Amendment SSA1-SB373

LRBs0475/3

GMM:skg&kaf:ks

1995 - 1996 LEGISLATURE

SENATE SUBSTITUTE AMENDMENT 1, To 1995 SENATE BILL 373

February 21, 1996 - Offered by Committee on Human Resources, Labor, Tourism, Veterans and Military Affairs.

SB373-SSA1,2,5 An Act to repeal 66.293 (2), 66.293 (3) (b), 103.49 (4) and 103.50 (3) (b); to renumber and amend 66.293 (3) (intro.), 66.293 (3) (a), 66.293 (3) (c), 66.293 (3) (d), 66.293 (3) (e), 66.293 (3) (f), 66.293 (3) (g), 66.293 (3) (h), 66.293 (3) (i), 66.293 (3) (j), 66.293 (3) (k), 66.293 (3) (m), 66.293 (3) (n), 103.49 (1) (c), 103.49 (3), 103.49 (5), 103.49 (6) and 103.50 (3) (a); to amend 101.02 (13) (a), 103.005 (12) (a), 103.49 (1) (a), 103.49 (1) (b), 103.49 (1) (d), 103.49 (2), 103.49 (7) (a), 103.49 (7) (b), 103.49 (7) (d), 103.50 (1) (a), 103.50 (1) (b), 103.50 (1) (c), 103.50 (1) (d), 103.50 (2), 103.50 (4), 103.50 (5), 103.50 (6), 103.50 (7) (a), 103.50 (7) (b), 103.50 (7) (c), 103.50 (8), 227.01 (13) (t), 946.15 (1), 946.15 (2), 946.15 (3) and 946.15 (4); to repeal and recreate 66.293 (1), 66.293 (1) (b) and (h), 66.293 (10) (b), 66.293 (10) (d), 101.02 (13) (a), 103.49 (5) (b), 103.50 (4), 103.50 (5), 103.50 (6), 946.15 (1) and 946.15 (2); and to create 66.293 (3) (title), 66.293 (3) (ar), 66.293 (3) (av), 66.293 (3) (br), 66.293 (4), 66.293 (9) (title), 66.293 (10) (title), 66.293 (11) (title), 66.293 (11) (b), 103.49 (1) (title), 103.49 (1) (bm), 103.49 (1) (c) 1. to 8., 103.49 (1) (e), 103.49 (1) (f), 103.49 (1) (g), 103.49 (2m), 103.49 (3) (title), 103.49 (3) (am), 103.49 (3) (ar), 103.49 (3) (b), 103.49 (3) (c), 103.49 (4r), 103.49 (5) (title), 103.49 (5) (a), 103.49 (5) (c), 103.49 (6m), 103.49 (7) (title), 103.50 (1) (e), 103.50 (2m), 103.50 (4m), 103.50 (7) (d), (e) and (f), 946.15 (3) and 946.15 (4) of the statutes; relating to: prevailing wage rates and hours of labor for workers employed on state or local public works projects, granting rule-making authority and providing penalties.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

SB373-SSA1, s. 1 Section 1. 66.293 (1) of the statutes is repealed and recreated to read:

SB373-SSA1,2,7 66.293 (1) Definitions. In this section:

SB373-SSA1,2,12 (a) "Area" means the county in which a proposed project that is subject to this section is located and, if considered necessary by the department, those counties that are contiguous to that county or, if the department is requested to review a determination under sub. (3) (br), "area" means the city, village or town in which a proposed project that is subject to this section is located.

SB373-SSA1,2,14 (b) "Department" means the department of industry, labor and human relations.

SB373-SSA1,2,15 (c) "Hourly basic rate of pay" has the meaning given in s. 103.49 (1) (b).

SB373-SSA1,2,19 (d) "Local governmental unit" means a political subdivision of this state, a special purpose district in this state, an instrumentality or corporation of such a political subdivision or special purpose district, a combination or subunit of any of the foregoing or an instrumentality of the state and any of the foregoing.

SB373-SSA1,2,21 (e) "Multiple-trade public works project" has the meaning given in s. 103.49 (1) (bm).

SB373-SSA1,2,22 (f) "Prevailing hours of labor" has the meaning given in s. 103.49 (1) (c).

