be paid time and one-half for all hours worked in excess of 40 hours per week.
For an employee paid at two or more rates for different types of work, the employee's regular rate for that week is the weighted average of such rates. Alternatively, Wisconsin allows employers to follow 29 C.F.R. § 778.419, under which an employee may agree with his or her employer in advance of performance of the work that he or she will be paid during overtime hours at a rate not less than one-and-a-half times the hourly non-overtime rate established for the type of work he or she is performing during such overtime hours.
With regard to hours worked for pay and overtime purposes, Wisconsin requires that employers pay for all travel away from the home community for business purposes (not just such travel occurring within regular work hours), and that this time be included in hours worked when calculating overtime (DWD § 272.12(g)).
What exemptions are there from overtime?
Wisconsin's overtime rules apply to most businesses in the state, including units of state and local government. However, they do not necessarily apply to each individual worker.
The following establishments, including all of their employees, are exempt:
- agriculture (e.g., farming);
- domestic service (in the private home of the employer);
- some non-profit organizations; and
- federal agencies.
The following individuals are exempt from overtime (these exemptions are interpreted consistently with the Fair Labor Standards Act and its regulations, which were in effect before the 2004 amendments):
- salaried executives, administrative employees, and professionals (white collar employees);
- outside salespersons who spend 80% of their time away from the employer's place of business;
- higher-paid commission employees of retail and service establishments, if 50% of their earnings are from commission and they receive time and one-half of the minimum wage for all hours worked;
- truck drivers and their helpers subject to federal regulation by the Motor Carrier Act;
- taxi cab drivers;
- certain employees of vehicle dealerships;
- employees of seasonal amusement or recreational establishments;
- agricultural employees;
- employees employed in any motion picture theater;
- certain hospital employees. Employees of a hospital or other institution primarily engaged in the care of the sick, aged, mentally ill, or persons with developmental disabilities who reside on the premises may enter into an agreement with their employers before performance of the work for the purpose of overtime computation. A work period of 14 consecutive days is accepted in lieu of the working week of seven consecutive days for purposes of overtime computation if time and one-half is paid for all hours worked in excess of eight hours per day and 80 hours within the 14-day period;
- local delivery drivers with Department of Labor-approved plans;
- employees employed in any funeral establishment;
- certain employees employed in forestry or lumbering operations, if the number of employees employed by the employer in the operation does not exceed eight; and
- certain computer professionals who are paid at least $27.63 per hour.
Further, time spent in related classroom instruction by indentured apprentices does not count as work time for the purpose of computing overtime.
What payroll and payment records must be maintained?
By law, employers must keep the following records for at least three years for each employee, other than salaried, exempt employees:
- name and address;
- date of birth;
- date employment began and ended;
- time each workday began and ended;
- time each meal period began and ended (if meal periods are required or when such meal periods are to be deducted from work time), unless the work is of such a nature that production or business activity ceases on a regularly scheduled basis;
- total number of hours worked per day and per week;
- rate of pay and wages paid each payroll period;
- amount of and reason for each deduction from the wages earned; and
- employee's production, if paid on other than a time basis.
Click here to view the full article.