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Report Card of The 2009-2010 Wisconsin Legislative Session
On March 27, 2010, President Obama bypassed the Senate and made two recess appointments to the National Labor Relations Board (NLRB). These recess appointees will serve at least until the end of the next session of Congress—December 31, 2011.
The Wisconsin state legislature has wrapped up its 2009-2010 legislative session on April 29, 2010. In this session, a total of 1,686 bills were introduced in both the Assembly and Senate and, of this number, 264 bills have been signed into law (only about 15 percent of all bills introduced.) Of the 264 bills passed and signed by the governor, 216 have been enacted into law. Any bills not yet called for by the governor will be sent to his office for review by May 13, 2010.
Below is a recap of proposed legislation that affected employers in Wisconsin, a review of the Indoor Smoking Ban, which takes effect on July 5, 2010, and an overview of the amendments to the Fair Labor Standards Act which requires employers to provide space and breaks for nursing mothers.
  1. Pass or Fail: Report Card of Wisconsin Legislation
    After several late night sessions and votes, only one bill of concern to employers passed both the Assembly and Senate and is on schedule to be signed into law by Governor Doyle; as noted above, most proposed legislation failed to pass both houses of the legislature. The next legislative session will begin in January 2011, and it is possible that some failed bills may be re-introduced.

    Union Organizing and Communications with Employees (AB 831 and SB 585): PASSED
    This bill, which would prohibit discrimination against an employee who declines to attend an employer−sponsored meeting or to participate in any communication with the employer or with an agent, representative, or designee of the employer, the primary purpose of which is to communicate the opinion of the employer about religious or political matters, passed both the Assembly and the Senate and is awaiting Governor Doyle’ signature.

    School and Activities Leave (AB 116 and SB 86): FAILED
    Despite several last-minute amendments, legislation to expand the Wisconsin Family and Medical Leave Act to permit employees to take 16 hours of leave per year to participate in school activities and conferences failed to pass.

    Employer Monitoring of Digital Information and Employee Privacy Rights (AB30): FAILED
    Assembly Bill 30, would have allowed employers to monitor employee e-mail messages sent or received by employees on a computer owned by the employer.

    The Medical Marijuana Act (SB368 and AB554): FAILED Wisconsin’s legislators did not follow the footsteps of 13 other states, including neighboring Michigan, that recently passed laws to legalize marijuana for medical purposes.

    Credit History Check (SB275 and AB367): FAILED AB367 was introduced in the Wisconsin Assembly to make “credit history” a protected class in employment discrimination. As drafted, AB 367 would have prohibited an employer from using information in a consumer credit report against the individual unless it “substantially relates” to the circumstances of the job and would have made a person’s credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, and mode of living all protected categories.

  2. Wisconsin’s Indoor Smoking Ban Takes Effect
    July 5, 2010 marks the effective date of Section 101.123 of the Wisconsin Statutes—commonly referred to as the Indoor Smoking Ban. Employers now have just over two months to amend their policies, post appropriate notices, and prepare to enforce the new law. Failure to do so could lead to fines and/or injunctive action against employers.

    Place of employment defined
    Signed by Governor Doyle on May 18, 2009, the Indoor Smoking Ban expressly prohibits smoking in, among other places, government buildings, taverns, restaurants, theaters, and lodging establishments. The law also prohibits smoking in any “place of employment,” which is broadly defined as any enclosed place that employees normally frequent during the course of employment, including an office, a work area, an elevator, an employee lounge, a restroom, a conference room, a meeting room, a classroom, a hallway, a stairway, a lobby, a common area, a vehicle, or an employee cafeteria. It is worth noting that the definition includes a vehicle that employees normally frequent during the course of employment. To that end, even a company vehicle designated for a single employee’s use could be subject to the smoking prohibition—regardless of that employee’s personal smoking preference.

    Penalties and fines
    Individuals caught smoking in violation of the new law can be fined not less than $100, nor more than $250, for each violation. More significant for employers, the person who has ultimate control over the location at which smoking is prohibited can also be fined $100 per day for failing to take adequate steps to prevent unlawful smoking. Specifically, that individual must do at least the following to avoid the possibility of a fine:

    1. Not provide matches, ashtrays, or other equipment for smoking at a location where smoking is prohibited;
    2. Make reasonable efforts to prohibit persons from smoking at a location where smoking is prohibited by doing all of the following:
      1. Posting signs setting forth the prohibition and providing other appropriate notification and information regarding the prohibition;
      2. Refusing to serve a person, if the person is smoking in a restaurant, tavern, or private club; and
      3. Asking a person who is smoking to refrain from smoking and, if the person refuses to do so, asking the person to leave the location.
    3. If a person refuses to leave a location after being requested to do so, the individual must immediately notify an appropriate law enforcement agency of the violation.

