LRB-2926/1
GMM:lmk:ch
2005 - 2006 LEGISLATURE
May 26, 2005 - Introduced by
Joint Committee For Review of Administrative
Rules. Referred to Committee on Labor.
AB442,2,2
1An Act to amend 66.0903 (title), 66.0903 (1) (a), 66.0903 (1) (cm), 66.0903 (1) (g)
21., 66.0903 (1) (g) 2., 66.0903 (3), 66.0903 (4) (a) (intro.), 66.0903 (4) (b) (intro.),
366.0903 (8), 66.0903 (9) (c), 66.0903 (10) (a), 66.0903 (10) (b), 66.0903 (10) (d),
466.0903 (11) (a), 66.0903 (11) (b) 2., 66.0903 (11) (b) 3., 66.0903 (11) (b) 4.,
566.0903 (11) (b) 5., 66.0903 (11) (b) 6., 66.0903 (12) (a), 66.0903 (12) (b), 66.0903
6(12) (d), 103.005 (12) (a), 103.49 (title), 103.49 (1) (a), 103.49 (1) (b), 103.49 (1)
7(bg), 103.49 (1) (d) 1., 103.49 (1) (d) 2., 103.49 (2), 103.49 (2m) (a) (intro.), 103.49
8(2m) (b) (intro.), 103.49 (3) (a), 103.49 (3) (am), 103.49 (3) (ar), 103.49 (3) (b),
9103.49 (3) (c), 103.49 (4r) (c), 103.49 (5) (a), 103.49 (5) (b), 103.49 (6m) (b), 103.49
10(6m) (c), 103.49 (6m) (d), 103.49 (6m) (e), 103.49 (6m) (f), 103.49 (7) (a), 103.49
11(7) (b), 103.49 (7) (d), 103.50 (4m), 103.50 (7) (d), 103.50 (7) (e), 227.01 (13) (t),
12229.8275 (title), 229.8275 (1), 946.15 (1), 946.15 (2), 946.15 (3) and 946.15 (4);
13and
to create 66.0903 (1) (cd), 66.0903 (1) (er), 103.49 (1) (bd) and 103.49 (1)
14(br) of the statutes;
relating to: the determination of prevailing wage rates and
1prevailing fringe benefit rates for workers employed on state or local projects
2of public works and granting rule-making authority.
Analysis by the Legislative Reference Bureau
Under current law, certain laborers, workers, mechanics, and truck drivers
employed on a state or local project of public works must be paid at the prevailing
wage rate, which is defined as 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 (fringe benefits), paid for a majority of the hours
worked in a person's trade or occupation in the area in which a public works project
is located, except that if there is no rate at which a majority of the hours worked in
a trade or occupation on projects in an area is paid, "prevailing wage rate" is defined
as the average hourly basic rate of pay, weighted by the number of hours worked, plus
the average hourly contribution for fringe benefits, weighted by the number of hours
worked, paid for all hours worked at the hourly basic rate of pay of the highest-paid
51 percent of hours worked in the trade or occupation in the area. Currently, the
Department of Workforce Development (DWD) must determine the prevailing wage
rate for each trade or occupation commonly employed on projects of public works in
each area of the state by January 1 of each year, that determination may also include
the determination of future prevailing wage rates if those rates can be determined.
This bill deletes from the definition of "prevailing wage rate" the references to
the hourly contribution for fringe benefits and instead creates a separate definition
of "prevailing fringe benefit rate." As such, the bill requires DWD to make separate
determinations of the prevailing wage rate and the prevailing fringe benefit rate and
requires laborers, workers, mechanics, and truck drivers employed on a state or local
project of public works who are covered under the prevailing wage law to be paid at
the prevailing wage rate and at the prevailing fringe benefit rate. The bill defines
the "prevailing fringe benefit rate" as the hourly contribution for fringe benefits paid
for a majority of the hours worked in a person's trade or occupation in the area in
which a public works project is located, except that if there is no rate at which a
majority of the hours worked in the trade or occupation on projects in the area is paid,
"prevailing fringe benefit rate" is defined as the average hourly contribution for
fringe benefits, weighted by the number of hours worked, paid for all hours worked
at the hourly contribution for fringe benefits of the highest-contribution 51 percent
of hours worked in the trade or occupation on projects in the area.
