Initial Regulatory Flexibility Analysis
These proposed rules will be reviewed by the Department through its Small Business Review Advisory Committee to determine whether there will be an economic impact on a substantial number of small businesses, as defined in s. 227.114 (1) (a), Stats.
Copies of Rule and Contact Person
Copies of this proposed rule are available without cost upon request to:
Pamela Haack, (608) 266-0495
Office of Administrative Rules
Dept. of Regulation & Licensing
1400 East Washington Ave., Room 171
P.O. Box 8935
Madison, WI 53708
Notice of Hearing
Workforce Development
Notice is given that pursuant to s. 103.005 (1), Stats., the Department of Workforce Development proposes to hold a public hearing to consider the repeal, recreation, amendment, renumbering, and creation of rules under ch. DWD 290, Wis. Adm. Code, relating to prevailing wage rates for state or local public works projects.
Hearing Information
March 31, 1997 Madison, WI
Monday Room 400X
9:30 a.m. 201 E. Washington Ave.
A copy of the rules to be considered may be obtained from the State Department of Workforce Development, Division of Equal Rights, 201 East Washington Avenue P.O. Box 8928, Madison, Wisconsin 53708, by calling (608) 266-7560 or at the appointed time and place the hearing is held.
Interested persons are invited to appear at the hearing and will be afforded the opportunity of making an oral presentation of their positions. Persons making oral presentations are requested to submit their facts, view and suggested rewording in writing. Written comments from persons unable to attend the public hearing, or who wish to supplement testimony offered at the hearings may be submitted no later than April 7, 1997. for inclusion in the summary of public comments submitted to the Legislature. Any such comments should be submitted to James L. Stelsel at the address noted above. Written comments will be given the same consideration as testimony presented at the hearings. Persons submitting comments will not receive individual responses.
These hearings are held in accessible facilities. If you have special needs or circumstances which may make communication or accessibility difficult at the hearing, please call (608) 266-7560 or Telecommunication Device for the Deaf (TDD) at (608) 264-8752 at least 10 days prior to the hearing date. Accommodations such as interpreters. English translators or materials in audio tape format will, to the fullest extent possible, be made available on request by a person with a disability.
Analysis
Authority for rule: ss. 103.005(1), in conjunction with ss.66.293, 103.49 and 103.50
Statutes interpreted: ss: 66.293, 103.49 and 103.50
Introduction. 1995 Wis. Act 215 made a number of major changes to the laws which require the Department of Workforce Development to determine prevailing wage rates for state and local public works projects. In place of case-by-case investigations, the department is required to conduct an annual survey of employers and issue prevailing wage rate determinations for all trades or occupations in all areas of the state throughout the year based on the survey data. The statutes also provide that members of the public, employers, local governmental units and state agencies may ask the DWD to review prevailing wage rate determinations under a number of specified circumstances. This rule establishes deadline and appeal criteria for the process that will be used to compile the annual survey results and consider requests for review, and makes further code changes as explained below.
Annual survey. The rule establishes procedures for the annual survey of wage rate information that is now required by statute. The department will set a deadline date for the return of survey information and will not compile responses that are late. Determinations will be made for each “area,” which is defined by statute as a county, or (if there is insufficient data) a county with its surrounding contiguous counties, or (if there is still insufficient data) that territory included with the next tier of contiguous counties, or (if there is still insufficient data) the entire state. The department may include in its determinations future prevailing wage rates if a collectively bargained wage rate and fringe benefit package is found to prevail in a particular area for a particular trade or occupation and future rates are provided for by the agreement or its successor. if the wage rate data from all available sources is insufficient, the department may consider wage rate data for a similar trade or occupation in making its determinations.
Recalculation requests. Within 30 days after the department issues its initial determinations, any person may request a recalculation of any portion of a particular determination. In future years, a recalculation request will not be granted for the consideration of data that was not submitted on time. However, for the 1996 survey only, the department will accept recalculation requests on this basis.
Project determinations. The department will continue to issue prevailing wage rate determinations for individual projects. A project determination remains in effect until the end of the year (if issued on or before June 30) or for 180 days (if issued after June 30). A local government unit or state agency which receives a project determination may request an administrative review of any portion of a determination if it makes a written request within 30 days, the request is received before construction contracts are awarded or negotiated, and the request includes wage rate information for the contested trade or occupation from at least 3 similar projects within the city, village or town where the proposed project is located that took place and were reported within the survey period. In conducting administrative reviews, the department will consider other wage rate information on similar projects within the city, village or town where the proposed project is located and will issue a decision as to the prevailing wage rate for the contested trade or occupation in that city, village or town, using the same calculation criteria employed in the survey determinations.
“Highest-paid 51%.” When calculating the “highest-paid 51% of hours worked” for the purpose of determining the weighted average wage for a particular trade or occupation, the department will include all hours worked at the wage and corresponding fringe benefits that include the highest-paid 51% of hours worked.
Definitions and classifications. The rule adopts a detailed definition of the term “site of work” and describes in detail the characteristics of projects classified as agricultural, building, heavy, highway and residential construction. The rule also creates definitions for “minor subcontract” and “subjourneyperson” and specifies when the prevailing wage laws apply to employes who process, manufacture, pick up or deliver materials from a commercial establishment with a fixed place of business.
Trainees. The proposed rule allows for the employment of one or more trainees on a prevailing wage project when certain conditions are met. In addition to on the job training, the employer is required provide 30 hours of safety and necessary job skills training.
Subjourneypersons. This proposed rule contains the same provision on the topic of subjourneypersons as the emergency rule that is currently in effect. Under this provision, the department will determine a separate prevailing wage rate for a subjourneyperson category in a particular trade or occupation within a county when there are at least 500 countable hours reported for the trade or occupation in that county and the reported hours for a subjourneyperson category are greater than or equal to 25% of the reported hours for the journeyperson category, or (if the “25% of reported hours” condition is not met) if there is a subjourneyperson rate in a collective bargaining agreement filed with the department which reflects the prevailing wage rate for that county and trade. The proposed rule also establishes a maximum ratio of one subjourneyperson for each two journeypersons employed in the same trade or occupation by the same employer at each site of work.
The department has already received many comments on this aspect of the rule and expects to receive many more. The department has convened an advisory committee to provide assistance in reviewing this and other prevailing wage issues, and the department intends to review the comments on the subjourneyperson issue carefully, with the assistance of the committee.
Minor subcontractors. A contractor or subcontractor that hires a minor subcontractor (defined as a subcontract of less than $2,000 in cost and less than 3 days of work) must provide, within 7 days of the date that work is first performed by the minor subcontractor, either a copy of the prevailing wage rate determination for the project, or a written notice which states that the work to be performed is subject to a prevailing wage rate determination.
Threshold costs. In accordance with amendments to the statutes, these amounts are amended so that the prevailing wage rate requirements do not apply to a single-trade project with an estimated cost below $30,000 or a multi-trade project with an estimated cost below $150,000.
Initial Regulatory Flexibility Analysis
1. Types of small businesses that will be affected by the rules
Businesses engaged in public works construction as contractors or subcontractors.
2. Reporting, bookkeeping and other procedures required for compliance with the rules.
This rule changes some procedures under the prevailing wage program and implements a wage survey that is provided for by statute. The records involved are wage and hour records for employes, which employers are already required to keep.
3. Types of professional skills necessary for compliance with the rules.
No professional skills are necessary for compliance. Employers are already required to keep records of the wages and hours of their employer.
Fiscal Estimate
The purpose of this rule is to implement the statutory changes made by 1995 Act 215.The rule does not create any new policies which will have a fiscal effect on state or local government.
Notice of Submission of Proposed Rules to the Presiding Officer of each House of the Legislature, Under S. 227.19, Stats.
Please check the Bulletin of Proceedings for further information on a particular rule.
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Ch. Trans 139 - Relating to motor vehicle trade practices.
Ch. Trans 117 - Relating to occupational driver's license.
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