By: Daniel Pedriana and Vanja Pemac

On April 8, 2022, Governor Evers signed into law 2021 Wisconsin Act 232 (The Act). The Act, sponsored by the bipartisan House Labor and Integrated Employment Committee, was passed to increase weekly permanent partial disability (PPD) benefits in addition to changing the way that the average weekly wage (AWW) for part-time employees is calculated.

Wisconsin has not raised the weekly PPD benefit rate since 2017. The Act changes the weekly PPD benefit to $415.00 for injuries occurring on or after April 10, 2022. The Act further increases the weekly PPD benefit to $430.00 for injuries occurring on or after January 1, 2023.

The new default rule in Wisconsin is that part-time work (work below 35 hours per week) is expanded to 40 hours per week for purposes of calculating the average weekly wage (AWW). The Wisconsin legislature recognizes that an injury at a part-time job can often have full-time vocational effects for employees, as an injury at one part-time job may hinder an employee’s ability to participate in other part-time job. Thus, the default expansion to a 40 hour workweek may remediate the vocational impact of a work injury.

Previously, a claimant needed to meet four conditions to be considered “part of a class” and have their hours set below 40:

1. All class members needed to be performing the same type of work at the same location;
2. The class of part-time employees needed to represent a minimum of 10% of all employees doing the same type of work;
3. The claimant needed to have a regular schedule that did not vary more than five hours from week to week in the 13 weeks before the injury; and
4. At least one other employee needed to be in the same class as the claimant.

If the claimant met all of these conditions, their hours would reflect the hours actually worked or expanded to the statutory minimum of 24 hours. If the claimant did not meet all of the conditions demonstrating a regularly scheduled class of part-time employees, their hours would be expanded to reflect a full-time schedule of 40 hours.

Now, the “part of a class” section of the law is eliminated. Any claimant who is engaged in part-time work and injured on or after April 9, 2022, will be considered full time if they worked at the part-time job for twelve months or less. If the claimant had another part-time job, they would be considered full time.

If an employee has worked at a part-time job for twelve months or more and does not have another part-time job, AWW is determined in conjunction with Wis. Stat. § 102.11(1)(ap)(1)(a) or (b), whichever is greater. Subsection (a) provides that AWW will be determined by analyzing actual average weekly earnings for the 52 calendar weeks before the injury, except for the weeks in which no work was performed. Subsection (b) provides that AWW will be determined by the employee’s hourly earnings on the date of the injury multiplied by the average weekly hours worked, except for the weeks in which no work was performed. Both calculations shall be computed and the higher of the two shall be used as the employee’s AWW.

The Act does not affect the ability of the employer to argue that the claimant is self-restricted to part-time work. An employer may rebut the default expansion to a 40 hour workweek for AWW determination by showing proof that the employee chose to work less than full time. Such evidence may include a signed statement by the employee limiting their work hours or other documentation showing an hour or shift preference. Any rebuttal by the employer does not affect the statutory minimum of a 24 hour workweek for AWW calculation.

If you have questions or need assistance, please contact the Lindner & Marsack attorney with whom you regularly work. We will continue providing updates as we learn more about the new Act.