This bill is introduced as required by s. 227.19 (5) (e), stats., in support of the
objection by the Assembly Committee on Labor on October 26, 2004, and the
objection of the Joint Committee for Review of Administrative Rules on April 27,
2005, to the issuance of Clearinghouse Rule 04-081 by DWD. The proposed rule
required DWD to determine the prevailing wage rate by calculating the sum of the
hourly basic rate of pay and the hourly contribution for fringe benefits, rather than
making those calculations separately.
For further information see the state and local 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:
AB442, s. 1
1Section
1. 66.0903 (title) of the statutes is amended to read:
AB442,3,3
266.0903 (title)
Municipal prevailing wage
, fringe benefit, and hour
3scales.
AB442, s. 2
4Section
2. 66.0903 (1) (a) of the statutes is amended to read:
AB442,3,145
66.0903
(1) (a) "Area" means the county in which a proposed project that is
6subject to this section is located or, if the department determines that there is
7insufficient wage
and fringe benefit data in that county, "area" means those counties
8that are contiguous to that county or, if the department determines that there is
9insufficient wage
and fringe benefit data in those counties, "area" means those
10counties that are contiguous to those counties or, if the department determines that
11there is insufficient wage
and fringe benefit data in those counties, "area" means the
12entire state or, if the department is requested to review a determination under sub.
13(3) (br), "area" means the city, village
, or town in which a proposed project that is
14subject to this section is located.
AB442, s. 3
15Section
3. 66.0903 (1) (cd) of the statutes is created to read:
AB442,3,1716
66.0903
(1) (cd) "Hourly contribution for fringe benefits" has the meaning given
17in s. 103.49 (1) (bd).
AB442, s. 4
18Section
4. 66.0903 (1) (cm) of the statutes is amended to read:
AB442,3,2019
66.0903
(1) (cm) "Insufficient wage
and fringe benefit data" has the meaning
20given in s. 103.49 (1) (bg).
AB442, s. 5
21Section
5. 66.0903 (1) (er) of the statutes is created to read:
AB442,4,5
166.0903
(1) (er) 1. Except as provided in subd. 2., "prevailing fringe benefit
2rate" for any trade or occupation engaged in the erection, construction, remodeling,
3repairing, or demolition of any project of public works in any area means the hourly
4contribution for fringe benefits paid directly or indirectly for a majority of the hours
5worked in the trade or occupation on projects in the area.
AB442,4,136
2. If there is no rate at which a majority of the hours worked in the trade or
7occupation on projects in the area is paid, "prevailing fringe benefit rate" for any
8trade or occupation engaged in the erection, construction, remodeling, repairing, or
9demolition of any project of public works in any area means the average hourly
10contribution for fringe benefits, weighted by the number of hours worked, paid
11directly or indirectly for all hours worked at the hourly contribution for fringe
12benefits of the highest-contribution 51 percent of hours worked in that trade or
13occupation on projects in that area.
AB442, s. 6
14Section
6. 66.0903 (1) (g) 1. of the statutes is amended to read:
AB442,4,2015
66.0903
(1) (g) 1. Except as provided in subd. 2., "prevailing wage rate" for any
16trade or occupation engaged in the erection, construction, remodeling, repairing
, or
17demolition of any project of public works in any area means the hourly basic rate of
18pay
, plus the hourly contribution for health insurance benefits, vacation benefits,
19pension benefits and any other bona fide economic benefit, paid directly or indirectly
, 20for a majority of the hours worked in the trade or occupation on projects in the area.
AB442, s. 7
21Section
7. 66.0903 (1) (g) 2. of the statutes is amended to read:
AB442,5,622
66.0903
(1) (g) 2. If there is no rate at which a majority of the hours worked in
23the trade or occupation on projects in the area is paid, "prevailing wage rate" for any
24trade or occupation engaged in the erection, construction, remodeling, repairing
, or
25demolition of any project of public works in any area means the average hourly basic
1rate of pay, weighted by the number of hours worked,
plus the average hourly
2contribution, weighted by the number of hours worked, for health insurance benefits,
3vacation benefits, pension benefits and any other bona fide economic benefit, paid
4directly or indirectly for all hours worked at the hourly basic rate of pay of the
5highest-paid
51% 51 percent of hours worked in that trade or occupation on projects
6in that area.
