AB409: Bill Text

LRB-2860/2

GMM:kmg:ch

1999 - 2000 LEGISLATURE

1999 Assembly BILL 409

July 8, 1999 - Introduced by Representatives Vrakas, Turner, Nass, Bock, Owens, Schooff, M. Lehman, Plouff, Musser, Pocan, Gunderson, Berceau, Huebsch and Brandemuehl, cosponsored by Senators Baumgart, Wirch, Grobschmidt and Erpenbach, by request of Department of Workforce Development. Referred to Committee on Labor and Employment.

AB409,2,3 An Act to repeal 66.293 (1) (h); to renumber and amend 66.293 (4) (b), 103.49 (2m) (b) and 103.50 (2m) (b); to amend 66.293 (3) (am), 66.293 (3) (ar), 66.293 (3) (bm), 66.293 (3) (br), 66.293 (3) (dm), 66.293 (4) (a) (intro.), 66.293 (4) (a) 1., 66.293 (8), 66.293 (9) (c), 66.293 (10) (a), 66.293 (10) (b), 66.293 (10) (c), 66.293 (10) (d), 66.293 (11) (a), 66.293 (11) (b) 2., 66.293 (11) (b) 4., 66.293 (11) (b) 6., 66.293 (12) (a), 66.293 (12) (b), 66.293 (12) (d), 103.49 (1) (c) (intro.), 103.49 (1) (d), 103.49 (2), 103.49 (2m) (a) (intro.), 103.49 (2m) (a) 1., 103.49 (3) (a), 103.49 (3) (am), 103.49 (3) (ar), 103.49 (3) (b), 103.49 (3) (c), 103.49 (3g), 103.49 (4r) (c), 103.49 (5) (a), 103.49 (5) (b), 103.49 (5) (c), 103.49 (6m) (b), 103.49 (6m) (d), 103.49 (6m) (f), 103.49 (7) (a), 103.49 (7) (b), 103.49 (7) (d), 103.50 (2), 103.50 (2m) (a) (intro.), 103.50 (2m) (a) 1., 103.50 (3), 103.50 (4), 103.50 (5), 103.50 (6), 103.50 (7) (b), 103.50 (7) (d), 103.50 (7) (e), 103.50 (7) (f), 103.50 (8) and 227.01 (13) (t); and to create 66.293 (4) (b) 1. and 2., 103.49 (2m) (b) 1. and 2. and 103.50 (2m) (b) 1. and 2. of the statutes; relating to: the coverage of the prevailing wage and hours of labor law, the definition of prevailing hours of labor, the determination of prevailing wage rates and granting rule-making authority.

Analysis by the Legislative Reference Bureau

Under current law, certain employes performing work on a state or local public works project must be paid the prevailing wage rate and may not be permitted to work a greater number of hours per day and per week than the prevailing hours of labor, unless they are paid overtime pay for all hours worked in excess of the prevailing hours of labor. Current law defines "prevailing hours of labor" as no more than ten hours per day nor more than 40 hours per week. This bill defines "prevailing hours of labor" as exactly ten hours per day and 40 hours per week. Because the prevailing hours of labor are fixed by statute, the bill deletes numerous references to the department of workforce development (DWD) determining the prevailing hours of labor as was the practice under prior law.

Currently, laborers, workers, mechanics and truck drivers employed on the site of a public works project, employed to deliver mineral aggregate to or from the site of a public works project or employed to transport excavated material from and return to the site of a public works project are covered under the prevailing wage and hours law, except that a laborer, worker, mechanic or truck driver 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 it regularly supplies those materials or products is not covered under the prevailing wage and hours law. This bill provides that a laborer, worker, mechanic or truck driver who is employed to process, manufacture, pick up or deliver materials or products from such a commercial establishment is not covered under the prevailing wage and hours law unless the person is employed to go to the source of mineral aggregate, pick up that mineral aggregate and deliver that mineral aggregate to the site of a public works project or is employed to go to the site of a public works project, pick up excavated material or spoil from the site of the project and transport that excavated material or spoil away from the site of the project.

Under current law, DWD must, by January 1 of each year, determine the prevailing wage rates for each trade or occupation in each area of the state. Currently, in determining prevailing wage rates for local public works projects, DWD may not use data from projects that are subject to the state prevailing wage and hours law or the federal Davis-Bacon Act, unless there is insufficient wage date in an area to determine prevailing wage rates. In determining prevailing wage rates for state building, residential or agricultural projects, DWD may not use data from projects that are subject to the state prevailing wage and hours law or the federal Davis-Bacon Act even if there is insufficient wage data in an area to determine prevailing wage rates. In determining prevailing wage rates for state projects involving the use of heavy equipment, however, DWD may use such data. This bill eliminates the separate method for determining prevailing wage rates for projects involving the use of heavy equipment and permits DWD, in determining prevailing wage rates for state public works projects, to use data from projects that are subject to the state prevailing wage and hours law or the federal Davis-Bacon Act if there is insufficient wage data in an area to determine prevailing wage rates.

Finally, under current law, any person may request a recalculation or a review of a prevailing wage rate determination if the person submits evidence, including wage rate information for work performed within the previous 12 months, showing that the prevailing wage rate determined by DWD does not reflect the actual prevailing wage rate in the area of the project. This bill changes the wage rate information that must be submitted with a request for recalculation or review to wage rate information for work performed during DWD's current survey period.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB409, s. 1 Section 1. 66.293 (1) (h) of the statutes is repealed.

AB409, s. 2 Section 2. 66.293 (3) (am) of the statutes is amended to read:

AB409,4,2 66.293 (3) (am) Every local governmental unit, before making a contract by direct negotiation or soliciting bids on a contract, for the erection, construction, remodeling, repairing or demolition of any project of public works, including a highway, street or bridge construction project, 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 contemplated. The department shall make conduct 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 in order to determine 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 local governmental unit applying therefor.

AB409, s. 3 Section 3. 66.293 (3) (ar) of the statutes is amended to read:

AB409,4,12 66.293 (3) (ar) 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.

AB409, s. 4 Section 4. 66.293 (3) (bm) of the statutes is amended to read:

AB409,4,24 66.293 (3) (bm) Any person may request a recalculation of any portion of a an initial determination within 30 days after the initial determination date if the person submits evidence with the request showing that the prevailing wage rate or prevailing hours of labor for any given trade or occupation included in the initial determination does not represent the prevailing wage rate or prevailing hours of labor for that trade or occupation in the area. Such evidence shall include wage rate and hours of labor information for reflecting work performed by persons working in the contested trade or occupation in the area within the previous 12 months during the current survey period. The department shall affirm or modify the initial determination within 15 days after the date on which the department receives the request for recalculation.

AB409, s. 5 Section 5. 66.293 (3) (br) of the statutes is amended to read:

AB409,5,15 66.293 (3) (br) In addition to the recalculation under par. (bm), the local governmental unit that requested the determination under this subsection may request a review of any portion of a determination within 30 days after the date of issuance of the determination if the local governmental unit submits evidence with the request showing that the prevailing wage rate or prevailing hours of labor for any given trade or occupation included in the determination does not represent the prevailing wage rate or prevailing hours of labor for that trade or occupation in the city, village or town in which the proposed project is located. That evidence shall include wage rate and hours of labor information for the contested trade or occupation on at least 3 similar projects located in the city, village or town where the proposed project is located and on which some work has been performed within the previous 12 months during the current survey period and which were considered by the department in issuing its most recent compilation under par. (ar). The department shall affirm or modify the determination within 15 days after the date on which the department receives the request for review.

AB409, s. 6 Section 6. 66.293 (3) (dm) of the statutes is amended to read:

AB409,6,11 66.293 (3) (dm) A reference to the prevailing wage rates and prevailing hours of labor determined by the department or a local governmental unit exempted under sub. (6) and to the prevailing hours of labor shall be published in the notice issued for the purpose of securing bids for the project. If any contract or subcontract for a project of public works, including a highway, street or bridge construction project, is entered into, the prevailing wage rates and prevailing hours of labor determined by the department or exempted local governmental unit and the prevailing hours of labor 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. No person performing the work described in sub. (4) may be paid less than the prevailing wage rate in the same or most similar trade or occupation determined under this subsection; nor may he or she be permitted to work a greater number of hours per day or per calendar week than the prevailing hours of labor determined under this subsection, unless 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.

AB409, s. 7 Section 7. 66.293 (4) (a) (intro.) of the statutes is amended to read:

AB409,6,18 66.293 (4) (a) (intro.) All Subject to par. (b), 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:

AB409, s. 8 Section 8. 66.293 (4) (a) 1. of the statutes is amended to read:

AB409,7,2 66.293 (4) (a) 1. 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.

AB409, s. 9 Section 9. 66.293 (4) (b) of the statutes is renumbered 66.293 (4) (b) (intro.) and amended to read:

AB409,7,13 66.293 (4) (b) (intro.) Notwithstanding par. (a) 1., a laborer, worker, mechanic or truck driver who is regularly employed in the processing, manufacturing or delivery of materials or products by or for to process, manufacture, pick up or deliver materials or products from 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). unless any of the following applies:

AB409, s. 10 Section 10. 66.293 (4) (b) 1. and 2. of the statutes are created to read:

AB409,7,20 66.293 (4) (b) 1. The laborer, worker, mechanic or truck driver is employed to go to the source of mineral aggregate such as sand, gravel or stone that is to be immediately incorporated into the work, and not stockpiled or further transported by truck, pick up that mineral aggregate and deliver that mineral aggregate to 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.

AB409,7,24 2. The laborer, worker, mechanic or truck driver is employed to go to the site of a project that is subject to this section, pick up excavated material or spoil from the site of the project and transport that excavated material or spoil away from the site of the project.

AB409, s. 11 Section 11. 66.293 (8) of the statutes is amended to read:

AB409,8,7 66.293 (8) Posting. For the information of the employes working on the project, the prevailing wage rates and prevailing hours of labor determined by the department or exempted local governmental unit, the prevailing hours of labor and the provisions of subs. (10) (a) and (11) (a) shall be kept posted by the local governmental unit in at least one conspicuous and easily accessible place on the site of the project or, if there is no common site on the project, at the place normally used by the local governmental unit to post public notices.

AB409, s. 12 Section 12. 66.293 (9) (c) of the statutes is amended to read:

AB409,8,23 66.293 (9) (c) Upon completion of a project and before receiving final payment for his or her work on the project, each contractor shall file with the local governmental unit authorizing the work an affidavit stating that the contractor has complied fully with the requirements of this section and that the contractor has received an affidavit under par. (b) from each of the contractor's agents and subcontractors. A local governmental unit may not authorize a final payment until such an affidavit is filed in proper form and order. If a local governmental unit authorizes a final payment before such an affidavit is filed in proper form and order or if the department determines, based on the greater weight of the credible evidence, that any person performing the work specified in sub. (4) has been or may have been paid less than the prevailing wage rate or less than 1.5 times the hourly basic rate of pay for all hours worked in excess of the prevailing hours of labor and requests that the local governmental unit withhold all or part of the final payment, but the local governmental unit fails to do so, the local governmental unit is liable for all back wages payable up to the amount of that the final payment.

AB409, s. 13 Section 13. 66.293 (10) (a) of the statutes is amended to read:

AB409,9,5 66.293 (10) (a) Each contractor, subcontractor or agent thereof performing work on a project that is subject to this section shall keep full and accurate records clearly indicating the name and trade or occupation of every person performing the work described in sub. (4) and an accurate record of the number of hours worked by each of those persons and the actual wages paid therefor.

AB409, s. 14 Section 14. 66.293 (10) (b) of the statutes is amended to read:

AB409,9,15 66.293 (10) (b) The department or the contracting local governmental unit may demand and examine, and it shall be the duty of every contractor, subcontractor and agent thereof to keep and furnish to the department or local governmental unit, copies of payrolls and other records and information relating to the wages paid to persons performing the work described in sub. (4) for work to which this section applies. The department may inspect records in the manner provided in chs. 103 to 106 ch. 103. Every contractor, subcontractor or agent performing work on a project that is subject to this section is subject to the requirements of chs. 103 to 106 ch. 103 relating to the examination of records.

AB409, s. 15 Section 15. 66.293 (10) (c) of the statutes is amended to read:

AB409,9,25 66.293 (10) (c) If requested by any person, the department shall inspect the payroll records of any contractor, subcontractor or agent performing work on a project that is subject to this section to ensure compliance with this section. If the contractor, subcontractor or agent subject to the inspection is found to be in compliance and if the person making the request is a person performing the work specified in sub. (4), the department shall charge the person making the request the actual cost of the inspection. If the contractor, subcontractor or agent subject to the inspection is found to be in compliance and if the person making the request is not a person performing the work specified in sub. (4), the department shall charge the person making the request $250 or the actual cost of the inspection, whichever is greater.

AB409, s. 16 Section 16. 66.293 (10) (d) of the statutes is amended to read:

AB409,10,9 66.293 (10) (d) Section 103.005 (5) (f), (11), (12) and (13) applies to this section, except that s. 103.005 (12) (a) does not apply to any person who fails to provide any information to the department to assist the department in determining prevailing wage rates or prevailing hours of labor under sub. (3) (am) or (ar). Section 111.322 (2m) applies to discharge or and other discriminatory acts arising in connection with any proceeding under this section, including proceedings under sub. (11) (a).

AB409, s. 17 Section 17. 66.293 (11) (a) of the statutes is amended to read:

AB409,10,23 66.293 (11) (a) Any contractor, subcontractor or agent thereof, who fails to pay the prevailing wage rate determined by the department under sub. (3) or who pays less than 1.5 times the hourly basic rate of pay for all hours worked in excess of the prevailing hours of labor determined under sub. (3), shall be liable to any affected employe in the amount of his or her unpaid wages or his or her unpaid overtime compensation and in an additional equal amount as liquidated damages. An action to recover the liability may be maintained in any court of competent jurisdiction by any employe for and in behalf of that employe and other employes similarly situated. No employe may be a party plaintiff to any such action unless the employe consents in writing to become such a party and the consent is filed in the court in which the action is brought. Notwithstanding s. 814.04 (1), the court shall, in addition to any judgment awarded to the plaintiff, allow reasonable attorney fees and costs to be paid by the defendant.

AB409, s. 18 Section 18. 66.293 (11) (b) 2. of the statutes is amended to read:

AB409,11,9 66.293 (11) (b) 2. Whoever induces any individual person who seeks to be or is employed on any project that is subject to this section to give up, waive or return any part of the wages to which the individual person is entitled under the contract governing such project, or who reduces the hourly basic rate of pay normally paid to an employe a person for work on a project that is not subject to this section during a week in which the employe person works both on a project that is subject to this section and on a project that is not subject to this section, by threat not to employ, by threat of dismissal from such employment or by any other means is guilty of an offense under s. 946.15 (1).