1995 Wisconsin Act 27

27,3742b Section 3742b. 102.17 (1) (a) of the statutes is amended to read:

102.17 (1) (a) Upon the filing with the department by any party in interest of any application in writing stating the general nature of any claim as to which any dispute or controversy may have arisen, it shall mail a copy of such application to all other parties in interest and the insurance carrier shall be deemed a party in interest. The department may bring in additional parties by service of a copy of the application. The department shall cause notice of hearing on the application to be given to each party interested, by service of such notice on the interested party personally or by mailing a copy to the interested party's last-known address at least 10 days before such hearing. In case a party in interest is located without the state, and has no post-office address within this state, the copy of the application and copies of all notices shall be filed in the office of the secretary of state with the department of financial institutions and shall also be sent by registered or certified mail to the last-known post-office address of such party. Such filing and mailing shall constitute sufficient service, with the same effect as if served upon a party located within this state. The hearing may be adjourned in the discretion of the department, and hearings may be held at such places as the department designates, within or without the state. The department may also arrange to have hearing held by the commission, officer or tribunal having authority to hear cases arising under the worker's compensation law of any other state, of the District of Columbia, or of any territory of the United States, the testimony and proceedings at any such hearing to be reported to the department and to be part of the record in the case. Any evidence so taken shall be subject to rebuttal upon final hearing before the department.

27,3743 Section 3743 . 102.39 of the statutes is amended to read:

102.39 General orders; application of statutes. The provisions of ch. 101, s. 103.005 relating to the adoption, publication, modification and court review of general orders of the department shall apply to all general orders adopted pursuant to this chapter.

27,3743m Section 3743m. 102.42 (8) of the statutes is amended to read:

102.42 (8) Award to state employe. Whenever an award is made by the department in behalf of a state employe, the department of industry, labor and human relations shall file duplicate copies of the award with the department of administration. Upon receipt of the copies of the award, the department of administration shall promptly issue a voucher in payment of the award from the proper appropriation under s. 20.865 (1) (dm) (fm), (kr) or (ur), and shall transmit one copy of the voucher and the award to the officer, department or agency by whom the affected employe is employed.

27,3744 Section 3744 . 102.42 (9) (b) of the statutes is amended to read:

102.42 (9) (b) Such specialist shall study the problems of rehabilitation, both physical and vocational and shall refer suitable cases to the department of health and social services for vocational evaluation and training. The specialist shall investigate and maintain a directory of such rehabilitation facilities, private and public, as are capable of rendering competent rehabilitation service to seriously injured employes.

27,3745 Section 3745 . 102.61 (1m) (a) of the statutes is amended to read:

102.61 (1m) (a) If the department of health and social services has determined under sub. (1) that an employe is eligible for vocational rehabilitation services under 29 USC 701 to 797b, but that the department of health and social services cannot provide those services for the employe, the employe may select a private rehabilitation counselor certified by the department of industry, labor and human relations to determine whether the employe can return to suitable employment without rehabilitative training and, if that counselor determines that rehabilitative training is necessary, to develop a rehabilitative training program to restore as nearly as possible the employe to his or her preinjury earning capacity and potential.

27,3745g Section 3745g. 102.64 (1) of the statutes is amended to read:

102.64 (1) Upon request of the department of administration, a representative of the department of justice shall represent the state in cases involving payment into or out of the state treasury under s. 20.865 (1) (dm) (fm), (kr) or (ur) or 102.29. The department of justice, after giving notice to the department of administration, may compromise the amount of such payments but such compromises shall be subject to review by the department of industry, labor and human relations. If the spouse of the deceased employe compromises his or her claim for a primary death benefit, the claim of the children of such employe under s. 102.49 shall be compromised on the same proportional basis, subject to approval by the department. If the persons entitled to compensation on the basis of total dependency under s. 102.51 (1) compromise their claim, payments under s. 102.49 (5) (a) shall be compromised on the same proportional basis.

27,3746 Section 3746 . 103.001 of the statutes is created to read:

103.001 Definitions. In chs. 103 to 106, the following words and phrases have the designated meanings unless a different meaning is expressly provided:

(3) “Department" means the department of industry, labor and human relations.

(4) “Deputy" means any person employed by the department designated as a deputy, who possesses special, technical, scientific, managerial or personal abilities or qualities in matters within the jurisdiction of the department, and who may be engaged in the performance of duties under the direction of the secretary, calling for the exercise of such abilities or qualities.

(5) “Employe" means any person who may be required or directed by any employer, in consideration of direct or indirect gain or profit, to engage in any employment, or to go or work or be at any time in any place of employment.

