Amendment ASA1-AB41

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2009 - 2010 LEGISLATURE

ASSEMBLY SUBSTITUTE AMENDMENT 1, TO 2009 ASSEMBLY BILL 41

March 23, 2010 - Offered by Representatives Mason and Grigsby.

AB41-ASA1,1,10 An Act to repeal 104.001; to renumber 104.01 (1); to renumber and amend 104.045; to amend 49.141 (1) (g), 104.01 (intro.), 104.01 (8), 104.05, 104.07 (1), 104.07 (2), 104.10, 104.11, 234.94 (5), 234.94 (8), 800.09 (1) (b), 800.095 (4) (b) 3. and 895.035 (2m) (c); and to create 104.01 (1d), 104.01 (1g), 104.01 (5g), 104.01 (5m), 104.01 (7m), 104.035 and 104.045 (2) and (3) of the statutes; relating to: a state minimum wage, permitting the enactment of local living wage ordinances, extending the time limit for emergency rule procedures, providing an exemption from emergency rule procedures, providing an exemption from rule-making procedures, and requiring the exercise of rule-making authority.

Analysis by the Legislative Reference Bureau

Currently, the state minimum wage law requires that employers pay a living wage to their employees. Under that law, the Department of Workforce Development (DWD) has provided, by rule, minimum wages for various types of employees, including employees, generally; minor employees; opportunity employees, which are defined as employees under 20 years of age in their first 90 days of employment with a particular employer; tipped employees; agricultural employees; camp counselors; golf caddies; students employed at independent colleges and universities for less than 20 hours per week; student learners employed in bona fide school training programs; and individuals who are unable to earn the standard minimum wage because of a disability. DWD has exempted, by rule, from the minimum wage law employees who perform less than 15 hours per week of casual employment, such as baby-sitting or lawn mowing, in and around an employer's home; employees who provide companionship services to elderly or infirm individuals; and elementary and secondary school students performing work-like activities in their schools. DWD has also promulgated rules providing allowances against the minimum wage for employers that provide meals or lodging for their employees.

Under this substitute amendment, DWD will continue to provide the exemptions listed above and separate minimum wages for students employed at independent colleges and universities for less than 20 hours per week, student learners employed in bona fide school training programs, and individuals who are unable to earn the standard minimum wages because of a disability. For other employees, however, the substitute amendment sets the minimum wages, effective on September 5, 2011, or on the day after publication of the substitute amendment, whichever is later, as follows: - See PDF for table - See PDF for table - See PDF for table

The substitute amendment also increases the allowance against the minimum wage that an employer who provides room and board for an employee may take, as follows: - See PDF for table

Beginning on September 5, 2012, the substitute amendment requires DWD annually to promulgate rules revising the minimum wages and allowances for meals and lodging established under the substitute amendment by determining the percentage difference between the consumer price index for the preceding year and the consumer price index for the current year, adjusting the minimum wages and allowances in effect on September 4 of the current year by that percentage difference, and rounding that result to the nearest multiple of five cents or, in the case of a camp counselor, the nearest dollar. This requirement does not apply, however, if the consumer price index for the current year has not increased over the consumer price index for the preceding year.

Finally, current law prohibits a city, village, town, or county from enacting and administering an ordinance establishing a living wage. This substitute amendment eliminates that prohibition.

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

AB41-ASA1, s. 1 Section 1. 49.141 (1) (g) of the statutes is amended to read:

AB41-ASA1,5,4 49.141 (1) (g) "Minimum wage" means the state minimum hourly wage under ch. 104 s. 104.035 (1) or the federal minimum hourly wage under 29 USC 206 (a) (1), whichever is applicable.

AB41-ASA1, s. 2 Section 2. 104.001 of the statutes, as affected by 2009 Wisconsin Act 28, is repealed.

AB41-ASA1, s. 3 Section 3. 104.01 (intro.) of the statutes is amended to read:

AB41-ASA1,6,5 104.01 Definitions. (intro.) The following terms as used in In this chapter shall be construed as follows:

AB41-ASA1, s. 4 Section 4. 104.01 (1) of the statutes is renumbered 104.01 (1m).

AB41-ASA1, s. 5 Section 5. 104.01 (1d) of the statutes is created to read:

AB41-ASA1,6,9 104.01 (1d) "Agricultural employee" means an employee who is employed in farming, as defined in s. 102.04 (3).

AB41-ASA1, s. 6 Section 6. 104.01 (1g) of the statutes is created to read:

AB41-ASA1,6,13 104.01 (1g) "Consumer price index" means the average of the consumer price index over each 12-month period for all urban consumers, U.S. city average, as determined by the bureau of labor statistics of the U.S. department of labor.

AB41-ASA1, s. 7 Section 7. 104.01 (5g) of the statutes is created to read:

AB41-ASA1,6,16 104.01 (5g) "Minor employee" means a minor who is paid at the applicable minimum wage rate for minors.

