LRB-4258/1
GMM:wlj:jf
2003 - 2004 LEGISLATURE
March 11, 2004 - Introduced by Representatives Schooff, Black, Molepske,
Albers, J. Lehman, Townsend, Gunderson, Berceau and Taylor, cosponsored
by Senators Erpenbach, Kanavas, Robson, Carpenter and Hansen. Referred
to Committee on Rules.
AB946,1,4
1An Act to amend 21.72 (1) (a) 10., 49.857 (1) (d) 10., 73.0301 (1) (d) 3m., 103.005
2(10), 111.322 (2m) (a) and 111.322 (2m) (b); and
to create 103.34 of the statutes;
3relating to: the regulation of traveling sales crews, requiring the exercise of
4rule-making authority, and providing penalties.
Analysis by the Legislative Reference Bureau
Current law
House-to-house employment of minors
Under current law, no person may employ, offer to employ, or recruit a minor
to sell goods or services from house-to-house (house-to-house street trades) without
obtaining a house-to-house employer certificate from the Department of Workforce
Development (DWD). A person may obtain a house-to-house employer certificate
by submitting an application to DWD that contains certain information required
under current law, including documentation proving that the person has the ability
to pay any compensation owed to a minor employee, which proof may be in the form
of a bond, certificate of deposit, escrow account, or irrevocable letter of credit in an
amount of at least $5,000 (proof of financial responsibility). If the applicant
establishes proof of financial responsibility and if DWD is satisfied that the applicant
will comply with the laws relating to house-to-house street trades, DWD must issue
a house-to-house employer certificate, which is valid for a 12-month period.
When a minor applies for a job in house-to-house street trades, the
house-to-house employer must inform the minor in writing of the terms and
conditions of employment, including the compensation to be paid, the time and
manner of payment of compensation, the number of days per week and hours per day
that the minor would be required to conduct house-to-house street trades, the
nature and frequency of required employment-related meetings and how
compensation is paid for attendance at those meetings, whether and how the
employer provides transportation, and the expenses that the minor would be
required to pay. A house-to-house employer may change those terms and conditions
by a supplemental document in writing, if the change applies prospectively only.
DWD may suspend or revoke a house-to-house employer certificate if the
employer submits false information in the application, fails to notify DWD of any
change in that information within 30 days after the change occurs, fails to comply
with the terms and conditions of a written disclosure statement, fails to maintain
proof of financial responsibility, or fails to comply with the laws relating to
house-to-house street trades.
The bill
Traveling sales crews
Certificate of registration
This bill regulates traveling sales crews, which the bill defines as two 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 residences
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.
Specifically, under the bill, a person may not 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 DWD. A person may obtain a certificate
of registration by completing an application, meeting the minimum requirements
under the bill and under rules promulgated by DWD for issuance of a certificate of
registration, and paying a registration fee determined by DWD by rule. The
application must contain certain information specified in the bill, including all of the
following:
1. The name, address, and telephone number of the applicant and, if the
applicant is engaged in sales activities on behalf of a principal, the name, address,
and telephone number of the principal.
2. The names and permanent home addresses of all proprietors, managing
partners, managers, or principal officers of the applicant, proof of identification of
those individuals, and information relating to the conviction records of those
individuals.
3. 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 crews, proof of identification of
those individuals, and information relating to the conviction records of those
individuals.
4. The type of sales activities to be performed and the nature of the goods or
services to be sold.
5. A statement identifying each motor vehicle that will be used to transport
traveling sales crew workers and documentation showing that each motor vehicle
complies with all state and federal safety standards applicable to the motor vehicle.
6. A statement indicating whether the duties of the traveling sales crew
workers of the applicant will include the storage, handling, or transportation of
hazardous materials or may result in any other exposure of the traveling sales crew
workers to hazardous materials and, if so, documentation showing that the applicant
is in compliance with all state and federal safety standards applicable to the storage,
handling, and transportation of the hazardous materials.
7. Documentation that the applicant has complied with the proof of financial
responsibility, written disclosure statement, and proof of insurance requirements
under the bill.
On receipt of an application, DWD must investigate to determine whether the
applicant is qualified to receive a certificate of registration. That investigation must
include a criminal history search 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. After
completing the investigation, DWD must issue a certificate of registration, which is
valid for a 12-month period, if the applicant meets the minimum requirements for
issuance of a certificate of registration and DWD is satisfied that the applicant will
comply with the bill and rules promulgated under the bill.
DWD may deny, suspend, revoke, restrict, or refuse to renew a certificate of
registration if any of the following apply:
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 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.
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,
as defined in the bill, within the five years preceding the date of the application.
Generally, a disqualifying offense under the bill includes certain offenses relating to
drugs or alcohol, if committed in connection with or incident to any traveling sales
crew activities; certain crimes involving misappropriation of property, if the value of
the property misappropriated is $2,500 or more; and certain crimes against life or
bodily security, such as homicide, assault, or sexual assault, certain crimes involving
damage to or trespass against property, such as arson or burglary, certain crimes
involving prostitution, and certain crimes against children.
3. The applicant or registrant has made a material misrepresentation or false
statement in the application.
4. The applicant or registrant has failed to notify DWD of any change in the
information submitted in the application within 30 days after the change occurs.
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.
