AB946: Bill Text

5. The applicant or registrant has failed to maintain proof of financial responsibility as required under the bill, failed to comply with the written disclosure statement requirements under the bill, failed to pay wages as required under the bill, failed to maintain insurance coverage as required under the bill, engaged in a practice prohibited under the bill, employed a traveling sales crew worker without a permit, or otherwise failed to comply with the bill or any rules promulgated under the bill.

Employer requirements

The bill requires an applicant for a certificate of registration to establish proof of its ability to pay any compensation owed to a traveling sales crew worker, which proof may be in the form of a bond, certificate of deposit, escrow account, or irrevocable letter of credit in an amount approved by DWD, but not less than $10,000.

The bill requires an employer to provide an individual who is offered employment as a traveling sales crew worker with a written disclosure statement of the terms of employment. The written disclosure statement must include all of the following information:

1. The place or places of employment, stated with as much specificity as possible.

2. The compensation to be paid.

3. The type or types of work on which the individual may be employed.

4. The pay period and the manner in which compensation will be paid.

5. The number of days per week and hours per day the individual may be required to engage in sales activities or related support work.

6. The nature and frequency of any employment-related meetings that the individual may be required to attend, the time of day of those meetings, and how compensation is paid for attendance at those meetings.

7. The period of employment, including the approximate beginning and ending dates of employment.

8. A description of the board, lodging, and other facilities to be provided and any costs to be charged to the individual for those facilities.

9. A description of the transportation to be provided and, if the employment will involve the storage, handling, or transportation of a hazardous material or may result in any other exposure to hazardous materials, a description of the hazardous materials.

10. Whether worker's compensation is provided.

The bill also requires an employer of a traveling sales crew worker to do all of the following:

1. Pay all compensation earned by the worker in U.S. currency or by check or draft on regular paydays designated in advance, but in no case less often than semimonthly; to provide with each payment a written statement itemizing gross pay, net pay, and the amount of and reason for each deduction from gross pay; and to keep records of that information for three years after the worker leaves the employ of the employer.

2. Maintain and operate any motor vehicle used to transport traveling sales crews in compliance with all state and federal safety standards that are applicable to the motor vehicle, including any additional safety standards relating specifically to the transportation of sales crews prescribed by DWD by rule.

3. If the duties of a traveling sales crew worker will involve the storage, handling, or transportation of hazardous materials or might otherwise result in exposure of the traveling sales crew worker to hazardous materials, ensure that the hazardous materials are stored, handled, and transported, and that the worker is trained in the storage, handling, and transportation of hazardous materials, in compliance with all state and federal safety standards that are applicable to the hazardous materials, including any additional safety standards relating specifically to the storage, handling, and transportation of hazardous materials by traveling sales crews prescribed by DWD by rule.

4. Have in force a motor vehicle liability insurance policy and an insurance policy covering the negligent acts or omissions of the employer and the employer's employees, agents, and representatives and, if required to do so under the worker's compensation law, provide worker's compensation coverage. (Generally, an employer is required to provide worker's compensation coverage if the employer employs three or more employees or pays wages of $500 or more in any calendar quarter.)

Prohibited practices

The bill prohibits an employer and any employee, agent, or representative of an employer who supervises or transports traveling sales crew workers from doing any of the following:

1. Employing a minor as a traveling sales crew worker an adult who has been adjudged incompetent without the permission of the person's guardian or employing a minor as a traveling sales crew worker.

2. Requiring a traveling sales crew worker to engage in any in-person sales or solicitation activities before 9:00 a.m. or after 9:00 p.m.

3. Considering a traveling sales crew worker to be an independent contractor rather than an employee.

4. Requiring a traveling sales crew worker to purchase any goods or services solely from the employer or to pay any of the employer's business expenses, except that an employer may deduct from a worker's compensation the cost of furnishing board, lodging, or other facilities if those facilities are customarily furnished to the employer's traveling sales crew workers; the amount deducted does not exceed the fair market value of those facilities and does not include any profit to the employer; and the traveling sales crew worker has previously authorized the deduction in the written disclosure statement.

5. Abandoning a traveling sales crew worker who is unable to work due to illness or injury or who is discharged from employment for reasons other than misconduct without providing for the return of the traveling sales crew worker to his or her permanent place of residence.

6. Abandoning a traveling sales crew worker who has been arrested and is being held in custody in connection with a violation of the bill or a local ordinance regulating the conduct regulated by the bill.

7. Requiring a traveling sales crew worker to relinquish custody of any of his or her personal property to the employer, to any employee, agent, or representative of the employer who supervises or transports traveling sales crew workers, or to any other traveling sales crew worker of the employer.