(6) “Employer" means any person, firm, corporation, state, county, town, city, village, school district, sewer district, drainage district and other public or quasi-public corporations as well as any agent, manager, representative or other person having control or custody of any employment, place of employment or of any employe.

(7) “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).

(8) “Frequenter" means every person, other than an employe, 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.

(9) “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.

(10) “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.

(11) “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.

(12) “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 employes 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.

(13) “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.

(14) “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 employes 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.

(15) “Secretary" means the secretary of industry, labor and human relations.

(16) “Welfare" includes comfort, decency and moral well-being.

27,3747 Section 3747 . 103.005 of the statutes is created to read:

103.005 Powers, duties and jurisdiction of department. (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.

(3) 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.

(4) 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.

(5) (a) 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.

(b) 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.

(c) In the discharge of his or her duties such agent shall have every power of an inquisitorial nature granted in chs. 103 to 106 to the department, the same powers as a court commissioner with regard to the taking of depositions and all powers granted by law to a court commissioner relative to depositions.

(d) 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.

(e) 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.

(f) 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 to 106 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.

(6) (a) 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.

(b) All general orders shall take effect as provided in s. 227.22. Special orders shall take effect as directed in the special order.

(c) The department shall, upon application of any employer or owner, grant such time as may be reasonably necessary for compliance with any order.

(d) 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.

(e) 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 to 106.

(f) 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.

(g) 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.

(h) 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.

(i) 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.

(7) (a) Any person affected by any local order in conflict with an order of the department, may in the manner provided in sub. (6) (e) to (i), 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) to (i).

(b) 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.

(8) (a) 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) to (i), 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.

(b) 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.

(9) A substantial compliance with the requirements of chs. 103 to 106 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.

(10) Orders of the department under chs. 103 to 106 shall be subject to review in the manner provided in ch. 227.

(11) Every day during which any person or corporation, or any officer, agent or employe 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 to 106, shall constitute a separate and distinct violation of the order or of the requirement under chs. 103 to 106, whichever is applicable.

(12) (a) If any employer, employe, owner, or other person violates chs. 103 to 106, or fails or refuses to perform any duty required under chs. 103 to 106, 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 to 106, for each such violation, failure or refusal, the employer, employe, owner or other person shall forfeit not less than $10 nor more than $100 for each offense.

(b) 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.

(13) (a) The secretary or any examiner appointed by the secretary may hold hearings and take testimony.

(b) 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.

(c) 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.

(cm) 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.

(d) 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.

(14) (a) 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.

(b) 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 to 106.

(c) 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.

(d) Every employer and every owner shall furnish to the department all information required by the department to administer and enforce chs. 103 to 106, and shall provide specific answers to all questions that the department asks relating to any information the department requires.

(e) Any employer receiving from the department any form requesting information that the department requires to administer and enforce chs. 103 to 106, 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.

(15) 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.

(16) Each of the commissioners, the secretary or any deputy secretary may certify to official acts, and take testimony.

27,3748 Section 3748 . 103.02 of the statutes is amended to read:

103.02 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 to 103.03. 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 pursuant to the proceeding in ss. 101.01 to 101.25 which are hereby made a part hereof, so far as not inconsistent with ss. 103.01 to 103.03, and every order of the department shall have the same force and effect as the orders issued under ss. 101.01 to 101.25 as provided in s. 103.005 and the penalties therein under s. 103.005 (12) shall apply to and be imposed for any violation of ss. 103.01 to 103.03. 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.

27,3749 Section 3749 . 103.13 (1) (intro.) and (a) of the statutes are consolidated, renumbered 103.13 (1) and amended to read:

103.13 (1) Definitions Definition. In this section : (a) “Employe" has the meaning specified in s. 101.01 (2) (a) and also, “employe" includes former employes.

27,3750 Section 3750 . 103.13 (1) (b) of the statutes is repealed.

27,3751 Section 3751 . 103.14 (1) of the statutes is repealed.

27,3752 Section 3752 . 103.14 (2) of the statutes is renumbered 103.14.

27,3753 Section 3753 . 103.25 (2) of the statutes is amended to read:

103.25 (2) If upon investigation, the department determines that there are practical difficulties or unnecessary hardships in carrying out sub. (1), the department may by general or special order make reasonable exceptions or modifications with due regard for the life, health, safety and welfare of minors employed in street trades. The investigation and orders shall be made pursuant to ss. 101.01 to 101.25, and have the same force and effect as orders issued pursuant to those sections as provided under s. 103.005. These orders are subject to review as provided in ch. 227.

27,3753m Section 3753m. 103.49 (2) of the statutes is amended to read:

103.49 (2) Any contract hereafter made for the erection, construction, remodeling or repairing of any public building or for any other project of public works, except contracts for the construction or maintenance of public highways and bridges, to which the state, any department thereof or, any public building corporation or the University of Wisconsin Hospitals and Clinics Authority is a party shall contain a stipulation that no laborer, workman or mechanic employed directly upon the site of the work by the contractor or by any subcontractor, agent or other person, doing or contracting to do all or a part of the work, shall be permitted to work a greater number of hours per day or per calendar week than the prevailing hours of labor determined pursuant to this section, except that any such laborer, workman or mechanic may be permitted or required to work more than such prevailing number of hours per day and per calendar week if he is paid for all hours in excess of the prevailing hours at a rate of at least 1-1/2 times his hourly basic rate of pay; nor shall he be paid less than the prevailing wage rate in the same or most similar trade or occupation in the area wherein such public building or project of public works is situated; nor shall this section apply to wage rates and hours of employment of laborers, workmen or mechanics engaged in the processing or manufacture of materials or products or to the delivery thereof by or for commercial establishments which have a fixed place of business from which they regularly supply such processed or manufactured materials or products; except that this section shall apply to laborers, workmen or mechanics who deliver mineral aggregate such as sand, gravel or stone which is incorporated into the work under the contract by depositing the material substantially in place, directly or through spreaders, from the transporting vehicle. The prevailing wage rates, prevailing hours of labor, and hourly basic rates of pay determined pursuant to this section shall be set forth specifically in the contract.

27,3753p Section 3753p. 103.49 (4) of the statutes is amended to read:

103.49 (4) Any officer or employe of the state or of the University of Wisconsin Hospitals and Clinics Authority who publishes any specifications or executes any contract for the erection, construction, remodeling or repairing of any public building or of any other project of public works as defined in sub. (2), to which the state, any department thereof or, any public building corporation or the University of Wisconsin Hospitals and Clinics Authority is a party without complying with this section and any contractor, subcontractor or agent thereof who, after executing a contract in compliance with this section, pays to any laborer, workman or mechanic employed directly upon the site of the work in his or their employ a lesser wage for work done under such contract than the prevailing wage rate as set forth in the contract shall be fined not more than $200, or imprisoned for not more than 6 months, or both. Such agent or subcontractor shall furnish to the contractor evidence of compliance with this section. Each day any violation of this subsection continues shall be deemed a separate offense.

27,3753r Section 3753r. 103.49 (7) (a) of the statutes is amended to read:

103.49 (7) (a) Except as provided under pars. (b) and (c), the department shall distribute to all state agencies, as defined in s. 20.001 (1), and to the University of Wisconsin Hospitals and Clinics Authority a list of persons whom the department has found to have failed to pay the prevailing wage rate determined under sub. (1) or to have paid less than 1.5 times the hourly basic rate of pay for hours worked on a project in excess of the prevailing hours determined under sub. (1) at any time in the preceding 3 years. The department shall include with any such name the address of such person and shall specify when and how such person has failed to pay the prevailing wage rate determined under this subsection and when and how such person has failed to pay less than 1.5 times the hourly basic rate of pay for hours worked on a project in excess of the prevailing hours of labor determined under this subsection. No state agency may A state agency or the University of Wisconsin Hospitals and Clinics Authority may not award any contract to such person unless otherwise recommended by the department or unless 3 years have elapsed from the date the department issued its findings or date of final determination by a court of competent jurisdiction, whichever is later.

27,3754 Section 3754 . 103.545 (6) of the statutes is amended to read:

103.545 (6) Upon complaint of an affected employer, labor organization or employe, the department may investigate violations and issue orders to enforce this section. The investigations and orders shall be made under ss. 101.01 to 101.25. Every order issued under this subsection has the same force and effect as orders issued under ss. 101.01 to 101.25, except as otherwise provided in this section as provided under s. 103.005. Orders are subject to review as provided in ch. 227. The department of justice may, upon request of the commission, prosecute violations of this section in any court of competent jurisdiction.

27,3755 Section 3755 . 103.64 (1) of the statutes is repealed.

27,3756 Section 3756 . 103.66 (title) of the statutes is amended to read:

103.66 (title) Powers and duties of the department relating to employment of minors.

27,3756m Section 3756m. 103.66 (1) of the statutes is amended to read: