Wisconsin Legislature Poised to Prohibit Local Employment Ordinances and Exempt Certain Employers From WFMLA
Authors: Christopher J. Johnson (Milwaukee), Keith E. Kopplin (Milwaukee)
Published Date: February 12, 2018
While all eyes have rightfully been focused on Washington, D.C., during the recent and ongoing drama surrounding the government shutdown, in Madison, the Wisconsin Legislature is poised to take action on two measures that may have a significant impact on Wisconsin employers. In the first bill, the Wisconsin Legislature seeks to prohibit local governments from enacting or enforcing certain employment regulations at the local level. If passed, this bill could summarily put an end to the Madison Equal Opportunity Ordinance. In the second bill, the Wisconsin Legislature would exempt from the Wisconsin Family and Medical Leave Act (WFMLA) any employer that is also covered by the federal Family and Medical Leave Act (FMLA). These significant proposals are in keeping with other employer initiatives enacted during Governor Walker’s tenure.
The Employment Law Standardization Act
Introduced by Wisconsin State Senator Chris Kapenga, the Employment Law Standardization Act would preempt local governments from enacting or enforcing ordinances related to various employment matters. More specifically, the Act would prohibit any city, village, town, or county from enacting or enforcing an ordinance regarding any of the following matters:
Wage claims and collections
Employee hours and overtime, including scheduling of employee work hours and shifts
The employment benefits an employer may be required to provide to its employees
An employer’s right to solicit information regarding the salary history of prospective employees
The Act would also prohibit any of those political subdivisions from imposing on individuals occupational licensing requirements that are more stringent than is required by any state law. Finally, the Act would prohibit so-called labor peace agreements, which municipalities may use to force employers to relinquish their rights regarding union organizing granted under the National Labor Relations Act. Under such labor peace agreements, if employers do not agree to certain demands, they risk not receiving the necessary permits, approvals, or licenses to operate. The Act would bar local units of government and the state from mandating this practice, while still allowing willing parties to utilize it.
Proponents of the legislation argue that the types of local ordinances prohibited by the Act are best governed by uniform statewide policies. They also argue that the Act guarantees uniform employment regulation of employment hours, overtime, benefits, discrimination, and wage claims, as well as prevents employers from being caught in the regulatory spiderweb of nearly 2,000 local governments. Opponents of the legislation argue that the legislation will restrict the ability of local governments to improve the economic security and working conditions of workers in their communities.
If enacted, one of the more significant consequences could be elimination of the Madison Equal Opportunity Ordinance, which has its own enforcement mechanism and contains a number of protected classes not covered under Wisconsin law. The protected classes that would be eliminated in Madison would include gender identity, non-religion, homelessness, sources of income, lack of Social Security number, physical appearance, political belief, student status, domestic partner status, citizenship, unemployment status, and credit history. In addition, the Act would prohibit future promulgation of local ordinances similar to those that have been enacted across the country, including those that restrict or regulate hours of work, set higher minimum wages, and prohibit inquiries regarding salary history. The recently enacted DePere, Wisconsin, nondiscrimination ordinance would also likely be eliminated.
Family Medical Leave Reform
Under the second piece of legislation, the Wisconsin Legislature would exempt from the WFMLA those employers covered by the federal FMLA. Similar to the Employment Law Stabilization Act, the intent of this bill is to streamline regulations for employers covered by both state and federal law. The bill provides that the WFMLA would not apply to any of the following:
“An employer that is required to provide leave under the federal family and medical leave law.
An employer that opts to provide leave under the federal family and medical leave law to an employee who is not an eligible employee, so long as the employer provides leave to such an employee in the same manner as the employer provides to an eligible employee.”
The bill would not prohibit an employee who is eligible for federal FMLA leave from taking that leave entitlement to care for a spouse, child, parent, domestic partner, or parent-in-law who has a serious health condition as defined by the WFMLA. However, if enacted, the bill would presumably exempt covered employers from other specific provisions of the WFMLA that are not required under federal law. For example, the WFMLA provides that only an employee gets to choose if he or she will substitute accrued paid or unpaid leave of any type provided by an employer during the period of statutory leave, whereas federal law allows employers to require such substitution. Moreover, the bill would presumably limit the types of employer-provided paid leave an employee could choose to substitute—a choice that has otherwise been construed broadly by Wisconsin court decisions. In addition, the Act would ease the administrative burdens on employers in tracking the use of both state and federal leave on a calendar year and rolling year basis.
Both pieces of legislation are being considered in the current legislative session. Given that Republicans control both chambers of the Wisconsin Legislature, as well as the governorship, and based on similar legislation previously passed under Governor Walker, passage of both bills seems likely. We will continue to monitor and update the status of both of these pieces of legislation and their effects on Wisconsin employers.
Christopher Johnson is a shareholder in the Milwaukee office of Ogletree Deakins. For more than 25 years, Mr. Johnson has represented and counseled employers in all aspects of labor and employment law, including employment discrimination, restrictive covenant and non-compete litigation, employer best practices, family and medical leave issues, workplace safety, and wage and hour disputes. Mr. Johnson has extensive litigation experience in all forums, from state and federal courts to...
Keith E. Kopplin’s practice focuses on employment litigation and employment law matters. Keith assists clients in resolving wage and hour class and collective actions, defending employment discrimination claims, responding to government audits, and improving workplace policies and procedures. He also provides day-to-day counseling to employers regarding a wide range of human resource matters including discipline and discharge decisions, the Wisconsin and federal Family and Medical Leave...