AB632: Bill Text

AB632, s. 1 Section 1. 66.293 (1) of the statutes is repealed and recreated to read:

AB632,7,2 66.293 (1) Definitions. In this section:

AB632,7,6 (a) "Area" means the county in which a proposed project that is subject to this section is located and those counties that are contiguous to that county or, if the department modifies a wage determination under sub. (3) (br), "area" means the city, village or town in which a proposed project that is subject to this section is located.

AB632,7,8 (b) "Department" means the department of industry, labor and human relations.

AB632,7,9 (c) "Hourly basic rate of pay" has the meaning given in s. 103.49 (1) (b).

AB632,8,4 (d) "Local governmental unit" means a political subdivision of this state, a special purpose district in this state, an instrumentality or corporation of such a political subdivision or special purpose district, a combination or subunit of any of the foregoing or an instrumentality of the state and any of the foregoing.

AB632,8,5 (e) "Prevailing hours of labor" has the meaning given in s. 103.49 (1) (c).

AB632,8,22 (f) 1. "Prevailing wage rate" for any trade or occupation engaged on any project of public works, except highway, street or bridge construction, in any area means the hourly basic rate of pay, plus the hourly contribution for health insurance benefits, vacation benefits, pension benefits and any other bona fide economic benefit, paid directly or indirectly, for a majority of the hours worked in the trade or occupation on projects, except highway, street or bridge construction, in the area that are not subject to this section, or if there is no rate at which a majority of the hours worked in the trade or occupation on projects, except highway, street or bridge construction, in the area that are not subject to this section is paid, then the prevailing wage rate for any trade or occupation engaged on any project of public works, except highway, street or bridge construction, in any area shall be the average hourly basic rate of pay, weighted by the number of hours worked, plus the average hourly contribution, weighted by the number of hours worked, for health insurance benefits, vacation benefits, pension benefits and any other bona fide economic benefit, paid directly or indirectly to all persons employed in that trade or occupation on projects, except highway, street or bridge construction, in that area that are not subject to this section.

AB632,9,10 2. "Prevailing wage rate" for any trade or occupation in any area engaged on any project of highway, street or bridge construction means the hourly basic rate of pay, plus the hourly contribution for health insurance benefits, vacation benefits, pension benefits and any other bona fide economic benefit, paid directly or indirectly, for a majority of the hours worked in the trade or occupation in the area, or if there is no rate at which a majority of the hours worked in the trade or occupation in the area is paid, then the prevailing wage rate for any trade or occupation engaged on any project of highway, street or bridge construction in any area shall be the average hourly basic rate of pay, weighted by the number of hours worked, plus the average hourly contribution, weighted by the number of hours worked, for health insurance benefits, vacation benefits, pension benefits and any other bona fide economic benefit, paid directly or indirectly to all persons employed in that trade or occupation in that area.

AB632,9,11 (g) "Secretary" means the secretary of industry, labor and human relations.

AB632,9,12 (h) "Truck driver" has the meaning given in s. 103.49 (1) (f).

AB632, s. 2 Section 2. 66.293 (2) of the statutes is repealed.

AB632, s. 3 Section 3. 66.293 (3) (title) of the statutes is created to read:

AB632,9,15 66.293 (3) (title) Prevailing wage rates and hours of labor.

AB632, s. 4 Section 4. 66.293 (3) (intro.) of the statutes is renumbered 66.293 (3) (am) and amended to read:

AB632,9,25 66.293 (3) (am) Every municipality local governmental unit, before making a contract by direct negotiation or soliciting bids on a contract, for any project of public works except, including highway, street or bridge construction, shall apply to the department of industry, labor and human relations to ascertain to determine the prevailing wage rate, and prevailing hours of labor and hourly basic pay rates in all trades and occupations for each trade or occupation required in the work contemplated. The department shall determine the prevailing wage rate, and prevailing hours of labor and hourly basic pay rates for each trade or occupation under s. 103.49, make its determination within 30 days after receiving the request and file the same with the municipality local governmental unit applying therefor.

