New Year’s Checklist for Private-Sector Employers

February 5, 2019

As another new year dawns, it’s a good time to determine whether your organization has grown enough to meet the different employee thresholds for coverage under various employment laws. This article sets forth the employee thresholds for private-sector employers to be covered under some of the major federal and state laws. (Public-sector employers—federal, state, and local government agencies—are often treated differently for purposes of determining coverage.)

But keep in mind that determining whether your organization is covered can, and often does, involve more than merely counting employees. As a result, we’ve also noted the triggers for looking further into coverage and compliance under some employment laws. Your to-do list for the new year may be long, but don’t skip the important task of determining whether you’re in compliance with the law.

Small Employers

If you have 1 or more employees:

  • The wage garnishment provisions of the Consumer Credit Protection Act (CPPA) and Wisconsin’s earnings garnishment statute apply to private-sector employers of any size.
  • The Employee Polygraph Protection Act (EPPA) applies to private-sector employers engaged in or affecting interstate commerce or engaged in the production of goods for commerce.
  • All employers are required under the Immigration Reform and Control Act (IRCA) to verify the identity and work authorization of individuals hired for employment.
  • The National Labor Relations Act (NLRA) applies to most private-sector employers that provide services or sell goods valued in excess of $50,000 in interstate commerce, including manufacturers, retailers, private universities, and healthcare facilities.
  • The Occupational Safety and Health Act (OSH Act) applies to private-sector businesses with one or more employees that affect commerce.
  • Commercial employers in Wisconsin incur tax liability under Wisconsin’s unemployment insurance law once they employ one or more employees, including part-time employees, for some part of a day in 20 or more weeks in any calendar year or pay wages of $1,500 or more in any calendar quarter. Certain nonprofit employers fall under the same conditions for determining liability as commercial employers. (Others must meet a four-employee threshold.)
  • The Uniformed Services Employment and Reemployment Rights Act (USERRA) applies to all private-sector employers in the United States with one or more employees.
  • Wisconsin’s minimum wage law applies to persons, firms or corporations, agents, managers, representatives, contractors, subcontractors or principals, or other persons having control or direction of anyone employed to perform any labor or directly or indirectly responsible for the wages of another. Wisconsin’s overtime law applies to most private-sector employers, with certain statutorily defined exceptions. The state’s overtime law does not apply to most nonprofit organizations.
  • The Wisconsin Fair Employment Act (WFEA) applies to any person who engages in any activity, enterprise, or business that employs at least one individual.

If you have 2 or more employees:

  • The Fair Labor Standards Act (FLSA) applies to enterprises that have an annual dollar volume of sales or business of at least $500,000 and are engaged in interstate commerce, as well as hospitals, other businesses providing medical or nursing care for residents, and schools and preschools. Even if there is no “enterprise coverage,” employees are protected under the FLSA if they are engaged in commerce or the production of goods for commerce.

If you have 4 or more employees:

  • The IRCA’s employment eligibility verification pro-cess as well as its prohibition on discrimination based on national origin, immigration, or citizen-ship status and retaliation applies to employers with four or more employees.

If you have 11 or more employees:

  • Unless their business falls within certain defined categories of low-hazard industries categorized as exempt by the Occupational Safety and Health Ad-ministration (OSHA), employers with 11 or more employees during the previous calendar year are subject to the Act’s record-keeping requirements, in-cluding preparation of the OSHA 300 log.

If you have 15 or more employees:

  • The Americans with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA), and Title VII of the Civil Rights Act of 1964 apply to private-sector employers that have 15 or more employees for each working day in 20 calendar weeks in the current or preceding year.
    If you have 20 or more employees:
  • The Age Discrimination in Employment Act (ADEA) applies to private-sector employers with 20 or more employees for each working day in 20 calendar weeks in the current or preceding year.
  • The Consolidated Omnibus Budget Reconciliation Act (COBRA) covers group health plans sponsored by a private-sector employer that employed at least 20 employees on more than 50 percent of its typical business days in the previous calendar year. Full-time and part-time employees are counted, with each part-time employee counted as a fraction of a full-time employee.

Larger Employers

If you have 50 or more employees:

  • Affirmative action laws, like Executive Order 11246, the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA), and the Rehabilitation Act, require certain employers that do business with the federal government to implement affirmative action programs. Under these laws, federal contractors and subcontractors that employ 50 or more employees and enter into at least one contract of $50,000 or more with the federal government (or $150,000 or more for purposes of VEVRAA) must prepare and maintain a written affirmative action program for the recruitment, hiring, and promotion of women, minorities, disabled individuals, and protected veterans.
  • Certain private-sector employers with 50 or more employees that are also federal contractors must comply with requirements for maintaining records and filing EEO-1 surveys with the Equal Employment Opportunity Commission (EEOC).
  • The federal Family and Medical Leave Act (FMLA) applies to private-sector employers with 50 or more employees for at least 20 workweeks in the current or preceding calendar year. An employee is considered to be employed each working day of the calendar week if he works any part of the week. The workweeks do not have to be consecutive.
  • The Wisconsin Family and Medical Leave Act (WFMLA) applies to private-sector employers with 50 or more permanent employees during at least six of the preceding 12 calendar months. Wisconsin also has a Bone Marrow and Organ Donation Leave Act that applies at the 50-employee threshold.
  • The Wisconsin business closing and mass layoff law applies to any business enterprise with 50 or more persons in the state. “Persons” excludes employees who have been employed for fewer than six of the 12 months preceding the date on which notice of a layoff or closing is required or who average fewer than 20 hours of work per week. Charitable or tax-exempt institutions and organizations are exempt from the law.

If you have 100 or more employees:

  • Private-sector employers with 100 or more employees that are subject to Title VII must comply with requirements for maintaining records and filing EEO-1 surveys with the EEOC. Private-sector employers with fewer than 100 employees are covered if they are part of a group that constitutes a single enterprise.
  • The Worker Adjustment and Retraining Notification Act (WARN Act) applies to private-sector employers with 100 or more employees, excluding part-time employees, or 100 or more employees, including part-time employees, who in the aggregate work at least 4,000 hours per week, exclusive of overtime. “Part-time” refers to employees who are employed for an average of fewer than 20 hours per week or for fewer than six of the 12 months preceding the date on which notice of a layoff or closing is required. Nonprofit organizations of the requisite size are covered under the WARN Act.

Bottom Line

The list of employment laws applicable to Wisconsin employers may seem daunting, but conducting an annual review to determine coverage and doing what’s necessary to ensure compliance will save you head-aches later. Don’t be caught short and learn only after the fact that some of these employment laws apply to your organization. Update your handbooks, policies, procedures, and practices, and make sure you satisfy the workplace posting requirements once your organi-zation meets the thresholds for coverage.

For more information about "New Year’s Checklist for Private-Sector Employers," contact Leslie A. Sammon at lsammon@axley.com or 608.283.6798.