Foxconn Fever: Three Unique Wisconsin Employment Law Issues for New-to-Here Employers
Wisconsin currently has a hot case of Foxconn fever. Spurred by a $3 billion state subsidy package, the Taiwanese company is set to build a new manufacturing center in Wisconsin that has the potential to create 13,000 jobs. When established employers in other states (or countries) look to expand in Wisconsin, some of our unique employment law requirements can often be overlooked. Here are three of the most common compliance issues for new-to-Wisconsin employers.
1.) Arrest and Conviction Record Discrimination. The Wisconsin Fair Employment Act protects individuals from discrimination or harassment in the workplace in a host of ways not offered by federal law. Chief among these is that an employer is prohibited from discriminating against a job candidate on the basis of his or her arrest or conviction record. This means that if an employer decides not to hire a candidate because of a conviction that appears on a “routine” background check, the employer must be able to show that the conviction is substantially related to the job duties and responsibilities of the position for which the individual applied. Thus, employers new to Wisconsin need to evaluate any background check policies and make sure they are considering this protection before deciding against hiring an applicant.
2.) Overtime Exemptions. Similar to the Fair Labor Standards Act, Wisconsin requires employers to pay overtime to employees who work over 40 hours in a workweek. Also like the Fair Labor Standards Act, Wisconsin’s state overtime requirement exempts individuals who hold executive, administrative, and professional positions. However, there is a significant difference in the “job duties analysis” between the federal and state exemptions. Under federal law, an individual’s “primary duty” must consist of the executive, administrative, and professional work to qualify for the respective exemption. There is not a specific amount of time identified by law or regulation that an individual must perform exempt work for it to be his or her “primary duty.” Contrast this position with Wisconsin, which requires that an individual not devote more than 20% of his or her hours in a workweek to non-exempt activities to maintain the exemption. For executive or administrative exempt employees in a retail or service establishment, this percentage goes up to 40%. Therefore, employers new to Wisconsin need to more closely audit exempt positions to make sure this 20% threshold does not apply.
3.) Wisconsin Family and Medical Leave. Like federal Family and Medical Leave Act, the Wisconsin Family and Medical Leave Act provides qualifying employees with periods of unpaid leave for a serious health condition or the birth or adoption of a child. A key difference between the federal and state laws lies in Wisconsin’s “buckets of leave.” That is, federal law provides an individual with one mass of up to twelve weeks of leave regardless of whether the leave is for the employee’s serious health condition, a family member’s serious health condition, or the birth or adoption of a child. Wisconsin, however, provides specific periods of leave that depend on the need for leave. For an employee’s own serious health condition, the employee is permitted two weeks of leave. For the serious health condition of an employee’s family member, the employee is permitted a different “bucket” of two weeks leave. Lastly, for the birth or adoption of a child, the employee is permitted six weeks of leave.
A common issue for new-to-Wisconsin employers occurs when the individual might exhaust federal leave for one reason, but still have Wisconsin leave for another. For example, an individual might have a surgery on his leg that requires twelve weeks of leave. Assuming the need for surgery is a serious health condition under the Family and Medical Leave Act, the individual would have exhausted his federal leave benefit. Now say the same individual welcomes his first child in the same year. Under Wisconsin law, the individual still has a right to six weeks of leave for the birth of his child. Thus, this employee can be entitled to eighteen weeks of leave in a single year. In light of these circumstances, new-to-Wisconsin employers must closely track not only the amount of family or medical unpaid leave an employee takes, but employers must also closely track the reasons for the leave.
While this post isn’t exhaustive, these are just a few of the common issues we see for employers who come to Wisconsin with established policies and procedures in another state. Such employers must take care to cater their compliance efforts to every jurisdiction, just like Wisconsin.