The term “regular employee" means a person employed year round by an employer and who engages in activities as a migrant labor contractor solely for his/her employer.
The term “employer's own operation" means any farm or other business enterprise owned or managed by the employer.
The term “migrant labor contractor's immediate family" includes only:
Submit a separate application for a farm labor contractor employee identification card on the form used to comply with 29 USC 1811
(b) for each officer, director, partner, or agent of the contractor at the time of application or within 10 days after hiring such person.
Keep records which show for each worker recruited: name in full, home address, all sums paid to the contractor on account of the labor or recruitment of the worker, the cost to the contractor of goods and services provided the worker and all sums and the purpose for all sums received from or on behalf of the worker. The contractor shall preserve such records for a period of 3 years and shall make them available to the worker or the department for inspection upon request.
Provide a policy under s. 103.91 (8) (f)
, Stats., the limits of which with respect to each vehicle shall be not less than $100,000 for each seat in the vehicle, but in no event is the total insurance required to be more than $5,000,000 for any one vehicle. The number of seats in the vehicle shall be determined pursuant to the federal regulations relating to the transportation of migrant and seasonal agricultural workers under 29 CFR Part 500
. This requirement shall not apply if the contractor furnishes transportation only as the agent of an employer who has obtained a policy of insurance against liability for damages arising out of the operation of motor vehicles with coverage equivalent to the coverage required under this paragraph.
Provide a Form WH-514 (Vehicle Mechanical Inspection Report) for each vehicle used to transport individuals or property in connection with activities as a migrant labor contractor.
Provide every worker recruited a written work agreement as specified in ss. 103.90
, Stats., and this chapter.
The department shall review and make a determination on an application under this section within 20 working days after the application is received.
DWD 301.05 History
Cr. Register, April, 1978, No. 268
, eff. 5-1-78; cr. (9), Register, March, 1986, No. 363
, eff. 4-1-86; renum. from Ind 201.05, Register, February, 1993, No. 446
, eff. 3-1-93; am. (2), (8) (a), (c) and (d), Register, December, 1997, No. 504
, eff. 1-1-98; CR 07-018
: am. (1) and (8) (a) Register December 2007 No. 624
, eff. 1-1-08.
A single work agreement for a family may be used only when all of the terms and conditions of employment are substantially similar for all working family members.
In the department's interpretation of s. 103.915 (1) (a)
, Stats., and in this chapter, the term “employment" means the act of having direction and control of any worker, being responsible for the wages of a worker, or allowing a worker to perform work for the employer.
In the department's interpretation of s. 103.915 (1) (a)
, Stats., and in this chapter, the term “recruitment" means offering a migrant worker employment whether by personal contact, telephone, correspondence, or a recall notice due to a union contract. If recruitment is by telephone, the written work agreement shall be furnished as soon as reasonably possible.
If an employer does not use the department's prescribed migrant labor work agreement form, the employer shall use a form approved by the department. An employer may not use a form unless it has been approved by the department prior to its use.
When considering an employer's form for approval, the department shall, in addition to the requirements of s. 103.915 (4)
, Stats., take into account the clarity and design of such form.
“Kind of work available" means planting, cultivating, raising, harvesting, handling, drying, packing, packaging, processing, freezing, grading or storing any agricultural or horticultural commodity in its unmanufactured state.
The description in the work agreement of the housing to be supplied shall include a description of cooking, bathing, laundry and toilet facilities and a statement of the maximum number of persons to be accommodated in the sleeping area to which the worker will be assigned, in the case of single persons, or, in the case of families, in the housing unit to which the worker will be assigned.
The specific mode of transportation, including the type of vehicle used if the employer is to provide transportation.
The rate of payroll deduction for a travel or subsistence advance, if such advance is to be deducted.
The minimum work guarantee shall cover the period from the date the worker is notified by the employer to report for work, which date shall be no later than 10 days from the approximate beginning date specified in the work agreement, or the date the worker reports for work, whichever is later, and continuing until the date of the final termination of employment, which date shall be no sooner than 7 days before the approximate ending date specified in the work agreement, or earlier if the worker is terminated for cause or due to seriously adverse circumstances beyond the employer's control. If a worker is notified by the employer to report for work or is employed prior to the approximate beginning date specified in the work agreement, the period of employment and the guarantee of minimum work shall begin on the date the worker is notified to report for work or the date the worker reports for work, whichever is later, and shall continue until the final termination of employment, as specified in the work agreement, signed at the time of recruitment, or earlier if the worker is terminated for cause or due to seriously adverse circumstances beyond the employer's control.
The term “seriously adverse circumstances beyond the employer's control" means the substantial shutdown of the employer's operations for reasons including, without limitation because of enumeration, loss of crops, loss of, or inability to operate facilities or inability to store or process unmarketable, perishable agricultural produce; such term shall not apply to the shutdown of the employer's operation for change over of equipment or between packs or crops.
“Terms and conditions of employment" includes, without limitation because of enumeration, job assignment, layoffs, discharge, filling vacancies, transfers, job bidding, seniority, hours, work schedule, overtime pay, leave of absence, benefits, insurance, pension, vacation, holiday leave, sick leave, or general working conditions.
Elapsed time shall be computed, subject to the limits in s. 103.915 (5)
, Stats., on the basis of 500 miles of travel per day.
“Applicable wage rates" means the actual anticipated straight-time hourly rates the worker will be paid. If the worker will be paid on a piece rate basis, the work agreement shall show the employer's guarantee hourly rate. If at the time of recruitment the employer cannot anticipate the exact rate the worker will be paid, the work agreement shall specify a base rate which shall be not less than the base rate paid by the employer at the end of the preceding season for the kind of work specified, together with the words“or more" or similar phrase.
In determining whether the employer has met the weekly or bi-weekly guarantee under s. 103.915 (4) (b)
, Stats., the straight-time hourly rate which the worker was paid for the greatest number of hours during the preceding work guarantee period shall be used. If there was no preceding work guarantee period, the rate paid the worker during the current guarantee period shall be used. If the worker is paid on a piece rate basis, the employer's specified guaranteed hourly rate shall be used.
If the applicable wage rate to be paid includes a bonus provision, the work agreement shall clearly state the conditions under which the bonus shall be paid or forfeited. A work agreement may not state that a migrant worker must continue to work “until the end of the harvest" as a condition to receive a bonus. A bonus may be conditioned on a worker continuing to work up to 7 days beyond the approximate ending date in the work agreement.
When an employer uses multiple sheet forms and signs the agreement first, the work agreement may provide that it may be cancelled by the employer if, by a specific date, the employer or the designated agent has not received a fully signed copy of the work agreement.
The work agreement may provide for cancellation by the employer if the worker fails to notify the employer or designated agent within a reconfirmation period of not less than 15 days of his or her continuing intention to accept the employment. Notification of reconfirmation may be made by collect telephone call, by an employer provided prepaid postcard, or any other means paid for by the employer.
Any work agreement utilizing one or both of the options embodied in subs. (14)
shall set forth the optional language in a highly visible manner compared to the printing of the rest of the work agreement.
DWD 301.06 History
Emerg. cr. (13), eff. 3-30-78; Register, April, 1978, No. 268
, eff. 5-1-78; emerg. cr. (12) and (13), eff. 2-21-79; cr. (12) and (13), Register, May, 1979, No. 281
, eff. 6-1-79; cr. (14) to (16), Register, March, 1986, No. 363
, eff. 4-1-86; renum. from Ind 201.06, Register, February, 1993, No. 446
, eff. 3-1-93; am. (5) and (12) (b), Register, December, 1997, No. 504
, eff. 1-1-98; CR 07-018
: am. (2), (3) and (13), cr. (2m) Register December 2007 No. 624
, eff. 1-1-08.
The application fee for operating a migrant labor camp shall be $50, plus the cost of water sampling and testing under sub. (9) (e)
. Issuance of a certificate to operate will be contingent on the camp satisfying the minimum standards of this chapter. The application fee for a registration after March 31 shall be $100, plus the cost of water sampling and testing under sub. (9) (e)
. The department shall review and make a determination on an application under this subsection within 130 working days after the application is received and within 20 working days after the camp has been inspected. The department shall schedule each inspection promptly, taking into consideration seasonal conditions and the employer's schedule for the use of the camp. If 3 or more inspection visits are needed to certify, the department shall charge an additional fee of $300 for the third inspection and $500 for the fourth inspection and each subsequent inspection.
A camp operator shall file a separate application for a certificate to operate a migrant labor camp for each separate migrant labor camp that the camp operator maintains. In determining whether certain facilities constitute 2 or more separate migrant labor camps, the department shall consider the distance separating the housing units and whether or not there are shared facilities for the use of the people residing in the housing units.
The department shall not conduct any inspection for an applicant under this subsection until the application fee has been paid and the application has been filed.
The department shall charge a fee of $100 for each partial inspection that is requested. A partial inspection is not an additional inspection visit under par. (a)
A visit to a migrant labor camp that is solely for the purpose of obtaining a water sample for testing is not an additional inspection visit under par. (a)
If the only purpose for an additional inspection visit is to verify that specified corrections have been made, the department may instead accept a letter from the camp operator which verifies that the corrections have been made.
(2) Closing order.
Within 3 working days from the date of an order closing a camp, the department shall transmit the file and a copy of the order to the attorney general or the district attorney for the county in which the violation occurred for prosecution.
(3) Notice of revocation.
Every notice of revocation of a certificate to operate a camp shall be accompanied by a closing order.
(4) Gates and gateways.
“Gates and gateways" means a gate or gateway width of which is no less than the aggregate width required for exits under chs. SPS 361
on May 1, 1978 for a building the occupant load of which is the same as the occupant load of the migrant labor camp.
“Camp operator" means a person who maintains a migrant labor camp.
“Common use facilities" means structures or areas other than sleeping or living quarters designed to be used by camp occupants not members of the same family.
“Occupant" means any person who lives in a migrant labor camp.
“Service buildings" means common use facilities for toilets, lavatories, showers and laundry facilities.
Except as provided under par. (b)
, plans and specifications for all new construction including additions to existing buildings intended for use as housing or common use facilities shall be approved by the department before letting contracts or commencing work.
DWD 301.07 Note
Note: Plans and specifications for all new construction, including additions to existing buildings, may also require the approval of the Department of Safety and Professional Services under the Wisconsin Commercial Building Code. Contact the Department of Safety and Professional Services, Division of Safety and Buildings, 201 W. Washington Avenue, Madison, WI 53703 for further information.
An operator constructing any of the following buildings shall not be required to submit plans and specifications under par. (a)
if the operator submits notice of intent to construct such a building to the department prior to constructing such a building:
Single story buildings for use as housing for not more than 2 families.
Buildings for use by not more than 10 persons not members of the same family.
Common use facilities containing less than 25,000 cubic feet total volume providing they have no floor or roof span greater than 30 feet and are not more than 2 stories high.
Three copies of plans and one copy of specifications are required for approval.
A plot plan of the migrant camp which includes the location and grades of adjoining streets, alleys, lot lines and any other buildings on the same lot or property.
Intended use or uses of all rooms, and the number of persons to be accommodated therein.
All requirements of chs. SPS 361
, Wisconsin Commercial Building Code applicable to approval of plans shall apply unless specifically exempted from this code.
One set of approved plans shall be kept by the owner or camp operator and made available to the inspector.
The department may, upon written application by a camp operator and inspection by a migrant labor inspector, grant written permission to individual camp operators to vary temporarily from particular provisions set forth in this section, which variance may not extend beyond March 31 of the year immediately following the year of approval, if the extent of the variance is clearly specified and if the camp operator demonstrates to the department that:
A variance is necessary to obtain a beneficial use of an existing facility;
A variance is necessary to prevent a practical difficulty or unnecessary hardship; and
The department may, upon written application by a camp operator and inspection by a migrant labor inspector, grant written permission to a camp operator to permanently vary from the provisions of this section if:
Appropriate alternative measures have been taken to protect the health and safety of the occupants and to assure that the purpose of the provisions from which variance is sought will be observed.
Written application for a variance under this subsection shall be filed with the department. A variance shall not be effective until granted in writing by the department.
DWD 301.07 Note
Note: The application form for a variance may be obtained by request from the Bureau of Migrant, Refugee, and Labor Services, P.O. Box 7972, Madison WI 53707-7972.
Housing sites shall be well drained and free from depressions in which water may stagnate.
Housing shall not be subject to, or in proximity to conditions which create or are likely to create or attract insects or be subject to noise, traffic, or any similar hazardous condition.
Grounds within the housing site shall be free from debris, noxious plants (poison ivy, etc.) and uncontrolled weeds or brush.
The housing site shall provide a space for recreation reasonably related to the size of the facility and type of occupancy.
No mobile home unit shall be located less than 10 feet from any other building or from the boundary line of the premises on which it is located.
To insure that the housing site is not subject to a hazardous condition arising from pesticide application, the camp operator shall give notice to camp occupants immediately or as soon as reasonably possible, of the aerial application of pesticides on immediately adjacent land, as defined in ch. ATCP 29
, which is owned or controlled by another party, such notice having been received by the camp operator. Camp operators shall request this notice from persons who own or control adjacent land.
To insure that the housing site is not subject to a hazardous condition arising from pesticide application, the camp operator shall provide to camp occupants advance notice of at least 24 hours of any pesticide application on any land adjacent to the camp which is owned or controlled by the camp operator. If the application date or time is changed so that the application will occur before or after the intended date or time specified in the original notice of application, a new notice shall be given as soon as possible prior to the application. In this subdivision, “adjacent land"means land within 250 feet of the housing site, including land separated from the camp by a roadway.
As used in subds. 1.
, notice shall be given in English and in the language of the camp occupants, if other than English, by posting a written statement on a camp bulletin board or at the location where the camp occupants report for work in a place where it can be easily seen by the camp occupants. The notice shall include, but not be limited to: the intended date and time of application, the location of the land on which the pesticide is expected to be applied, the trade or common name of the pesticide and a statement from the pesticide label of the practical treatment for potential side effects, including but not limited to emergency first aid measures and information for physicians on treatment of poisons.