Up in smoke? New Wisconsin governor proposes marijuana legalization and host of new employment laws

Michael Gotzler, Clark & Gotzler,

Wisconsin employers reviewing Gov. Tony Evers’ very first budget proposal may be surprised at the number of employment-related items. The substance of those proposals may also catch employers by surprise, with some observers viewing the Evers budget as an effort to erase the employer-friendly legacy of former Gov. Scott Walker. Presented to the state Legislature on Feb. 28, the Evers budget proposes more than a return to the pre-Walker era, however. If the new governor’s budget proposal is an indication of his legislative and enforcement priorities, Wisconsin employers should closely consider its specifics.

Many components of the Evers budget proposal seek to undo significant Walker-era laws, including:

  • Repeal right-to-work — In 2015, Wisconsin became the 25th right-to-work state. Gov. Evers proposes repealing that law in its entirety. Under current Wisconsin law, collective bargaining agreements cannot require the employer to hire only unionized workers. A Wisconsin employer and union also may not condition employment on: (1) becoming or remaining a member of a labor organization; (2) paying dues or other amounts to a labor organization; or (3) paying a third party amounts in place of dues to a labor organization.
  • Repeal local employment law preemption — Under current law, Wisconsin municipalities are prohibited from enacting family leave, hours of work, overtime, and minimum employee benefits requirements. Gov. Evers proposes repealing this law and permitting local regulation of Wisconsin employers.
  • Repeal drug testing to determine unemployment insurance eligibility — Under recent changes to Wisconsin’s unemployment insurance law, some applicants can be drug tested to determine their benefits eligibility. Gov. Evers is asking the Legislature to repeal that law.
  • Restore prevailing wage law — Gov. Evers proposes repeal of a very recent law and a return to requiring employers conducting public works projects to pay workers the hourly wage and benefits paid to the majority of workers in the project’s area.
  • Repeal recent unemployment insurance law changes — Wisconsin unemployment insurance law underwent significant changes during Scott Walker’s term as governor. Gov. Evers is seeking to address many of those changes by: (1) eliminating the one-week waiting period to receive benefits; (2) eliminating the concept of substantial fault as disqualifying; and (3) repealing statutory work search criteria, including work search requirements for seasonal workers, and instead allowing the Department of Workforce Development to set work search policies.

The Evers budget would do much more, however, than repeal certain employment laws enacted during Scott Walker’s time as governor. Gov. Evers also proposes the following:

  • Decriminalize recreational use of marijuana — The proposed budget would decriminalize the possession of up to 25 grams of marijuana for recreational use.
  • Permit medical use of marijuana — The Evers budget would also legalize marijuana for medical use for a wide range of health conditions.
  • Minimum wage increases — Evers proposes raising the minimum wage in a series of annual increases from $7.25 per hour to $10.50 per hour by 2023, and then indexing the minimum wage to inflation beginning in 2024.
  • Expand Wisconsin family and medical leave — Evers proposes expanding current Wisconsin law by: (1) applying the law to employers with at least 25, instead of 50, employees; (2) permitting leave to be taken to care for a grandparent, grandchild, or sibling with a serious health condition; and (3) expanding the definition of “qualifying exigency” to include military deployment of a spouse or child, and an unforeseen or unexpected closure of a school or childcare facility.
  • Institute “ban the box” protections for job applicants — Evers proposes prohibiting employers from considering or requesting an applicant’s criminal conviction record prior to the applicant’s selection for a job interview.
  • Increase unemployment insurance weekly benefit payments — The governor proposes increasing the maximum weekly benefit rate from $370 to $406 and then indexing the maximum weekly earnings wage threshold for benefit eligibility based on changes in the consumer price index. 

Although the November 2018 elections brought about a change in the governor’s office from Republican Scott Walker to Democrat Tony Evers, both houses of the Wisconsin legislature remain Republican-controlled, with Republicans holding a nearly two-to-one margin in the Assembly.

While passage of most of Gov. Evers’ proposals seems unlikely in light of Republican domination in the state Legislature, some Republican lawmakers have already signaled interest in a few of the proposals. As a result, Wisconsin employers should not assume that all of these proposals will go up in smoke.

Michael Gotzler is an attorney with Littler in Madison.

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