The last general-business floor period for the 2015-2016 Wisconsin Legislature ended on April 7, 2016. As the last general-business floor period for this two-year term, it is unlikely we will see any new employment-related legislation from Wisconsin this year. Although the term started with the possibility of some “big ticket” items making significant changes in Wisconsin, many of those did not come to pass (see restrictive covenant reform). However, employers should be aware of two different laws that recently passed this year.
2015 Wisconsin Act 345 – Bone Marrow or Organ Donor
Wisconsin has a separate Family and Medical Leave Act law that is similar to its federal counterpart by the same name. There are some significant differences between the laws, however, with which employers must be familiar. For example, federal FMLA grants an employee the right to a pool of 12 weeks unpaid leave for the employee’s serious health condition, the serious health condition of a family member, or the birth or adoption of the employee’s child. Wisconsin grants “buckets” of leave with varying time periods that depend on the reason for leave – 6 weeks of unpaid leave for the birth or adoption of a child, 2 weeks for the employee’s own serious health condition, and two weeks for the employee’s family member’s serious health condition.
Act 345 adds another qualifying reason to the list for which employees may take unpaid leave in the form of bone marrow or organ donation and recovery. An employee who provides “written verification” is entitled to up to 6 weeks of unpaid leave for either of these procedures. The law does not require that a recipient of the donation be a family member. An employer may request certification that the recipient has a serious health condition requiring the donation, the employee taking leave is eligible and agrees to serve as donor, and the amount of leave the employee will need to recover from the procedure. Like Wisconsin and federal FMLA laws, the employee taking this leave is entitled to the same or similar position they held prior to taking leave when they return to work. Act 345 became effective in Wisconsin on April 3, 2016.
2015 Wisconsin Act 203 – Franchisor Liability.
Wisconsin clarified the role of franchisors in the employment relationship by passing Act 203, which excludes franchisors as an employer when considering the employment relationship with a franchisee’s employee. The limited exceptions included in this law hold franchisors liable as an employer if they agree in writing to assume that role or exercise a heightened type or degree of control over the franchisee or a franchisee’s employees. In practice, the argument of “joint employment,” as franchisors can often find themselves included under, is most often seen in wage and hour cases involving employee claims of unpaid overtime. Although Act 203 clarifies the role of franchisors in these cases, it also excludes them from being held as an employer in unemployment benefits and discrimination cases under the Wisconsin Fair Employment Act.
Act 203 seems to be Wisconsin’s response to a recent National Labor Relations Board decision published in August 2015 of Browning-Ferris Industries of Cal., 362 NLRB No. 186. In its Browning Ferris decision, the NLRB held that for purposes of the National Labor Relations Act a joint employer relationship exists where two employers share or codetermine matters governing the essential terms and conditions of employment. The decision is widely viewed to open the door for franchisors to be brought into labor negotiations and unfair labor practice charges. However, the National Labor Relations Act is a federal law that cannot be preempted by state laws such as Act 203. In other words, Wisconsin’s Act 203 does not affect determining whether a franchisor is a liable joint employer under the National Labor Relations Act.
Act 203 became effective in Wisconsin on March 3, 2016.