SB373-SSA1,3,15 (g) "Prevailing wage rate" for any trade or occupation engaged in the erection, construction, remodeling, repairing or demolition of any project of public works in any area means the hourly basic rate of pay, plus the hourly contribution for health insurance benefits, vacation benefits, pension benefits and any other bona fide economic benefit, paid directly or indirectly, for a majority of the hours worked in the trade or occupation on projects in the area, or if there is no rate at which a majority of the hours worked in the trade or occupation on projects in the area is paid, then the prevailing wage rate for any trade or occupation engaged in the erection, construction, remodeling, repairing or demolition of any project of public works in any area shall be the average hourly basic rate of pay, weighted by the number of hours worked, plus the average hourly contribution, weighted by the number of hours worked, for health insurance benefits, vacation benefits, pension benefits and any other bona fide economic benefit, paid directly or indirectly for all hours worked at the hourly basic rate of pay of the highest-paid 51% of hours worked in that trade or occupation on projects in that area.

SB373-SSA1,3,16 (h) "Secretary" means the secretary of industry, labor and human relations.

SB373-SSA1,3,18 (i) "Single-trade public works project" has the meaning given in s. 103.49 (1) (e).

SB373-SSA1,3,19 (j) "Truck driver" has the meaning given in s. 103.49 (1) (g).

SB373-SSA1, s. 2 Section 2. 66.293 (1) (b) and (h) of the statutes, as created by 1995 Wisconsin Act .... (this act), are repealed and recreated to read:

SB373-SSA1,3,23 66.293 (1) (b) "Department" means the department of industry, labor and job development.

SB373-SSA1,3,24 (h) "Secretary" means the secretary of industry, labor and job development.

SB373-SSA1, s. 3 Section 3. 66.293 (2) of the statutes is repealed.

SB373-SSA1, s. 4 Section 4. 66.293 (3) (title) of the statutes is created to read:

SB373-SSA1,4,2 66.293 (3) (title) Prevailing wage rates and hours of labor.

SB373-SSA1, s. 5 Section 5. 66.293 (3) (intro.) of the statutes is renumbered 66.293 (3) (am) and amended to read:

SB373-SSA1,4,21 66.293 (3) (am) Every municipality local governmental unit, before making a contract by direct negotiation or soliciting bids on a contract, for the erection, construction, remodeling, repairing or demolition of any project of public works except, including a highway, street or bridge construction project, shall apply to the department of industry, labor and human relations to ascertain to determine the prevailing wage rate, and prevailing hours of labor and hourly basic pay rates in all trades and occupations for each trade or occupation required in the work contemplated. The department shall make such investigations and hold such public hearings as may be necessary to define the trades or occupations that are commonly employed on projects that are subject to this section and to inform itself as to the prevailing wage rates and prevailing hours of labor in all areas of the state for those trades or occupations with a view to ascertaining the prevailing wage rate and prevailing hours of labor for each such trade or occupation. The department shall determine the prevailing wage rate, hours of labor and hourly basic pay rates for each trade or occupation under s. 103.49, make issue its determination within 30 days after receiving the request and shall file the same with the municipality local governmental unit applying therefor.

SB373-SSA1,5,9 (bm) A Any person may request for the review a recalculation of any portion of a wage determination may be made within 30 days from after the initial determination date if the person submits evidence is submitted with the request showing that the prevailing wage rate or prevailing hours of labor for any given trade or occupation included in the initial determination does not represent the prevailing wage rate or prevailing hours of labor for that trade or occupation in the area. Such evidence shall include wage rate and hours of labor information for work performed in the contested trade or occupation on at least one similar project located in the municipality where the proposed project is located and on which some work has been performed during the current or any of area within the previous 12 months. The department shall affirm or modify the original initial determination within 15 days from after the date on which the department receives the request for review. Reference to such recalculation.

SB373-SSA1,6,6 (dm) A reference to the prevailing wage rates and prevailing hours of labor determined by the department or a municipality local governmental unit exempted under par. (d) sub. (6) shall be published in the notice issued for the purpose of securing bids for the project. If any contract or subcontract for a project of public works except, including a highway, street or bridge construction project, is entered into, the prevailing wage rates and prevailing hours of labor determined by the department or exempted municipality local governmental unit shall be physically incorporated into and made a part of the contract or subcontract, except that for a minor subcontract, as determined by the department, the department shall prescribe by rule the method of notifying the minor subcontractor of the prevailing wage rates and prevailing hours of labor applicable to the minor subcontract. The prevailing wage rates and prevailing hours of labor applicable to a contract or subcontract may not be changed during the time that the contract or subcontract is in force. No laborer, worker or mechanic employed directly upon the site of the project by the contractor or by a subcontractor, agent or other person, doing or contracting to do any part of the work, person described in sub. (4) may be paid less than the prevailing wage rate in the same or most similar trade or occupation determined under this subsection; nor may he or she be permitted to work a greater number of hours per day or per calendar week than the prevailing hours of labor determined under this subsection, unless he or she is paid for all hours worked in excess of the prevailing hours of labor at a rate of at least 1-1/2 1.5 times his or her hourly basic rate of pay.

SB373-SSA1, s. 6 Section 6. 66.293 (3) (a) of the statutes is renumbered 66.293 (11) (a) and amended to read:

SB373-SSA1,6,23 66.293 (11) (a) Any contractor, subcontractor or agent thereof, who fails to pay the prevailing wage rate of wages determined by the department under this subsection or sub. (3) or who pays less than 1-1/2 1.5 times the hourly basic rate of pay for all hours worked on the project in excess of the prevailing hours of labor determined under this subsection sub. (3), shall be liable to the employes any affected employe in the amount of their his or her unpaid minimum wages or their his or her unpaid overtime compensation and in an additional equal amount as liquidated damages. Action An action to recover the liability may be maintained in any court of competent jurisdiction by any one or more employes employe for and in behalf of that employe or those employes and other employes similarly situated. No employe shall may be a party plaintiff to any such action unless the employe consents in writing to become such a party and the consent is filed in the court in which the action is brought. The Notwithstanding s. 814.04 (1), the court shall, in addition to any judgment awarded to the plaintiff, allow a reasonable attorney's fee attorney fees and costs to be paid by the defendant.

SB373-SSA1, s. 7 Section 7. 66.293 (3) (ar) of the statutes is created to read:

SB373-SSA1,7,9 66.293 (3) (ar) The department shall, by January 1 of each year, compile the prevailing wage rates and the prevailing hours of labor for each trade or occupation in each area. The compilation shall, in addition to the current prevailing wage rates and prevailing hours of labor, include future prevailing wage rates and prevailing hours of labor when those prevailing wage rates and prevailing hours of labor can be determined for any trade or occupation in any area and shall specify the effective date of those future prevailing wage rates and prevailing hours of labor. If a construction project extends into more than one area there shall be but one standard of prevailing wage rates and prevailing hours of labor for the entire project.

SB373-SSA1, s. 8 Section 8. 66.293 (3) (av) of the statutes is created to read:

SB373-SSA1,7,16 66.293 (3) (av) In determining prevailing wage rates under par. (am) or (ar) for building, residential or agricultural projects, the department may not use data from projects that are subject to this section, s. 103.49 or 103.50 or 40 USC 276a. In determining prevailing wage rates for highway, street or bridge construction projects or other projects involving the use of heavy equipment, the department may use data from projects that are subject to this section, s. 103.49 or 103.50 or 40 USC 276a.

SB373-SSA1, s. 9 Section 9. 66.293 (3) (b) of the statutes is repealed.

SB373-SSA1, s. 10 Section 10. 66.293 (3) (br) of the statutes is created to read:

SB373-SSA1,8,8 66.293 (3) (br) In addition to the recalculation under par. (bm), the local governmental unit that requested the determination under this subsection may request a review of any portion of a determination within 30 days after the date of issuance of the determination if the local governmental unit submits evidence with the request showing that the prevailing wage rate or prevailing hours of labor for any given trade or occupation included in the determination does not represent the prevailing wage rate or prevailing hours of labor for that trade or occupation in the city, village or town in which the proposed project is located. That evidence shall include wage rate and hours of labor information for the contested trade or occupation on at least 3 similar projects located in the city, village or town where the proposed project is located and on which some work has been performed within the previous 12 months and which were considered by the department in issuing its most recent compilation under par. (ar). The department shall affirm or modify the determination within 15 days after the date on which the department receives the request for review.

