ERD Update & Hot Topics

1. ERD Update & Hot Topics Equal Rights Division (608) 266-6860 – Madison (414) 227-4384 – Milwaukee http://dwd.wisconsin.gov/er Jim ChiolinoDeputy Division Administrator & Director, Bureau of Hearings & Mediationjim.chiolino@dwd.wisconsin.gov

2. Brief Update • ERD Reorganized (No change in services) • Outside Sales Exemption Updated

3. What You Might Like to Know… • Harassment in the Workplace • Seasonal / Part-time Employment • Wage & Hour Regulations

4. Harassment • Disrespectful, insulting, hostile, abusive treatment BECAUSE OF the individual’s membership in a protected class. • It can include singling someone out by making jokes about that class – e.g., racist, sexist comments. • Without a link to a protected basis, harassment – no matter how egregious – is not unlawful under the Wisconsin Fair Employment Law (WFEL).

5. Fair Employment Law - Protected Classes • Race 1945 • Color 1945 • Creed 1945 • Ancestry 1945 • Nat’l Origin 1945 • Age 1959 • Sex 1961 • Disability 1965 • Arrest 1977 • Conviction 1977 • Sexual Orientation 1982 • Marital Status 1982 • Military Service 1987 • Lawful Products 1992 • Attendance at Religiousor Political Meetings 2009 ------------------------------ • State & Federal Laws • State Law

6. Fair Employment Complaints CY 2018 (as of November 7, 2018) • Retaliation (All types) 863 20.77% • Disability 749 18.03% • Race 625 15.04% • Sex 539 12.97% • Age 415 9.99% • Conviction Record 266 6.40% • National Origin/Ancestry 134 3.23% • Color 169 4.07% • Arrest Record 126 3.03% • Pregnancy/Maternity 86 2.07% • Religion/Creed 65 1.56% • Sexual Orientation 58 1.40% • Marital Status 26 0.63% • Lawful Products 16 0.39% • Military Status 12 0.29% • Political Beliefs 4 0.10% • Genetic Testing 3 0.06% • Honesty Testing 2 0.05% Total Charges...................…. 4,155 Total Persons Filing............…. 2,331

7. What do you think? Trevor is an African American male working for XYZ Co. Employees are asked to select 2 weeks of vacation days for the coming year. Trevor inadvertently selects three. Other employees hear about this and are upset. Two white males put a note on his cube saying, “three weeks; must be a black thing.” They also fashion a noose and leave it with the note. Trevor reports this to his supervisor. What should be done? Is this actionable race based harassment?

8. Verbal Abuse Epithets Vulgar Language Derogatory Language Offensive Materials Offensive Cartoons Forms • Mimicry • Lewd or Offensive Gestures • Jokes offensive to member of the protected class • It is in the eye of the beholder!

9. Hostile Work Environment • Applies to sexual harassment and harassment because of prohibited bases • Looks at severity and frequency • Substantially interferes with work or is hostile, intimidating, or offensive • Supervisor or coworker can commit • Liability varies with circumstances • Often subtle – no bright line

10. Sexual Harassment Unwelcome Sexual advances Requests for sexual favors Sexual physical contact Sexual verbal or physical conduct Sexually graphic displays

11. Unwelcome • A subjective state of mind of the victim • Victim may not have to object • Conduct may not have to be repeated • Severe enough to interfere with work performance • Intimidating, hostile, or offensive environment

12. Owners/Agents • Even without a hostile work environment, conduct may be seen as sexual harassment • Held to a higher standard than perpetrators who are employees or nonemployees • Know their conduct toward an employee • Can control their own conduct

13. Employer Obligations Have a published harassment policy Take immediate steps to: Investigate and stop harassment Impose appropriate discipline Reasonably calculated to correct behavior Make victims whole by restoring lost benefits or opportunities

14. Harassment Policy • A good one: • Defines illegal harassment • Prohibits harassment • Prohibits retaliation • Emphasizes confidentiality • Has a complaint procedure outside the chain of command • Contains explicit follow up procedure

15. Victim’s Response Confront harasser – make objection clear Record events – note reactions Talk to someone – witnesses? If persists, consider a letter to harasser Check and use company/union policies File a formal complaint if necessary

16. Seasonal / Part-Time Employment • Seasonal / Recreational & Amusement Exemption • Employees are exempt from overtime requirements: • a) If the establishment does not operate for more than 7 months in any calendar year, or • b) if during the preceding calendar year, its average receipts for any 6 months of such year were not more than 33-1/3% of its average receipts for the other 6 months of such year.

17. Seasonal / Part-Time Employment • Benefits? • Wisconsin law does NOT require that you provide benefits such as vacation pay, sick leave, etc. • If you do, you can decide who is eligible & under what circumstances. • Make sure policies are clear, concise, and easy to understand.

18. Seasonal / Part-Time Employment • Benefits? • Health Insurance • If you offer a group health plan, you must offer it to anyone regularly working 30 hours or more. • For more information, contact the Office of the Commissioner of Insurance – they enforce this obligation. • 608-266-3585

19. Overtime • Wisconsin’s overtime laws (Wis. Stat. §§ 103.01 – 103.02; Wis. Admin. Code Ch. DWD 274) cover all businesses except: • Non-profit organizations • Agricultural employers • Domestic service employees

20. Overtime • The Basics • Time and one-half the regular rate after 40 hours worked in a week • “Week” is a regularly recurring 7 day period • Each week stands by itself • Paid time off does not have to count as time worked in a given week for overtime purposes • There are 15 exemptions to Wisconsin’s overtime law • Some exemptions apply to the whole establishment and some apply to individuals • In some instances federal and state laws differ

21. Overtime • White Collar Exemptions • For each of the “white collar exemptions,” the employer must be sure the position meet the following tests: • The salary basis test • The salary minimum amount • The duties test

22. Overtime • White Collar Exemptions • Salary basis test • Regularly paid sum on a weekly or less frequent basis (no daily salaries) • Not subject to reduction due to quality or quantity of work performed (except certain recognized allowable deductions)

23. Overtime • White Collar Exemptions • The most common allowable deductions • Full day absence for personal reasons other than illness or accident • Full day absence for illness or accident when deduction is in conjunction with a bona fide sick leave policy • Salary may be prorated in initial and terminal weeks of work • Absences for compelled appearance in court and jury duty • Family and Medical Leave

24. Overtime • White Collar Exemptions • Duties Test – Administrative, Executive, Professional (§DWD 274.04(1)). Example - Executive • primary duty is management of the enterprise or of a customarily recognized department or subdivision, AND • who regularly directs the work of 2 or more employees (80 hours per week), AND • who has the authority to hire & fire or whose recommendations are given particular weight, AND • who doesn’t devote more than 20% of his or her time to non-exempt activities (40% in retail or service)

25. Overtime • Federal Law – FLSA • White Collar Exemptions • Duties test slightly different since 2004 • Primary duty is most important duty • No percentage test • Highly compensated employee exemption • $455 weekly salary

26. Questions? Jim ChiolinoDeputy Division Administrator & Director, Bureau of Hearings & Mediation 608.266.3345 jim.chiolino@dwd.wisconsin.gov www.dwd.wisconsin.gov