The participants are under continued and direct supervision by either representatives of the rehabilitation facility or by employees of the business.
The placements are made according to the requirements of the participant's IWRP and not to meet the labor needs of the business.
The periods of time spent by the participants at any one site or in any clearly distinguishable job classification are specifically limited by the IWRP.
A participant is not entitled to employment at the business at the conclusion of his or her IWRP, however, if a participant does becomes an employee, he or she cannot be considered to be a trainee at that particular community-based placement unless he or she is in a clearly distinguishable occupation.
An employment relationship shall exist unless all of the criteria described in par. (b)
are met. If an employment relationship is found to exist, the business shall be held responsible for full compliance with the applicable sections of the minimum wage law.
Businesses and rehabilitation organizations may, at any time, consider participants to be employees and may structure a program so that the participants are compensated in accordance with the requirements of the minimum wage law. Whenever an employment relationship is established, the business may make use of the special minimum wage provisions provided by this section.
DWD 272.09 History
Cr. Register, July, 1978, No. 271
, eff. 8-1-78; r. and recr. (2) (a) 1. and am. (2) (a) intro. and 2., Register, August, 1987, No. 380
, eff. 9-1-87; r. (1), (2) and (4), renum. (3) to be (15), cr. (1) to (14), (16) and (17), Register, January, 1991, No. 421
, eff. 2-1-91; am. (1) (g) (h) (intro.) and (m), Register, May, 1997, No. 497
, eff. 6-1-97; correction in (1) (h) 2. made under s. 13.92 (4) (b) 6.
, Stats., Register February 2009 No. 638
; 2019 Wis. Act 1
: am. (1) (e), (n) Register May 2019 No. 761
, eff. 6-1-19; CR 20-031
: am. (1) (g), (m), (15) (c) 7. Register October 2021 No. 790
, eff. 11-1-21.
DWD 272.10 Listing deductions from wages.
An employer shall state clearly on the employee's paycheck, pay envelope, or paper accompanying the wage payment the number of hours worked, the rate of pay and the amount of and reason for each deduction from the wages due or earned by the employee, except such miscellaneous deductions as may have been authorized by request of individual employees for reasons personal to themselves. A reasonable coding system may be used by the employers.
DWD 272.10 History
Cr. Register, July, 1978, No. 271
, eff. 8-1-78;
cr. (1) (dm) and (18), renum. (1) (g) to (i) to be (1) (i), (L) and (n), (1) (g), (h), (j), (k) and (m) renum. from Ind 72.01 (12) to (15) and (17), Register, February, 1996, No. 482
, eff. 3-1-96.
DWD 272.11 Permanent records to be kept by the employer. DWD 272.11(1)(1)
Every employer shall make and keep for at least 3 years payroll or other records for each of their employees which contain:
When employee's meal periods are required or when such meal periods are to be deducted from work time.
This requirement shall not apply when work is of such a nature that production or business activity ceases on a regularly scheduled basis.
The amount of and reason for each deduction from the wages earned.
The required records or a duplicate copy thereof shall be kept safe and accessible at the place of employment or business at which the employee is employed, or at one or more established central record keeping offices in the state of Wisconsin.
The required records shall be made available for inspection and transcription by a duly authorized deputy of the department during the business hours generally observed by the office at which they are kept or in the community generally.
DWD 272.11 History
Cr. Register, July, 1978, No. 271
, eff. 8-1-78.
DWD 272.12 Interpretation of hours worked. DWD 272.12(1)(a)1.1.
Employees subject to the statutes must be paid for all time spent in “physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer's business." The workweek ordinarily includes “all time during which an employee is necessarily required to be on the employer's premises, on duty or at a prescribed work place."
“Workday," in general, means the period between “the time on any particular workday at which such employee commences their principal activity or activities" and “the time on any particular workday at which they cease such principal activity or activities." The “workday" may thus be longer than the employee's scheduled shift, hours, tour of duty, or time on the production line. Also, its duration may vary from day to day depending upon when the employee commences or ceases their “principal" activities.
DWD 272.12(2)(a)1.1. General.
Work not requested but suffered or permitted is work time. For example, an employee may voluntarily continue to work at the end of the shift. They may be a pieceworker, they may desire to finish an assigned task or they may wish to correct errors, past work tickets, prepare time reports or other records. The reason is immaterial. The employer knows or has reason to believe that they are continuing to work and the time is working time.
Work performed away from the premises or job site. The rule is also applicable to work performed away from the premises or the job site, or even at home. If the employer knows or has reason to believe that the work is being performed, they must count the time as hours worked.
3. Duty of management.
In all such cases it is the duty of the management to exercise its control and see that the work is not performed if it does not want it to be performed. It cannot sit back and accept the benefits without compensating for them. The mere promulgation of a rule against such work is not enough. Management has the power to enforce the rule and must make every effort to do so.
DWD 272.12(2)(b)1.1. General.
Whether waiting time is time worked depends upon particular circumstances. The determination involves “scrutiny and construction of the agreements between particular parties, appraisal of their practical construction of the working agreement by conduct, consideration of the nature of the service, and its relation to the waiting time, and all of the circumstances. Facts may show that the employee was engaged to wait, or they may show that he/she waited to be engaged."
2. On duty.
A stenographer who reads a book while waiting for dictation, a messenger who works a crossword puzzle while awaiting assignments, a firefighter who plays checkers while waiting for alarms and a factory worker who talks to fellow employees while waiting for machinery to be repaired are all working during their periods of inactivity. The rule also applies to employees who work away from the plant. For example, a repairperson is working while they wait for their employer's customer to get the premises in readiness. The time is work time even though the employee is allowed to leave the premises or the job site during such periods of inactivity. The periods during which these occur are unpredictable. They are usually of short duration. In either event the employee is unable to use the time effectively for their own purposes. It belongs to and is controlled by the employer. In all of these cases waiting is an integral part of the job. The employee is engaged to wait.
3. Off duty.
Periods during which an employee is completely relieved from duty and which are long enough to enable them to use the time effectively for their own purposes are not hours worked. They are not completely relieved from duty and cannot use the time effectively for their own purposes unless they are definitely told in advance that they may leave the job and that they will not have to commence work until a definitely specified hour has arrived.
4. On-call time.
An employee who is required to remain on call on the employer's premises or so close thereto that they cannot use the time effectively for their own purposes is working while “on call." An employee who is not required to remain on the employer's premises but is merely required to leave word at their home or with company officials where they may be reached is not working while on call.
DWD 272.12(2)(c)1.1. Rest.
Rest periods of short duration, running less than 30 minutes are common in industry. They promote the efficiency of the employee and are customarily paid for as working time. They must be counted as hours worked. Compensable time of rest periods may not be offset against other working time such as compensable waiting time or on-call time.
Bona fide meal periods of 30 minutes or more are not work time. Bona fide meal periods do not include coffee breaks or time for snacks. These are rest periods. The employee must be completely relieved from duty for the purposes of eating regular meals. Ordinarily 30 minutes or more is long enough for a bona fide meal period. The employee is not relieved if they are required to perform any duties, whether active or inactive, while eating. For example, an office employee who is required to eat at their desk or a factory worker who is required to be at their machine is working while eating.
(d) Sleeping time and certain other activities.
Under certain conditions an employee is considered to be working even though some of their time is spent in sleeping or in certain other activities.
“Home care premises" means premises or locations, including group homes, in which the employer is acting either directly or indirectly as an agent to provide home care services for an elderly person, a person with a disability, a person otherwise in need of care and assistance in the home, or for the family of such a person.
“Homelike environment" means facilities, including private quarters as defined in par. (f)
, and also including facilities for cooking and eating on the same premises; for bathing in private; and for recreation, such as television. The amenities and quarters shall be suitable for long-term residence by individuals and shall be similar to those found in typical private residence or apartment, rather than those found in institutional facilities such as dormitories, barracks, and short-term facilities for travelers.
“Off-duty" means the time period during which the employee is completely relieved from duty and is free to leave the home care premises or otherwise use the time for his or her benefit.
“On-duty" means the period of time the employee is required to be on the home care premises or otherwise working for the employer.
“Private quarters" means living quarters that are furnished, are separate from the clients and from any other staff members, have as a minimum the same furnishings available to clients, such as bed, table, chair, lamp, dresser, closet, and in which the employee is able to leave his or her belongings during on-duty and off-duty periods.
An employee who is required to be on duty for less than 24 hours is working even though they are permitted to sleep or engage in other personal activities when not busy. A telephone operator, for example, who is required to be on duty for specified hours is working even though they are permitted to sleep when not busy answering calls. It makes no difference that they are furnished facilities for sleeping. Their time is given to their employer. They are required to be on duty and the time is work time.
Where an employee is required to be on duty for 24 consecutive hours or more, the employer and the employee pursuant to a mutual written agreement may agree to exclude bona fide meal periods and a bona fide regularly scheduled sleeping period of not more than 8 hours from hours worked per 24-hour period, provided adequate sleeping facilities are furnished by the employer and the employee can usually enjoy an uninterrupted night's sleep. If the sleeping period is more than 8 hours, only 8 hours shall be credited per 24-hour period. Where no written agreement to the contrary is present, the 8 hours of sleeping time and lunch periods constitute hours worked. If the sleeping period is interrupted by a call to duty, the interruption shall be counted as hours worked. Employers may take credit for board and lodging as prescribed by s. DWD 272.03 (3)
, whichever is applicable. Record keeping requirements provided in s. DWD 272.11
If the sleeping period is interrupted by a call to duty, the interruption must be counted as hours worked. If the period is interrupted to such an extent that the employee cannot get a reasonable night's sleep, the entire period must be counted.
Employees residing on employer's premises, home care premises or working at home. An employee who resides on his or her employer's premises or home care premises on a permanent basis or for extended periods of time is not considered as working all the time he or she is on the premises. Ordinarily, the employees may engage in normal private pursuits and thus have enough time for eating, sleeping, entertaining, and other periods of complete freedom from all duties when he or she may leave the premises for purposes of his or her own. It is of course difficult to determine the exact hours worked under these circumstances and any reasonable written agreement of the parties which takes into consideration all of the pertinent facts shall be accepted.
When an employee who provides home care services does not maintain his or her permanent residence on the home care premises and does not otherwise reside on the premises 7 days a week, the department shall consider an employee who sleeps in private quarters, in a homelike environment, to reside on the premises for an extended period of time within the meaning of par. (d)
4, if the employee resides on the premises for a period of at least 120 hours in a workweek.
An employee shall be found to reside on the premises for extended periods of time if both of the following apply: the employee is on duty at the home care premises and is compensated for at least 8 hours in each of 5 consecutive 24-hour periods; and the employee sleeps on the premises for all sleep periods between the beginning and end of the 120 hour period. Any 24-hour period can be utilized, and the 8 compensated hours per 24-hour period need not be consecutive. An employee who is on duty and compensated for the period 5:00 p. m. to 10:00 p.m. Monday, 6:00 a.m. to 9:00 a.m. and 3:00 p.m. to 10:00 p.m. Tuesday through Friday, and 6:00 a.m. to 9:00 a.m. Saturday, and who sleeps on the premises (10:00 p.m. to 6:00 a.m.) for all sleep periods from Monday night through Friday night, has been compensated for at least 8 hours in 5 consecutive 24-hour periods between 5:00 p.m. Monday and 5:00 p.m. Saturday. The employee would also have slept 5 consecutive nights on the premises. Provided the other conditions were met, this would be considered to be residing on the premises for an extended period of time. An employee who is on duty and is compensated from 6:00 a.m. to 9:00 a.m. and 5:00 p.m. to 10:00 p.m., Monday through Friday, and who sleeps Monday through Thursday nights on the premises, would be considered to reside on the premises for extended periods of time. These employees are called “full-time" employees.
Where one or more employees meet the “full-time employee residing on the premises test" of subd. 5. b.
, the department shall apply the provisions of par. (d) 4.
to one or more “relief" employees who reside on the premises for 1 to 3 nights, provided these employees are on duty and are compensated for at least 8 hours in each 24-hour period in question and sleep on the premises all intervening nights. Although it is anticipated that there will be no more than one relief employee for each full-time employee, it is possible that there may be more then one. To come within the provisions the relief employee shall be relieving a full-time employee. That is, the full-time employee and the employee or employees relieving that employee may not be on duty for more than a combined total of 7 days and 7 nights in each workweek. A part-time employee shall not be considered a relief employee if that employee and the full-time employee being relieved are on duty simultaneously for more than one hour a day.
In order to deduct sleep time for full-time and relief employees, the employees shall be provided private quarters in a homelike environment. A reasonable agreement shall be reached, in advance, regarding compensable time. The employer and the employee may agree to exclude up to 8 hours per night of uninterrupted sleep time. They may also agree to exclude a period of off-duty time during the day when the employee is completely relieved of all responsibilities. These exclusions shall be the result of an employe-employer agreement and not a unilateral decision of the employer. Such an agreement should normally be in writing to preclude any possible misunderstanding of the terms and conditions of the individual's employment.
