Popular Topics
The WRA is committed to providing the best quality, value and services to meet your needs. We strive to keep our members and the public informed about critical issues that impact the foodservice and hospitality industry. Through national and local resources the WRA gathers information to provide current news, trends, regulatory changes and operational guidance.
Questions & AnswersQuestion: Is it possible for a tipped employee to have a zero paycheck?
Answer: Yes, if tipped employees are paid out their cash tips at the end of each shift, they are taking home their GROSS wages… wages that still need to be taxed. This can create a shortfall of funds when all taxes need to be withheld on all gross income depending on the amount of tips earned. The issue is compounded if credit card tips are paid out at the end of each shift which is one reason why it is recommended that charge tips be paid out via payroll. |
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Popular Topics FAQs
Alcohol
A minor (under 21) can drink if accompanied by a parent, guardian or spouse of legal drinking age. Some people question whether this exception still applies to people ages 18-21. Parental rights do not cease at age 18, a parent is still a parent whether their child is 17 or 71. So an 18-, 19- or 20-year-old can drink with their parent, guardian or spouse of legal drinking age.
However, an establishment can have a policy not to serve anyone under 21 even if they are with their parent, guardian or spouse of legal drinking age. If this is the policy, it must be enforced the same for everyone.
A licensed bartender has authority at the licensed premises to sell, serve, close bar and provide supervision by virtue of his/her having the operator license and does NOT need to be 21 to do so. However, the bartender must be at least 18 years old.
During licensed premise checks conducted by Department of Revenue (DOR) Alcohol & Tobacco Enforcement Unit agents, they typically just ask that the operator’s licenses are produced upon request. It could be that a local jurisdiction (police department/sheriff) views this differently but this is DOR’s approach.
No. Wisconsin state statute requires retailers to purchase alcohol from a Wisconsin wholesaler. No exceptions. You must have an invoice for all purchases of liquor, wine and beer. And you may only purchase alcohol from a Wisconsin wholesaler. Refer to Publication 302, section XIII.
MORE INFO ON ALCOHOL LAWS
SUMMARY OF ALCOHOL LAWS FOR RETAILERS
Yes. Restaurants can sell craft cocktails and wine by the glass to customers for carryout. The cocktails to go law went into effect on March 28, 2021. WRA advocated for this measure for over 10 months and we are pleased that this is now an option for restaurants. Cocktails sold to go must be in a tamper evident seal. Your normal soda cup and lid with a straw hole is not allowed. To use a plastic cup and lid, you need to use a lid with NO straw holes and secure the lid with strong tape. You should securely seal cocktails with heat seal bands, strong tape/stickers, or invest in jars and pouches specifically created for to go beverages that need to be sealed.
No. Restaurants can only transfer stock of intoxicating liquor from a restaurant that has been sold or closed permanently.
Wisconsin Administrative Rule TAX 7.01(6) (beer) and TAX 8.81 (wine/spirits) lay out the circumstances where retail stock may be transferred. These provisions make clear that transfer of stock is allowed only upon "selling or liquidating the business".
If a sold/closed restaurant wishes to transfer or sell its stock, it must fill out form AT-900 and keep copies on hand to prove the legal sale or transfer.
No. Any person or business that mixes spirits with any materials, such as fruit and/or spices, must have a rectifiers permit issued by the Wisconsin Department of Revenue in order to make and sell a spirit that has been altered.
The end product must also be purchased by a restaurant through a permitted distributor. This also means that making drinks such as Apple Pie or other infused spirits in your establishment to sell to your customers is also considered rectifying and not allowed by state statute.
This will depend on the rules for your specific municipality. In Wisconsin, Class "B" (beer) or "Class B" (intoxicating liquor, including wine) licensees must stop selling packaged beer, wine, and liquor at midnight. However, many towns, villages and cities have more restrictive hours. Check with your local police department or municipal clerk for local hours for sales for off-premises consumption (carry-outs).
For more retailer responsibilities, visit the Department of Revenue Website.
More Info on Cocktails to Go
As of right now, you are not allowed to sell any alcohol with delivery. BUT, with take out or curbside it depends. With takeout, yes, as long as you have a class B liquor license you can sell unopened bottles of wine and beer. If your municipality allows, you can also sell unopened bottles of spirits to customers. Most municipalities do allow the sale of spirits by the bottle by restaurants. Please remember—all sales of alcohol must be made face to face and ID’s checked.
If you do not currently have a license to sell beer, wine and spirits, you cannot sell them to your customers.
For curbside it is best to check with your local municipality for the ability to take alcohol from your building to your parking lot. The ability to accommodate curbside alcohol orders will depend on how your premise is defined on your liquor license. If your parking lot is included in the premise on your liquor license, then you can bring out the beer, wine and spirits to them—again if your municipality allows.
In many areas, local law enforcement is keeping an eye on this issue, so be sure you are following the law and make sure you are checking ID’s for all customers.
Bartenders must be at least 18 years of age. If they don’t hold their own “operator’s” license, aka bartender’s license, they must be under immediate supervision by the licensee, agent, adult member of the licensee's immediate family (a person living in the same household), or a person with an operator's license.
