“And on the Seventh Day … the Employee Worked” – Wisconsin Modifies its “One Day of Rest in Seven” Law

Wisconsin, like several other states, has a “One Day of Rest in Seven” law that, subject to certain exceptions, requires factory and “mercantile establishment” employers to provide their employees with “at least 24 consecutive hours of rest in every 7 consecutive days.” Wis. Stats. §103.85. 

Effective July 14, 2015 Wisconsin enacted a new exception to this requirement. Employers can now permit an employee to work seven consecutive days if the employee “states in writing that he or she voluntarily chooses to work without at least 24 consecutive hours of rest in 7 consecutive days.” Wis. Stats. §103.85 (2) (g) (at Section 3078bg). For those employees covered by a collective bargaining agreement with contrary provisions, the amendment does not become effective until “the day on which the collective bargaining agreement expires or is extended, modified, or renewed, whichever occurs first.” Id. at Section 9351.

The new exception has three key components: (1) the employee’s agreement must be in writing; (2) it must be voluntarily given; and (3) the writing must actually contain words stating that the employee voluntarily chooses to work seven consecutive days without 24 consecutive hours rest.

Of course, as the employee’s consent must be voluntarily given, an employer may not coerce an employee into providing it under the threat of discipline or some other adverse employment action. Nor may an employer discipline or discharge an employee for refusing to voluntarily agree to work 7 days straight.

Notably, the statute is silent on when the employer must obtain the employee’s written agreement. Thus, it is an open question whether an employee’s consent must be given prior to the first day worked, or just at some point prior to working the seventh day, or can actually be obtained after the employee has worked the seven days. Given the “voluntary” requirement and to avoid an allegation of coercion, it is recommended that an employer obtain the employee’s written consent at some point before the employee works the 7th consecutive day.

Technically, Wisconsin employers already had a method available to permit employees to work up to 12 days straight without a 24 hour break. To do so, an employer must merely schedule the employee’s “days of rest” on the first and last days of a two calendar week period; the employee can then lawfully work up to 12 consecutive days in-between. Wis. Admin. Code Ch. DWD §275.01(1).

Nevertheless, the new amendment gives employers further flexibility to meet changing production needs, while providing employees with additional opportunities to earn greater income at the time of their choosing.

Four Recent HR & Employment Law Developments

As those working in human resources and my fellow employment lawyers can attest, the last few years have given us constant change.  New employment laws, new labor regulations, federal agencies aggressively enforcing both, and significant cases being issued almost daily make it tough for even the most seasoned “HR Genius” to keep on top of all of the developments.  I try to lighten the load through this Blog, but like you, only have so many hours in the day.

So,  this week I am going to lean on my management-side employment law colleagues at Michael Best & Friedrich.  Below are just a sampling of the recent articles and “client alerts” they have authored recently:

1.  Wisconsin just enacted its “Right-To-Work” Law.  What does this mean for employers in Wisconsin? Click here.

2.  The Department of Labor just issued its Final Rule revising and expanding the definition of “spouse” to include those from same sex marriages.  For more details, click here.

3.  Utah just enacted a new law prohibiting discrimination against employees on the basis of their sexual orientation and “gender identity.”  If you have operations there, then you should  click here.

4.  Do you know what constitutes a valid employment claim “release,” and when you can lawfully “require” employees to sign them?  For this information and more, click here.

Hopefully you will find these helpful in your quest to becoming (or remaining) an “HR Genius.”

Mitchell W. Quick, Attorney/Partner
Michael Best & Friedrich LLP
Suite 3300
100 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
414.225.2755 (direct)
414.277.0656 (fax)
mwquick@michaelbest.com
http://www.linkedin.com/in/mitchquick
Twitter: @HRGeniusBar
@wagelaws

 

 

 

Wisconsin Modifies Wage Law’s Recordkeeping Requirements

Wisconsin employers recently received some good news from the Legislature: effective April 17, 2014 employers are no longer required to keep payroll records tracking the “hours worked” of their salaried employees who are “exempt” from Wisconsin’s overtime compensation laws.  This change brings Wisconsin’s payroll recordkeeping requirements in line with those of the Federal Fair Labor Standards Act (“FLSA”). Wisconsin companies no longer have to keep precise daily or weekly time records for their salaried exempt professional, executive (i.e. managerial and supervisory), administrative, and computer professional employees.  See Wis. Stats. §104.09.

Employers who previously struggled complying with Wisconsin’s recordkeeping obligations will obviously welcome the lowered administrative burden. But this lower burden may come at a higher price – what if an employee files an overtime pay claim in court or at the Department of Labor (“DOL”) alleging that the employer “misclassified” him/her as overtime exempt?

Often in these cases an employee claims to have worked substantial amounts of overtime hours each week, and offers as “evidence”: (1) a self-serving log or spreadsheet showing a huge number of overtime hours worked; and/or (2) self-serving testimony that he/she worked all hours of the day and night, including weekends. Employers who do not have time cards to refute the claimed amount of overtime hours worked are then forced to rely on anecdotal evidence such as: (1) observations of when the employee “typically” arrived at and/or left work; or (2)  the employee’s computer “log on” and “log off” times.  The DOL or jury then decides how many overtime hours the employee worked each week.

Given this risk, employers would be well served to re-examine whether the employees they classify as “salaried exempt” truly satisfy all of an applicable exemption’s requirements.

Mitchell W. Quick, Attorney/Partner
Michael Best & Friedrich LLP
Suite 3300
100 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
414.225.2755 (direct)
414.277.0656 (fax)
mwquick@michaelbest.com
http://www.linkedin.com/in/mitchquick
 Twitter: @HRGeniusBar
 @wagelaws