Where sleep time is to be deducted, the employer should determine if the following criteria are met: the employer and the employee have reached agreement in advance that sleep time is being deducted; adequate sleeping facilities with private quarters were furnished; if interruptions occurred, employees got at least 5 hours of sleep during the scheduled sleeping period; employees are compensated for any interruptions in sleep; and no more than 8 hours of sleep time is deducted for each full 24-hour on-duty period.
Sleep time may not be deducted for relief or other part-time employees who are not relieving a full-time employee, unless such employees are themselves on duty for 24 hours or more as provided in subd. 3.
An off-duty period during a weekday for such employees breaks an on-duty period for the purposes of subd. 3.
For example, a duty period from 5:00 p.m. of one day to 5:00 p.m. the following day, during which an employee has uncompensated free time between 9:00 a.m. and 3:00 p.m. of the on-duty period, is not considered to be a 24-hour period.
The term “principal activities"includes all activities which are an integral part of a principal activity. Two examples of what is meant by an integral part of a principal activity are the following:
In connection with the operation of a lathe, an employee will frequently, at the commencement of their workday, oil, grease, or clean their machine, or install a new cutting tool. Such activities are an integral part of the principal activity, and are included within such term.
In the case of a garment worker in a textile mill, who is required to report 30 minutes before other employees report to commence their principal activities, and who during such 30 minutes distributes clothing or parts of clothing at the workbenches of other employees and gets machines in readiness for operation by other employees, such activities are among the principal activities of such employee. Such preparatory activities are compensable under this chapter.
Among the activities included as an integral part of the principal activity are those closely related activities which are indispensable to its performance. If an employee in a chemical plant, for example, cannot perform their principal activities without putting on certain clothes, changing clothes on the employer's premises at the beginning and end of the workday would be an integral part of the employee's principal activity. On the other hand, if changing clothes is merely a convenience to the employee and not directly related to their principal activities, it would be considered as a “preliminary" or “postliminary" activity rather than a principal part of the activity. However, activities such as checking in and out and waiting in line to do so would not ordinarily be regarded as integral parts of the principal activity or activities.
DWD 272.12(2)(f)1.1. General.
Attendance at lectures, meetings, training programs and similar activities need not be counted as working time if the following 4 criteria are met:
The course, lecture, or meeting is not directly related to the employee's job; and
2. Involuntary attendance.
Attendance is not voluntary, of course, if it is required by the employer. It is not voluntary in fact if the employee is given to understand or led to believe that their present working conditions or the continuance of their employment would be adversely affected by nonattendance.
Training directly related to employee's job. The training is directly related to the employee's job it if is designed to make the employee handle their job more effectively as distinguished from training them for another job, or to a new or additional skill. For example, stenographers who are given a course in stenography are engaged in an activity to make them a better stenographer. Time spent in such a course given by the employer or under their auspices is hours worked. However, if the stenographers take a course in bookkeeping, it may not be directly related to their job. Thus, the time they spend voluntarily in taking such a bookkeeping course, outside of regular working hours, need not be counted as working time. Where a training course is instituted for the bona fide purpose of preparing for advancement through upgrading the employee to a higher skill, and is not intended to make the employee more efficient in their present job, the training is not considered directly related to the employee's job even though the course incidentally improves their skill in doing their regular work.
4. Independent training.
Of course, if an employee on their own initiative attends an independent school, college or independent trade school after hours, the time is not hours worked for their employer even if the courses are related to their job.
5. Apprenticeship training.
As an enforcement policy, time spent in an organized program of related, supplemental instruction by employees working under bona fide apprenticeship programs may be excluded from working time if the following criteria are met:
The apprentice is employed under a written apprenticeship agreement or program which substantially meets the fundamental standards of the bureau of apprenticeship standards of the department of workforce development, and
Such time does not involve productive work or performance of the apprentice's regular duties. If the above criteria are met the time spent in such related supplemental training shall not be counted as hours worked unless the written agreement specifically provides that it is hours worked. The mere payment or agreement to pay for time spent in related instruction does not constitute an agreement that such time is hours worked.
DWD 272.12(2)(g)1.1. General.
The principles which apply in determining whether or not time spent in travel is working time depend upon the kind of travel involved.