Employee Management/Wages/Hours
In addition to the foodborne illnesses, (Norovirus, Hepatitis A virus, Shigella spp., Shiga toxin-producing Escherichia Coli, (e.g. E. coli 0157:H7) Typhoid fever (caused by Salmonella Typhi); or Salmonella (nontyphoidal)), the Wisconsin Food Code requires employees to inform the manager on duty if he/she is ill with the following: diarrhea, vomiting, jaundice, sore throat with fever, wound or boil that contains pus on exposed skin or it they are living with a household member diagnosed with a foodborne illness – or living with a household member attending or working in a setting where there has been a confirmed foodborne illness outbreak or had Typhoid fever, diagnosed by a health practitioner within the past 3 months without having received antibiotic therapy, as determined by a health practitioner.
Download the English and/or Spanish poster here.
Employers can pay 14- to 19-year-old employees an opportunity wage of $5.90 per hour for the first 90 calendar days on the job.
The Department of Workforce Development recommends, but does not require, that employers give breaks to adult employees over age 18 (close to usual meal periods). Under state law, any break of less than 30 minutes must be paid. Breaks that are 30 minutes or longer may be unpaid.
However, Wisconsin law does require employers to give employees under the age of 18 at least a 30-minute meal break if the employee works more than 6 hours. The break may be unpaid. You must document when the break begins and ends. The minor may not waive the break.
No. When an employee quits, you don’t need to pay them immediately, cut a special payroll check or make other special arrangements. Just make sure the employee receives their last paycheck no later than the next regularly scheduled payday.
Not unless the employee is gone the entire week. However, you can deduct the amount that the employee receives from the court as jury pay. Employers can require that the employee make up any lost time with other paid leave (vacation or PTO) provided that there is no lessening in the total amount received by the employee in that workweek.
A licensed bartender has authority at the licensed premises to sell, serve, close bar and provide supervision by virtue of his/her having the operator license and does NOT need to be 21 to do so. However, the bartender must be at least 18 years old.
Absolutely not! Employees cannot waive their rights to overtime. Any agreement to waive overtime pay is not legally valid.
There is a Wisconsin statute that deals with this issue (103.85) that states “one day of rest in seven.” However, this statute does NOT apply to restaurants. It specifically states that a “person employed in bakeries, flour and feed mills, hotels and restaurants” is excluded.
This means that you do not have to ensure that employees get a day off each week. However, you may want to factor in possible overtime when deciding how to schedule employees.
Also, keep in mind that 14- and 15-year-old employees can only work six days a week.
There is no minimum number of hours for which an hourly employee needs to be paid. They need to be paid only for hours actually worked.
According to the Department of Workforce Development, some employers pay "show up" pay as a benefit, however, it is not required.
Keep in mind, this is an issue which may cause increased employee turnover due to frustration with your scheduling practices.
Also, if you send employees home early too frequently, it can become an unemployment compensation benefit issue (even for part-time employees).
All wages paid to an employee, no matter the amount, must be reported to the IRS on your quarterly reports and year-end reports. The easiest way to do this is to enter all employees and wages on your payroll. There is nothing in the code that states that wages under a certain amount don’t need to be put on payroll; all employee’s wages should be reported on your payroll.
As an employer, you are also required to pay the employer’s portion of social security and Medicare taxes and withhold and report the employee’s taxes:
1. Social security and Medicare taxes on the employee's wages
2. Federal income taxes on the employee's wages
3. State and local taxes imposed on the employee's wages
Reminder, all new hires as of January 1, 2020 must complete the Wisconsin Department of Revenue Form WT-4 and the IRS Form W-4.
If over the work week, an employee does not receive enough money in tips plus actual base wages to bring him or her up to the full minimum wage, the employer must increase the base wages to make up the difference. This adjustment may be paid at the normal pay period.
Most meetings at work are going to be considered working time and will require employers to pay employees for their time.
Federal and Wisconsin state laws require that meetings, lectures, and other training be paid UNLESS four criteria are met:
All four criteria must be met in order for the staff meeting to be unpaid.
Keep in mind, tipped employees have to be paid at least the full general minimum wage for attending a work related meeting since they don’t have the opportunity to earn tips during that time.
Yes, if tipped employees are paid out their cash tips at the end of each shift, they are taking home their GROSS wages… wages that still need to be taxed. This can create a shortfall of funds when all taxes need to be withheld on all gross income depending on the amount of tips earned.
The issue is compounded if credit card tips are paid out at the end of each shift which is one reason why it is recommended that charge tips be paid out via payroll.
No, holiday pay is a matter of company policy or agreement between an employer and an employee. If an employee works a holiday, you are required to pay their normal wages for hours worked. A restaurant may be open 365 days of the year if the owners choose. It is not vital to include a section on holidays in your employee handbook but many employers do so employees know what to expect as holidays approach.
Credit card processing fees can be deducted from servers’ charged tips. For example, where a credit card company charges an employer 3 percent on all sales charged to its credit service, the employer may pay the tipped employee 97 percent of the tips without violating the Fair Labor Standards Act (FLSA).
Keep in mind, this charge on the tip may not reduce the employee’s wage below the required minimum wage.
Yes. Employers must allow those employees who are entitled to vote time off from work for up to three hours while the polls are open. This is regardless of whether the employee would appear to have sufficient time to vote either before or after his or her scheduled shift.
Time can be unpaid for non-exempt staff. You can be faced with a fine if you don’t allow the time off so save the headache and work out a compromise if it is inconvenient.
There are some notice requirements so view all the rules here.
Yes! Per US Citizenship and Immigration Services (USCIS), use Form I-9 to verify the identity and employment authorization of individuals hired for employment in the United States.
All US employers must properly complete Form I-9 for each individual they hire for employment in the United States. This includes citizens and noncitizens. Both employees and employers (or authorized representatives of the employer) must complete the form.
Forms are available in the Members Only section of the WRA website or through USCIS.
Yes. Even if the two restaurants are separate corporations, if you own both of them they would be considered part of the same “enterprise” for labor law purposes. You must add the cook’s hours together and pay overtime for any hours work over 40 in a work week.
Yes, an employee must be made aware that (s)he is in danger of losing his/her job. Warnings should be given even if the rule violation is obvious, such as being late or absent.
More Info - See Part 7, Eligibility Issues / Discharge
Wisconsin residents age 12 and up are now eligible to receive a COVID-19 vaccine.
Anyone eligible for the COVID vaccine could seek an appointment through the variety of outlets available in Wisconsin. This includes:
• Through your health care provider
•
Through a community pharmacy
•
Through other vaccine providers in Wisconsin, like local health departments
•
By calling 844-684-1064, a DHS hotline that provides personal assistance with vaccine-related questions
•
By using the Wisconsin COVID-19 Vaccine Registry to find an appointment at a community vaccine clinic
Employers can help by encouraging their staff to receive the vaccine and sharing information on where they can find an appointment. Additional detail and resources can be found on the DHS website under Vaccine Partner Resources.
Employers may require employees to be vaccinated from the COVID-19 virus. Taking the vaccine will presumably reduce or prevent other employees and customers from being infected. However, you need to be aware that employees with disabilities and religious beliefs who claim that taking the vaccine will either be harmful to them or violate a strongly held religious belief against taking the vaccine may have rights under the federal and state disability laws and religious discrimination laws. For these employees, restaurants may have to provide a reasonable accommodation, unless there is undue hardship, which the ADA defines as significant difficulty or expense for the employer. The restaurant may have to provide the employee who has refused to take the vaccine with a reasonable accommodation unless it would pose an undue hardship, which under Title VII is “more than de minimis cost” to the operation of the employer’s business. This is a lower standard than the undue hardship standard under the ADA.
When confronted with an employee who refuses to take the vaccine due to a disability, the employer can request medical support. Assuming the medical opinion supports the employee, the employer must engage in an interaction discussion with the employee to determine whether there is a reasonable accommodation that would enable the employee to continue to perform their essential job functions without compromising the safety of other employees or customers. Potential accommodations include, but are not limited to, additional personal protective equipment (PPE), such as mask and shield, moving the employee’s workstation beyond 6 feet, a temporary reassignment, teleworking, or a leave of absence. As for those with religious belief, the employer can also seek confirmation from the employee’s religious leader and, if confirmed, engage in the same interactive process discussed above. If there is no reasonable accommodation, the employer can deny the employee’s request to be exempt from taking the vaccine and if the employee still refuses, place the employee on leave or terminate the employee.
When considering whether to require employees to take the COVID-19 vaccine, be advised that the EEOC and other governmental agencies has stated that the COVID-19 virus meets the higher threshold “direct threat standard,” and “a significant risk of substantial harm would be posed to having someone with COVID-19, or symptoms of it, present in the workplace at the current time.”
This information was provided by Barry Chaet from Beck, Chaet, Bamberger & Polsky, SC
Yes. Employers are permitted to ask employees if they have been vaccinated against COVID-19 and require proof. Some employers are asking employees to attest to their vaccination status rather than requiring proof.
Documentation is not required but it is recommended. This documentation, along with a good COVID prevention policy will help minimize exposure to COVID related claims. It is recommended that you add that staff has obtained the COVID vaccine to your best practices ensuring your customers, community and staff are safe.
No paid time off is required in Wisconsin. However, if an employer for example, sponsors a bus trip to a vaccine site during the workday, that time may be considered compensable. Employers with paid leave policies should follow that policy and allow employees to use paid leave to obtain the vaccine. We are learning that some employers are encouraging staff to obtain the vaccine rather than requiring it by providing paid time off, gift cards or a small bonus. In addition, side effects from the vaccine are reported as being minor and temporary but you may want to review scheduling to allow for some time off as everyone is different.
Yes, below are links to the Centers for Disease Control and Prevention (CDC), the Wisconsin Economic Development Corporation, and the U.S. Equal Employment Opportunity Commission (EEOC).
CDC VACCINE Q&As
WEDC VACCINE GUIDELINES
EEOC
EEOC Section K near the bottom
Food Code
In addition to the foodborne illnesses, (Norovirus, Hepatitis A virus, Shigella spp., Shiga toxin-producing Escherichia Coli, (e.g. E. coli 0157:H7) Typhoid fever (caused by Salmonella Typhi); or Salmonella (nontyphoidal)), the Wisconsin Food Code requires employees to inform the manager on duty if he/she is ill with the following: diarrhea, vomiting, jaundice, sore throat with fever, wound or boil that contains pus on exposed skin or it they are living with a household member diagnosed with a foodborne illness – or living with a household member attending or working in a setting where there has been a confirmed foodborne illness outbreak or had Typhoid fever, diagnosed by a health practitioner within the past 3 months without having received antibiotic therapy, as determined by a health practitioner.
Download the English and/or Spanish poster here.
OSHA requires businesses to have a first aid supplies on hand. Per OSHA, “In the absence of an infirmary, clinic or hospital in near proximity to the workplace which is used for the treatment of all injured employees, a person or persons shall be adequately trained to render first aid. Adequate first aid supplies shall be readily available.” A kit is good to have but the agency does not stipulate what exactly must be included in the first aid kit. Be sure to maintain your kit with supplies adequate to treat your most common injuries.
MORE INFO FROM WRA
MORE INFO FROM OSHA
ARTICLE FROM SAFETY AND HEALTH MAGAZINE
No. It is not a Food Code violation. Restaurant employees may have fake or polished fingernails as long as they wear gloves while engaged in food preparation.
Waitstaff can serve food without gloves, but must put them on when directly working with food, such as preparing a customer’s salad.
You can create a policy for your establishment that no employees are allowed to wear fake or polished fingernails. The issue of nail polish and fake nails is something you can decide in your grooming/dress policy. The key is to make a policy and then enforce it consistently.
No. It is fine to display live plants in your dining area. You may want to avoid flowering plants because they are more likely to bother customers with allergies and may also produce an odor (even if it is a pleasant odor) that could possibly bother some customers.
No. The Wisconsin Food Code does indeed require hair restraints, but not specifically hairnets to prevent hair from coming in contact with food, equipment and utensils. Counter staff and servers are not required to have hair restraints if they pose a minimal risk.
There are no specifics that dictate at what hair length hair restraints are required, because it depends on the person, their own personal hygiene and their job tasks. Most shorter haired people can wear a hat. A good rule of thumb is that if the hair falls forward over food and work surfaces during job tasks, then a ponytail or other restraint would be warranted.
Hair restraints must be able to effectively restrain the hair. Headbands do not cover the entirety of the hair region and therefore would not qualify as a restraint.
No. You cannot re-use food that came in contact with customers, even if it appears to have been untouched. The Wisconsin Food Code specifies that “after being served or sold and in the possession of a consumer, food that is unused or returned by the consumer may not be offered as food for human consumption.
No. The Wisconsin Food Code does not allow hand sanitizers – preferably called hand antiseptics - as a replacement for handwashing. However, if used immediately following proper handwashing, hand antiseptics provide an additional barrier to cross-contamination. It is important to note that ingredients used in hand antiseptics must be approved as food additives in order to be used in the retail and foodservice industry. Check with your chemical supplier to see what approved hand antiseptics they offer.
Alcohol-based hand gels are effective against some bacteria but have minimal effect on viruses such as Noroviruses and the Hepatitis A virus. In addition, the foodservice environment involves the presence of wet hands and fatty materials on hands, and research has demonstrated that hand sanitizers do not remove these materials effectively.
The law doesn’t forbid shorts (or open-toed shoes for that matter), but you certainly may prohibit them as part of your dress code policy.
Employers have a lot of latitude when it comes to dress code. Wisconsin’s Food Code only requires clean outerwear and proper hair restraints for food prep workers. Beyond that you can establish any clothing or grooming policies you believe are appropriate for your restaurant. The key is to enforce your policy consistently once you establish it.
When things are hot in the kitchen your employees may not necessarily see that long pants and closed-toe shoes make sense from a safety standpoint, but ultimately it is your decision.
If you are located in the city of Madison, pay special attention to the City Ordinance regarding physical appearance. More Info on City of Madison ordinance.
No. The Wisconsin Food Code requires that handwashing sinks need to have individual disposable towels for employees to dry their hands after handwashing.
No. Allowing customers to bring in their own container for a take home meal that requires time/temperature control for safety is a violation of the Wisconsin Food Code 3.304.17 Refilling Returnables. That would include most food prepared in a restaurant.
The science behind the code is that a restaurant or grocery store has no control over how the container was washed/sanitized, therefore it has no control to what contaminants may be inside or on the outside of the container. This introduces risk to the establishment. If the inside was contaminated, then the take home food will also be contaminated, possibly causing a foodborne illness that was not the fault of the establishment. If the outside was contaminated, then that virus/bacteria could have been introduced into the restaurant.
The Department of Agriculture, Trade and Consumer Protection indicates that dogs are allowed in outside seating areas of restaurants when other parameters are followed. In the past, a variance was required but that is no longer the case. This change went into effect when the Wisconsin Food Code was updated in late October of 2020.
Yes, hand dryers are safe for customers to use in public restrooms, although the preferred method continues to be single-use hand towels.
However, each sink used for employee handwashing must be provided with individual disposable towels per the Wisconsin Food Code. After proper handwashing with soap and water (including under your nails) for 20 seconds or more, it is also important to thoroughly dry your hands. According to the CDC, germs can be transferred more easily to and from wet hands. Therefore, hands should be thoroughly dried after washing. Again, the Wisconsin Food Code requires that employees use single-use towels for hand drying and each handwashing sink or group of adjacent handwashing sinks shall be provided with individual disposable towels. Refer to section 6-301.12 (page 576) of the Wisconsin Administrative Code ATCP 75 Appendix.
MORE INFO
HANDWASHING POSTERS FROM WRA
CDC HANDWASHING - HOW AND WHEN
HANDWASHING FACT SHEET
WRA hosts both online and in-person ServSafe review sessions to help prepare you for taking the ServSafe Certified Food Protection Manager proctored exam. You can take the exam at the in-person review sessions or arrange for an online proctored exam.
More Info / Register for ServSafe Manager Online Bundle or Live Review Session
With the adoption of the new Wisconsin Food Code in October, how establishments are defined has changed which impacts who needs to have a Certified Food Protection Manager (CFPM, previously known as CFM):
a. Food Establishment. An operation that stores, prepares, packages, serves, or vends food directly to the consumer. This includes restaurants, retail, convenience stores, feeding location, catering operations, vending, institutions or a food bank.
b. If your establishment meets this definition than you will be required to have a Certified Food Protection Manager (CFPM). A food establishment has 90 days to have an employee or manager obtain the Certified Food Protection Manager certification (12-201.11).
No. While dogs are allowed on patios as long as certain food safety precautions are in place, you are not allowed to provide food to the dogs for free or for purchase and owners may not feed their dogs any food while at your
establishment.
Water can be made available in disposable bowls.
Consumers are ordering foods through take-out and delivery in greater numbers than ever before. They want to know it is safe.
The National Restaurant Association and Ecolab are great resources for food safety solutions. Download more information here:
National Restaurant Association Tips for Successful Takeout
Ecolab Meal Deliveries and Restaurant Takeout Tips
It is important to follow proper cleaning and sanitizing practices for condiments – both in bottles and packages. Bottles on tables and pump dispensers should be safely cleaned and sanitized frequently. Best practice is to clean bottles on tables between each customer use.
Operations
There is indeed a butter law here in America’s Dairyland! Stat. 97.18(4) states, “The serving of colored oleomargarine or margarine at a public eating place as a substitute for table butter is prohibited unless it is ordered by the customer.”
You may use margarine for baking and cooking without first getting customer’s permission. However, you should be aware that the butter/spreads you put out on the table must be pure butter or a mix of individually packaged butter and margarine “reddies” (with the majority being butter).
Also, the butter must be graded via the Wisconsin grading program. Imported butter that has not gone through the DATCP grading system cannot be sold in Wisconsin.
OSHA requires businesses to have a first aid supplies on hand. Per OSHA, “In the absence of an infirmary, clinic or hospital in near proximity to the workplace which is used for the treatment of all injured employees, a person or persons shall be adequately trained to render first aid. Adequate first aid supplies shall be readily available.” A kit is good to have but the agency does not stipulate what exactly must be included in the first aid kit. Be sure to maintain your kit with supplies adequate to treat your most common injuries.
MORE INFO FROM WRA
MORE INFO FROM OSHA
ARTICLE FROM SAFETY AND HEALTH MAGAZINE
Yes. If a restaurant’s website and/or mobile app do not meet guidelines for accessibility by disabled guests, the restaurant may be vulnerable to costly lawsuits. There have been a number of class action lawsuits that have been filed against restaurants and retailers for their websites being deemed not accessible.
Restaurant staff are not required under ADA to provide care or food/water for a customer’s service animal. Staff can offer water in a disposable dish but it is not a requirement.
Yes, it appears to be true. Since federal allowances have been removed, the redesigned Form W-4 cannot be used for Wisconsin purposes.
The Department of Agriculture, Trade and Consumer Protection indicates that dogs are allowed in outside seating areas of restaurants when other parameters are followed. In the past, a variance was required but that is no longer the case. This change went into effect when the Wisconsin Food Code was updated in late October of 2020.
Yes, hand dryers are safe for customers to use in public restrooms, although the preferred method continues to be single-use hand towels.
However, each sink used for employee handwashing must be provided with individual disposable towels per the Wisconsin Food Code. After proper handwashing with soap and water (including under your nails) for 20 seconds or more, it is also important to thoroughly dry your hands. According to the CDC, germs can be transferred more easily to and from wet hands. Therefore, hands should be thoroughly dried after washing. Again, the Wisconsin Food Code requires that employees use single-use towels for hand drying and each handwashing sink or group of adjacent handwashing sinks shall be provided with individual disposable towels. Refer to section 6-301.12 (page 576) of the Wisconsin Administrative Code ATCP 75 Appendix.
MORE INFO
HANDWASHING POSTERS FROM WRA
CDC HANDWASHING - HOW AND WHEN
HANDWASHING FACT SHEET
Yes, for example if a 15 percent gratuity is required, it then becomes a service charge in the eyes of the law. The Wisconsin Department of Revenue requires that sales tax be collected on service charges.
A restaurant's license/permit must be posted in an area where it can be seen by the public. In fact, most licenses and permits are required to be posted or on display.
More Info regarding the most common licenses and permits needed by restaurant operators in Wisconsin
With the adoption of the new Wisconsin Food Code in October, how establishments are defined has changed which impacts who needs to have a Certified Food Protection Manager (CFPM, previously known as CFM):
a. Food Establishment. An operation that stores, prepares, packages, serves, or vends food directly to the consumer. This includes restaurants, retail, convenience stores, feeding location, catering operations, vending, institutions or a food bank.
b. If your establishment meets this definition than you will be required to have a Certified Food Protection Manager (CFPM). A food establishment has 90 days to have an employee or manager obtain the Certified Food Protection Manager certification (12-201.11).
An outdoor smoking area cannot be enclosed. It can have a roof and no more than two solid walls. The two solid walls have to have at least 25 percent of the area that allows air flow. The air flow can be provided through open windows, screens, etc. The smoking area must also be a “reasonable distance” from any entrance to the establishment.
Many restaurants began selling grocery items as a way to supplement income during the pandemic. These grocery items would not be taxable in a grocery store, but most likely will be taxable in a restaurant.
A food item that is normally exempt from sales tax (e.g. apples, bananas, raw steak) may be taxable as "prepared food" if the business selling the items have more than 75% of its total food sales as prepared foods (i.e., foods that are sold heated, previously cooked, or combined).
For example, if a coffee shop has 90% of its food sales as hot coffee, then its sale of an orange is taxable.
Yes, an employee must be made aware that (s)he is in danger of losing his/her job. Warnings should be given even if the rule violation is obvious, such as being late or absent.
More Info - See Part 7, Eligibility Issues / Discharge
Wisconsin residents age 12 and up are now eligible to receive a COVID-19 vaccine.
Anyone eligible for the COVID vaccine could seek an appointment through the variety of outlets available in Wisconsin. This includes:
• Through your health care provider
•
Through a community pharmacy
•
Through other vaccine providers in Wisconsin, like local health departments
•
By calling 844-684-1064, a DHS hotline that provides personal assistance with vaccine-related questions
•
By using the Wisconsin COVID-19 Vaccine Registry to find an appointment at a community vaccine clinic
Employers can help by encouraging their staff to receive the vaccine and sharing information on where they can find an appointment. Additional detail and resources can be found on the DHS website under Vaccine Partner Resources.
Employers may require employees to be vaccinated from the COVID-19 virus. Taking the vaccine will presumably reduce or prevent other employees and customers from being infected. However, you need to be aware that employees with disabilities and religious beliefs who claim that taking the vaccine will either be harmful to them or violate a strongly held religious belief against taking the vaccine may have rights under the federal and state disability laws and religious discrimination laws. For these employees, restaurants may have to provide a reasonable accommodation, unless there is undue hardship, which the ADA defines as significant difficulty or expense for the employer. The restaurant may have to provide the employee who has refused to take the vaccine with a reasonable accommodation unless it would pose an undue hardship, which under Title VII is “more than de minimis cost” to the operation of the employer’s business. This is a lower standard than the undue hardship standard under the ADA.
When confronted with an employee who refuses to take the vaccine due to a disability, the employer can request medical support. Assuming the medical opinion supports the employee, the employer must engage in an interaction discussion with the employee to determine whether there is a reasonable accommodation that would enable the employee to continue to perform their essential job functions without compromising the safety of other employees or customers. Potential accommodations include, but are not limited to, additional personal protective equipment (PPE), such as mask and shield, moving the employee’s workstation beyond 6 feet, a temporary reassignment, teleworking, or a leave of absence. As for those with religious belief, the employer can also seek confirmation from the employee’s religious leader and, if confirmed, engage in the same interactive process discussed above. If there is no reasonable accommodation, the employer can deny the employee’s request to be exempt from taking the vaccine and if the employee still refuses, place the employee on leave or terminate the employee.
When considering whether to require employees to take the COVID-19 vaccine, be advised that the EEOC and other governmental agencies has stated that the COVID-19 virus meets the higher threshold “direct threat standard,” and “a significant risk of substantial harm would be posed to having someone with COVID-19, or symptoms of it, present in the workplace at the current time.”
This information was provided by Barry Chaet from Beck, Chaet, Bamberger & Polsky, SC
Yes. Employers are permitted to ask employees if they have been vaccinated against COVID-19 and require proof. Some employers are asking employees to attest to their vaccination status rather than requiring proof.
Documentation is not required but it is recommended. This documentation, along with a good COVID prevention policy will help minimize exposure to COVID related claims. It is recommended that you add that staff has obtained the COVID vaccine to your best practices ensuring your customers, community and staff are safe.
No paid time off is required in Wisconsin. However, if an employer for example, sponsors a bus trip to a vaccine site during the workday, that time may be considered compensable. Employers with paid leave policies should follow that policy and allow employees to use paid leave to obtain the vaccine. We are learning that some employers are encouraging staff to obtain the vaccine rather than requiring it by providing paid time off, gift cards or a small bonus. In addition, side effects from the vaccine are reported as being minor and temporary but you may want to review scheduling to allow for some time off as everyone is different.
Yes, below are links to the Centers for Disease Control and Prevention (CDC), the Wisconsin Economic Development Corporation, and the U.S. Equal Employment Opportunity Commission (EEOC).
CDC VACCINE Q&As
WEDC VACCINE GUIDELINES
EEOC
EEOC Section K near the bottom
You will need to check with your insurance carrier regarding what steps need to be completed. Know that minors are not allowed to do much with delivery.
Any employee using their own automobile for deliveries should make sure their own automobile insurance covers them for liability in the unlikely event an accident happens. If you are having employees deliver as part of your business plan, you must contact your insurance broker. At minimum, you as the business owner MUST have non-owned and hired automobile coverage added to your package policy and/or automobile policy.
Here are the general rules most insurance companies will enforce:
• Drivers must have valid driver’s license with minimum three years licensed driving experience.
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Ask driver if they have had any violations or accidents in the last three years—two minor violations may be acceptable. If any more violations than that, do not let them drive.
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Ask driver if they have any major violations in last five years such as DUI, speeding in excess, reckless driving or any suspension or revocation. If the driver cannot answer no, than this is a red flag and driving for your business should not be allowed.
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If you want employee to use own vehicles, remind drivers that their personal insurance will pay first.
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Get a copy of driver’s current auto declaration page—many personal auto policies have exclusions for delivery.
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The employee should verify coverage for delivery. If no coverage on personal policy, don’t let them drive for your business.
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If employee is assigned to driving duties, you should add work comp classification code 7380 to your work comp policy as well. The rate set by the State is $6.37 per hundred dollars of payroll for each employee driving.
Protect yourself and your business. Reach out to your trusted broker to have the proper coverage added to your policy BEFORE it’s too late.
Yes. Restaurants are looking to other ways they can help consumers purchase not only meals for takeout, but also some basic grocery items like eggs, milk and bread.
Grocery stores and restaurants operate as licensed food establishments, and follow the same food safety and packaging rules so no, you do not need a grocery store license.
We recommend you consider selling pre-packaged goods, such as gallons of milk, loaf of bread or a dozen eggs. We do not recommend selling bulk items by the pound, unless you have a scale that complies with Wisconsin’s weights and measures rules. More information on weights and measures rules can be found here.
Wisconsin has laws that prevents price gouging in times of crisis. The Governor must declare the state is experiencing a period of abnormal economic disruption. Once declared, wholesalers and retailers are prohibited from selling consumer goods or services that are subject to the order at prices that are not more than 15 percent above pre-declaration prices. However retailers are permitted to pass on their cost increases. Here is a simple example: if you purchased a gallon of milk from your supplier for $2.00 you cannot sell it for $5.00, unless you are hearing from your supplier that it is raising its price to $4.00 per gallon. You need to use some common sense regarding the market prices in your area and not take advantage of your regular customers. The Wisconsin Department of Agriculture, Trade and Consumer Protection is developing an official guide for restaurants who wish to conduct grocery store activities. When that guide is available it will be posted here. Please check back for additional information. Questions can be directed to Susan Quam at 608-270-9950 or squam@wirestaurant.org.
Consumers are ordering foods through take-out and delivery in greater numbers than ever before. They want to know it is safe.
The National Restaurant Association and Ecolab are great resources for food safety solutions. Download more information here:
National Restaurant Association Tips for Successful Takeout
Ecolab Meal Deliveries and Restaurant Takeout Tips
It is important to follow proper cleaning and sanitizing practices for condiments – both in bottles and packages. Bottles on tables and pump dispensers should be safely cleaned and sanitized frequently. Best practice is to clean bottles on tables between each customer use.
Bartenders must be at least 18 years of age. If they don’t hold their own “operator’s” license, aka bartender’s license, they must be under immediate supervision by the licensee, agent, adult member of the licensee's immediate family (a person living in the same household), or a person with an operator's license.
Yes, if you were in an area of the state that had COVID-19 related restrictions on self-service buffets you are free utilize them again. Continue to follow best practices to prevent consumer contamination of self-service utensils, food and other exposed surfaces. Service utensils should be changed out frequently. For catered events, you may want to consider having staff dish up food to guests.
Taxes & Records
Yes, CO2 is considered to be exempt from sales tax. You can provide a fully completed sales and use tax exemption certificate (Form s-211 or S-211-SST) to your supplier when purchasing CO2 used to make tap beer and fountain soda that you sell in your restaurant. Your purchase is an exempt purchase for resale. Additionally, any charges the CO2 supplier makes to you for the cylinder are also exempt from sales and use tax.
Yes, if tipped employees are paid out their cash tips at the end of each shift, they are taking home their GROSS wages…wages that still need to be taxed. This can create a shortfall of funds when all taxes need to be withheld on all gross income depending on the amount of tips earned.
The issue is compounded if credit card tips are paid out at the end of each shift which is one reason why it is recommended that charge tips be paid out via payroll.
Yes, it appears to be true. Since federal allowances have been removed, the redesigned Form W-4 cannot be used for Wisconsin purposes.
How long to keep records is a combination of judgment and state and federal statutes of limitations. Since federal tax returns can generally be audited for up to three years after filing and up to six years if the IRS suspects under-reported income, it’s wise to keep tax records at least seven years after a return is filed. Our sources recommend that tax returns be kept permanently. Requirements for records kept electronically are the same as for paper records.
Answer provided in consultation with EWH Small Business Accounting SC.
Yes, for example if a 15 percent gratuity is required, it then becomes a service charge in the eyes of the law. The Wisconsin Department of Revenue requires that sales tax be collected on service charges.
Teen Labor
Employers can pay 14- to 19-year-old employees an opportunity wage of $5.90 per hour for the first 90 calendar days on the job.
Lawnmowers and weed whackers are off-limits for 14- and 15-year-olds, but OK for 16- and 17-year-olds. They fall under the Department of Workforce Development’s category “lawn and garden equipment, including power-driven mowers or cutters and sidewalk type snow blowers.”
As with teens operating golf carts, 16- and 17-year-olds operating riding lawn mowers may not use them on public roads. In this case, both the federal and state laws are the same: yes to 16- and 17-year-olds and no to 14- and 15-year-olds.
The parent is the guardian of the minor and has control over the check and can, therefore, pick up their child’s paycheck (unless the teen is an emancipated minor).
Minors under 16 years of age are only permitted to work until 7:00 p.m. after Labor Day through May 31 ( weekdays AND weekends). Between June 1 and Labor Day, this same age group is permitted to work until 9:00 p.m.
The Wisconsin Department of Workforce Development sets time of day and hour restrictions which mirrors the US Department of Labor for minors under the age of 16. Violations can be serious.
Not any longer. As of June 2017, Wisconsin law changed and therefore 16- and 17-year-old minors are no longer required to obtain a work permit.
Keep in mind, 14- and 15-year-old employees still need to obtain a work permit prior to starting work.
No. The Department of Workforce Development indicates that employees under the age of 16 can only work up to 18 hours during a school week, even if there’s only one school day in the school week. If there is no school the entire week, then employees under age 16 can work up to 40 hours.
Reminder: make sure to be mindful of required breaks for all staff under age 18.
Yes. A You don’t want to mess around here. Fines can be in the thousands of dollars and can be very high for willful or repeated violations of federal teen labor laws. Breaking Wisconsin law, the first time, will cost you up to $1,000 for each offense and imprisonment up to 30 days. A second violation within 5 years can be punished by up to $5,000 and 30 days jail time for each offense. Remember, each day a violation occurs is considered a separate and distinct offense.
Teen labor restrictions may make scheduling difficult, but ignoring them could put you out of business.
If a minor age 14-15 is expected to be in school, virtual or in person, they are not able to work during the school hours established by the school district whether attendance is required or not.
Minors ages 16-17 may not be permitted to work during hours of required school attendance. Keep in mind that minors under age 16 can only work up to 3 hours on school days and 18 hours during school weeks and from 7:00a-7:00p after Labor Day to May 31 and 7:00a-9:00p June 1 through Labor Day.
Scheduling teens during these types of arrangements and these special circumstances will be challenging. Much is determined first by the student’s age:
For ages 14 and 15:
Under Federal law and State law, teens, ages 14 and 15 cannot work during school hours that are established by the school district. There are exceptions of course such as Work Experience and Career Exploration Programs and Work-Study Programs**. Under Federal law, “school hours” are determined by the local public school in the area the minor is residing while employed. “School hours” refers to the hours established by the school district during the regularly scheduled school year and not the hours the individual child is required to attend.
Once the school district establishes the school hours for example 9am-4pm, 14- and 15-year-olds can only work outside of those hours (subject to the exceptions).
**Special provisions apply to students participating in a state sponsored Work Experience and Career Exploration Program or Work-Study Program authorized by the Department of Labor in accordance with §§ 570.36 or 570.37 of Regulations 29 CFR Part 570.
14- and 15-year-olds
• After Labor Day through May 31, may not work before 7am or after 7pm.
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Between June 1 and Labor Day, may not work before 7am or after 9pm.
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May not work during the school hours established by the school district in the area the minor is residing while employed.
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May not work more than 6 days a week.
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May work up to 3 hours on school days and 8 hours on non-school days.
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May work up to 18 hours during school weeks and 40 hours during non-school weeks.
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Must receive a 30-minute meal break if working more than 6 consecutive hours. Break may be unpaid.
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Must have a work permit prior to beginning work. – More information here.
16- and 17-year-olds
There are currently no Federal laws applying to 16- and 17-year-olds regarding limits on number of work hours per day or week. All employers in Wisconsin must follow State laws.
• May not work during hours of required school attendance.
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Must have 8 hours of rest between the end of one shift and the start of the next shift if employed after 11:00pm.
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Must receive a 30-minute meal break if working more than 6 consecutive hours. Break may be unpaid.
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Must be paid overtime for any hours over 10 in a day, even if they work less than 40 in the week.
According to the officials at the Department of Workforce Development, a 16- or 17-year-old is allowed to work at times during the day when school attendance is not required. It is best to obtain documentation from the school district where the employee lives if attendance on a certain day of the week or within normal school hours is not required. For example during this remote learning environment, if check in is required only from 8am-10am on a given day, that student employee may be allowed to work after 10am. But again, this will differ between each school district so have documentation from the school if you plan to schedule this student employee. This allowance applies only to 16- and 17-year-olds.
If school is requiring the student to perform some type of remote or virtual learning during any day of the week, even for one hour, that becomes a school week and that day becomes a school day. If the school district is completely shut down for a day or a week, then that is a non-school day or week and you are free to schedule that student employee as needed. One school district in our area provides each Wednesday as a “student Independent learning day” and this day is still part of the school week so no work would be allowed on this day during established school hours.
Featured Topics
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Question: I am hiring a 17 year old who has already graduated from high school. What are her hour restrictions?
Answer: 16- or 17-year-old who has graduated from high school may be employed during the same hours, and as many hours, as an adult. However, all other teen labor restrictions for her age group (not serving alcohol, not using a meat slicer, breaks, etc.) still apply. |
Straw Use OrdinancesThree Wisconsin municipalities now have straw use laws: Madison, Milwaukee and Wauwatosa.
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Handling Property DamageSuggestions and tips to begin yet another road to recovery.
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Scams Targeting RestaurantsResourceful con artists are always coming up with new ways to fleece money from people. Some scams seem perfectly designed to take advantage of restaurant operators—since it is a restaurant owner’s nature to be a hospitable and welcome new business.
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Sick Employee PolicyMake sure your employees know that the Wisconsin Food Code requires them to inform the manager on duty if they are ill with certain types of symptoms or illnesses.
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Member Benefits
Employee Engagement PlaybookThe latest stats, resources, best practices, peer-to-peer advice and some budget friendly suggestions to help restaurants engage with employees and create a more positive workplace culture.
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Allergen Awareness PosterThe Wisconsin Restaurant Association developed a free poster to help restaurants inform their staff and customers about food allergies.
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Social Media Crisis KitIt’s a new landscape for businesses because of the incredible power that social media wields these days. Many restaurant owners have told us that they feel unequipped to deal with these situations.
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Employee's Record FileWRA wants to help you get (and stay) organized and make sure you’re in compliance with recordkeeping requirements. We’ve created these personnel files as another valuable member benefit.
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