None.
Plain language analysis
Current ch. DWD 301 includes requirements for all of the following: 1) certification of migrant labor contractors; 2) migrant labor work agreements; 3) certification of migrant labor camps; 4) migrant labor camp standards; 5) payment of wages to migrant workers; 6) field sanitation standards; 7) assessment of penalties for violations of the chapter; and 8) notice of migrant labor rights. The Department has made no substantive revisions to the chapter since Clearinghouse Rule CR 07-018 went into effect on January 1, 2008. This rule revises current ch. DWD 301 as follows: Definitions. The rule creates one section that sets forth definitions that are interspersed throughout the current chapter. The rule also creates definitions for previously undefined terms.
Some of the definitions apply to terms used in the Migrant Labor Law but not in the chapter. For those definitions, notes are provided that cite the relevant statutory provisions in the Migrant Labor Law.
Migrant labor contractors. The rule establishes timelines for the Department to make decisions on applications for annual certificates of registration as a migrant labor contractor. As under the current chapter, the rule requires the Department to make a decision within 20 working days after receiving an application, except that the rule allows that deadline to be extended in order to determine whether an applicant is ineligible under current statutory law due to delinquencies in child or family support, taxes, or unemployment insurance contributions. The rule does not affect the $100 application fee required under the current chapter. The rule also clarifies the appeals process for Department actions regarding the certificates.
Migrant labor work agreements. The rule consolidates in one section the items required to be included in a work agreement. The rule provides that workers who are required to isolate due to disease under the rule (see below) are considered available for work for purposes of the minimum work guarantee that must be included in work agreement under s. 103.915 (4) (b), Stats. That statute allows an employer to reduce the minimum work guarantee based on unavailability to work. Because an isolated worker is considered available for work under the rule, an employer may not reduce the minimum work guarantee based on the period of isolation. The rule makes other changes that clarify how to determine the time period covered by the minimum work guarantee. In addition, the rule clarifies electronic signature requirements in accordance with ch. 137, Stats. Migrant labor camps. The rule updates requirements for migrant labor camps as follows:
The rule clarifies the deadline for the Department to make determinations on applications for annual certificates to operate a migrant labor camp. As under the current rule, the deadline is based on the date that an application is received and the date that a migrant labor camp is inspected. The rule has the effect of potentially lengthening the deadline by 10 days. The rule also establishes a $100 application fee. Under the current chapter, the fee is $50, except that the fee is $100 for applications made after March 31.
When a migrant labor camp operator annually applies for a certificate to operate a migrant labor camp, the rule requires the operator to submit to the Department documentation from local fire departments confirming that property meets local and state fire codes. This requirement clarifies how the Department verifies compliance with those codes. The rule also requires an operator to submit written procedures for the temporary isolation of sick or injured occupants of migrant labor camps.
The rule aligns water testing requirements required under the current chapter with rules of the Department of Natural Resources (DNR), including testing and posting requirements for total nitrate nitrite levels. See s. NR 809.11 (2) and (3). If maximum contaminant levels are exceeded, the rule requires a migrant labor camp operator to demonstrate to the Department's satisfaction that the operator has complied with those DNR rules. The rule also clarifies that if a migrant labor camp is regulated as a public water system under DNR rules, the camp must comply with both DNR's rules and the Department's rules. In addition, the rule requires a migrant labor camp operator to submit to the Department any well construction reports that the migrant labor camp operator is required to submit to DNR. DNR's rules are referenced to clarify their application to migrant labor camp operators. The rule creates the following new requirements, which align with requirements of other state and federal agencies:
— Food preparation areas and sleeping quarters must be 500 feet from livestock. This requirement is consistent with regulations of the federal Occupational Safety and Health Administration (OSHA). See 29 CFR 1910.142 (a) (2). — Mobile home units must be at least 10 feet from streets, in addition to at least 10 feet from other buildings and property lines as required under the current rule. This requirement is consistent with rules of the Department of Safety and Professional Services (DSPS). See s. SPS 326.12 (1) (c) 3. — As under the current chapter, the rule requires the total openable area of a window in a habitable room to be at least 45 percent of the total window area. However, the rule eliminates an exception to this requirement for a habitable room that is supplied with ventilation by mechanical or some other method.
— The rule requires guardrails for bunk beds. This requirement is consistent with regulations of the federal Consumer Product Safety Commission. See 16 CFR 1213.3 (a). — First aid kits must include specified items based on OSHA's recommendation that a generic first aid kit containing items described in American National Standard (ANSI) Z308.1-1998 should be adequate for small worksites. See Appendix A to 29 CFR 1910.151. In addition to those items, the rule requires first aid kits to include face masks. — The rule aligns notice requirements for pesticide applications with rules of the Department of Agriculture, Trade and Consumer Protection (DATCP). See s. ATCP 29.51 (2). The rule also does the following:
— The rule clarifies when camp operators must submit plans to the Department for new construction, additions, or alterations.
— The rule clarifies the period allowed for migrant labor camp operators to correct violations before the Department may revoke a certificate to operate the camp.
— The rule requires washers and dryers to be provided in the ratio of one per 20 migrant labor camp occupants. The current chapter does not address dryers and requires washers to be provided in the ratio of one per 30 migrant labor camp occupants.
— The rule requires refrigerators to be maintained at 40 degrees Fahrenheit or lower, instead of 45 degrees as required under the current rule. The rule also requires freezers maintained at zero degrees Fahrenheit or lower.
— The rule requires screening for windows and doors used for ventilation, instead of for all outside openings as required under the current chapter. However, the rule's requirement does not apply to doors in buildings that are cooled with air conditioning.
— The rule requires a migrant labor camp operator to post the certificate to operate the migrant labor camp in a conspicuous place in the camp.
Disease and illness prevention. The rule creates new requirements for disease and illness prevention in migrant labor camps. The rule requires certain diseases and symptoms to be reported to local health officials. These requirements are consistent with existing OSHA regulations and rules of the Department of Health Services (DHS), and are referenced in the rule to ensure migrant labor camp operators are aware of their obligations under those rules See DHS s. 145.04 (3) and 29 CFR 1910.142 (l). The rule also prohibits individuals with communicable diseases from preparing or serving food in migrant labor camps, which is consistent with OSHA regulations. See 29 CFR 1910.142 (i) (3). In addition, migrant labor camp operators must establish procedures for isolating sick workers and provide space for isolation when isolation is required, which may include rooms in hotels, motels, and tourist rooming houses licensed by DATCP. This requirement is similar to DATCP rules for summer camps. See ATCP 78.19 (3). Also, persons reasonably suspected of having a communicable disease must be isolated for the amount of time recommended by public health authorities. Field sanitation. The rule clarifies that toilet and handwashing facility requirements apply to operations in which 6 or more migrant workers are engaged in field work. The rule clarifies the existing requirement that "water shall be available in sufficient amount to meet worker needs" to state that one quart per worker per hour for drinking shall be available. The rule creates the following requirements that apply to operations in which any number of migrant workers are engaged in field work:
— Employers must train workers and supervisors to monitor for heat illnesses and establish a heat illness prevention plan that includes ensuring effective communication during an emergency in the field. The rule also repeals this new provision, effective January 1, 2025.
— Employers must provide shade and the opportunity to take breaks when temperatures exceed 80 degrees Fahrenheit. The rule also repeals this new provision, effective January 1, 2025.
As under the current chapter, the rule allows a migrant labor camp operator to request a variance from field sanitation requirements but eliminates a procedure for contesting the Department's determination on the request. This elimination makes the variances consistent with variances from migrant labor camp requirements. The current chapter allows a migrant labor camp operator to request a variance from migrant labor camp requirements but does not include a procedure for contesting the Department's determination.
Assessment of penalties. The rule does not affect the Department's authority to administratively assess penalties based on whether a violation is high, medium, or low severity. The rule also does not affect the maximum amount of the penalties. The rule does eliminate the current chapter's examples of high, medium, and low severity penalties. The Department has determined that the examples are not necessary based on the Department's statutory authority.
Hearings. The rule creates procedures for hearings on denial of migrant labor contractor certifications, migrant labor camp certificates, and administratively assessed penalties.
