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Dolley Law LLC

Wisconsin

Wisconsin Wage and Hour

The attorneys at Dolley Law have represented clients in many states across the country regarding wage and hour violations. Our attorneys assist clients with a wide variety of issues and disputes relating to federal and state wage and hour laws. Contact us today to learn more about the potential for our Firm to provide you legal representation in a wage and hour matter.

State Uniformity

Unlike many states, Wisconsin wage and hour laws include specific language that prevents local jurisdictions from enacting laws that may differ from state standards. Wis. Stat. §§ 103.007(1), 104.001. Both the Wisconsin Minimum Wage Law and Employment Regulations contain language preempting any cities, villages, towns, or counties from enacting their own laws on the same subject matter because uniformity is a “matter of statewide concern.” Wis. Stat. § 103.007(1).

Overtime

Wisconsin has the same requirements as the Fair Labor Standards Act (“FLSA”) for overtime pay. Wis. Admin. Code 274.03; 29 U.S.C. § 207(a)(1). Nonexempt employees should be paid at a rate 1.5 times their regular rate for every hour worked over 40 in a workweek. Id. Both the FLSA and Wisconsin state laws allow some employees, such as employees of the state, to receive compensatory time off in lieu of overtime compensation. Wis. Stat. § 103.025(2); 29 U.S.C. § 207(o).

Minimum Wage

Wisconsin has the same minimum wage as the FLSA. Wis. Stat. § 104.035(1)(a); 29 U.S.C. § 206(a)(1)(C). Currently, employers must pay nonexempt employees at least $7.25 per hour. Id.

Like the FLSA, Wisconsin has select exemptions to the minimum wage requirements for employees who are less than 20 years of age and in their first 90 days of employment, known in Wisconsin as “opportunity employees” Wis. Stat. §§ 104.01(5m), 104.035(2m)(a); 29 U.S.C. § 206(g). The FLSA requires employers to pay these employees $4.25 per hour, and Wisconsin employers must pay opportunity employees $5.90 per hour. Id.

Both the FLSA and Wisconsin law contain special provisions for tipped employees. Wis. Stat. § 104.035(3)(a)(1); 29 C.F.R. 516.28 (2019). The federal minimum wage for tipped employees is $2.13 per hour excluding tips, provided the employee still makes a regular rate above minimum wage when tips are counted toward weekly compensation. 29 C.F.R. 516.28 (2019). In Wisconsin, employers must pay tipped employees $2.33 per hour, excluding tips. Wis. Stat. § 104.035(3)(1). Additionally, Wisconsin employers can pay employees who qualify as both opportunity employees and tipped employees a minimum of $2.13 per hour. Wis. Stat. § 104.035(3)(a)(2).

Wisconsin allows for employers to pay groups of employees, such as employees with disabilities, at a rate lower than the minimum wage. Wis. Admin. Code 272.09(2)(a). Employers must apply for a license to do so through the Department of Workforce Development, and the Department grants licenses when “necessary in order to prevent the curtailment of opportunities for employment.” Wis. Admin. Code 272.09(2)(a), 272.09(5)(a).

Rest and Meal Breaks

Wisconsin has mandatory rest days for employees who work in factories. Wis. Stat. § 103.85(1). Employees of factories or retail establishments can require 24 consecutive hours of rest every seven consecutive days. Id. Exempt employees include janitors and security personnel in addition to any employee who voluntarily waives their right to a rest day in writing. Wis. Stat. § 103.85(2)(a), (b), (g).

Wisconsin regulations provide additional rules regarding meal breaks for employees. Wis. Admin. Code 274.02(2-3). Employees over the age of 18 do not have mandatory meal breaks; however, the regulation recommends unpaid meal breaks of at least 30 minutes reasonably close to a usual mealtime, especially for shifts longer than six hours. Wis. Admin. Code 274.02(2). Id. Thirty-minute unpaid meal breaks are required for employees less than 18 years of age. Id. Meal breaks less than 30 minutes should be compensated as “on-duty meal periods” Wis. Admin. Code 274.02(3).

Wage Payment Requirements

In Wisconsin, employers must pay wages in a timely manner. Wis. Stat. § 109.03(1). Wages should be paid at least once per month to nonexempt employees in order to avoid penalties. Id.

Potential Liabilities

Employers who violate state and federal guidelines for wage and hour payments risk paying penalties. Although an employee does not need to file a complaint with the Department of Workforce Development prior to commencing a private action to collect wages due, it can affect the liability of the employer. Wis. Stat. § 109.03(5); German v. Wisc. Dept. of Transp., 589 N.W.2d 651, 656 (Wis. Ct. App. 1998).

For example, in an action where the Department has not yet completed an investigation, an employer who violated overtime, minimum wage, or wage payment requirements could be liable for unpaid wages and a civil penalty of up to 50% of the total amount of unpaid wages. Wis. Stat. § 109.11(2)(a). However, if the Department has completed an investigation, an employer could be liable for unpaid wages and a civil penalty of up to 100% of the total amount of unpaid wages. Wis. Stat. § 109.11(2)(b). Wisconsin law gives the court discretion over whether to award attorney’s fees. Wis. Stat. § 109.03(6); Jacobson v. American Tool Co., Inc. 222 Wis.2d 384, 387 (Wis. Ct. App. 1988) (interpreting “reasonable sum for expenses” to include attorney’s fees).

Employer liabilities under the FLSA vary slightly from Wisconsin law. 29 U.S.C. § 216(b); Wis. Stat. § 109.11(2)(a-b). Typically, employers who violate the FLSA pay any unpaid wages, liquidated damages totaling the amount of unpaid wages, and attorney’s fees. 29 U.S.C. § 216(b). Liquidated damages are owed unless the employer fulfills its burden of proving the subjective and objective reasonableness of its pay practices or policy. See 29 U.S.C. § 216(b).

In certain circumstances, employers can be held criminally liable for failing to pay adequate or timely wages. Wis. Stat. § 109.11(3). If the employer intends to annoy, harass, or defraud the person to whom the wages are due, the employer may owe a fine up to $500 and face imprisonment for up to 90 days. Id.

Similar to the FLSA, Wisconsin law imposes a statute of limitations of two years. Wis. Stat. § 109.09(1); 29 U.S.C. § 255(a). However, the FLSA allows for the statute of limitations to be extended to three years if the employer willfully violated the statute. 29 U.S.C. § 255(a).

Contact Us

If you are in or around Milwaukee, Dane, Waukesha, Brown, Racine, Outagamie, Winnebago, Kenosha, Rock, or Washington counties, and have further questions or concerns regarding the potential for our Firm to represent you, please do not hesitate to contact our Firm at (314) 645-4100 or kevin@dolleylaw.com.