SB373-SSA1, s. 11 Section 11. 66.293 (3) (c) of the statutes is renumbered 66.293 (5) and amended to read:

SB373-SSA1,9,7 66.293 (5) (title) Nonapplicability . This subsection section does not apply to any highway, street or bridge construction or to any single-trade public works project, including a highway, street or bridge construction project, for which the estimated project cost of completion is below $3,500 where a single trade is involved and $35,000 where more than one trade is involved on such project (after hearing these dollar amounts shall be adjusted by the department $30,000 or an amount determined by the department under this subsection or to any multiple-trade public works project, including a highway, street or bridge construction project, for which the estimated project cost of completion is below $150,000 or an amount determined by the department under this subsection. The department shall adjust those dollar amounts every 2 years year, the first adjustment to be made not sooner than January 1, 1976 December 1, 1997. The adjustments shall be in proportion to any changes change in construction costs since the effective date of the dollar amounts established under this subsection immediately prior to each adjustment); nor does this subsection apply to wage rates and hours of employment of laborers, workmen or mechanics engaged in the processing or manufacture of materials or products or to the delivery thereof by or for commercial establishments which have a fixed place of business from which they regularly supply such processed or manufactured materials or products, except that this subsection does apply to laborers, workmen or mechanics delivering mineral aggregate such as sand, gravel or stone which is incorporated into the work under the contract by depositing the material substantially in place, directly or through spreaders, from the transporting vehicle.

SB373-SSA1, s. 12 Section 12. 66.293 (3) (d) of the statutes is renumbered 66.293 (6) and amended to read:

SB373-SSA1,9,16 66.293 (6) (title) Exemptions. The department of industry, labor and human relations, upon petition of any municipality local governmental unit, shall issue an order exempting the municipality local governmental unit from applying to the department for a determination under this subsection sub. (3) when it is shown that an ordinance or other enactment of the municipality local governmental unit sets forth the standards, policy, procedure and practice resulting in standards as high or higher than those under s. 103.49 this section.

SB373-SSA1, s. 13 Section 13. 66.293 (3) (e) of the statutes is renumbered 66.293 (10) (a) and amended to read:

SB373-SSA1,9,25 66.293 (10) (a) Each contractor, subcontractor or agent thereof participating in performing work on a project covered by this subsection that is subject to this section shall keep full and accurate records clearly indicating the name and trade or occupation of every laborer, workman or mechanic employed by the contractor, subcontractor or agent in connection with the project person described in sub. (4) and an accurate record of the number of hours worked by each employe of those persons and the actual wages paid therefor.

SB373-SSA1, s. 14 Section 14. 66.293 (3) (f) of the statutes is renumbered 66.293 (8) and amended to read:

SB373-SSA1,10,9 66.293 (8) (title) Posting. For the information of the employes working on the project, the prevailing wage rates and prevailing hours of labor determined by the department or exempted municipality local governmental unit and the provisions of pars. (a) and (e) subs. (10) (a) and (11) (a) shall be kept posted by the employer local governmental unit in at least one conspicuous and easily accessible place at on the site of the project or, if there is no common site on the project, at the place normally used by the local governmental unit to post public notices.

SB373-SSA1, s. 15 Section 15. 66.293 (3) (g) of the statutes is renumbered 66.293 (9) (b) and amended to read:

SB373-SSA1,10,17 66.293 (9) (b) Each Upon completion of a project and before receiving final payment for his or her work on the project, each agent or subcontractor shall furnish the contractor with evidence of compliance with an affidavit stating that the agent or subcontractor has complied fully with the requirements of this subsection section. A contractor may not authorize final payment until such an affidavit is filed in proper form and order.

SB373-SSA1, s. 16 Section 16. 66.293 (3) (h) of the statutes is renumbered 66.293 (9) (c) and amended to read:

SB373-SSA1,11,10 66.293 (9) (c) Upon completion of the a project and prior to before receiving final payment therefor for his or her work on the project, each contractor shall file with the municipality local governmental unit authorizing the work an affidavit stating that the contractor has complied fully with the provisions and requirements of this subsection section and that the contractor has received evidence of compliance an affidavit under par. (b) from each of the contractor's agents and subcontractors. No municipality may A local governmental unit may not authorize a final payment until such an affidavit is filed in proper form and order. If a local governmental unit authorizes a final payment before such an affidavit is filed in proper form and order or if the department determines, based on the greater weight of the credible evidence, that any person specified in sub. (4) has been or may have been paid less than the prevailing wage rate or less than 1.5 times the hourly basic rate of pay for all hours worked in excess of the prevailing hours of labor and requests that the local governmental unit withhold all or part of the final payment, but the local governmental unit fails to do so, the local governmental unit is liable for all back wages payable up to the amount of that final payment.

SB373-SSA1, s. 17 Section 17. 66.293 (3) (i) of the statutes is renumbered 66.293 (10) (b) and amended to read: