Effective July 14, 2015, Wisconsin has made it easier for an employer to comply with Wisconsin Statute 103.85, Wisconsin’s “one day of rest in seven” requirement. Under this statute, most factory and mercantile employers must provide their employees with at least 24 consecutive hours of rest for every 7 consecutive days worked. These restrictions do not apply to certain categories of workers, including janitors; security personnel; those employed in the manufacture of butter, cheese or other dairy products, or in the distribution of milk or cream; those who work in canneries or freezers; individuals who are employed in bakeries, flour and feed mills, hotels or restaurants; employees whose duties include no work on Sunday other than caring for live animals or maintaining fires; and workers whose labor is required by an emergency situation that could not reasonably have been anticipated.
Historically, Wisconsin employers needing to schedule work beyond the "one day of rest in seven" requirement had to obtain a temporary waiver from the Wisconsin Department of Workforce Development ("DWD"). The waiver request, which expired automatically after six months, had to be signed by the employer and a representative of the employer's workforce. With the passage of 2015 Wisconsin Act 55, effective July 14, 2015, a DWD-issued waiver is no longer required as long as an employee provides a statement "in writing that he or she voluntarily chooses to work without at least 24 consecutive hours of rest in 7 consecutive days." For those employees covered by a collective bargaining agreement with contrary provisions, the amendment does not become effective until the agreement expires or is extended, modified, or renewed, whichever occurs first.
As always, the devil will be in the details. For instance, employers have not met the statute's requirements and are not adequately protected merely by obtaining employees' verbal consent to work beyond the "one day of rest in seven" requirement. The consent must be in writing and voluntarily issued without threat of discipline or reprisal for refusing to agree.
It is also unclear when employers must obtain an employee's written consent and once obtained, how long the written consent remains effective. For instance, the amendment does not clarify whether an employer may obtain the written consent during the seven consecutive-day period or perhaps even after the employee has already worked seven consecutive days. For employees covered by collective bargaining agreements with contrary provisions, what does it mean to extend, modify or renew the agreement? Other potential pitfalls employers should be wary of include hastily drafted, vague, illegible and/or misplaced consent forms.
Employers may continue to lawfully schedule work for up to 12 consecutive days in a two-week period without a written consent, provided employees receive 24 hours of consecutive rest on the first and last day of the two-week period. Wis. Admin. Code Ch. DWD 275.01(1).