Summary of, and comparison with, existing or proposed federal regulations
Federal regulations on migrant recruitment, migrant work agreements, payroll records, and provision of other information to migrant workers are found at 29 CFR Part 500. These regulations require each agricultural employer that employs migrant workers to post in a conspicuous place at the place of employment a poster provided by the U.S. Department of Labor (DOL) that sets out the rights and protections for workers under the Migrant and Seasonal Agricultural Worker Protection Act, 29 USC 1801 et seq. The regulations establish standards for those applying for certification to act as farm labor contractors. These regulations require that individuals recruiting migrant workers make written disclosures of certain information about the offered employment, provide itemized wage statements for each worker. These regulations establish requirements for vehicle safety for the transportation of migrant and seasonal agricultural workers, and for their housing standards. Owners of migrant worker housing constructed before April 3, 1980, may elect to comply with OSHA regulations at 29 CFR 1910.142 or Employment Training Administration (ETA) regulations at 20 CFR 654.400 et. seq. Migrant worker housing constructed on or after April 3, 1980, must comply with OSHA regulations at 29 CFR 1910.142. The OSHA temporary labor camp standards include requirements for living quarters, toilet facilities, laundry and bathing facilities, construction of kitchens and feeding facilities, first aid, first aid, and reporting communicable diseases. Any agricultural establishment where eleven or more employees are engaged in hand-labor operations in the field are subject to OSHA's field sanitation standards at 29 CFR 1928.110. These standards include a requirement that one toilet and one handwashing facility be provided for every 20 employees, and that those facilities are to be located within a one-quarter mile walk of each hand laborer's place of work. Suitably cool water in sufficient amounts is also to be provided, and workers are to be given opportunities for reasonable use of water and facilities. Chapter 301 has the same requirements for the provision of toilet and handwashing facilities, but the current rule requires that these be provided for operations with six or more workers. In the proposed rule, which would apply to all operations, the amount of water to be provider per worker is specified, in accordance with CDC-NIOSH guidance. The proposed rule requires employers provide shade and the opportunity to take breaks when temperatures exceed 80 degrees Fahrenheit to workers engaged in hand labor. The H-2A Temporary Agricultural Program allows agricultural employers to bring non-immigrant foreign workers to the U.S. to perform temporary or seasonal agricultural labor or services. Most workers who come to the state under the H-2A program meet the definition of a "migrant worker" under s. 103.90(5), and as such, the requirements of Wis. Stat. s. 103.90 et seq. and DWD ch. 301 apply to H-2A workers. Under the federal regulations for H-2A workers, employers must provide housing to H-2A workers that meets either the OSHA or the ETA housing standards, whichever is applicable. Summary of comments on the statement of scope and description of how the comments were taken into account in drafting the rule
A preliminary hearing on the Statement of Scope for this rule, SS 004-22, was held on April 12, 2022. At the preliminary hearing, the president of the Midwest Food Products Association (MWFPA) acknowledged the Department for collaborating with workers, worker advocates, and employers on an emergency rule establishing COVID-19 protections for migrant workers (EmR2204) and looked forward to similar collaboration on this rule. Regarding disease and illness prevention, the MWFPA president expressed concern that, if this rule specifically addresses one strain of COVID-19, the rule might need frequent revisions to deal with new strains. In addition, the MWFPA president recognized the potential need for updating ch. DWD. The MWFPA president also provided the foregoing comments in writing. The executive director of the Wisconsin Potato & Vegetable Growers Association (WPVGA) submitted written comments urging the Department "to make necessary revisions to DWD 301 to align state standards with federal law related to insurance requirements for motor vehicles used to transport migrant workers." The executive director stated that the WPVGA supported consistency with federal law instead of more stringent state insurance requirements. The executive director commented that workforce shortages are exacerbated because some migrant labor contractors no longer operate in Wisconsin due to inconsistencies between the state and federal insurance requirements.
At the preliminary hearing, a migrant labor contractor made comments similar to WPVGA's comments about insurance. The contractor supported consistency between the state and federal requirements because the insurance required to comply with the state requirements is more expensive than the federally required insurance. The contractor stated that the high insurance cost imposes a financial strain on contractors who may respond by avoiding or limiting their business in the state, which would negatively affect local economies that benefit from the presence of migrant workers.
Agency response: The Department appreciates the MWFPA president's comment on collaboration and notes that, in drafting the rule, the Department collaborated with the Ad Hoc Committee on Migrant Seasonal Farmworkers established by the Governor's Council on Migrant Labor. The Governor's Council on Migrant Labor consists of six representatives of employers of migrant workers and six representatives of migrant workers and their organizations, in addition to two members of the senate and two members of the assembly who are equally divided between the two major political parties. Section 15.227 (8), Stats. The council reviews rules submitted by the Department, and if the council disproves the rule, the department may not promulgate it. Section 103.968, Stats. The ad hoc committee's members represent the interests of employers and migrant workers. As for the comment about COVID-19 strains, while a now-expired emergency rule did specifically pertain to COVID-19, this rule's requirements for preventing and controlling disease and illness apply more broadly to communicable diseases as defined by the DHS. The Department also considered the request to adopt federal standards for vehicle liability insurance in response to the WPVGA and the migrant labor contractor. Under the federal standards cited by the commenters, 29 CFR 500.122, if an employer provides worker's compensation coverage and the worker is only transported under circumstances for which there is workers' compensation coverage under state law, no additional vehicle liability insurance policy or bond is required. Further, under the federal regulation, if the employer provides transportation of the worker that is not covered by the state's worker's compensation law, a liability insurance policy or liability bond shall be required for those circumstances. Wisconsin's worker's compensation law would not cover workers being transported prior to the start of or after the completion of their period of employment, or in situations when the transportation is not compulsory for work, such as getting a ride to buy groceries. Yet, contractors in Wisconsin frequently provide such transportation for migrant workers. If the federal standards were adopted, contractors would likely still be required to obtain a liability insurance policy or liability bond for transit in these circumstances since this is not covered by Wisconsin's worker's compensation law. Because adopting this federal standard would not entirely relieve contractors of the obligation to obtain a liability insurance policy or liability bond without altering the customary transportation offered to migrant workers, the Department is declining to make this change.
