Hours worked
Wisconsin minimum wage laws require employers to compensate employees for all hours worked. Hours worked is defined as all time spent in physical or mental exertion which is controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer’s business.
This includes time employees are suffered or permitted to work and includes time employees spend working voluntarily when the employer knows or has reason to believe that employees are continuing to work, including time worked away from the employer’s premises or job site. WI Admin. Rules 272.12(1)-(2)(a).
It also includes all preparatory and concluding activities that are an integral part of the employees’ principal job activities. WI Admin. Rules 272.12(2)(e).
It is the employer’s responsibility to ensure employees are not working when it does not want them to. Moreover, the mere promulgation of a work rule prohibiting employees from working unapproved time is not sufficient protection for an employer. The employer must make every effort to enforce the rule. WI Admin. Rules 272.12(2)(a)(3).
Workweek
Wisconsin minimum wage laws define a workweek as 7 consecutive 24 hour periods. WI Admin. Rules 272.12(2)(d)1.g.
Waiting time
Wisconsin minimum wage laws require employers to count employee waiting time as hours worked for purposes of its minimum wage and overtime requirements if all the facts show the employees were on duty and engaged to wait. Typically, the wait time is a part of the job and the waiting periods are of unknown duration.
On the contrary, employers are not required to pay employees for waiting time if the employees are off-duty and waiting to be engaged. During these periods, employees are completely relieved of all job duties and the periods are long enough for the employees to use the time for their own purposes. Typically, employees are informed in advance that they will not have to work during the waiting period time and are given a specific time when the waiting period will end. WI Admin. Rules 272.12(2)(b).
On-call time
Wisconsin minimum wage laws require employers to count employee on-call time as hours worked for purposes of its minimum wage and overtime requirements if employees are required to stay on or close to the employer’s premises so that the employees cannot use such time effectively for their own purposes. An employer is not required to pay employees for on-call time if they allowed to leave the employer’s premises and are only required to leave word as to where they can be reached. WI Admin. Rules 272.12(2)(b)(4).
Sleeping time
Wisconsin minimum wage law requires employers to count time spent by employees sleeping or engaged in other activities as hours worked when they are required to be on duty less than 24 hours and are permitted to sleep or engage in other activities when not busy. WI Admin. Rules 272.12(2)(d)(2)
Additionally, when an employee is required to be on duty for 24 hours or more, an agreement can be made between the employer and employee to exclude bona fide meal periods and regularly scheduled sleeping periods from the employee’s hours worked.
The bona fide sleeping periods that may be excluded from hours worked may not exceed eight (8) hours and the employer must provide the employee with adequate sleeping facilities where the employee can usually enjoy an uninterrupted sleep period. Any interruptions to the sleeping period where the employee must perform job duties is considered hours worked.
The entire sleep period must be counted as hours worked should interruptions be so long or so frequent that the employees are unable to enjoin at least five (5) continuous hours of sleep. Even if the employee sleeps more than eight (8) hours, only eight (8) hours of sleep time can be deducted from hours worked. If the employer and employees have not entered into a sleep time agreement, all sleep time must be counted as hours worked.
WI Admin. Rules 272.12(2)(d)(3)
In situations where employees reside on an employers’ premises, an employer does not need to count all the employee’s time as hours worked. Wisconsin recognizes that in these situations most employees have free time throughout the day to use for their own purposes. Because each of these situations may vary significantly, Wisconsin accepts any reasonable agreement between the employer and employees that sets forth what time will be counted as hours worked. WI Admin. Rules 272.12(2)(d)(4)
This rule applies to employees who provide home care services if the employees do not reside on the employer’s premises but who remain on the employer’s premises for at least 120 hours in a workweek and are provided private quarters in a homelike environment to sleep. WI Admin. Rules 272.12(2)(d)(5)
Travel time
Wisconsin minimum wage laws address the following situations regarding whether employee travel time must be counted as hours worked for purposes of its minimum wage and overtime requirements:
- Employers do not need to count normal travel time commuting to and from home and work as hours worked. WI Admin. Code 272.12(2)(g)(2).
- Employers must count employee travel time as hours worked when employees are required to travel a substantial distance to perform emergency work after their regular shift has ended. WI Admin. Code 272.12(2)(g)(3).
- Employers must count employee travel time as hours worked when employees who normally work at fixed locations are required to work at another location away from their normal worksite and are required to travel to and from the other location within the same day. Employers may deduct an employee’s normal commute time or travel time to and from a public transportation facility from the employee’s hours worked. WI Admin. Code 272.12(2)(g)(4).
- Employers must count employee travel time as hours worked when the travel is part of the employee’s principal work activity, including driving from job site to job site during the day. This compensable travel time includes time employees spend traveling to a job site after they have reported to a central location at the request of the employer for pre-shift meetings or to pick up tools and/or equipment. WI Admin. Code 272.12(2)(g)(5).
- If employees travel away from their home community for the benefit of the employer, including overnight travel, employers must count the employees’ travel time as hours worked. WI Admin. Code 272.12(2)(g)(6).
- When employees choose to drive their private vehicle instead of taking public transportation when traveling away from home, employers may choose to count as hours worked the time the employee spent traveling in the personal vehicle or time the employee would have spent traveling by public transportation. WI Admin. Code 272.12(2)(g)(7).
- Employees must count any time spent by an employee working while traveling as hours worked. This includes employees to drive trucks, buses, automobiles, boats, or airplanes or any employee required to ride as a helper or assistant. An employer may deduct bona fide meal periods or sleeping periods, if adequate facilities are furnished by the employer, from the hours worked total. WI Admin. Code 272.12(2)(g)(8).
Meeting, lecture, and training time
Wisconsin minimum wage laws require employers to count meeting, lecture, and training time as hours worked unless all of the following criteria are met:
- attendance is outside of the employee’s regular working hours;
- attendance is in fact voluntary;
- the meeting is not directly related to the employee’s job; and
- the employee does not perform any productive work during such attendance.
WI Admin. Code 272.12(2)(f)(1)
Attendance is not considered to be voluntary if the employee is required by the employer to attend. This includes all situations where employees understand or are led to believe that their present working conditions or continuance of employment would be adversely affected if they failed to attend. WI Admin. Code 272.12(2)(f)(2)
Training is considered to be directly related an employee’s job if the training is designed to make the employee perform his or her job more effectively. This is distinguished from training where the employee learns another job or a new skill for the employee’s existing job. WI Admin. Code 272.12(2)(f)(3)
Employers do not need to count training time as hours worked if the employee independently and on his or her own initiative engaged in the training after hours at an independent school, college or trade school brought about at the employee’s own initiative. This is true even if the training is related to the employee’s job. WI Admin. Code 272.12(2)(f)(4)
Employers may exclude from hours worked unless otherwise required by an explicit contractual agreement, time spent by apprentices in an organized program of related, supplemental instruction if:
- the apprentice is employed under a written apprenticeship agreement or program which meets the standards of and is registered with the Bureau of Labor and Industries, Apprenticeship and Training Division; and
- the time does not involve productive work or performance of the apprentice’s regular duties.
WI Admin. Code 272.12(2)(f)(5)
Show up or reporting time
Wisconsin minimum wage laws do not require employers to pay employees for reporting or showing up to work if no work is performed. An employer is also not required to pay an employee a minimum number of hours if the employer dismisses the employee from work prior to completing their scheduled shift. Employers are only required to pay employees for hours actually worked.