8. Prohibiting or restricting a traveling sales crew worker from contacting any family member, friend, or other person while traveling with the traveling sales crew.

9. Intentionally inflicting or threatening to inflict any bodily harm on a traveling sales crew worker or damage to the property of a traveling sales crew worker as a means of discipline or motivation.

10. Advising or counseling a traveling sales crew worker to make false representations to a person to whom he or she is offering goods or services concerning his or her motivation for selling those goods or services.

11. Discharging or discriminating against any person for opposing any practice prohibited under the bill.

Traveling sales crew worker permits

The bill prohibits an individual from being employed or permitted to work as a traveling sales crew worker unless the employer of the individual first obtains from DWD a traveling sales crew worker permit (permit) for the individual and the individual first obtains from DWD an identification card. The bill requires the permit and identification card to include at a minimum the name and permanent home address of the traveling sales crew worker and the name, address, and phone number of his or her employer.

The bill also requires an employer of a traveling sales crew worker and all employees, agents, or representatives of that employer who supervise or transport traveling sales crew workers to carry at all times while engaged in traveling sales crew activities a copy of the permit obtained for each traveling sales crew worker of the employer and a traveling sales crew worker to carry at all times while engaged in traveling sales crew activities a copy of the identification card.

In addition, the bill requires a traveling sales crew employer to keep a copy of the permit for each traveling sales crew worker of the employer for at least three years after the traveling sales crew worker leaves the employ of the employer, to keep a list of the names of all cities, villages, or towns where traveling sales crew workers of the employer engaged in traveling sales crew activities within the last three years, and at the request of DWD, to provide a list of all cities, villages, or towns where the employer intends to employ traveling sales crews in traveling sales crew activities for the six-month period beginning on the date of the request.

Under the bill, before an employer may permit a traveling sales crew worker of the employer to engage in traveling sales crew activities in any city, village, or town, the employer shall obtain from the clerk of the city, village, or town a stamp or endorsement on the permit of the traveling sales crew worker. The bill requires an employer who obtains that stamp or endorsement to provide notice to local law enforcement authorities that traveling sales crew workers of the employer will be engaging in traveling sales crew activities in that city, village, or town.

The bill also requires law enforcement officers of counties, cities, villages, and towns to assist DWD in enforcing the bill by questioning individuals seen engaging in traveling sales crew activities and reporting to DWD all cases of individuals apparently engaging in traveling sales crew activities in violation of the bill.

Nonapplicability and nonpreemption

Finally, the bill does not apply to fund-raising sales by a nonprofit organization or school and does not preempt a county, city, village, or town from enacting a local ordinance regulating the sale of goods or services to consumers from house to house, on any street, or in any other place that is open to the public.

Because this bill creates a new crime or revises a penalty for an existing crime, the Joint Review Committee on Criminal Penalties may be requested to prepare a report concerning the proposed penalty and the costs or savings that are likely to result if the bill is enacted.

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

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

AB946, s. 1 Section 1. 21.72 (1) (a) 10. of the statutes is amended to read:

AB946,7,2 21.72 (1) (a) 10. A certificate issued under s. 103.275, 103.34, 103.91, or 103.92.

AB946, s. 2 Section 2. 49.857 (1) (d) 10. of the statutes is amended to read:

AB946,7,5 49.857 (1) (d) 10. A certificate issued under s. 103.275, 103.34, 103.91, or 103.92.

AB946, s. 3 Section 3. 73.0301 (1) (d) 3m. of the statutes is amended to read:

AB946,7,9 73.0301 (1) (d) 3m. A license or certificate issued by the department of workforce development under s. 102.17 (1) (c), 103.275 (2) (b), 103.34 (3) (c), 103.91 (1), 103.92 (3), 104.07 (1) or (2), or 105.13 (1).

AB946, s. 4 Section 4. 103.005 (10) of the statutes is amended to read:

AB946,7,14 103.005 (10) Except as provided in ss. 103.275 (2) (bm) and (br), 103.34 (10) (b) and (c), 103.91 (4) (b) and (c), 103.92 (6) and (7), 104.07 (5) and (6), and 105.13 (2) and (3), orders of the department under chs. 103 to 106 shall be subject to review in the manner provided in ch. 227.

AB946, s. 5 Section 5. 103.34 of the statutes is created to read:

AB946,8,2 103.34 Regulation of traveling sales crews. (1) Definitions: In this section:

AB946,8,4 (a) "Certificate of registration" means a certificate of registration issued under this section authorizing a person to employ traveling sales crew workers.

AB946,8,5 (b) "Disqualifying offense" means any of the following:

AB946,8,9 1. A violation of s. 125.07 (1) (a), (2) (a) 1. or 2., or (4) (a) or (b), 125.085 (3) (a) or (b), 125.09 (2), 961.41 (1) or (1m), 961.573 (2), 961.574 (2), or 961.575 (2) or of a substantially similar federal law or law of another state, if the violation was committed in connection with or incident to any traveling sales crew activities.

AB946,8,16 2. A violation of s. 940.01, 940.02, 940.03, 940.05, 940.06, 940.07, 940.08. 940.09, 940.10, 940.19 (2), (4), (5), or (6), 940.21, 940.225 (1), (2), or (3), 940.23, 940.24, 940.25, 940.30, 940.305, 940.31, 943.02, 943.03, 943.04, 943.10, 943.30, 943.31, 943.32, 944.32, 944.33 (2), 944.34, 946.10, 948.02 (1) or (2), 948.025, 948.03 (2) or (3), 948.04, 948.05, 948.055, 948.06, 948.07, 948.075, 948.08, 948.11 (2) (a) or (am), 948.12, 948.13, 948.21 (1), or 948.30 or of a substantially similar federal law or law of another state.

AB946,8,19 3. A violation of s. 943.20, 943.201, 943.21, 943.23, 943.24 (2), 943.34, 943.50, 943.61, 943.62, or 943.70 or of a substantially similar federal law or law of another state, if the value of the property misappropriated is $2,500 or more.

AB946,8,20 (c) "Hazardous materials" has the meaning given in 49 USC 5102 (2).

AB946,9,3 (d) "Traveling sales crew" means 2 or more individuals who are employed as salespersons or in related support work, who travel together in a group, and who are absent overnight from their permanent places of residence for the purpose of selling goods or services to consumers from house to house, on any street, or in any other place that is open to the public. "Traveling sales crew" does not include 2 or more individuals who are traveling together for the purpose of participating in a trade show or convention or 2 or more immediate family members who are traveling together for the purpose of selling goods or services.

AB946,9,6 (e) "Traveling sales crew activities" means the sale of goods or services to consumers from house to house, on any street, or in any other place that is open to the public or related support work.

AB946,9,7 (f) "Traveling sales crew worker" means a member of a traveling sales crew.

AB946,9,18 (2) Registration required. No person may employ, offer to employ, or otherwise recruit an individual to work as a traveling sales crew worker without first obtaining a certificate of registration from the department. To obtain a certificate of registration, a person shall complete an application under sub. (3) (a), meet the minimum requirements specified in sub. (3) (c) for issuance of a certificate of registration, and pay a registration fee determined by the department by rule promulgated under sub. (13). A certificate of registration is valid for 12 months unless sooner suspended, restricted, or revoked and is nontransferable. A registrant may renew a certificate of registration by submitting an application under sub. (3) (a) and paying the registration fee not less than 30 days before the expiration date of the certificate of registration.

AB946,9,20 (3) Application for registration. (a) To obtain a certificate of registration, a person shall complete an application that contains all of the following information:

AB946,9,24 1. The name of the applicant and the address and telephone number of the applicant's principal place of business and, if the applicant is engaged in sales activities on behalf of a principal, the name, address, and telephone number of the principal.

AB946,10,3 2. If the applicant is a corporation, the date and place of the applicant's incorporation or, if the applicant is a limited liability company, the date and place of the applicant's organization.

AB946,10,9 3. The names and permanent home addresses of the proprietors, managing partners, managers, or principal officers of the applicant, together with proof of identification of those individuals, which may be in the form of a birth certificate, a valid operator's license issued under ch. 343 or under a comparable law of another state that contains a photograph of the license holder, or an identification card issued under s. 343.50 or under a comparable law of another state.

AB946,10,13 4. The names, permanent home addresses, motor vehicle operator's license numbers, and dates of birth of all employees, agents, or representatives of the applicant who supervise or transport traveling sales crew workers, together with proof of identification of those individuals, as provided under subd. 3.

AB946,10,17 5. Information regarding the conviction record of all proprietors, managing partners, managers, or principal officers of the applicant, and of all employees, agents, or representatives of the applicant who supervise or transport traveling sales crew workers.

AB946,10,19 6. The social security number or federal employer identification number of the applicant as provided in sub. (10) (a).

AB946,10,23 7. The type of sales activities to be performed and the nature of the goods or services to be sold by the traveling sales crew workers of the applicant. If the goods to be sold are magazine subscriptions, the applicant shall provide the names, addresses, and telephone numbers of the publishers of those magazines.

AB946,11,3 8. A statement identifying each motor vehicle that will be used to transport the applicant's traveling sales crew workers, including the type and license number of each motor vehicle, and documentation showing that each motor vehicle is in compliance with all state and federal safety standards that are applicable to the motor vehicle as provided in sub. (7) (a).

