Wisconsin employers have certain obligations when workers leave employment.

Final Paycheck

Wisconsin requires that an employer provides an employee with their final paycheck by the next regular payday. If the employer closes or merges its business or relocates out of state, final paychecks are due to employees within 24 hours.

If the employee dies, if no petition to administer the employee’s estate has been filed within five days, the paycheck should be provided to the employee’s surviving spouse or domestic partner or, if there is none, to the employee’s child or children. If a petition has been filed, wages should be paid to the executor of the estate.

Wis. Stat. § 109.03.

Paid Time Off and Vacation

The Wisconsin Department of Workforce Development takes the position that vacation and paid time off are vested benefits. As a result, employees must be paid for unused time at termination unless there is a clear written policy to the contrary.

Notices

While no longer required, employers may notify all employees about the availability of Unemployment Insurance (UI) at the time of separation from employment. This can be done by email, text message, letter, or by providing the employee with the printed UI poster in person or by mail. The poster is available on the Wisconsin Department of Workforce Development’s web page, Notice to Employees About Applying for Unemployment Benefits.

Employment at Will

Wisconsin is an employment-at-will state. This generally means that unless an employee is covered by a collective bargaining agreement or other contract, a Wisconsin employer may hire or fire an employee as long as the employer does not discriminate on the basis of age, sex, race, religion, national origin, color, marital status or disability of the individual. However, Wisconsin courts recognize the following exceptions to the employment-at-will doctrine:

Public-Policy Exception

Under the public-policy exception, an employer may be liable for wrongful discharge if an employee is terminated in light of an explicit, well-established public policy prohibiting such conduct. In seeking relief under this narrow exception, the employee must both:

• Identify a fundamental and well-defined public policy in their complaint sufficient to trigger the exception to the employment-at-will doctrine; and
• Demonstrate that the discharge violated that fundamental and well-defined public policy.

Wisconsin has articulated the following four guidelines, which gauge whether a discharge violates public policy:

• An employer is liable for wrongful discharge if the employer discharges an employee for refusing to violate a constitutional or statutory provision. Employers will be held liable for those terminations that effectuate an unlawful end.
• The discharge must clearly contravene the public welfare and gravely violate paramount requirements of public interest.
• An employer is liable for wrongful discharge if the employer discharges an employee for conduct that is “consistent with a clear and compelling public policy.”
• An employer is not liable for wrongful discharge merely because the employee’s conduct precipitating the discharge was praiseworthy or the public derived some benefit from it.

Implied-Contract Exception

Under this exception, oral or written representations made to an employee may be viewed by the courts as an implied contract making the employer liable under a breach of contract theory for any representations that were not honored. For example, a court held that an employee handbook may change an at-will employment relationship into one that is governed by the terms set out in the handbook.

Job References

Employers who, upon the request of an employee or prospective employer, provide a reference to the prospective employer are presumed to be acting in good faith and, unless lack of good faith is shown by clear and convincing evidence, are generally immune from all civil liability that may result from providing a reference.

The presumption of good faith is rebuttable upon a showing by a preponderance of the evidence that the information disclosed was any of the following:

• Knowingly false
• Disclosed for a malicious purpose
• A violation of Wisconsin’s fair employment practices law

Note: Under the statute, the term employer includes the state, counties, school districts and all public and private employers, their agents, managers and representatives.

Wis. Stat. § 895.487.

Mineral is a free resource available to all clients of Professional Insurance Programs and WDA members. If you would like more more information or would like this free resource for your practice, please email [email protected] or call 800-637-4676. Additional information can also be found on our website.

Source: Mineral