No employer or W-2 work training provider may retaliate against an employee, employee's representative, or witness who initiates or participates in the grievance procedure.
Summary of analytical methodology used to develop the proposed rule. The grievance procedure adopted for employment displacement by W-2 participants is similar to the grievance procedure that the Department developed for complaints of employment displacement by participants in employment and training programs funded by grants under the federal Workforce Investment Act (WIA) and Welfare to Work. (The Welfare to Work program no longer exists.)
The grievance procedure was developed to comply with federal WIA and Welfare to Work regulations at
20 CFR 667.600 and
20 CFR 645.270. The preamble to the TANF regulations recommends that states use one set of grievance procedures for the TANF and Welfare to Work programs, 64 Federal
Register 17797 (April 12, 1999). Although the Welfare to Work program no longer exists, the proposed rule allows for a common grievance procedure and a common complaint coordinator for complaints of employment displacement by participants in employment and training programs funded by grants under WIA and W-2.
Comparison with rules in adjacent states. Iowa. A complaint must be filed within one year with the program contractee. The contractee attempts to reach an informal resolution of the complaint. If informal resolution is not possible, a complainant may file a written appeal with the Department. The appeal procedures generally used for Department disputes are followed.
Illinois. A complaint may be filed with the Department. The Department holds an in-person conference to receive documents and statements and issues a decision.
Michigan. All complaints utilizing Michigan Department of Career Development/Office of Workforce Development funding sources follow the same complaint procedure. The complaint procedure is found in the WIA state plan.
Local agencies must make provisions for informal means to resolve complaints before they become grievances. If there is no informal resolution, the local agency conducts a hearing and issues a decision no later than 60 days from the date the grievance was filed. A grievance may be appealed to the Department and the Department may conduct a hearing. A decision is issued no later than 30 days after the filing of the appeal.
Minnesota. Minnesota has a state statute that applies to nondisplacement in union workplaces. They do not appear to have developed a grievance procedure that applies to all workplaces with a TANF-subsidized individual.
Anticipated costs incurred by private sector. There will be no significant fiscal effect on the private sector.
Effect on small business. The rule will affect privately-run W-2 agencies and small businesses that have a W-2 participant at their work site. The rule will not have a significant economic impact on a substantial number of small businesses.
Analysis and supporting documentation used to determine effect on small business. The rule merely outlines a procedure for resolving complaints. The grievance procedure is not expected to be used often.
Contact
The proposed rules are available at the web site
http://adminrules.wisconsin.gov by typing “grievance procedure" in the search engine. This site allows you to view documents associated with this rule's promulgation, register to receive email notification whenever the Department posts new information about this rulemaking order, and submit comments and view comments by others during the public comment period. You may receive a paper copy of the rule 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
Written Comments
Written comments on the proposed rules received at the above address or through the
http://adminrules.wisconsin.gov web site no later than August 17, 2004, will be given the same consideration as testimony presented at the hearing.
Small Business Regulatory Coordinator
Hal Bergan
(608) 266-8533
Notice of Hearing
Workforce Development
NOTICE IS HEREBY GIVEN that pursuant to Sections
66.0903,
103.005 (1),
103.49, and
227.11, Stats., the Department of Workforce Development proposes to hold a public hearing to consider rules relating to the prevailing wage rates on public works projects and affecting small business.
Hearing Information
Tuesday, August 17, 2004 at 1:30 p.m.
GEF 1 Building, Room B103
201 E. Washington Avenue
Madison
Interested persons are invited to appear at a 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 hearing, 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
Explanation of agency authority. The Department of Workforce Development administers the statutory requirements that the prevailing wage rate must be paid for covered employees in a trade or occupation engaged in erection, construction, remodeling, repairing, or demolition on a state or local public works project.
Sections
66.0903 (1) (g) and
103.49 (1) (d), Stats., delineate how the Department determines the prevailing wage rate for a trade or occupation on a public works project. First, a survey is done to collect data on the hourly wage rates and hourly fringe equivalent rates for a trade or occupation in that area. If there is a majority of hours worked at a particular wage rate plus fringe equivalent rate, those rates become the prevailing wage rate for that trade. If there is no rate at which a majority of the hours worked in that trade is paid, a weighted average methodology applies based on the pay of the highest-paid 51% of hours worked in that trade or occupation on projects in that area.
Summary of the proposed changes. The statutory language on determining prevailing wage rates was enacted in
1995 Wisconsin Act 215. Since that time, the Department has had an informal policy of looking at the hourly wage rate and hourly fringe equivalent rate as separate figures and requiring an exact match of both the hourly rate of pay and the hourly fringe equivalent rate in determining whether there is a majority of hours worked in a trade or occupation at a particular rate.
The Department's policy of requiring an exact match of both the hourly wage rate and the hourly fringe equivalent rate has resulted in situations that do not seem to comply with the intent of the prevailing wage law. For example, if a collective bargaining agreement is renegotiated and the hourly wage rate is reduced to cover the increased cost of health insurance in the fringe equivalent, the hours worked under the two different agreements will be considered as hours worked at different rates even though the total economic benefit and liability is the same. Counting the rates under the original and renegotiated collective bargaining agreements with the same total economic benefit and liability as different rates means that the union rates may not be selected as the prevailing wage rates even if a majority of hours worked in a trade were by union workers.
Section
DWD 290.015 (3) provides that if the rates in a collective bargaining agreement are found to prevail for a particular trade in a particular area, any future increases or decreases in the collective bargaining agreement are to be included in the prevailing wage rate determinations. The proposed rule will make it less likely that a renegotiated collective bargaining agreement with the same total economic benefit and liability will negatively affect whether future increases or decreases under the collective bargaining agreement are incorporated in prevailing wage determinations. If the majority of hours worked in that trade in that area are by union workers, the future increases or decreases in the union contract will be reflected in the prevailing wage rates for that trade.
Under the proposed rule, the Department would determine whether there is a majority of hours reported that receive a total economic benefit that is the sum of the hourly rate of pay and hourly fringe equivalent. If there is a majority of hours worked at the rate that is that sum and there is more than one combination of hourly rates of pay plus hourly fringe equivalent rates that equal that sum, the prevailing wage rate will be the most commonly reported hourly basic rate of pay and corresponding hourly fringe equivalent rate that resulted in that sum.
Summary of analytical methodology used to develop the proposed rule. The statutory language that directs the Department to consider the “hourly basic rate of pay, plus the hourly contribution for health insurance benefits, vacation benefits, pension benefits and any other bona fide economic benefits paid directly or indirectly, for a majority of the hours worked in the trade" could be interpreted to require either an exact match of the hourly wage rate and the hourly fringe equivalent rate as separate figures or a match of the hourly wage rate and fringe equivalent rate as a combined rate that is the sum of the two rates. The Department has determined that the method of using the sum of the hourly wage rate and the hourly fringe equivalent more closely complies with statutory intent.
Federal law. There are no federal prevailing wage rate regulations that apply to state or local public works projects. The federal prevailing wage regulations that apply to federally-funded public works projects determine the prevailing hourly rate of pay and the prevailing fringe equivalent as completely separate inquiries. Under the federal system, the resulting combination of the hourly rate of pay and fringe equivalent issued by the U.S. Department of Labor may result in a combination of hourly pay and fringe equivalent that is not the most commonly paid total economic benefit on private projects.
Comparison with rules in adjacent states. Iowa. No prevailing wage law.
Minnesota. The prevailing hourly wage rate is set at the most commonly paid hourly wage rate. The fringe equivalent rate is set at the most commonly paid rate at that hourly wage rate.
Michigan. The prevailing wage rates are the collective bargaining agreement rates.
Illinois. Only employers who do work on public works projects are surveyed. The prevailing rates are the most commonly paid wage rates and the corresponding fringe equivalent rates.
Anticipated costs incurred by private sector. There will be no significant fiscal effect on the private sector.
Effect on small business.
The proposed rule will affect small business as defined in s.
227.114 (1), Stats., but the rule will not have a significant economic impact on a substantial number of small businesses.
Analysis and supporting documentation used to determine effect on small business. Small businesses will have increased flexibility to offer “cafeteria-style" benefit plans to their employees and have their wage rates selected as the prevailing wage.
The proposed rules are available at the web site
http://adminrules.wisconsin.gov by typing “prevailing wage" in the search engine. This site allows you to view documents associated with this rule's promulgation, register to receive email notification whenever the Department posts new information about this rulemaking order, and submit comments and view comments by others during the public comment period. You may receive a paper copy of the rule 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
Written Comments
Written comments on the proposed rules received at the above address or through the
http://adminrules.wisconsin.gov web site no later than August 18, 2004, will be given the same consideration as testimony presented at the hearing.
Small Business Regulatory Coordinator
Hal Bergan
(608) 266-8533