AB946,11,9 9. A statement indicating whether the duties of the applicant's traveling sales crew workers will include the storage, handling, or transportation of hazardous materials or may result in any other exposure of those workers to hazardous materials and, if so, documentation showing that the applicant is in compliance with all state and federal safety standards that are applicable to the storage, handling, and transportation of the hazardous materials as provided in sub. (7) (b).

AB946,11,13 10. Any document required by the department to prove that the applicant has complied with the proof of financial responsibility requirement under sub. (4), the disclosure statement requirement under sub. (5), and the proof of insurance requirement under sub. (8).

AB946,11,16 11. Any other information that the department considers relevant to the protection of the health, safety, and welfare of the traveling sales crew workers employed by the applicant.

AB946,11,23 (b) 1. On receipt of an application under par. (a) and payment of the registration fee under sub. (2), the department of workforce development shall investigate the applicant to determine whether the applicant is qualified under par. (c) to receive a certificate of registration. That investigation shall include a criminal history search by the department of justice of all proprietors, managing partners, managers, or principal officers of the applicant, and of all employees, agents, or representatives of the applicant who supervise or transport traveling sales crew workers.

AB946,12,10 2. If the person being investigated is, or at any time within the 5 years preceding the date of the application has been, a nonresident or if the department of workforce development determines that any information obtained as a result of the criminal history search under subd. 1. provides a reasonable basis for further investigation, the department of workforce development may require the person being investigated to be fingerprinted on 2 fingerprint cards, each bearing a complete set of the person's fingerprints. The department of justice may provide for the submission of the fingerprint cards to the federal bureau of investigation for the purposes of verifying the identification of the person and obtaining the person's criminal conviction record. The department of workforce development shall keep confidential all information received from the department of justice and the federal bureau of investigation under this subdivision.

AB946,12,16 (c) Subject to par. (d) and sub. (10) (b) and (c), after completing the investigation under par. (b), the department shall issue a certificate of registration to the applicant if the department determines that the applicant meets the minimum requirements under this section and rules promulgated under sub. (13) for issuance of a certificate of registration and is satisfied that the applicant will comply with this section and those rules.

AB946,12,19 (d) The department may deny, suspend, revoke, restrict, or refuse to renew a certificate of registration if the department determines that any of the following apply:

AB946,12,24 1. The applicant or registrant is not the real party in interest with respect to the application or certificate of registration, and the real party in interest has previously been denied issuance or renewal of a certificate of registration, has had a certificate of registration suspended, revoked, or restricted, or is not qualified to receive a certificate of registration under par. (c).

AB946,13,4 2. A proprietor, managing partner, manager, or principal officer of the applicant, or an employee, agent, or representative of the applicant who supervises or transports traveling sales crew workers has been convicted of a disqualifying offense within the 5 years preceding the date of the application.

AB946,13,6 3. The applicant or registrant has made a material misrepresentation or false statement in the application for the certificate of registration.

AB946,13,8 4. The applicant or registrant has failed to notify the department of any change in the information submitted in the application as required under par. (e).

AB946,13,19 5. The applicant or registrant has failed to maintain proof of financial responsibility as required under sub. (4); failed to comply with the written disclosure statement requirements under sub. (5) (b); failed to pay wages, provide a statement, or keep, preserve, or furnish records as required under sub. (6); violated a safety standard under sub. (7); failed to maintain insurance coverage as required under sub. (8); engaged in a practice prohibited under sub. (9); employed a traveling sales crew worker in violation of sub. (11) (a) or (c) or failed to keep or furnish records as required under sub. (11) (b); failed to pay a penalty imposed under sub. (12) or to comply with an order of the department imposed as a result of a violation of this section or any rule promulgated under sub. (13); or otherwise failed to comply with this section or any rule promulgated under sub. (13).

AB946,13,22 (e) If any change occurs in any of the information submitted to the department under par. (a), the registrant shall notify the department of that change within 30 days after the change occurs.

AB946,14,4 (f) A registrant and all employees, agents, or representatives of a registrant who supervise or transport traveling sales crew workers shall carry at all times while engaging in traveling sales crew activities a copy of the registrant's certificate of registration and shall exhibit that copy upon the request of any deputy of the department, law enforcement officer, or person with whom the registrant, employee, agent, or representative is doing business. Failure to exhibit that copy upon that request is prima facie evidence of a violation of this section.

AB946,14,7 (4) Financial responsibility. (a) An applicant shall establish proof of its ability to pay any compensation owed to a traveling sales crew worker employed by the applicant and any penalties that may be imposed under sub. (12).

AB946,14,10 (b) An applicant shall prove its ability to pay under par. (a) by maintaining one of the following commitments in an amount approved by the department, but not less that $10,000, and in a form approved by the department: