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.
Chapter 103 does not provide the exclusive remedy for enforcement of claims under this section. Claims may be enforced by a private action brought under s. 109.03 (5). German v. DOT, 223 Wis. 2d 525
, 589 N.W.2d 651
(Ct. App. 1998), 98-0250
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
(o), 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.
Hiring reporting system; state directory of new hires. 103.05(1)(1)
The department shall establish and operate a hiring reporting system that includes a state directory of new hires. All requirements under the reporting system shall be consistent with federal laws and regulations that relate to the reporting of newly hired employees for support collection purposes, as part of the state location service under s. 49.22 (2)
, or any other purposes specified in 42 USC 653a
Except as provided in par. (b)
, every employer that employs individuals in the state shall provide to the department information about each newly hired employee.
(b) Paragraph (a)
does not apply to an employer that employs individuals in this state and in at least one other state, if the employer has designated, to the secretary of the federal department of health and human services, a state other than this state for the purpose of providing the information required under par. (a)
. An employer under this paragraph shall notify the department of its designation of another state to the secretary of the federal department of health and human services.
The department shall specify all of the following:
A number of different ways in which employers may report the information required under sub. (2) (a)
, including paper and electronic means.
A timetable for the actions and procedures required under the reporting system, including the reporting required under sub. (2) (a)
Except as provided in par. (b)
, no person may use or disclose information obtained under this section except in the administration of the program under s. 49.22
or a program specified in 42 USC 653a
The department may, to the extent permitted under federal law, disclose information obtained under this section to the department of revenue for the purposes of locating persons, or the assets of persons, who have failed to file tax returns, who have underreported their taxable income or who are delinquent taxpayers, identifying fraudulent tax returns or providing information for tax-related prosecutions.
Except as provided in par. (b)
, and subject to par. (c)
, an employer that violates any provision of this section, or any rule promulgated under this section, may be required to forfeit up to $25 for each employee concerning whom a violation has occurred.
Subject to par. (c)
, an employer may be required to forfeit up to $500 for a failure to supply the information under sub. (2) (a)
about an employee, or for supplying false or incomplete information under sub. (2) (a)
about an employee, as a result of a conspiracy between the employer and the employee to not supply the information or to supply false or incomplete information.
The department shall provide an employer with notice of any violation for which a penalty may be imposed under par. (a)
, and with an opportunity to correct the violation, before imposing any penalty under par. (a)
The department shall deposit all moneys received under this subsection in the appropriation account under s. 20.445 (1) (gd)
If the department determines that the hiring reporting system established under this section will be operational on or before January 1, 1998, the department shall publish a notice in the Wisconsin Administrative Register before that date that states that the system shall begin operating on January 1, 1998.
History: 1997 a. 27
See also ch. DWD 142
, Wis. adm. code.
Worker classification compliance. 103.06(1)(a)
"Business day" means any day on which the offices of the department are open.
"Employee" means any of the following who is employed by an employer:
For purposes of compliance with the requirement specified in sub. (3) (a) 3.
, an employee, as defined in rules promulgated under s. 103.05