    What should employers do to comply?
    Although individuals with ultimate control over locations at which smoking is prohibited must be provided a warning prior to being issued a fine, and can only be fined a total of $100 per day for any and all violations of items 103 above, employers should act soon to ensure compliance with their obligations under the Indoor Smoking Ban.

  3. Fair Labor Standards Act (FLSA) Amended to Require Dedicated Space and Breaks for Nursing Mothers to Express Breast Milk
    When President Obama signed the Patient Protection and Affordable Care Act (PPACA) on March 23, 2010, it included a provision to amend Section 207(r)(1) of the FLSA to require employers that are covered by the FLSA and employ 50 or more employees to provide space and unpaid rest breaks for nursing mothers to express breast milk. FLSA-covered employers with fewer than 50 employees do not have to comply if such requirements would create an undue hardship in either difficulty or expense. Up until now, such rest break requirements had been subject to state regulation. Wisconsin has had laws that protect nursing mothers since 1995, but these laws do not apply to the employment setting. In 1995, Wisconsin passed legislation (AB 154) to establish that breastfeeding mothers are not in violation of criminal statutes of indecent or obscene exposure. In 2009, AB 57 was passed to provide that a mother may breastfeed her child in any public or private location where the mother and child are otherwise authorized to be.

    Under the amendments, which became effective on March 23, 2010, employers must provide “a place, other than a bathroom, that is shielded form view and free from intrusion from coworkers and the public” for employees to express breast milk.

    Lactation Room Guidelines
    Although the FLSA does not provide specific criteria for how a lactation space must be configured, the U.S. Department of Health and Human Services, Office of Women’s Health, has set forth some general guidelines and suggestions for employers to consider. These are outlined below.

    The amount of space needed for a lactation room can be as small as 4’ x 5’ to accommodate a comfortable chair and a small table or shelf for a breast pump. Ideally, it would have an electrical outlet, can be locked from the inside, and is near a source of both hot and cold water for washing hands, pump attachments, and milk collection containers. Some employers may provide an electric pump while others may require the employee to provide her own electric or manual pump. Some employers also choose to decorate the room with wall art, carpet and other such items to make the space comfortable and relaxing. Space options include:

    • A little used existing office space or other room;
    • A clean, infrequently used closet or small storage area;
    • Sectioning off a small corner of a room with either permanent walls or portable partitions;
    • A walled off corner of a lounge adjacent to the women’s restroom; and
    • Adapting a “small unused space” that is not utilized well for other needs.

    Milk storage
    Because of the unique antibacterial properties in human milk, breast milk can be safely stored in a refrigerator or personal cooler. Milk can be safely stored in a standard refrigerator at 32-39°F for up to 48 hours. Options for storing milk include:

    • The company can require the mother to use her own personal cooler
    • The company can provide a small cooler (or provide the portable electric pump which includes a cooler)
    • The company can provide a small “college dorm room” sized refrigerator in or near the lactation room.

    Cleaning the room
    Most lactation program policies require that individual employees be responsible for keeping the room clean. Employers can provide disinfectant, anti-microbial wipes, or spray so that each user can clean the outside of the pump and the area around the pump when she is finished. Wastebasket contents should be removed daily. If your company does not provide a cleaning crew, consider a schedule that assigns users to conduct routine inspection and cleaning of the room. Many companies provide general maintenance oversight of the room within their administrative services department.

    Lactation Breaks and Wisconsin Law
    In addition to providing space, the amendments to the FLSA require employers to provide “reasonable break time” to express milk “each time” the employee has the need to do so. The breaks must be provided for up to one year after a child’s birth. However, the break time does not have to be paid time and the number and length of breaks will vary based on the needs of each individual employee. Most women will need two to three breaks of 15 to 20 minutes each per day to express milk. However, in Wisconsin, breaks in increments of less than 30 minutes must be paid breaks. One way to control this cost is to require 30 minute lactation breaks when one is required during work. Breaks may be more frequent during the first few months after birth and will become less frequent after six to nine months as babies begin to eat solid food. Most employees will be able to use their morning and afternoon breaks and lunch period to express milk. It is important to note that although the break time is unpaid, deductions can not be made from the wages of salaried, exempt employees, although exempt employees can be expected or required to make up any time used for this purpose.
If you have any questions about the issues in this article, or any other employment law matter, please call or e-mail me. Thanks.
Thomas P. Krukowski
Legislative Partner
Krukowski & Costello
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Contact Information 

Margie Harvey

Margie Harvey, SPHR
Miles Kimball Company 
250 City Center
Oshkosh, WI  54906
Ph: 920.232.6409
Fx: 920.231.1247   

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