AB41-ASA1, s. 8 Section 8. 104.01 (5m) of the statutes is created to read:

AB41-ASA1,6,19 104.01 (5m) "Opportunity employee" means a person under 20 years of age who is in the first 90 consecutive days of employment with his or her employer.

AB41-ASA1, s. 9 Section 9. 104.01 (7m) of the statutes is created to read:

AB41-ASA1,6,23 104.01 (7m) "Tipped employee" means an employee who in the course of employment customarily and regularly receives money or other gratuities from persons other than the employee's employer.

AB41-ASA1, s. 10 Section 10. 104.01 (8) of the statutes is amended to read:

AB41-ASA1,7,2 104.01 (8) The term "wage" and the term "wages" shall each mean "Wage" means any compensation for labor measured by time, piece, or otherwise.

AB41-ASA1, s. 11 Section 11. 104.035 of the statutes is created to read:

AB41-ASA1,7,5 104.035 Minimum wage. (1) Employees generally. (a) Minimum rates. Except as provided in subs. (2) to (8), the minimum wage is as follows:

AB41-ASA1,7,6 1. For wages earned before September 5, 2012, $7.60 per hour.

AB41-ASA1,7,8 2. For wages earned beginning on September 5, 2012, the amount determined by the department by rule promulgated under sub. (9).

AB41-ASA1,7,12 (b) Allowances for meals and lodging. Except as provided in subs. (2) (b) and (4) (b), if an employer furnishes an employee with meals or lodging in accordance with rules promulgated by the department under s. 104.045 (2), the employer may deduct the following amounts from the wages of the employee:

AB41-ASA1,7,15 1. For lodging furnished before September 5, 2012, $61 per week or $8.65 per day and for meals furnished before September 5, 2012, $91 per week or $4.35 per meal.

AB41-ASA1,7,17 2. For meals and lodging furnished beginning on September 5, 2012, the amounts determined by the department by rule promulgated under sub. (9).

AB41-ASA1,7,19 (2) Minor employees. (a) Minimum rates. Except as provided in subs. (2m) to (8), the minimum wage for a minor employee is as follows:

AB41-ASA1,7,20 1. For wages earned before September 5, 2012, $7.25 per hour.

AB41-ASA1,7,22 2. For wages earned beginning on September 5, 2012, the amount determined by the department by rule promulgated under sub. (9).

AB41-ASA1,8,2 (b) Allowances for meals and lodging. Except as provided in sub. (4) (b), if an employer furnishes a minor employee or an opportunity employee with meals or lodging in accordance with rules promulgated by the department under s. 104.045 (2), the employer may deduct the following amounts from the wages of the employee:

AB41-ASA1,8,5 1. For lodging furnished before September 5, 2012, $58 per week or $8.30 per day and for meals furnished before September 5, 2012, $87 per week or $4.15 per meal.

AB41-ASA1,8,7 2. For meals and lodging furnished beginning on September 5, 2012, the amounts determined by the department by rule promulgated under sub. (9).

AB41-ASA1,8,9 (2m) Opportunity employees. (a) Minimum rates. Except as provided in subs. (3) to (8), the minimum wage for an opportunity employee is as follows:

AB41-ASA1,8,10 1. For wages earned before September 5, 2012, $6.90 per hour.

AB41-ASA1,8,12 2. For wages earned beginning on September 5, 2012, the amount determined by the department by rule promulgated under sub. (9).

AB41-ASA1,8,16 (b) Allowances for meals and lodging. Except as provided in sub. (4) (b), if an employer furnishes an opportunity employee with meals or lodging in accordance with rules promulgated by the department under s. 104.045 (2), the employer may deduct the following amounts from the wages of the employee:

AB41-ASA1,8,19 1. For lodging furnished before September 5, 2012, $55.20 per week or $7.90 per day and for meals furnished before September 5, 2012, $82.85 per week or $3.90 per meal.

AB41-ASA1,8,21 2. For meals and lodging furnished beginning on September 5, 2012, the amounts determined by the department by rule promulgated under sub. (9).

AB41-ASA1,9,2 (3) Tipped employees. (a) Minimum rates. Except as provided in subs. (4) to (8), if an employer of a tipped employee establishes by the employer's payroll records that, when adding the tips received by the tipped employee in a week to the wages paid to the tipped employee in that week, the tipped employee receives not less than the applicable minimum wage specified in sub. (1) or (2), the minimum wage for the tipped employee is as follows:

AB41-ASA1,9,4 1. For wages earned before September 5, 2012, by a tipped employee who is not an opportunity employee, $2.75 per hour.

AB41-ASA1,9,6 2. For wages earned before September 5, 2012, by a tipped employee who is an opportunity employee, $2.50 per hour.

AB41-ASA1,9,8 3. For wages earned beginning on September 5, 2012, the amounts determined by the department by rule promulgated under sub. (9).

AB41-ASA1,9,12 (b) Allowances for meals and lodging. If an employer furnishes a tipped employee with meals or lodging in accordance with rules promulgated by the department under s. 104.045 (2), the employer may deduct the applicable amounts specified in sub. (1) (b) or (2) (b) from the wages of the tipped employee.

AB41-ASA1,9,14 (4) Agricultural employees. (a) Minimum rates. Except as provided in subs. (7) and (8), the minimum wage for an agricultural employee is as follows:

AB41-ASA1,9,15 1. For wages earned before September 5, 2012, $7.25 per hour.

AB41-ASA1,9,17 2. For wages earned beginning on September 5, 2012, the amounts determined by the department by rule promulgated under sub. (9).

AB41-ASA1,9,21 (b) Allowances for meals and lodging. If an employer furnishes an agricultural employee with meals or lodging in accordance with rules promulgated by the department under s. 104.045 (2), the employer may deduct the following amounts from the wages of the employee:

AB41-ASA1,9,24 1. For lodging furnished before September 5, 2012, $58 per week or $8.30 per day and for meals furnished before September 5, 2012, $87 per week or $4.15 per meal.

AB41-ASA1,9,25 2. For meals and lodging furnished beginning on September 5, 2012, the amounts determined by the department by rule promulgated under sub. (9).

AB41-ASA1,10,4 (5) Camp counselors. The minimum wage for a counselor at a seasonal recreational or educational camp, including a day camp, is as follows:

AB41-ASA1,10,7 (a) For wages earned before September 5, 2012, $350 per week if meals and lodging are not furnished, $265 per week if only meals are furnished, and $210 per week if both meals and lodging are furnished.

AB41-ASA1,10,9 (b) For wages earned beginning on September 5, 2012, the amounts determined by the department by rule promulgated under sub. (9).

AB41-ASA1,10,10 (6) Golf caddies. The minimum wage for a golf caddy is as follows:

AB41-ASA1,10,11 (a) For wages earned before September 5, 2012, $12.30 for caddying 18 holes.

AB41-ASA1,10,12 (b) For wages earned before September 5, 2012, $6.90 for caddying 9 holes.

AB41-ASA1,10,14 (c) For wages earned beginning on September 5, 2012, the amounts determined by the department by rule promulgated under sub. (9).

AB41-ASA1,10,16 (7) Minimum wage established by department. The department shall promulgate rules providing the minimum wage for all of the following:

AB41-ASA1,10,18 (a) An employee or worker with a disability covered under a license under s. 104.07.

AB41-ASA1,10,19 (b) A student learner.

AB41-ASA1,10,21 (c) A student employed by an independent college or university for less than 20 hours per week.

AB41-ASA1,10,24 (8) Employment exempted by department. The department shall promulgate rules exempting from the minimum wage requirements under subs. (1) to (7) all of the following:

AB41-ASA1,11,2 (a) A person engaged in casual employment in and around an employer's home on an irregular or intermittent basis for not more than 15 hours per week.

AB41-ASA1,11,6 (b) A person who resides in the home of an employer who, due to advanced age or physical or mental disability, cannot care for his or her own needs, for the purpose of companionship and who spends not more than 15 hours per week on general household work for the employer.

AB41-ASA1,11,8 (c) An elementary or secondary school student performing student work-like activities in the student's school.

AB41-ASA1,12,2 (9) Department to revise. (a) Subject to pars. (b) and (c), by September 5 of each year, the department, using the procedures under s. 227.24, shall promulgate rules to revise the minimum wages and allowances for meals and lodging established under subs. (1) to (7). The department shall determine those revised minimum wages and allowances by calculating the percentage difference between the consumer price index for the 12-month period ending on May 31 of the preceding year and the consumer price index for the 12-month period ending on May 31 of the current year, adjusting the minimum wages and allowances in effect on September 4 of the current year by that percentage difference, and rounding that result to the nearest multiple of 5 cents, except that for a minimum wage under sub. (5), the department shall round the result to the nearest dollar. Notwithstanding s. 227.24 (1) (a), (2) (b), and (3), the department may promulgate an emergency rule under s. 227.24 revising the minimum wages and allowances established under subs. (1) to (7) without providing evidence that the emergency rule is necessary to preserve the public peace, health, safety, or welfare and without a finding of emergency. A revised minimum wage or allowance determined under this paragraph shall first apply to wages earned or meals or lodging furnished on September 5 of the year in which the wage or allowance is revised.

AB41-ASA1,12,5 (b) Paragraph (a) does not apply if the consumer price index for the 12-month period ending on May 31 of the current year has not increased over the consumer price index for the 12-month period ending on May 31 of the preceding year.

AB41-ASA1,12,7 (c) Paragraph (a) does not preclude the department from promulgating rules to increase a minimum wage provided under subs. (1) to (7).

AB41-ASA1, s. 12 Section 12. 104.045 of the statutes is renumbered 104.045 (intro.) and amended to read: