"Employment" means any trade, occupation or process of manufacture, or any method of carrying on such trade, occupation or process of manufacture in which any person may be engaged, except in such private domestic service as does not involve the use of mechanical power and in farm labor as used in sub. (12)
"Frequenter" means every person, other than an employee, who may go in or be in a place of employment or public building under circumstances which render such person other than a trespasser. Such term includes a pupil or student when enrolled in or receiving instruction at an educational institution.
"General order" means such order as applies generally throughout the state to all persons, employments, places of employment or public buildings, or all persons, employments or places of employment or public buildings of a class under the jurisdiction of the department. All other orders of the department shall be considered special orders.
"Local order" means any ordinance, order, rule or determination of any common council, board of alderpersons, board of trustees or the village board, of any village or city, a regulation or order of the local board of health, as defined in s. 250.01 (3)
, or an order or direction of any official of a municipality, upon any matter over which the department has jurisdiction.
"Order" means any decision, rule, regulation, direction, requirement or standard of the department, or any other determination arrived at or decision made by the department.
"Place of employment" includes every place, whether indoors or out or underground and the premises appurtenant thereto where either temporarily or permanently any industry, trade or business is carried on, or where any process or operation, directly or indirectly related to any industry, trade or business, is carried on, and where any person is, directly or indirectly, employed by another for direct or indirect gain or profit, but does not include any place where persons are employed in private domestic service which does not involve the use of mechanical power or in farming. "Farming" includes those activities specified in s. 102.04 (3)
, and also includes the transportation of farm products, supplies or equipment directly to the farm by the operator of said farm or employees for use thereon, if such activities are directly or indirectly for the purpose of producing commodities for market, or as an accessory to such production.
"Public building" means any structure, including exterior parts of such building, such as a porch, exterior platform or steps providing means of ingress or egress, used in whole or in part as a place of resort, assemblage, lodging, trade, traffic, occupancy, or use by the public or by 3 or more tenants.
"Safe" or "safety", as applied to an employment or a place of employment or a public building, means such freedom from danger to the life, health, safety or welfare of employees or frequenters, or the public, or tenants, or fire fighters, and such reasonable means of notification, egress and escape in case of fire, and such freedom from danger to adjacent buildings or other property, as the nature of the employment, place of employment, or public building, will reasonably permit.
"Secretary" means the secretary of workforce development.
"Welfare" includes comfort, decency and moral well-being.
Powers, duties and jurisdiction of department. 103.005(1)(1)
The department shall adopt reasonable and proper rules and regulations relative to the exercise of its powers and authorities and proper rules to govern its proceedings and to regulate the mode and manner of all investigations and hearings.
The department shall employ, promote and remove deputies, clerks and other assistants as needed, to fix their compensation, and to assign to them their duties; and shall appoint advisers who shall, without compensation except reimbursement for actual and necessary expenses, assist the department in the execution of its duties.
The department shall collect, collate and publish statistical and other information relating to the work under its jurisdiction and shall make public reports in its judgment necessary.
The department shall conduct such investigations, hold such public meetings and attend or be represented at such meetings, conferences and conventions inside or outside of the state as may, in its judgment, tend to better the execution of its functions.
For the purpose of making any investigation with regard to any employment, the secretary may appoint, by an order in writing, any deputy who is a citizen of the state, or any other competent person as an agent whose duties shall be prescribed in such order.
In the discharge of his or her duties such agent shall have every power of an inquisitorial nature granted in chs. 103
to the department, the same powers as a supplemental court commissioner with regard to the taking of depositions and all powers granted by law to a supplemental court commissioner relative to depositions.
The department may conduct any number of such investigations contemporaneously through different agents, and may delegate to such agent the taking of all testimony bearing upon any investigation or hearing. The decision of the department shall be based upon its examination of all testimony and records. The recommendations made by such agents shall be advisory only and shall not preclude the taking of further testimony if the department so orders nor preclude further investigation.
The secretary may direct any deputy who is a citizen to act as special prosecutor in any action, proceeding, investigation, hearing or trial relating to the matters within its jurisdiction.
Upon the request of the department, the department of justice or district attorney of the county in which any investigation, hearing or trial had under chs. 103
is pending, shall aid therein and prosecute under the supervision of the department, all necessary actions or proceedings for the enforcement of those sections and all other laws of this state relating to the regulation of employment, and for the punishment of all violations thereof.
All orders of the department in conformity with law shall be in force, and shall be prima facie lawful; and all such orders shall be valid and in force, and prima facie reasonable and lawful until they are found otherwise upon judicial review thereof pursuant to ch. 227
or until altered or revoked by the department.
All general orders shall take effect as provided in s. 227.22
. Special orders shall take effect as directed in the special order.
The department shall, upon application of any employer or owner, grant such time as may be reasonably necessary for compliance with any order.
Any person may petition the department for an extension of time, which the department shall grant if it finds such an extension of time necessary.
Any employer or other person interested either because of ownership in or occupation of any property affected by any such order, or otherwise, may petition for a hearing on the reasonableness of any order of the department in the manner provided in chs. 103
Such petition for hearing shall be by verified petition filed with the department, setting out specifically and in full detail the order upon which a hearing is desired and every reason why such order is unreasonable, and every issue to be considered by the department on the hearing. The petitioner shall be deemed to have finally waived all objections to any irregularities and illegalities in the order upon which a hearing is sought other than those set forth in the petition. All hearings of the department shall be open to the public.
Upon receipt of such petition, if the issues raised in such petition have theretofore been adequately considered, the department shall determine the same by confirming without hearing its previous determination, or if such hearing is necessary to determine the issues raised, the department shall order a hearing thereon and consider and determine the matter or matters in question at such times as shall be prescribed. Notice of the time and place of such hearing shall be given to the petitioner and to such other persons as the department may find directly interested in such decision.
Upon such investigation, if the department finds that the order complained of is unjust or unreasonable the department shall substitute for that order such other order as shall be just and reasonable.
Whenever at the time of the final determination upon such hearing it shall be found that further time is reasonably necessary for compliance with the order of the department, the department shall grant such time as may be reasonably necessary for such compliance.
Any person affected by any local order in conflict with an order of the department, may in the manner provided in sub. (6) (e)
, petition the department for a hearing on the ground that such local order is unreasonable and in conflict with the order of the department. The petition for such hearing shall conform to the requirements set forth for a petition in sub. (6) (e)
Upon receipt of a petition under par. (a)
the department shall order a hearing to consider and determine the issues raised by the petition. The hearing shall be held in the village, city or municipality where the local order appealed from was made. Notice of the time and place of such hearing shall be given to the petitioner and such other persons as the department may find directly interested in such decision, including the clerk of the municipality or town from which such appeal comes. If upon such investigation it shall be found that the local order appealed from is unreasonable and in conflict with the order of the department, the department may modify its order and shall substitute for the local order appealed from such order as shall be reasonable and legal in the premises, and thereafter the local order shall, in such particulars, be void and of no effect.
No action, proceeding or suit to set aside, vacate or amend any order of the department or to enjoin the enforcement of an order of the department shall be brought unless the plaintiff has applied to the department for a hearing on the order at the time and as provided in sub. (6) (e)
, and has, in the petition for the hearing under sub. (6)
, raised every issue raised in the action, proceeding or suit to set aside, vacate, amend or enjoin the enforcement of the order of the department.
In a prosecution for the violation of an order of the department, the order of the department shall be conclusively presumed to be just, reasonable and lawful, unless prior to the beginning of the prosecution for the violation a proceeding for judicial review of such order has been instituted as provided in ch. 227
A substantial compliance with the requirements of chs. 103
shall be sufficient to give effect to an order of the department, and no order may be declared inoperative, illegal or void for any omission of a technical nature.
Except as provided in ss. 103.06 (5) (d)
, 103.275 (2) (bm)
, and (bt)
, 103.34 (10) (b)
, and (d)
, 103.91 (4) (b)
, and (d)
, 103.92 (6)
, and (8)
, 104.07 (5)
, and (7)
, and 105.13 (2)
, and (4)
, orders of the department under chs. 103
shall be subject to review in the manner provided in ch. 227
Every day during which any person or corporation, or any officer, agent or employee of a person or corporation, fails to observe and comply with any order of the department or fails to perform any duty required under chs. 103
, shall constitute a separate and distinct violation of the order or of the requirement under chs. 103
, whichever is applicable.
If any employer, employee, owner, or other person violates chs. 103
, or fails or refuses to perform any duty required under chs. 103
, within the time prescribed by the department, for which no penalty has been specifically provided, or fails, neglects or refuses to obey any lawful order given or made by the department or any judgment or decree made by any court in connection with chs. 103
, for each such violation, failure or refusal, the employer, employee, owner or other person shall forfeit not less than $10 nor more than $100 for each offense. This paragraph 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 s. 103.49 (3) (a)
or 103.50 (3)
It shall be the duty of all officers of the state, the counties and municipalities, upon request of the department, to enforce in their respective departments or jurisdictions all lawful orders of the department to the extent that the orders are applicable and consistent with the general duties of such officers.
The secretary or any examiner appointed by the secretary may hold hearings and take testimony.
Each witness who appears before the department by its order shall receive for attendance the fees and mileage provided for witnesses in civil cases in courts of record, which shall be audited and paid by the state in the same manner as other expenses are audited and paid, upon the presentation of properly verified vouchers approved by the secretary, and charged to the proper appropriation for the department. No witness subpoenaed at the instance of an attorney under par. (cm)
or at the instance of a party other than the department is entitled to compensation from the state for attendance or travel unless the department certifies that the testimony was material to the matter investigated.
The department or any party may in any investigation cause the depositions of witnesses residing within or without the state to be taken in the manner prescribed by law for similar depositions in civil actions in circuit courts. The expense incurred by the state in the taking of such depositions shall be charged against the proper appropriations for the department.
A party's attorney of record may issue a subpoena to compel the attendance of a witness or the production of evidence. A subpoena issued by an attorney must be in substantially the same form as provided in s. 805.07 (4)
and must be served in the manner provided in s. 805.07 (5)
. The attorney shall, at the time of issuance, send a copy of the subpoena to the appeal tribunal or other representative of the department responsible for conducting the proceeding.
A full and complete record shall be kept of all proceedings had before the department on any investigation and all testimony shall be taken down by the stenographer appointed by the department.
The department shall administer and enforce, so far as not otherwise provided for in the statutes, the laws relating to child labor, employment, employment offices and all other laws relating to the regulation of employment.
The department shall investigate, ascertain and determine such reasonable classifications of persons and employments as shall be necessary to carry out the purposes of chs. 103
Any commissioner, the secretary or any deputy of the department may enter any place of employment or public building for the purpose of collecting facts and statistics and bringing to the attention of every employer or owner any law relating to the regulation of employment or any order of the department and any failure on the part of such employer or owner to comply with that law or order. No employer or owner may refuse to admit any commissioner, the secretary or any deputy of the department to his or her place of employment or public building.
Every employer and every owner shall furnish to the department all information required by the department to administer and enforce chs. 103
, and shall provide specific answers to all questions that the department asks relating to any information the department requires.
Any employer receiving from the department any form requesting information that the department requires to administer and enforce chs. 103
, along with directions to complete the form, shall properly complete the form and answer fully and correctly each question asked in the form. If the employer is unable to answer any question, the employer shall give a good and sufficient reason for his or her inability to answer the question. The employer's answers shall be verified under oath by the employer, or by the president, secretary or other managing officer of the corporation, if the employer is a corporation, and the completed form shall be returned to the department at its office within the period fixed by the department.
The department may establish a schedule of fees for publications and seminars provided by the department for which no fee is otherwise authorized, required or prohibited by statute. Fees established under this subsection for publications and seminars provided by the department may not exceed the actual cost incurred in providing those publications and seminars. If the department receives unanticipated proceeds from a statewide labor and management conference provided by the department that exceed the actual cost of the conference, the department may use those unanticipated proceeds to provide grants for local labor and management conferences, educational activities and other activities to promote positive relations between labor and management.
Each of the commissioners, the secretary or any deputy secretary may certify to official acts, and take testimony.
The department shall establish a procedure for the department to provide to the state public defender and the department of administration any information that the department may have concerning an individual's wages to assist the state public defender and the department of administration in collecting payment ordered under s. 48.275 (2)
, 973.06 (1) (e)
or 977.076 (1)
The department shall distribute all of the funds under s. 20.445 (1) (cr)
to community action agencies and organizations, including any of the 11 federally recognized tribal governing bodies in this state and limited-purpose agencies, in proportion to the share of funds actually allocated to these entities under 42 USC 1315
and from other federal and private foundation sources that provide funds for job creation and development for individuals with low incomes.
"Employer" means every person having control or custody of any employment or place of employment.
"Employer" includes the state, its political subdivisions and any office, department, independent agency, authority, institution, association, society or other body in state or local government created or authorized to be created by the constitution or any law, including the legislature and the courts.
"Employment" means any trade, occupation or process of manufacture, or any method of carrying on such trade or occupation in which any person may be engaged, or for any place of employment.
"Place of employment" means any manufactory, mechanical or mercantile establishment, beauty parlor, laundry, restaurant, confectionary store, or telegraph or telecommunications office or exchange, any express or transportation establishment or any hotel.
Hours of labor.
No person may be employed or be permitted to work in any place of employment or at any employment for such period of time during any day, night or week, as is dangerous or prejudicial to the person's life, health, safety or welfare. The department shall investigate, ascertain, determine and fix such reasonable classification, and promulgate rules fixing a period of time, or hours of beginning and ending work during any day, night or week, which shall be necessary to protect the life, health, safety or welfare of any person, or to carry out the purposes of ss. 103.01
. The department shall, by rule, classify such periods of time into periods to be paid for at regular rates and periods to be paid for at the rate of at least one and one-half times the regular rates. Such investigations, classifications and orders shall be made as provided in s. 103.005
and the penalties under s. 103.005 (12)
shall apply to and be imposed for any violation of ss. 103.01
. Such orders shall be subject to review in the manner provided in ch. 227
. Section 111.322 (2m)
applies to discharge or other discriminatory acts arising in connection with any proceeding under this section.
See also ch. DWD 274
, Wis. adm. code.
A violation of the public policy expressed by this section is grounds for a wrongful discharge action. Wilcox v. Niagra of Wisconsin Paper Corp. 965 F.2d 355
Wisconsin requires time spent donning and doffing safety gear to be compensated at the minimum wage or higher, and that this time counts toward the limit after which the overtime rate kicks in. Wisconsin law is not preempted by federal law. Spoerle v. Kraft Foods Global, Inc. 614 F.3d 427
Hours of labor; compensatory time. 103.025(1)(a)
"Compensatory time" means hours during which an employee is not working, which are not counted as hours worked during the workweek or other work period classified by the department by rule promulgated under s. 103.02
for purposes of calculating overtime compensation, and for which the employee is compensated at the employee's regular rate of pay.
"Overtime compensation" means the compensation required to be paid for hours worked during periods that the department has classified, by rule promulgated under s. 103.02
, as periods to be paid for at the rate of at least 1.5 times an employee's regular rate of pay.
An employer described in s. 103.01 (1) (b)
may provide an employee, in lieu of overtime compensation, compensatory time off as permitted under 29 USC 207
), as amended to April 15, 1986.
History: 1993 a. 144
The employment of any person in any employment or place of employment at any time other than the permissible hours of labor shall be prima facie evidence of a violation of this section. Every day for each person employed, and every week for each person employed, during which any employer fails to observe or to comply with any order of the department, or to perform any duty enjoined by ss. 103.01
, shall constitute a separate offense.
History: 1975 c. 94
; Stats. s. 103.03.
Labor and industry review commission. 103.04(2)
Notwithstanding s. 227.11
, the commission may not promulgate rules except that it may promulgate its rules of procedure.
The commission may employ professional and other persons to assist in the execution of its duties.
See also LIRC
, Wis. adm. code.