A prevailing wage may not be less than the minimum wage specified in this chapter.
DWD 272.09 Note
Note: If the employer is unable to obtain the prevailing wage for a specific job to be performed on the premises (for example, collating documents), it is acceptable to use as the prevailing wage the wage paid to experienced individuals employed in similar jobs requiring the same general skill levels (for example, file clerk or general office clerk).
After considering the criteria given in sub. (5)
, the department may issue a special license.
If the department issues a special minimum wage license, it shall send a copy to the employer. If the department denies a license, it shall notify the employer in writing and provide the reasons for the denial.
(8) Terms and conditions of special minimum wage licenses. DWD 272.09(8)(a)(a)
The department shall specify the terms and conditions under which a special minimum wage license is granted.
The department shall provide that a special minimum wage license applies to each worker employed by the employer receiving the license, provided that the worker is in fact disabled for the work that he or she is to perform.
The department shall designate the period for which a special minimum wage license shall be effective. The employer may pay a wage lower than the minimum wage to a worker with a disability only during the effective period of a license which applies to that worker.
No special minimum wage license shall authorize workers with disabilities to be paid wages that are less than commensurate with those paid to experienced nondisabled workers employed in the vicinity for essentially the same type, quality and quantity of work.
Any special minimum wage license issued by the department shall require that workers with disabilities be paid not less than one and one half times the regular rate of pay for all hours worked in excess of 40 hours per week.
The special minimum wage license shall require that the wage of each worker covered by the license be adjusted by the employer at periodic intervals of at least once per year to reflect changes in the prevailing wages paid to experienced persons who are not disabled and who are employed in the vicinity for essentially the same type of work.
Each worker with a disability and, when appropriate, a parent or guardian of the worker, shall be informed, verbally and in writing, of the terms of the license under which the worker is employed. This requirement may be satisfied by making copies of the license available. If a worker with a disability displays an understanding of the terms of the license and requests that other parties not be informed, it is not necessary to inform a parent or guardian.
The department shall use the criteria in this paragraph to establish piece rates for workers with disabilities.
The employer may establish standard production rates for workers not disabled for the work to be performed by using industrial work measurement methods, including but not limited to stop watch time studies, predetermined time systems, or standard data. The department may require the employer to demonstrate that a particular method is generally accepted by industrial engineers and has been properly executed. The employer may not require specific training or certification. An employer shall not be required to repeat the application of work measurement methods that have already been applied by another employer or source and that can be properly documented.
The piece rate paid to a worker with a disability shall be based on the standard production rate. The standard production rate is the number of units that an experienced worker who is not disabled for the work is expected to produce in one hour. The piece rate paid to a worker with a disability shall also be based on the prevailing industry wage rate paid to an experienced nondisabled worker in the vicinity for essentially the same type and quality of work or for work requiring similar skill. The piece rate is determined by dividing the prevailing industry wage rate by the standard number of units per hour.
The piece rate for a worker with a disability shall not be less than the actual prevailing piece rate paid to any experienced worker not disabled for the work who is doing the same or similar work in the vicinity.
Work measurement methods used to establish piece rates shall meet the following criteria:
If a stop watch time study is made, it shall be made with a person whose productivity represents normal performance. If this is not possible, an appropriate adjustment shall be made. An adjustment of this type, which may be referred to as a "performance rating"or "leveling", may be made only by a person knowledgeable in this technique, as evidenced by successful completion of training. The person observed in the stop watch time study shall be given time to practice the work to be performed in order to provide the person with an opportunity to overcome the initial learning curve. In addition, the person observed shall be trained to use the specific work method and tools which are available to the disabled workers for whom rates are to be established.
Work measurement methods shall allow appropriate time for personal time, fatigue, and unavoidable delays. In general, this should amount to an allowance of at least 15%, or nine to ten minutes per hour.
A work measurement study shall be conducted using the same work method that will be utilized by the workers with disabilities. If a modification such as a jig or a fixture must be made to a production method to accommodate the special needs of an individual worker with a disability, an additional work measurement study need not be conducted as long as the modification enables the disabled worker to perform the work or to increase productivity but would impede the worker without disabilities. If, in a particular case, it is not possible to accommodate a worker with a disability, as for example where an adequate number of machines are not available, a second work measurement study may be required.
The employer shall pay full earnings to each worker with a disability who is employed on a piece rate basis. Employers may "pool" earnings only where piece rates cannot be established for each individual worker.
DWD 272.09 Note
Note: An example of this situation is a team production operation where each worker's individual contribution to the finished product cannot be determined separately. However, the employer should still make every effort to objectively divide the earnings according to the productivity level of each individual worker.
The requirements of this paragraph apply to the payment of a worker with a disability who is employed at hourly rates.
The employer shall base hourly rates upon the prevailing hourly wage rate paid to an experienced worker not disabled for the job who is doing essentially the same type of work and using similar methods or equipment in the vicinity.
The employer shall make an initial evaluation of the worker's productivity within the first month after employment begins in order to determine the worker's commensurate wage rate. The employer shall record the results of the evaluation and the employer shall adjust the worker's wages accordingly no later than the first complete pay period following the initial evaluation. The employer shall pay commensurate wages to each worker for all hours worked. If the initial evaluation shows that the wages paid to the worker during pay periods prior to the evaluation were less than the commensurate wage, the employer shall compensate the worker for the difference in pay.
Upon the completion of not more than 6 months of employment, the employer shall review the quantity and quality of the work of each hourly wage rate worker with a disability as compared to a nondisabled worker engaged in similar work. The review shall be in writing and shall be recorded. The employer shall conduct and record a similar productivity review at least every 6 months thereafter. The employer shall also conduct and record a productivity review after a worker changes to a new job. After any review, the employer shall adjust the worker's wages appropriately no later than the first complete pay period following the review. Because the purpose of such reviews is to ensure that a worker with a disability receives commensurate wages for all hours worked, conducting reviews at 6-month intervals is a minimum requirement. The employer shall conduct reviews in the manner and frequency necessary to ensure the payment of commensurate wages.
DWD 272.09 Note
Note: Note: For example, evaluations shall not be conducted before a worker has had an opportunity to become familiar with the job, or at a time when the worker is fatigued or subject to conditions that result in less than normal productivity.
Any employer conducting a review covered by this paragraph must include for each review the name of the individual worker, the date and time of the review, and the name and position of the person conducting the review.
An employer with a special minimum wage license may file a written application for renewal with the department.
When an application for renewal of a special minimum wage license has been properly and timely filed with the department, the existing special minimum wage license shall remain in effect until the application for renewal has been granted or denied.
If an application for renewal is denied, the employer may not by the license.
Before any application for renewal is denied, the department shall notify the employer in writing of the facts or conduct which may warrant denial and provide the employer an opportunity to demonstrate or achieve compliance with all legal requirements before a final decision on denial or approval of the application is made.
An employer that is operating under a special minimum wage license shall at all times display and make available to employees a poster as prescribed by the department. The poster shall explain, in general terms, the conditions under which special minimum wages may be paid. The employer shall post the poster in a conspicuous place on the employer's premises where it may be readily observed by workers with disabilities, the parents and guardians of workers, and other employees. As a substitute for posting, the employer may provide a copy of the poster directly to each employee subject to its terms.
(11) Records to be kept by employers.
Every employer of workers under a special minimum wage license, or the referring agency or facility in the case of records verifying a worker's disabilities, shall maintain and have available for inspection the records specified in this subsection.
Evidence of the productivity of each worker with a disability which has been gathered on a continuing basis or at periodic intervals which do not exceed 6 months in the case of employees paid hourly wage rates.
The prevailing wage paid to a worker who is not disabled for the job performed and who is employed in industry in the vicinity for the same type of work using similar methods and equipment as that used by the worker with a disability employed under the special minimum wage license.
The production standards and supporting documentation for nondisabled workers for each job being performed by a worker with disabilities employed under the special license.
In the case of workers with disabilities who are employed by a recognized non-profit rehabilitation facility and who are working in or about a home, apartment, or room in the residential establishment, the records required under s. DWD 272.11
The employer shall maintain and preserve the records required by this section for 3 years.
(12) Relation to other laws.
No provision of these rules, or of any special minimum wage license issued under this section, shall excuse noncompliance with any federal law or municipal ordinance which establishes higher standards.
(13) Work activity centers.
This section does not prevent an employer from maintaining or establishing a work activity center to provide therapeutic activities for workers with disabilities as long as the employer complies with the requirements of this section.
(14) Licensing under a special license requested by a sponsoring agency.
A sponsoring agency may request a special minimum wage license on behalf of a worker with a disability. The department may issue a license to a worker with a disability which will authorize an employer to pay the rate of pay stated on the license. An employer that hires a licensed worker with a disability shall retain a photocopy of the license for the employer's records. A license issued under this subsection is effective for not more than one year.
DWD 272.09 Note
Note: The intent of issuing this type of license to a worker with a disability instead of to the employer is to permit the sponsoring agency to make short term placements which enable the worker to gain a variety of experiences without putting the burden on each employer to obtain a license. However, this does not relieve an employer from complying with the Federal Labor Standards Act which requires that an individual subminimum wage license be issued to any federally covered employer.
(15) Student learners.
A license may be issued for a student who is enrolled in a bona fide school training program.
Applications shall be filed with the department by the school on behalf of the employer.
The application must be made on a form provided by the department, and accompanied by a copy of the training agreement, or, in the absence of such agreement, a copy of the program or curriculum may be submitted. The application must be signed by the employer, the appropriate school official, the student, and the student's parent or guardian.
The employment at subminimum rates is necessary to provide employment opportunities under the program.
The student must be at least 14 years of age and obtain a work permit if under 18 years of age.
The occupation for which the student is receiving preparatory training must require a sufficient degree of skill to necessitate a learning period.
The training must not be for the specific purpose of acquiring manual dexterity and high production speed in repetitive operation. In case of a training program which does not qualify as a bona fide training program within the meaning of s. 104.01 (6)
, Stats., the employer must pay the trainee the minimum wage for all time spent on the training program whether such time is instructional or work in nature.
The employment must not have the effect of displacing a worker employed in the establishment. A student learner must be paid minimum wage for time spent doing work which would be normally done by a regular paid employee if the student learner performed the work.
The employment must not tend to impair or depress the wage rates or working standards established for experienced workers for work of a like or comparable character.
The issuance of such license must not tend to prevent the development of apprenticeship nor impair established apprenticeship standards in the occupation or industry involved.
The name and address of the school which provides the related school instructions.
The license shall be effective for the period designated thereon, and no license shall be issued retroactively.
A student may work a number of hours in addition to the daily and weekly hours of employment training authorized by the license provided the total hours of work shall not exceed the limits set forth in s. DWD 270.05
, and that the pay for such hours is not less than that prescribed in s. DWD 272.03
Students under 18 years of age may not serve at any job prohibited by statute, or orders of the department. (See s. DWD 270.03
A training agreement shall set down the scheduled duties and responsibilities of the local school, the employer, the student, and the student's parent or guardian. The training agreement shall be signed by an appropriate school official, the employer, the student, and the student's parent or guardian.
The department may set a rate of less than 75% of the rates in s. DWD 272.03
for handicapped student learners if justified by extraordinary circumstances. The rates granted shall be commensurate with the student's ability.
(d) Employment records to be kept.
In addition to the records required in s. DWD 272.11
the employer shall keep the following for each student employed at a subminimum wage rate.
The student shall be identified on the payroll records, showing the student's occupation and rate of pay.
The employer's copy of the license and training agreement must be available at all times for inspection for a period of 3 years.
The department may deny or revoke a special minimum wage or student learner license for cause at any time. The department may amend or modify a special minimum wage or student learner license if conditions or extraordinary circumstances warrant the action. The grounds for revocation or denial include but are not limited to the facts specified in this subsection.
A license may be revoked or denied if misrepresentations or false statements have been made to obtain the license or to permit a worker with a disability to be employed under the license.
A license may be revoked or denied if any provision of the Wisconsin labor standards law or any of the terms of the license has been violated.
A license may be revoked or denied if the license is no longer necessary in order to prevent a curtailment of opportunities for employment.
Unless the public interest requires otherwise, the department shall notify the employer of facts or conduct which may warrant revocation before beginning revocation proceedings and shall provide the employer an opportunity to demonstrate or achieve compliance with all legal requirements.
DWD 272.09 Note
The legal procedure for license revocations is established by ch. 227
Any person that is aggrieved by an action of the department taken under this section may, within 60 days after learning of the action or within any additional time that the department might allow, file with the department a request for reconsideration or review. The department shall determine if a review shall be granted. If a review is conducted, it shall be conducted by the department. The department may provide other interested persons an opportunity to present data and views.
The department and community-based rehabilitation organizations are committed to the continued development and implementation of individual vocational rehabilitation programs that will facilitate the transition of persons with disabilities into employment within their communities. This transition must take place under conditions that will not jeopardize the protection afforded by the minimum wage law to program participants, employees, employers or other programs providing rehabilitation services to individuals with disabilities.
When all of the following criteria are met, the department shall not assert an employment relationship for the purposes of the minimum wage:
Participants are individuals with physical or mental disabilities for whom competitive employment at or above the minimum wage level is not immediately obtainable and who, because of their disabilities, will need intensive ongoing support to perform in a work setting.
Participation is for vocational exploration, assessment or training in a community-based placement work site under the general supervision of rehabilitation organization personnel.
Community-based placements are clearly defined components of individual rehabilitation programs developed and designed for the benefit of each participant. The statement of needed transition services established for the exploration assessment or training components shall be included in each participant's IWRP.
The department does not require disclosure of the information contained in the IWRP. However, the department does require documentation as to the participant's enrollment in the community-based placement program. The participant and, when appropriate, the parent or guardian of the participant, shall be fully informed of the IWRP and the community-based placement component and shall have indicated voluntary participation with the understanding that participation in such a component does not entitle the participant to wages.