AB442, s. 8
7Section
8. 66.0903 (3) of the statutes is amended to read:
AB442,5,218
66.0903
(3) Prevailing wage rates, fringe benefit rates, and hours of labor. 9(am) A local governmental unit, before making a contract by direct negotiation or
10soliciting bids on a contract, for the erection, construction, remodeling, repairing
, or
11demolition of any project of public works, including a highway, street
, or bridge
12construction project, shall apply to the department to determine the prevailing wage
13rate
and prevailing fringe benefit rate for each trade or occupation required in the
14work contemplated. The department shall conduct investigations and hold public
15hearings as necessary to define the trades or occupations that are commonly
16employed on projects that are subject to this section and to inform itself as to the
17prevailing wage rates
and prevailing fringe benefit rates in all areas of the state for
18those trades or occupations, in order to determine the prevailing wage rate
and
19prevailing fringe benefit rate for each trade or occupation. The department shall
20issue its determination within 30 days after receiving the request and shall file the
21determination with the requesting local governmental unit.
AB442,6,622
(ar) The department shall, by January 1 of each year, compile the prevailing
23wage rates
and prevailing fringe benefit rates for each trade or occupation in each
24area. The compilation shall, in addition to the current prevailing wage rates
and
25prevailing fringe benefit rates, include future prevailing wage rates
and prevailing
1fringe benefit rates when those prevailing wage rates
and prevailing fringe benefit
2rates can be determined for any trade or occupation in any area and shall specify the
3effective date of those future prevailing wage rates
and prevailing fringe benefit
4rates. If a construction project extends into more than one area there shall be but
5one standard of prevailing wage rates
and prevailing fringe benefit rates for the
6entire project.
AB442,6,137
(av) In determining prevailing wage rates
and prevailing fringe benefit rates 8under par. (am) or (ar), the department may not use data from projects that are
9subject to this section, s. 103.49
, or 103.50 or
40 USC 276a 3141 to 3148 unless the
10department determines that there is insufficient wage
and fringe benefit data in the
11area to determine those prevailing wage rates
and prevailing fringe benefit rates, in
12which case the department may use data from projects that are subject to this
13section, s. 103.49
, or 103.50 or
40 USC 276a 3141 to 3148.
AB442,6,2314
(bm) Any person may request a recalculation of any portion of an initial
15determination within 30 days after the initial determination date if the person
16submits evidence with the request showing that the prevailing wage rate
or
17prevailing fringe benefit rate for any given trade or occupation included in the initial
18determination does not represent the prevailing wage rate
or prevailing fringe
19benefit rate for that trade or occupation in the area. The evidence shall include wage
20rate
or fringe benefit rate information reflecting work performed by persons working
21in the contested trade or occupation in the area during the current survey period.
22The department shall affirm or modify the initial determination within 15 days after
23the date on which the department receives the request for recalculation.
AB442,7,1324
(br) In addition to the recalculation under par. (bm), the local governmental
25unit that requested the determination under this subsection may request a review
1of any portion of a determination within 30 days after the date of issuance of the
2determination if the local governmental unit submits evidence with the request
3showing that the prevailing wage rate
or prevailing fringe benefit rate for any given
4trade or occupation included in the determination does not represent the prevailing
5wage rate
or prevailing fringe benefit rate for that trade or occupation in the city,
6village
, or town in which the proposed project is located. That evidence shall include
7wage rate
or fringe benefit rate information for the contested trade or occupation on
8at least 3 similar projects located in the city, village
, or town where the proposed
9project is located and on which some work has been performed during the current
10survey period and which were considered by the department in issuing its most
11recent compilation under par. (ar). The department shall affirm or modify the
12determination within 15 days after the date on which the department receives the
13request for review.
