"Employe" means a person who may be permitted, required or directed by an employer, in consideration of direct or indirect gain or profit, to engage in any employment.
"Employer" means an individual, partnership, association, corporation, limited liability company, legal representative, trustee, receiver, trustee in bankruptcy, or any common carrier by rail, motor, water or air doing business in or operating within the state.
No employer may require any employe or applicant for employment to pay the cost of a medical examination required by the employer as a condition of employment.
Any employer who violates this section may be fined not more than $100 for each violation. The department shall enforce this section.
State, its political subdivisions, and counties are not employers under this section. 69 Atty. Gen. 103.
Eight-hour work day; applicability. 103.38(1)
Subject to sub. (2)
, in all engagements to labor in any manufacturing or mechanical business if there is no express contract to the contrary, a day's work shall consist of 8 hours and all engagements or contracts for labor in a manufacturing or mechanical business shall be so construed.
(2) Subsection (1)
does not apply to any contract for labor by the week, month or year.
History: 1997 a. 253
Fraudulent advertising for labor. 103.43(1)(a)(a)
No person may influence, induce, persuade or attempt to influence, induce, persuade or engage a worker to change from one place of employment to another in this state or to accept employment in this state, and no person may bring a worker of any class or calling into this state to work in any department of labor in this state, through or by means of any false or deceptive representations, false advertising or false pretenses concerning or arising from any of the following:
The amount and character of the compensation to be paid for work.
The failure to state in any advertisement, proposal or contract for the employment that there is a strike or lockout at the place of the proposed employment, when a strike or lockout then actually exists in the employment at the proposed place of employment.
Any of the acts described in par. (a)
shall be considered a false advertisement or misrepresentation for the purposes of this section.
A strike or lockout is considered to exist as long as any of the following conditions exists:
Unemployment on the part of workers affected continues.
Any payments of strike benefits are being made.
Publication is being made of the existence of a strike or lockout.
Any person who, by himself or herself, or by a servant or agent, or as the servant or agent of any other person, or as an officer, director, servant or agent of any firm, corporation, association or organization of any kind, violates sub. (1) (a)
shall be fined not more than $2,000 or imprisoned in the county jail for not more than one year or both.
Any worker who is influenced, induced or persuaded to engage with any person specified in sub. (1) (a)
, through or by means of any of the acts prohibited in sub. (1) (a)
, shall have a right of action for recovery of all damages that the worker sustains in consequence of the false or deceptive representation, false advertising or false pretenses used to induce the worker to change his or her place of employment in this state or to accept employment in this state, against any person, corporation, company or association, directly or indirectly, causing the damage. In addition to all actual damages that the worker may sustain, the worker shall be entitled to recover reasonable attorney fees as determined by the court, to be taxed as costs in any judgment recovered.
Time checks; penalty.
All persons paying wages in time checks or paper, other than legal money, shall make those time checks or that paper payable in some designated place of business in the county in which the work was performed or at the office of the person paying the wages if within this state, or at any bank within this state. Any person failing to comply with this section shall be fined not less than $10 nor more than $100.
History: 1997 a. 253
Deductions for faulty workmanship, loss, theft or damage.
No employer may make any deduction from the wages due or earned by any employe, who is not an independent contractor, for defective or faulty workmanship, lost or stolen property or damage to property, unless the employe authorizes the employer in writing to make that deduction or unless the employer and a representative designated by the employe determine that the defective or faulty workmanship, loss, theft or damage is due to the employe's negligence, carelessness, or wilful and intentional conduct, or unless the employe is found guilty or held liable in a court of competent jurisdiction by reason of that negligence, carelessness, or wilful and intentional conduct. If any deduction is made or credit taken by any employer that is not in accordance with this section, the employer shall be liable for twice the amount of the deduction or credit taken in a civil action brought by the employe. Any agreement entered into between an employer and employe that is contrary to this section shall be void. In case of a disagreement between the 2 parties, the department shall be the 3rd determining party, subject to any appeal to the court. Section 111.322 (2m)
applies to discharge and other discriminatory acts arising in connection with any proceeding to recover a deduction under this section.
History: 1989 a. 228
; 1997 a. 253
The consent of the employe may only serve as a basis for a deduction where it is given in writing after the loss and before the deduction. Donovan v. Schlesner, 72 W (2d) 74, 240 NW (2d) 135.
Termination of employe-at-will may have violated public policy underlying this section. Wandry v. Bull's Eye Credit, 129 W (2d) 37, 384 NW (2d) 325 (1986).
