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Foodservice Laws & Regulations

Stay current on state and federal laws as they pertain to the Food Code, employment regulations and more. Simple-to-understand laws and regulations are interpreted for Wisconsin foodservice and restaurant operators in WRA’s HERO Manual which includes FAQs on the laws in easy-to-understand language.

 

Wisconsin Food Code

Free access to Food Code guidelines at the state and national level.

Guide to laws and regulations for restaurant owners

STATE VS FEDERAL LAW

All Wisconsin restaurants must comply with Wisconsin state labor laws. Restaurants meeting certain criteria are covered by the Federal Labor Standards Act (FLSA) and must obey federal laws in addition to state laws. If the two laws differ, you must follow the stricter of the two laws -- in other words, the law most beneficial to the employee. The WRA HERO manual will outline both state and federal law where applicable.

You must obey state and federal laws if:

  • Your business has an annual gross revenue of $500,000 or more.
  • You do not meet the revenue criteria but you have employees who are engaged in “interstate commerce.” Example: servers who handle credit cards are engaged in interstate commerce because credit card transactions cross state lines. In this case, you would apply federal and state law to those employees handling the credit cards and only the state law to the rest of your employees. Note: You must count the revenue of your entire business “enterprise” in the calculation. If you own other retail businesses, even if they are separate corporations, the sales must be added together.

If you do not meet the above criteria, you only need to follow state law.

Pattern

MINIMUM WAGE FOR NON-TIPPED EMPLOYEES

Currently the federal and state general minimum wage rates are the same. 

  • General minimum wage $7.25/hour 
  • Opportunity minimum wage $5.90*/hour (14 - 19 year olds during the first 90 calendar days on the job).

*The federal opportunity wage rate is $4.25. Wisconsin’s opportunity wage rate of $5.90 is higher and therefore more favorable for the employee and is the rate that should be used. 
An opportunity employee is an employee who is not yet 20 years old and who has been with an employer for 90 or fewer consecutive calendar days from the date of initial employment.  After the first 90 consecutive calendar days on the job, all employees regardless of age must be paid the full minimum wage of $7.25.

More Information

Pattern

MINIMUM WAGE FOR TIPPED EMPLOYEES

  • For employees age 20 or older and employees age 14 – 19 after 90 days of opportunity wage has passed: 
     $2.33/hour (base wages for general minimum wage) +$4.92/hour (tip credit) = $7.25/hour 
  • For new hires under age 20 (14 – 19 year olds during the first 90 calendar days on the job with opportunity wage)
    $2.13/hour (base wages for opportunity wage) +$3.77/hour (tip credit) = $5.90/hour

Note: The federal cash (or base) wage for tipped employees is $2.13. Wisconsin’s rate of $2.33 is higher and therefore more favorable for the employee and is the rate that should be used.

TEEN LABOR

Anyone under 16 must have a work permit for your place of employment to legally work there. Minimum age to work in a restaurant is 14. The only exception the children of the restaurant’s owners working in their parents’ or guardian’s business. In this case, the Wisconsin rules for 14- and 15-year-olds apply.

As of 2011 Wisconsin’s child labor hours limitations for 14- and 15-year-olds match federal law:

  • After Labor Day through May 31, may not work before 7 a.m. or after 7 p.m.
  • Between June 1 and Labor Day, may not work before 7 a.m. or after 9 p.m.
  • May not work more than 6 days a week.
  • May work up to 3 hours on school days and 8 hours on non-school days.
  • May work up to 18 hours during school weeks and 40 hours during non-school weeks.
  • Must receive a 30-minute meal break if working more than 6 hours. (Break may be unpaid.)

14 and 15 year olds STATE VS FEDERAL

Restaurants subject to Wisconsin and federal law 14- and 15-year-olds:

  • May bus tables, wash dishes, or wait tables provided they do not serve, sell, dispense or give away alcoholic beverages.
  • May cook under certain circumstances. (See next slide for detailed information.)
  • May not bake.
  • May not use a meat slicer, grinder or heavy bakery equipment.

Restaurants subject to Wisconsin law only 14- and 15-year-olds:

  • May bus tables, wash dishes or wait tables provided they do not serve, sell, dispense or give away alcoholic beverages.
  • May cook or bake under adult supervision.
  • May not use a meat slicer, grinder or heavy bakery equipment.

COOKING (for 14- and 15- year-olds under federal law)

The federal teen-labor rules that took effect in 2005, permit 14- and 15-year-olds to perform various food and-beverage prep work, as well as kitchen work, and provide examples of equipment that these employees may use. The Department of Labor (DOL) rules are not too different from the previous regulations, but do a better job of reflecting advances in restaurant kitchens and foodservice equipment.

  • MAY perform various food-and-beverage preparation work.
  • MAY clean, maintain and repair cooking devices such as grills, deep-fat fryers and steam tables if equipment surfaces are below 100° F.*
  • MAY change, clean and dispose of oil and grease, or oil and grease filters, if the temperature of the liquid is below 100° F.*
  • MAY cook using electric or gas grills that do not have open flames.
  • MAY cook using deep fryers that are equipped with and utilize devices that automatically lower and raise baskets.
  • May NOT cook over open flames.
  • May NOT bake, including any part of the baking process: weighing, mixing, putting products in pans or trays; operating pans of any type; and removing items from ovens or placing on cooling trays.
  • May NOT use deep fryers that require the operator to manually raise or lower the baskets, or that do not use baskets to contain the food product during frying.
  • May NOT use rotisseries, broilers, pressurized equipment including fry-o-lators, or cooking devices that operate at extremely high temperatures such as “Neico broilers.”
  • May NOT clean, maintain or repair cooking equipment such as grills, deepfat fryers and steam tables if the equipment surface exceeds 100° F. (The DOL points out that simple maintenance of grills is permissible for 14- and 15-year-olds—i.e., the routine part of the actual cooking process whereby the employee uses water and a spatula to scrape away food particles and grease from the surface of the grill.)
  • May NOT change, clean or dispose of oil and grease, or oil and grease filters, if the temperature of the liquids exceeds 100° F. This includes a ban on lifting, moving or carrying containers of hot grease or oil 100° F or higher.

TEEN ON THE JOB DRIVING

16-year-olds are forbidden from all on-the-job driving and 17-year-olds may not drive a delivery vehicle unless:

  • Driving a delivery vehicle is only “occasional and incidental” to the minor’s employment. (Driving for deliveries may not be a regular or frequent part of the employee’s duties. They may only spend one-third of their workday or 20 percent of their work week on the road for their employers.)
  • It is during daylight hours
  • The minor has a Wisconsin driver’s license and has completed a state-approved driver’s education program
  • The teen does not have a record of any moving violations at the time of hire
  • The vehicle is equipped with seatbelts and the employer instructs the teen that seatbelts must be used.

Teens may not:

  • Tow vehicles
  • Operate vehicles over 6,000 pounds
  • Perform route sales or deliveries or urgent, time-sensitive deliveries*
  • Transport more than three passengers or drive beyond a 30-mile radius from their place of employment
  • Perform more than two trips per day from the place of employment to deliver customer goods or transport passengers (other than fellow employees.)

* The Department of Labor (DOL) explains that urgent, time-sensitive deliveries include trips subject to timelines, schedules or turnaround times in order to satisfy customers or protect the product from temperature changes and other deterioration. The DOL specifically states that prohibited trips would include delivery of pizzas and prepared foods for customers. Therefore, it is highly unlikely that employers may use 17-year olds for normal deliveries of food to outside customers.

Frequently Asked Questions

I do not meet the revenue requirements for federal labor standards but I do accept credit cards. Which rules do I follow and when?

There are two ways a business qualifies for regulation under the federal Fair Labor Standards Act: meeting the revenue requirement or having employees engaged in interstate commerce. However, the “interstate commerce” test is employee by employee. You must comply with federal standards for those employees that are engaged in interstate commerce; you don’t have to follow federal law for the employees who are not. Receiving a tip on a credit card, accepting out-of-state checks, or unloading a truck that traveled across state lines, would all be examples of “interstate commerce” in the government’s eyes. Technically, your servers could be covered by federal law one pay period and not another. However, it only takes one charged tip in a pay period to put a young server in the federally covered category. WRA recommends you consider anyone who receives tips as covered by federal rules if you accept credit cards.

I’m not certain about whether or not my business is subject to FLSA. Where can I get more help?

The Department of Labor (DOL) has lots of information on their website that should be able to clarify things for you. For example they have a variety of facts sheets, guidelines and even e-tools. Learn More

I am hiring an 18-year-old who is still in high school. What hours can he work?

An 18-year-old who is still in high school is not covered by teen labor laws. He may work during any time of the day and as many hours as you wish.

I am hiring a 17-year-old who has already graduated from high school. What are her hour restrictions?

A 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.

My 16-year-old dishwasher is attending technical college to get his general equivalency diploma. How does this affect the hours he can work?

A 16- or 17-year-old who is emancipated, living independently, head of the household, or enrolled in a GED program at vocational or technical college may now work unlimited hours (but be mindful of overtime, break and hours of rest guidelines) since state and federal laws do not limit the hours as of July, 2011.
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