AB442,8,914
(dm) A reference to the prevailing wage rates
and prevailing fringe benefit
15rates determined by the department or a local governmental unit exempted under
16sub. (6) and to the prevailing hours of labor shall be published in the notice issued
17for the purpose of securing bids for the project. If any contract or subcontract for a
18project of public works, including a highway, street
, or bridge construction project,
19is entered into, the prevailing wage rates
and prevailing fringe benefit rates 20determined by the department or exempted local governmental unit and the
21prevailing hours of labor shall be physically incorporated into and made a part of the
22contract or subcontract, except that for a minor subcontract, as determined by the
23department, the department shall prescribe by rule the method of notifying the
24minor subcontractor of the prevailing wage rates
, prevailing fringe benefit rates, and
25prevailing hours of labor applicable to the minor subcontract. The prevailing wage
1rates
, prevailing fringe benefit rates, and prevailing hours of labor applicable to a
2contract or subcontract may not be changed during the time that the contract or
3subcontract is in force. No person performing the work described in sub. (4) may be
4paid less than the prevailing wage rate
and prevailing fringe benefit rate in the same
5or most similar trade or occupation determined under this subsection; nor may he
6or she be permitted to work a greater number of hours per day or per week than the
7prevailing hours of labor, unless he or she is paid for all hours worked in excess of
8the prevailing hours of labor at a rate of at least 1.5 times his or her hourly basic rate
9of pay.
AB442, s. 9
10Section
9. 66.0903 (4) (a) (intro.) of the statutes is amended to read:
AB442,8,1611
66.0903
(4) (a) (intro.) Subject to par. (b), all of the following employees shall
12be paid the prevailing wage rate
and prevailing fringe benefit rate determined under
13sub. (3) and may not be permitted to work a greater number of hours per day or per
14week than the prevailing hours of labor, unless they are paid for all hours worked in
15excess of the prevailing hours of labor at a rate of at least 1.5 times their hourly basic
16rate of pay:
AB442, s. 10
17Section
10. 66.0903 (4) (b) (intro.) of the statutes is amended to read:
AB442,8,2518
66.0903
(4) (b) (intro.) Notwithstanding par. (a) 1., a laborer, worker, mechanic
, 19or truck driver who is regularly employed to process, manufacture, pick up
, or deliver
20materials or products from a commercial establishment that has a fixed place of
21business from which the establishment regularly supplies processed or
22manufactured materials or products is not entitled to receive the prevailing wage
23rate
or prevailing fringe benefit rate determined under sub. (3) or to receive at least
241.5 times his or her hourly basic rate of pay for all hours worked in excess of the
25prevailing hours of labor unless any of the following applies:
AB442, s. 11
1Section
11. 66.0903 (8) of the statutes is amended to read:
AB442,9,82
66.0903
(8) Posting. For the information of the employees working on the
3project, the prevailing wage rates
and prevailing fringe benefit rates determined by
4the department or exempted local governmental unit, the prevailing hours of labor
, 5and the provisions of subs. (10) (a) and (11) (a) shall be kept posted by the local
6governmental unit in at least one conspicuous and easily accessible place on the site
7of the project or, if there is no common site on the project, at the place normally used
8by the local governmental unit to post public notices.
AB442, s. 12
9Section
12. 66.0903 (9) (c) of the statutes is amended to read:
AB442,9,2510
66.0903
(9) (c) Upon completion of a project and before receiving final payment
11for his or her work on the project, each contractor shall file with the local
12governmental unit authorizing the work an affidavit stating that the contractor has
13complied fully with the requirements of this section and that the contractor has
14received an affidavit under par. (b) from each of the contractor's agents and
15subcontractors. A local governmental unit may not authorize a final payment until
16the affidavit is filed in proper form and order. If a local governmental unit authorizes
17a final payment before an affidavit is filed in proper form and order or if the
18department determines, based on the greater weight of the credible evidence, that
19any person performing the work specified in sub. (4) has been or may have been paid
20less than the prevailing wage rate
, less than the prevailing fringe benefit rate, or less
21than 1.5 times the hourly basic rate of pay for all hours worked in excess of the
22prevailing hours of labor and requests that the local governmental unit withhold all
23or part of the final payment, but the local governmental unit fails to do so, the local
24governmental unit is liable for all back wages
and fringe benefits payable up to the
25amount of the final payment.