Commissions earned over and above a salary are wages under this section. The 6 year statute of limitations under s. 893.43 applicable to claims for commissions applies to the recovery of deductions from commissions under this section. A claimant need not first bring a claim before DILHR if the employer has never given the employe an opportunity to contest the deductions. Erdman v. Jovoco, Inc. 181 W (2d) 736, 512 NW (2d) 487 (1994).
Listing deductions from wages.
An employer shall state clearly on the employe's pay check, pay envelope, or paper accompanying the wage payment the amount of and reason for each deduction from the wages due or earned by the employe, except such miscellaneous deductions as may have been authorized by request of the individual employe for reasons personal to the employe. A reasonable coding system may be used by the employer.
History: 1993 a. 492
Contracts; promises to withdraw from or not to join labor, employers' or cooperative organizations are void.
Every undertaking or promise, whether written or oral, express or implied, constituting or contained in any of the following is declared to be contrary to public policy and wholly void and shall not afford any basis for the granting of any legal or equitable relief by any court:
A contract or agreement of hiring or employment between any employer and any employe or prospective employe, in which either party to the contract or agreement undertakes or promises not to join, become or remain a member of any labor organization or of any organization of employers, or in which either party to the contract or agreement undertakes or promises to withdraw from the employment relation if the party joins, becomes or remains a member of any labor organization or of any organization of employers.
A contract or agreement for the sale of agricultural, horticultural or dairy products between a producer of those products and a distributor or purchaser of those products, in which either party to the contract or agreement undertakes or promises not to join, become or remain a member of any cooperative association organized under ch. 185
or of any trade association of the producers, distributors or purchasers of those products.
Restrictive covenants in employment contracts.
A covenant by an assistant, servant or agent not to compete with his or her employer or principal during the term of the employment or agency, or after the termination of that employment or agency, within a specified territory and during a specified time is lawful and enforceable only if the restrictions imposed are reasonably necessary for the protection of the employer or principal. Any covenant, described in this subsection, imposing an unreasonable restraint is illegal, void and unenforceable even as to any part of the covenant or performance that would be a reasonable restraint.
History: 1995 a. 225
; 1997 a. 253
A provision in an employer's profit sharing and retirement plan that calls for forfeiture of benefits by employes who engage in competitive enterprises is valid and enforceable only if it meets the requirements of this section. Holsen v. Marshall & Ilsley Bank, 52 W (2d) 281, 190 NW (2d) 189.
A provision of a pension plan denying benefits if the retired employe accepts any employment in the same industry without limit as to time or area is void. Estate of Schroeder, 53 W (2d) 59, 191 NW (2d) 860.
This section, limiting the enforceability of covenants not to compete to those containing restrictions reasonably necessary for the protection of the employer or principal, incorporates the pre-existing structure of the common law, under which contracts in restraint of trade are viewed with disfavor. Behnke v. Hertz Corp. 70 W (2d) 818, 235 NW (2d) 690.
Where profit sharing plan provided for forfeiture in event covered employe worked for "competitive business", term was construed to mean only businesses which seek out and appeal to same customers and offer substantially identical services. Zimmerman v. Brennan, 78 W (2d) 510, 254 NW (2d) 719.
Five basic requirements necessary to enforcement of a restrictive covenant discussed. Chuck Wagon Catering, Inc. v. Raduege, 88 W (2d) 740, 277 NW (2d) 787 (1979).
Covenant prohibiting executive employe from contacting company clients with whom employe had had no previous contact was not unreasonable per se. Hunter of Wisconsin, Inc. v. Hamilton, 101 W (2d) 460, 304 NW (2d) 752 (1981).
Covenant by employes not to compete is not automatically voided by presence of unreasonable provision for liquidated damages. Whether specific restraints as to area and time are necessary to protect employer is question of law to be resolved on basis of facts. Fields Foundation, Ltd. v. Christensen, 103 W (2d) 465, 309 NW (2d) 125 (Ct. App. 1981).
Agreement requiring agents of insurance company to forfeit their extended earnings if after termination they engaged in certain competitive practices was unenforceable. Streiff v. American Family Mut. Ins. Co. 118 W (2d) 602, 348 NW (2d) 505 (1984).
Territorial limits in a restrictive covenant need not be expressed in geographical terms. General Medical Corp. v. Kobs, 179 W (2d) 422, 507 NW (2d) 381 (Ct. App. 1993).
Interests of employers which may be protected by covenants discussed. Wausau Medical Center v. Asplund, 182 W (2d) 274, 514 NW (2d) 34 (Ct. App. 1994).
A valid covenant not to compete requires consideration. Continued employment absent a requirement that that employment requires executing the agreement is not consideration. NBZ, Inc. v. Pilarski, 185 W (2d) 827, 520 NW (2d) 93 (Ct. App. 1994).
This section sets out its own remedy. A violation does not grant an automatic right to pursue a wrongful discharge claim, but voids the the covenant. Tagte v. Chambers and Owens, Inc. 210 W (2d) 51, 565 NW (2d) 150 (Ct. App. 1997).
It would be an exercise in semantics to overlook this section merely because a contract provision is labeled a non-disclosure provision rather than a covenant not to compete. This section does not create an exception to the at will employment doctrine that allows an employe to refuse to sign a non-disclosure or non-compete clause which the employe considers to be unreasonable. Tatge v. Chambers & Owen, Inc. 219 W (2d) 99, 579 NW (2d) 217 (1998).
Restrictive covenant was not overbroad. Brunswick Corp. v. Jones, 784 F (2d) 271 (1986).
An agreement to accept an education loan funded by certain employers on the condition that the recipient repay it in kind by working for a contributor or repaying it in cash if the recipient accepts employment with a non-contributor was not a covenant subject to s. 103.465. Milwaukee Apprentice Training Committee v. Howell, 67 F (3d) 1333 (1995).
Drafting and enforcing restrictive covenants not to compete. Richards, 55 MLR 241.
Drafting enforceable covenants not to compete. Nettesheim. WBB Oct. 1986.
Wage rate on state work. 103.49(1)(a)
"Area" means the county in which a proposed project that is subject to this section is located or, if the department determines that there is insufficient wage data in that county, "area" means those counties that are contiguous to that county or, if the department determines that there is insufficient wage data in those counties, "area" means those counties that are contiguous to those counties or, if the department determines that there is insufficient wage data in those counties, "area" means the entire state or, if the department is requested to review a determination under sub. (3) (c)
, "area" means the city, village or town in which a proposed project that is subject to this section is located.
"Hourly basic rate of pay" means the hourly wage paid to any employe, excluding any contributions or payments for health insurance benefits, vacation benefits, pension benefits and any other bona fide economic benefits, whether paid directly or indirectly.
"Insufficient wage data" means less than 500 hours of work performed in a particular trade or occupation on projects that are similar to a proposed project that is subject to this section.
"Multiple-trade public works project" means a public works project in which no single trade accounts for 85% or more of the total labor cost of the project.
"Prevailing hours of labor" for any trade or occupation in any area means no more than 10 hours per day nor more than 40 hours per week and may not include any hours worked on a Saturday or Sunday or on any of the following holidays:
The day before if January 1, July 4 or December 25 falls on a Saturday.
The day following if January 1, July 4 or December 25 falls on a Sunday.
"Prevailing wage rate" for any trade or occupation engaged in the erection, construction, remodeling, repairing or demolition of any project of public works in any area means the hourly basic rate of pay, plus the hourly contribution for health insurance benefits, vacation benefits, pension benefits and any other bona fide economic benefit, paid directly or indirectly for a majority of the hours worked in the trade or occupation on projects in the area, or if there is no rate at which a majority of the hours worked in the trade or occupation on projects in the area is paid, then the prevailing wage rate for any trade or occupation engaged in the erection, construction, remodeling, repairing or demolition of any project of public works in any area shall be the average hourly basic rate of pay, weighted by the number of hours worked, plus the average hourly contribution, weighted by the number of hours worked, for health insurance benefits, vacation benefits, pension benefits and any other bona fide economic benefit, paid directly or indirectly for all hours worked at the hourly basic rate of pay of the highest-paid 51% of hours worked in that trade or occupation.
"Single-trade public works project" means a public works project in which a single trade accounts for 85% or more of the total labor cost of the project.
"State agency" means any office, department, independent agency, institution of higher education, association, society or other body in state government created or authorized to be created by the constitution or any law, including the legislature and the courts.
"Truck driver" includes an owner-operator of a truck.
(2) Prevailing wage rates and hours of labor.
Any contract hereafter made for the erection, construction, remodeling, repairing or demolition of any project of public works, except contracts for the construction or maintenance of public highways, streets and bridges, to which the state, any state agency or the University of Wisconsin Hospitals and Clinics Authority is a party shall contain a stipulation that no person described in sub. (2m)
may be permitted to work a greater number of hours per day or per calendar week than the prevailing hours of labor determined under sub. (3)
, except that any such person may be permitted or required to work more than such prevailing hours of labor per day and per calendar week if he or she is paid for all hours worked in excess of the prevailing hours of labor at a rate of at least 1.5 times his or her hourly basic rate of pay; nor may he or she be paid less than the prevailing wage rate in the same or most similar trade or occupation in the area wherein such project of public works is situated determined under sub. (3)
. A reference to the prevailing wage rates and prevailing hours of labor determined under sub. (3)
shall be published in the notice issued for the purpose of securing bids for the project. If any contract or subcontract for a project that is subject to this section is entered into, the prevailing wage rates and prevailing hours of labor determined under sub. (3)
shall be physically incorporated into and made a part of the contract or subcontract, except that for a minor subcontract, as determined by the department, the department shall prescribe by rule the method of notifying the minor subcontractor of the prevailing wage rates and prevailing hours of labor applicable to the minor subcontract. The prevailing wage rates and prevailing hours of labor applicable to a contract or subcontract may not be changed during the time that the contract or subcontract is in force.
All of the following employes shall be paid the prevailing wage rate determined under sub. (3)
and may not be permitted to work a greater number of hours per day or per calendar week than the prevailing hours of labor determined under sub. (3)
, unless they are paid for all hours worked in excess of the prevailing hours of labor at a rate of at least 1.5 times their hourly basic rate of pay:
All laborers, workers, mechanics and truck drivers employed on the site of a project that is subject to this section, or employed to deliver mineral aggregate such as sand, gravel or stone that is immediately incorporated into the work, and not stockpiled or further transported by truck, to or from the site of a project that is subject to this section by depositing the material substantially in place, directly or through spreaders from the transporting vehicle, or employed to transport excavated material or spoil from and return to the site of a project that is subject to this section.
All laborers, workers, mechanics and truck drivers employed in the manufacturing or furnishing of materials, articles, supplies or equipment on the site of a project that is subject to this section or from a facility dedicated exclusively, or nearly so, to a project that is subject to this section by a contractor, subcontractor, agent or other person performing any work on the site of the project.
Notwithstanding par. (a)
, a laborer, worker, mechanic or truck driver who is regularly employed in the processing, manufacturing or delivery of materials or products by or for a commercial establishment that has a fixed place of business from which the establishment regularly supplies processed or manufactured materials or products is not entitled to receive the prevailing wage rate determined under sub. (3)
or to receive at least 1.5 times his or her hourly basic rate of pay for all hours worked in excess of the prevailing hours of labor determined under sub. (3)
A truck driver who is an owner-operator of a truck shall be paid separately for his or her work and for the use of his or her truck.
Before bids are asked for any work to which this section applies, the state agency having the authority to prescribe the specifications shall apply to the department to determine the prevailing wage rate and prevailing hours of labor for each trade or occupation required in the work under contemplation in the area in which the work is to be done. The department shall make such investigations and hold such public hearings as may be necessary to define the trades or occupations that are commonly employed on projects that are subject to this section and to inform itself as to the prevailing wage rates and prevailing hours of labor in all areas of the state for those trades or occupations with a view to ascertaining the prevailing wage rate and prevailing hours of labor for each such trade or occupation. The department shall issue its determination within 30 days after receiving the request and shall file the same with the state agency applying therefor. For the information of the employes working on the project, the prevailing wage rates and prevailing hours of labor determined by the department and the provisions of subs. (2)
shall be kept posted by the state agency in at least one conspicuous and easily accessible place on the site of the project.
The department shall, by January 1 of each year, compile the prevailing wage rates and the prevailing hours of labor for each trade or occupation in each area. The compilation shall, in addition to the current prevailing wage rates and prevailing hours of labor, include future prevailing wage rates and prevailing hours of labor when those prevailing wage rates and prevailing hours of labor can be determined for any trade or occupation in any area and shall specify the effective date of those future prevailing wage rates and prevailing hours of labor. If a construction project extends into more than one area there shall be but one standard of prevailing wage rates and prevailing hours of labor for the entire project.
In determining prevailing wage rates under par. (a)
for building, residential or agricultural projects, the department may not use data from projects that are subject to this section, s. 66.293
or 40 USC 276a
. In determining prevailing wage rates for projects involving the use of heavy equipment, the department may use data from projects that are subject to this section, s. 66.293
or 40 USC 276a