AB632,10,15 (bm) A Any person may request for the a review of any portion of a wage determination may be made within 30 days from after the determination date if the person submits evidence is submitted 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 area where the proposed project is located. Such evidence shall include wage rate and hours of labor information for the contested trade or occupation on at least one similar project located in the municipality area where the proposed project is located and on which some work has been performed during the current or any of within the previous 12 months. The department shall affirm or modify the original determination within 15 days from after the date on which the department receives the request for review. Reference to such

AB632,11,6 (dm) The prevailing wage rates and prevailing hours of labor determined by the department or a municipality local governmental unit exempted under par. (d) sub. (6) 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 except, including highway, street or bridge construction, is entered into, the prevailing wage rates and prevailing hours of labor determined by the department or exempted municipality local governmental unit shall be physically incorporated into and made a part of the contract or subcontract and may not be changed during the time that the contract or subcontract is in force. No laborer, worker or mechanic employed directly upon the site of the project by the contractor or by a subcontractor, agent or other person, doing or contracting to do any part of the work, person described in sub. (4) may be paid less than the prevailing wage rate in the same or most similar trade or occupation; 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 1-1/2 1.5 times his or her hourly basic rate of pay.

AB632, s. 5 Section 5. 66.293 (3) (a) of the statutes is renumbered 66.293 (11) (a) and amended to read:

AB632,11,23 66.293 (11) (a) Any contractor, subcontractor or agent thereof, who fails to pay the prevailing wage rate of wages determined by the department under this subsection or sub. (3) or who pays less than 1-1/2 1.5 times the hourly basic rate of pay for all hours worked on the project in excess of the prevailing hours of labor determined under this subsection sub. (3), shall be liable to the employes any affected employe in the amount of their his or her unpaid minimum wages or their his or her unpaid overtime compensation and in an additional equal amount as liquidated damages. Action An action to recover the liability may be maintained in any court of competent jurisdiction by any one or more employes employe for and in behalf of that employe or those employes and other employes similarly situated. No employe shall 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. The Notwithstanding s. 814.04 (1), the court shall, in addition to any judgment awarded to the plaintiff, allow a reasonable attorney's fee attorney fees and costs to be paid by the defendant.

AB632, s. 6 Section 6. 66.293 (3) (b) of the statutes is repealed.

AB632, s. 7 Section 7. 66.293 (3) (br) of the statutes is created to read:

AB632,12,13 66.293 (3) (br) In addition to the review under par. (bm), the local governmental unit that requested the wage determination under this subsection may request a review of any portion of a wage determination within 30 days after the determination date if the state agency 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 in which the proposed project is located and on which some work has been performed within the previous 12 months. The department shall affirm or modify the original determination within 15 days after the date on which the department receives the request for review.

AB632, s. 8 Section 8. 66.293 (3) (c) of the statutes is renumbered 66.293 (5) and amended to read:

AB632,13,10 66.293 (5) (title) Nonapplicability . This subsection section does not apply to any highway, street or bridge construction or to any public works project, including highway, street or bridge construction, to which 40 USC 276a applies or to any public works project involving more than one trade for which the estimated project cost of completion is below $3,500 where a single trade is involved and $35,000 where more than one trade is involved on such project (after hearing these dollar amounts shall be adjusted by the department $150,000 or an amount determined by the department under this subsection. The department shall adjust that dollar amount every 2 years, the first adjustment to be made not sooner than January 1, 1976 2001. The adjustments shall be in proportion to any changes in construction costs since the effective date of the dollar amounts established under this subsection immediately prior to each adjustment); nor does this subsection 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 subsection does apply to laborers, workmen or mechanics delivering 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.

AB632, s. 9 Section 9. 66.293 (3) (cm) of the statutes is created to read:

AB632,13,16 66.293 (3) (cm) The department shall withhold from inspection and copying under s. 19.35 (1) all personally identifiable information submitted to the department by contractors, subcontractors and agents thereof for the purpose of assisting the department in determining prevailing wage rates and prevailing hours of labor under this subsection.

AB632, s. 10 Section 10. 66.293 (3) (d) of the statutes is renumbered 66.293 (6) and amended to read:

AB632,13,25 66.293 (6) (title) Exemptions. The department of industry, labor and human relations, upon petition of any municipality local governmental unit, shall issue an order exempting the municipality local governmental unit from applying to the department for a determination under this subsection sub. (3) when it is shown that an ordinance or other enactment of the municipality local governmental unit sets forth the standards, policy, procedure and practice resulting in standards as high or higher than those under s. 103.49 this section.

AB632, s. 11 Section 11. 66.293 (3) (e) of the statutes is renumbered 66.293 (10) (a) and amended to read:

AB632,14,9 66.293 (10) (a) Each contractor, subcontractor or agent thereof participating in performing work on a project covered by this subsection that is subject to this section shall keep full and accurate records clearly indicating the name and trade or occupation of every laborer, workman or mechanic employed by the contractor, subcontractor or agent in connection with the project person described in sub. (4) and an accurate record of the number of hours worked by each employe of those persons and the actual wages paid therefor.

AB632, s. 12 Section 12. 66.293 (3) (f) of the statutes is renumbered 66.293 (8) and amended to read:

AB632,14,17 66.293 (8) (title) 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 municipality local governmental unit and the provisions of pars. (a) and (e) subs. (10) (a) and (11) (a) shall be kept posted by the employer local governmental unit in at least one conspicuous and easily accessible place at the site of the project.

AB632, s. 13 Section 13. 66.293 (3) (g) of the statutes is renumbered 66.293 (9) (b) and amended to read:

AB632,14,24 66.293 (9) (b) Each Upon completion of a project and before final payment for completing a project, each agent or subcontractor shall furnish the contractor with evidence of compliance with an affidavit stating that the agent or subcontractor has complied fully with the requirements of this subsection section. A contractor may not authorize final payment until that affidavit is filed in proper form and order.

AB632, s. 14 Section 14. 66.293 (3) (h) of the statutes is renumbered 66.293 (9) (c) and amended to read:

AB632,15,17 66.293 (9) (c) Upon completion of the a project and prior to before final payment therefor for completing a project, each contractor shall file with the municipality local governmental unit an affidavit stating that the contractor has complied fully with the provisions and requirements of this subsection section and that the contractor has received evidence an affidavit of compliance from each of the contractor's agents and subcontractors. No municipality may 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 that any person 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 final payment.

AB632, s. 15 Section 15. 66.293 (3) (i) of the statutes is renumbered 66.293 (10) (b) and amended to read:

AB632,16,4 66.293 (10) (b) The department of industry, labor and human relations or the contracting municipality local governmental unit may demand and examine, and it shall be the duty of every contractor, subcontractor and agent thereof to furnish to the department and local governmental unit, copies of any payrolls and other records and information relating to the wages paid laborers, workmen or mechanics on to persons described in sub. (4) for work to which this subsection section applies. The department may inspect records in the manner provided in ch. 101. Every contractor, subcontractor or agent performing work on a project that is subject to this section is subject to the requirements of ch. 101 relating to the examination of records.

AB632, s. 16 Section 16. 66.293 (3) (j) of the statutes is renumbered 66.293 (9) (a) and amended to read:

AB632,16,15 66.293 (9) (a) When the department of industry, labor and human relations finds that a municipality local governmental unit has not requested a prevailing wage rate determination or that a local governmental unit, contractor or subcontractor has not physically incorporated a prevailing wage rate determination into the a contract or subcontract as required under this subsection section, the department shall notify the municipality local governmental unit, contractor or subcontractor of such noncompliance and shall file the prevailing wage rate determination with the municipality local governmental unit, contractor or subcontractor within 30 days after such notice.

AB632, s. 17 Section 17. 66.293 (3) (k) of the statutes is renumbered 66.293 (10) (d) and amended to read:

AB632,16,21 66.293 (10) (d) The provisions of s. Section 101.02 (5) (f), (12), (13) and (14) apply applies to this subsection section. Section 111.322 (2m) applies to discharge or other discriminatory acts arising in connection with any proceeding under this subsection section, including proceedings under par. sub. (11) (a).

AB632, s. 18 Section 18. 66.293 (3) (m) of the statutes is renumbered 66.293 (10) (c) and amended to read:

AB632,17,9 66.293 (10) (c) If requested by any person, the department shall inspect the payroll records of the contractors, subcontractors or agents performing work on a project that is subject to this section to ensure compliance with this section. The cost of the inspection shall be paid by the person making the request, if 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 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 specified in sub. (4), the department shall charge the person making the request $250 or the actual cost of the inspection, whichever is greater.

AB632, s. 19 Section 19. 66.293 (3) (n) of the statutes is renumbered 66.293 (12) and amended to read:

AB632,18,4 66.293 (12) (title) Debarment. (a) Except as provided under subds. 2. and 3. pars. (b) and (c), the department of industry, labor and human relations shall notify any municipality local governmental unit applying for a determination under sub. (3) (intro.) and any municipality local governmental unit exempted under par. (d) sub. (6) of the names of all persons whom the department has found to have failed to pay the prevailing wage rate determined under this subsection sub. (3) or has found to have paid less than 1.5 times the hourly basic rate of pay for all hours worked on a project in excess of the prevailing hours of labor determined under this subsection sub. (3) 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 all hours worked on a project in excess of the prevailing hours of labor determined under this subsection. No municipality local governmental unit may award any contract to such person unless otherwise recommended by the department or unless at least 3 years have elapsed from the date the department issued its findings or the date of final determination by a court of competent jurisdiction, whichever is later.

AB632,18,10 (b) The department may not include in a notification under subd. 1. par. (a) the name of any person on the basis of having let work to a person whom the department has found to have failed to pay the prevailing wage rate determined under this subsection sub. (3) or has found to have paid less than 1.5 times the hourly basic rate of pay for all hours worked on a project in excess of the prevailing hours of labor determined under this subsection sub. (3).

AB632,18,14 (c) This paragraph subsection does not apply to any contractor, subcontractor or agent who in good faith commits a minor violation of this section, as determined on a case-by-case basis through administrative hearings with all rights to due process afforded to all parties or who has not exhausted or waived all appeals.

AB632,18,23 (d) Any person submitting a bid on a project that is subject to this section shall be required, on the date the person submits the bid, to identify any construction business in which the person, or a shareholder, officer, partner or member of the person, if the person is a business, owns, or has owned at least a 25% interest on the date the person submits the bid or at any other time within 3 years preceding the date the person submits the bid, if the business has been found to have failed to pay the prevailing wage rate determined under this subsection sub. (3) or to have paid less than 1.5 times the hourly basic rate of pay for all hours worked on a project in excess of the prevailing hours of labor determined under this subsection sub. (3).

AB632,18,25 (e) The department shall promulgate rules to administer this paragraph subsection.

AB632, s. 20 Section 20. 66.293 (4) of the statutes is created to read:

AB632,19,6 66.293 (4) Covered employes. (a) 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 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:

AB632,19,14 1. All laborers, workers, mechanics and truck drivers employed on the site of a project that is subject to this section, or employed in delivering mineral aggregate such as sand, gravel or stone that is immediately incorporated into the work, and not stockpiled or further transported by truck, on 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 in transporting excavated material or spoil from and returning to the site of a project that is subject to this section.

AB632,19,19 2. All laborers, workers, mechanics and truck drivers employed in the manufacturing or furnishing of materials, articles, supplies or equipment on the site of a project that is subject to this section or from a facility dedicated exclusively, or nearly so, to the project by a contractor, subcontractor, agent or other person performing any work on the site of the project.

AB632,20,2 (b) Notwithstanding par. (a), a laborer, worker, mechanic or truck driver who is regularly 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 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).

AB632,20,7 (c) Notwithstanding par. (a), a person who volunteers to perform work on a project that is subject to this section 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).

AB632, s. 21 Section 21. 66.293 (5) of the statutes, as affected by 1995 Wisconsin Act .... (this act), is repealed and recreated to read:

AB632,20,17 66.293 (5) Nonapplicability. This section does not apply to any public works project, including highway, street or bridge construction, to which 40 USC 276a applies or to any public works project involving more than one trade for which the estimated project cost of completion is below $200,000 or an amount determined by the department under this subsection. The department shall adjust that dollar amount every 2 years, the first adjustment to be made not sooner than January 1, 2001. The adjustments shall be in proportion to any changes in construction costs since the effective date of the dollar amounts established under this subsection.

AB632, s. 22 Section 22. 66.293 (7) of the statutes is created to read:

AB632,21,3 66.293 (7) Hardship exception. If a local governmental unit believes that the payment of any prevailing wage rate determined under sub. (3) for a project that is subject to this section would pose a dire financial hardship for the local governmental unit, the local governmental unit may request the secretary to reduce that prevailing wage rate for that project. If the secretary determines that payment of that prevailing wage rate for the project would pose a dire financial hardship for the local governmental unit, the secretary may reduce that prevailing wage rate for the project by not more than 20%. A party aggrieved by a determination of the secretary under this subsection may request judicial review of that determination under s. 227.52.

AB632, s. 23 Section 23. 66.293 (9) (title) of the statutes is created to read:

AB632,21,5 66.293 (9) (title) Compliance.

AB632, s. 24 Section 24. 66.293 (10) (title) of the statutes is created to read:

AB632,21,7 66.293 (10) (title) Records; inspection; enforcement.

AB632, s. 25 Section 25. 66.293 (11) (title) of the statutes is created to read:

AB632,21,9 66.293 (11) (title) Liability and penalties.

AB632, s. 26 Section 26. 66.293 (11) (b) of the statutes is created to read:

AB632,21,14 66.293 (11) (b) 1. Except as provided in subds. 2. and 4., any contractor, subcontractor or agent thereof who violates this section may be fined not more than $200 or imprisoned for not more than 6 months or both. Each day that any such violation continues shall be considered a separate offense.

AB632,21,22 2. Whoever induces any individual 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 is entitled under the contract governing such project, or who reduces the hourly basic rate of pay normally paid to an employe for work on a project that is not subject to this section during a week in which the employe 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).

AB632,22,6 3. Any person employed on a project that is subject to this section who knowingly permits a contractor, subcontractor or agent thereof to pay him or her less than the prevailing wage rate set forth in the contract governing such project, who gives up, waives or returns any part of the compensation to which he or she is entitled under the contract, or who gives up, waives or returns any part of the compensation to which he or she is normally entitled for work on a project that is not subject to this section during a week in which the person works both on a project that is subject to this section and on a project that is not subject to this section, is guilty of an offense under s. 946.15 (2).

AB632,22,14 4. Whoever induces any individual who seeks to be or is employed on any project that is subject to this section to permit any part of the wages to which the individual is entitled under the contract governing such project to be deducted from the individual's pay and deposited with a labor organization for the purpose of subsidizing bids on other projects by threat not to employ or admit to labor organization membership, by threat of dismissal from such employment or labor organization membership or by any other means is guilty of an offense under s. 946.15 (3).

AB632,22,19 5. Any person employed on a project that is subject to this section who knowingly permits any part of the wages to which he or she is entitled under the contract governing such project to be deducted from his or her pay and deposited with a labor organization for the purpose of subsidizing bids on other projects is guilty of an offense under s. 946.15 (4).

AB632, s. 27 Section 27. 103.49 (1) (title) of the statutes is created to read:

AB632,22,21 103.49 (1) (title) Definitions.

AB632, s. 28 Section 28. 103.49 (1) (a) of the statutes is amended to read:

AB632,23,2 103.49 (1) (a) "Area" means the county or other locality from which labor for any project would normally be secured in which a proposed project that is subject to this section is located and those counties that are contiguous to that county or, if the department modifies a wage determination under sub. (3) (c), "area" means the city, village or town in which a proposed project that is subject to this section is located.

AB632, s. 29 Section 29. 103.49 (1) (b) of the statutes is amended to read:

AB632,23,7 103.49 (1) (b) "Hourly basic rate of pay" means the hourly wage paid to any employe, excluding any contributions or payments for health and welfare insurance benefits, vacation benefits, pension benefits and any other bona fide economic benefits, whether paid directly or indirectly.

AB632, s. 30 Section 30. 103.49 (1) (c) of the statutes is renumbered 103.49 (1) (c) (intro.) and amended to read:

AB632,23,15 103.49 (1) (c) (intro.) "Prevailing hours of labor" in for any trade or occupation in any area means the hours of labor per day and per week worked within the area by a larger number of workers than are employed in the trade or occupation for any other number of hours per day or week. In no event shall the prevailing hours of labor be deemed considered to be more than 8 hours per day nor more than 40 hours per week. or to include any hours worked on a Sunday or on any of the following holidays:

AB632, s. 31 Section 31. 103.49 (1) (c) 1. to 8. of the statutes are created to read:

AB632,23,17 103.49 (1) (c) 1. January 1.

AB632,23,18 2. The last Monday in May.

AB632,23,19 3. July 4.

AB632,23,20 4. The first Monday in September.

AB632,23,21 5. The 4th Thursday in November.

AB632,23,22 6. December 25.

AB632,23,23 7. The day before if January 1, July 4 or December 25 falls on a Saturday.