AB442, s. 13
1Section
13. 66.0903 (10) (a) of the statutes is amended to read:
AB442,10,72
66.0903
(10) (a) Each contractor, subcontractor
, or contractor's or
3subcontractor's agent performing work on a project that is subject to this section
4shall keep full and accurate records clearly indicating the name and trade or
5occupation of every person performing the work described in sub. (4) and an accurate
6record of the number of hours worked by each of those persons and the actual wages
7and fringe benefits paid for the hours worked.
AB442, s. 14
8Section
14. 66.0903 (10) (b) of the statutes is amended to read:
AB442,10,179
66.0903
(10) (b) The department or the contracting local governmental unit
10may demand and examine, and every contractor, subcontractor
, and contractor's or
11subcontractor's agent shall keep, and furnish upon request by the department or
12local governmental unit, copies of payrolls and other records and information
13relating to the wages
and fringe benefits paid to persons performing the work
14described in sub. (4) for work to which this section applies. The department may
15inspect records in the manner provided in ch. 103. Every contractor, subcontractor
, 16or agent performing work on a project that is subject to this section is subject to the
17requirements of ch. 103 relating to the examination of records.
AB442, s. 15
18Section
15. 66.0903 (10) (d) of the statutes is amended to read:
AB442,10,2519
66.0903
(10) (d) Section 103.005 (5) (f), (11), (12)
, and (13) applies to this
20section, except that s. 103.005 (12) (a) does not apply to any person who fails to
21provide any information to the department to assist the department in determining
22prevailing wage rates
and prevailing fringe benefit rates under sub. (3) (am) or (ar).
23Section 111.322 (2m) applies to discharge and other discriminatory acts arising in
24connection with any proceeding under this section, including proceedings under sub.
25(11) (a).
AB442, s. 16
1Section
16. 66.0903 (11) (a) of the statutes is amended to read:
AB442,11,142
66.0903
(11) (a) Any contractor, subcontractor
, or contractor's or
3subcontractor's agent who fails to pay the prevailing wage rate
or prevailing fringe
4benefit rate determined by the department under sub. (3) or who pays less than 1.5
5times the hourly basic rate of pay for all hours worked in excess of the prevailing
6hours of labor is liable to any affected employee in the amount of his or her unpaid
7wages
or his or her, unpaid fringe benefits, or unpaid overtime compensation and in
8an additional equal amount as liquidated damages. An action to recover the liability
9may be maintained in any court of competent jurisdiction by any employee for and
10in behalf of that employee and other employees similarly situated. No employee may
11be a party plaintiff to the action unless the employee consents in writing to become
12a party and the consent is filed in the court in which the action is brought.
13Notwithstanding s. 814.04 (1), the court shall, in addition to any judgment awarded
14to the plaintiff, allow reasonable attorney fees and costs to be paid by the defendant.
AB442, s. 17
15Section
17. 66.0903 (11) (b) 2. of the statutes is amended to read:
AB442,11,2416
66.0903
(11) (b) 2. Whoever induces any person who seeks to be or is employed
17on any project that is subject to this section to give up, waive
, or return any part of
18the wages
or fringe benefits to which the person is entitled under the contract
19governing the project, or who reduces the hourly basic rate of pay
or hourly
20contribution for fringe benefits normally paid to a person for work on a project that
21is not subject to this section during a week in which the person works both on a
22project that is subject to this section and on a project that is not subject to this section,
23by threat not to employ, by threat of dismissal from employment
, or by any other
24means is guilty of an offense under s. 946.15 (1).
AB442, s. 18
25Section
18. 66.0903 (11) (b) 3. of the statutes is amended to read:
AB442,12,10
166.0903
(11) (b) 3. Any person employed on a project that is subject to this
2section who knowingly permits a contractor, subcontractor
, or contractor's or
3subcontractor's agent to pay him or her less than the prevailing wage rate
or
4prevailing fringe benefit rate set forth in the contract governing the project, who
5gives up, waives
, or returns any part of the compensation to which he or she is
6entitled under the contract, or who gives up, waives
, or returns any part of the
7compensation to which he or she is normally entitled for work on a project that is not
8subject to this section during a week in which the person works both on a project that
9is subject to this section and on a project that is not subject to this section, is guilty
10of an offense under s. 946.15 (2).
AB442, s. 19
11Section
19. 66.0903 (11) (b) 4. of the statutes is amended to read:
AB442,12,1712
66.0903
(11) (b) 4. Whoever induces any person who seeks to be or is employed
13on any project that is subject to this section to permit any part of the wages
or fringe
14benefits to which the person is entitled under the contract governing the project to
15be deducted from the person's pay is guilty of an offense under s. 946.15 (3), unless
16the deduction would be permitted under
29 CFR 3.5 or
3.6 from a person who is
17working on a project that is subject to
40 USC 276c 3141 to 3148.
AB442, s. 20
18Section
20. 66.0903 (11) (b) 5. of the statutes is amended to read:
AB442,12,2419
66.0903
(11) (b) 5. Any person employed on a project that is subject to this
20section who knowingly permits any part of the wages
or fringe benefits to which he
21or she is entitled under the contract governing the project to be deducted from his or
22her pay is guilty of an offense under s. 946.15 (4), unless the deduction would be
23permitted under
29 CFR 3.5 or
3.6 from a person who is working on a project that is
24subject to
40 USC 276c 3141 to 3148.
AB442, s. 21
25Section
21. 66.0903 (11) (b) 6. of the statutes is amended to read:
AB442,13,3
166.0903
(11) (b) 6. Subdivision 1. does not apply to any person who fails to
2provide any information to the department to assist the department in determining
3prevailing wage rates
or prevailing fringe benefit rates under sub. (3) (am) or (ar).
AB442, s. 22
4Section
22. 66.0903 (12) (a) of the statutes is amended to read:
AB442,13,185
66.0903
(12) (a) Except as provided under pars. (b) and (c), the department
6shall notify any local governmental unit applying for a determination under sub. (3)
7and any local governmental unit exempted under sub. (6) of the names of all persons
8whom the department has found to have failed to pay the prevailing wage rate
or
9prevailing fringe benefit rate determined under sub. (3) or has found to have paid less
10than 1.5 times the hourly basic rate of pay for all hours worked in excess of the
11prevailing hours of labor at any time in the preceding 3 years. The department shall
12include with each name the address of the person and shall specify when the person
13failed to pay the prevailing wage rate
or prevailing fringe benefit rate and when the
14person paid less than 1.5 times the hourly basic rate of pay for all hours worked in
15excess of the prevailing hours of labor. A local governmental unit may not award any
16contract to the person unless otherwise recommended by the department or unless
173 years have elapsed from the date the department issued its findings or the date of
18final determination by a court of competent jurisdiction, whichever is later.
AB442, s. 23
19Section
23. 66.0903 (12) (b) of the statutes is amended to read:
AB442,13,2520
66.0903
(12) (b) The department may not include in a notification under par.
21(a) the name of any person on the basis of having let work to a person whom the
22department has found to have failed to pay the prevailing wage rate
or prevailing
23fringe benefit rate determined under sub. (3) or has found to have paid less than 1.5
24times the hourly basic rate of pay for all hours worked in excess of the prevailing
25hours of labor.
AB442, s. 24
1Section
24. 66.0903 (12) (d) of the statutes is amended to read:
AB442,14,112
66.0903
(12) (d) Any person submitting a bid or negotiating a contract on a
3project that is subject to this section shall, on the date
on which the person submits
4the bid or negotiates the contract, identify any construction business in which the
5person, or a shareholder, officer
, or partner of the person, if the person is a business,
6owns, or has owned at least a 25
% percent interest on the date the person submits
7the bid or negotiates the contract or at any other time within 3 years preceding the
8date the person submits the bid or negotiates the contract, if the business has been
9found to have failed to pay the prevailing wage rate
or prevailing fringe benefit rate 10determined under sub. (3) or to have paid less than 1.5 times the hourly basic rate
11of pay for all hours worked in excess of the prevailing hours of labor.
AB442, s. 25
12Section
25. 103.005 (12) (a) of the statutes is amended to read: