NOTICE IS HEREBY GIVEN that pursuant to ss.
103.02 and
227.11, Stats., the Department of Workforce Development proposes to hold a public hearing to consider changes to ch.
DWD 274, relating to hours of work and overtime.
Hearing Information
July 17, 2003 GEF 1 Building, Room B103
Thursday 201 E. Washington Avenue
at 1:30 p.m. Madison, WI
Interested persons are invited to appear at the hearing and will be afforded the opportunity to make an oral presentation of their positions. Persons making oral presentations are requested to submit their facts, views, and suggested rewording in writing.
Visitors to the GEF 1 building are requested to enter through the left East Washington Avenue door and register with the customer service desk. The entrance is accessible via a ramp from the corner of Webster Street and East Washington Avenue. If you have special needs or circumstances that may make communication or accessibility difficult at the hearings, please call (608) 267-9403 at least 10 days prior to the hearing date. Accommodations such as ASL interpreters, English translators, or materials in audiotape format will be made available on request to the fullest extent possible.
Analysis Prepared by the Department of Workforce Development
Chapter
DWD 274 requires each private employer to pay each employee time and one-half the regular rate of pay for all hours worked in excess of 40 hours per week, unless the employer is not subject to the chapter or is exempt from the overtime section. Chapter
DWD 274 also requires each private employer to keep permanent records showing the name, address, hours of employment, and wages of each employee and to pay employees for on-duty meal periods.
Currently, employees employed in farming, as defined in s.
102.04 (3), Stats., are not subject to ch.
DWD 274. Employees of independent contractors who erect silos and other farm buildings or equipment, build terraces, dig wells or build dams for ponds; employees engaged in inspecting and culling flocks of poultry; and pilots and flagpersons engaged in the aerial dusting and spraying of crops are subject to the chapter but are exempt from the overtime pay requirement.
The proposed rule broadens the exemption from the overtime pay requirement for agricultural employees by adopting the federal definition of agriculture as found in the Fair Labor Standards Act. The federal definition of agriculture is more comprehensive and logical than the current chapter DWD 274, and there are extensive federal regulations and case law to assist in interpreting the federal definition.
The federal definition of agriculture has two distinct branches. The primary meaning of agriculture includes cultivation and tillage of the soil, dairying, the production, cultivation, growing, and harvesting of any agricultural or horticultural commodities, and the raising of livestock, bees, furbearing animals, or poultry. The secondary meaning of agriculture includes any practices performed by a farmer or on a farm as an incident to or in conjunction with the farming operations of that farm, including preparation for market, delivery to storage or to market or to carriers for transportation to market.
The current chapter DWD 274 includes items in the federal primary meaning of agriculture and some, but not all, of the items in the secondary meaning. Some activities considered secondary agriculture under the federal meaning are in the current s.
DWD 274.04 (9) as piecemeal exemptions to the overtime requirement. The department believes that it is fairer and more logical to adopt a broader general definition of agriculture rather than exempt certain activities on a piecemeal basis and not others.
Under the current rule, some agricultural activities are not subject to the chapter and some are just exempt from the overtime pay requirement. Under the proposed rule, the new broader definition of agriculture will be an exemption to the overtime pay requirement. Agricultural employers will be required to keep permanent records showing the name, address, hours of employment, and wages of each employee and to pay employees for on-duty meal periods.
The farming definition used in the current rule at s.
102.06(3), Stats., includes the exchange of labor, services, or the exchange of use of equipment with other farmers in pursuing listed activities and the operation for not to exceed 30 days during any calendar year of farm machinery in performing farming services for other farmers for a consideration other than exchange of labor. Under the proposed rule, activities within the primary meaning of agriculture are farming regardless of where they are performed and without any time limits. Activities within the secondary meaning of agriculture must relate to the farming operations of that particular farm to be exempt so exchange of labor or services of these activities would not qualify.
The rule also clarifies the applicability of the chapter to nonprofit mercantile organizations, such as a nonprofit organization with employees performing home health care. The department has historically interpreted its authority under s.
103.02, Stats., as applying to “places of employment" as defined in s.
103.01 (3), Stats. Under this interpretation, nonprofit mercantile organizations are not subject to ch.
DWD 274. The department currently believes that its authority under s.
103.02, Stats., applies to both “places of employment" and “any employment" as defined in s.
103.01 (2) and
(3), Stats.
The proposed rule adds nonprofit mercantile organizations as an explicit exemption to the overtime pay requirement rather than a subtle interpretation of the applicability of the chapter provision. The only effect of the change will be that nonprofit mercantile organizations will be required to keep permanent records showing the name, address, hours of employment, and wages of each employee and to pay employees for on-duty meal periods.
The proposed rule also deletes an obsolete reference in the definition of regular and overtime.
Initial Regulatory Flexibility Analysis
The proposed rule changes affect small businesses engaged in agriculture.
Fiscal Estimate
The proposed rule changes do not have a fiscal effect on state or local government.
Contact Information
A paper copy may be obtained at no charge by contacting:
Elaine Pridgen
Office of Legal Counsel
Dept. of Workforce Development
201 E. Washington Avenue
P.O. Box 7946
Madison, WI 53707-7946
(608) 267-9403
elaine.pridgen@dwd.state.wi.us
Written Comments
Written comments on the proposed rules received at the above address no later than July 21, 2003, will be given the same consideration as testimony presented at the hearing.
