Amendment ASA2-AB621

LRBs0373/1

MIM:amn&cjs

2023 - 2024 LEGISLATURE

ASSEMBLY SUBSTITUTE AMENDMENT 2, TO ASSEMBLY BILL 621

February 22, 2024 - Offered by Representative Neubauer.

AB621-ASA2,2,2 An Act to repeal 16.75 (1p), 16.855 (1p), 66.0901 (1) (ae), 66.0901 (1) (am), 66.0901 (6m), 66.0901 (6s), 84.54, 86.51, 111.04 (3) and 947.20; to consolidate, renumber and amend 111.04 (1) and (2); to amend 66.0129 (5), 66.0901 (6), 66.0903 (1) (c), 66.0903 (1) (f), 66.0903 (1) (j), 66.0903 (1m) (b), 103.005 (12) (a), 103.503 (1) (a), 103.503 (1) (e), 103.503 (2), 103.503 (3) (a) 2., 109.09 (1), 111.06 (1) (c), 111.06 (1) (e), 111.06 (1) (i), 111.322 (2m) (a), 111.322 (2m) (b) and 978.05 (6) (a); to repeal and recreate 66.0903 (1) (g) and 103.503 (1) (g); and to create 19.36 (12), 66.0903 (1) (a), (am), (b), (cm), (dr), (em), (hm) and (im), 66.0903 (2) to (12), 84.41 (3), 103.49, 103.50, 104.001 (4), 106.04, 111.01, 111.322 (2m) (c), 227.01 (13) (t), 229.682 (2), 229.8275 and 946.15 of the statutes; relating to: eliminating the right-to-work law, project labor agreements and public contracts, prevailing wage, granting rule-making authority, and providing a penalty.

Analysis by the Legislative Reference Bureau

Right-to-work repeal

The current right-to-work law prohibits a person from requiring, as a condition of obtaining or continuing employment, an individual to refrain or resign from membership in a labor organization, to become or remain a member of a labor organization, to pay dues or other charges to a labor organization, or to pay any other person an amount that is in place of dues or charges required of members of a labor organization. This bill repeals these prohibitions and the associated misdemeanor offense for violating the right-to-work law.

The bill explicitly provides that, when an all-union agreement is in effect, it is not an unfair labor practice to encourage or discourage membership in a labor organization or to deduct labor organization dues or assessments from an employee's earnings. The bill sets conditions under which an employer may enter into an all-union agreement. The bill also sets conditions for the continuation or termination of all-union agreements, including that, if the Wisconsin Employment Relations Commission determines there is reasonable ground to believe employees in an all-union agreement have changed their attitude about the agreement, WERC is required to conduct a referendum to determine whether the employees wish to continue the agreement. WERC is required to terminate an all-union agreement if it finds the union unreasonably refused to admit an employee into the union.

Project labor agreements

Under current law, the state and local units of government are prohibited from engaging in certain practices in letting bids for state procurement or public works contracts. Among these prohibitions, as established by 2017 Wisconsin Act 3, the state and local governments may not do any of the following in specifications for bids for the contracts: 1) require that a bidder enter into an agreement with a labor organization; 2) consider, when awarding a contract, whether a bidder has or has not entered into an agreement with a labor organization; or 3) require that a bidder enter into an agreement that requires that the bidder or bidder's employees become or remain members of a labor organization or pay any dues or fees to a labor organization. This bill repeals these bidding specification restrictions.

Prevailing wage

This bill requires that laborers, workers, mechanics, and truck drivers employed on the site of certain projects of public works be paid the prevailing wage and not be required or allowed to work a greater number of hours per day and per week than the prevailing hours of labor unless they are paid overtime for all hours worked in excess of the prevailing hours of labor. Projects subject to the bill include state and local projects of public works, including state highway projects, with exceptions including projects below certain cost thresholds, minor service or maintenance work, and certain residential projects. Under the bill, “prevailing wage rate” is defined as the hourly basic rate of pay, plus the hourly contribution for bona fide economic benefits, paid for a majority of the hours worked in a trade or occupation in the area in which the project is located, except that, if there is no rate at which a majority of those hours is paid, “prevailing wage rate” means the average hourly basic rate of pay, plus the average hourly contribution for bona fide economic benefits, paid for the highest-paid 51 percent of hours worked in a trade or occupation in the area. “Prevailing hours of labor" is defined as 10 hours per day and 40 hours per week, excluding weekends and holidays. The bill requires the Department of Workforce Development to conduct investigations and hold public hearings as necessary to define the trades or occupations that are commonly employed on projects that are subject to the prevailing wage law and to inform itself of the prevailing wage rates in all areas of the state for those trades or occupations, in order to determine the prevailing wage rate for each trade or occupation. The bill contains certain other provisions regarding the calculation of prevailing wage rates by DWD, including provisions allowing persons to request recalculations or reviews of the prevailing wage rates determined by DWD.

The bill requires contracts and notices for bids for projects subject to the bill to include and incorporate provisions ensuring compliance with the requirements. The bill also establishes a requirement that state agencies and local governments post prevailing wage rates and hours of labor in areas readily accessible to persons employed on the project or in sites regularly used for posting notices.

The bill makes a contractor that fails to pay the prevailing wage rate or overtime pay to an employee as required under the prevailing wage law liable to the affected employee for not only the amount of unpaid wages and overtime pay, but also for liquidated damages in an amount equal to 100 percent of the unpaid wages and overtime pay.

Finally, the bill includes, for both state and local projects of public works, provisions regarding coverage, compliance, enforcement, and penalties, including 1) requirements for affidavits to be filed by contractors affirming compliance with the prevailing wage law; 2) record retention requirements for contractors regarding wages paid to workers and provisions allowing for the inspection of those records by DWD; 3) liability and penalty provisions for certain violations, including criminal penalties; and 4) provisions prohibiting contracts from being awarded to persons who have failed to comply with the prevailing wage law.

Transportation projects

Under current law, for certain highway projects for which the Department of Transportation spends federal money, federal money must make up at least 70 percent of the funding for those projects. DOT is required to notify political subdivisions receiving aid for local projects whether the aid includes federal moneys and how those moneys must be spent. For certain projects that receive no federal money, DOT may not require political subdivisions to comply with any portion of DOT's facilities development manual other than design standards. Any local project funded with state funds under the surface transportation program or the local bridge program must be let through competitive bidding and by contract to the lowest responsible bidder. The bill repeals all of these requirements.

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

AB621-ASA2,1 Section 1. 16.75 (1p) of the statutes is repealed.

AB621-ASA2,2 Section 2. 16.855 (1p) of the statutes is repealed.

AB621-ASA2,3 Section 3 . 19.36 (12) of the statutes is created to read:

AB621-ASA2,4,13 19.36 (12) Information relating to certain employees. Unless access is specifically authorized or required by statute, an authority may not provide access to a record prepared or provided by an employer performing work on a project to which s. 66.0903, 103.49, or 103.50 applies, or on which the employer is otherwise required to pay prevailing wages, if that record contains the name or other personally identifiable information relating to an employee of that employer, unless the employee authorizes the authority to provide access to that information. In this subsection, “personally identifiable information" does not include an employee's work classification, hours of work, or wage or benefit payments received for work on such a project.

AB621-ASA2,4 Section 4 . 66.0129 (5) of the statutes is amended to read:

AB621-ASA2,4,19 66.0129 (5) Bids for construction. The nonprofit corporation shall let all contracts exceeding $1,000 for the construction, maintenance or repair of hospital facilities to the lowest responsible bidder after advertising for bids by the publication of a class 2 notice under ch. 985. Section Sections 66.0901 applies and 66.0903 apply to bids and contracts under this subsection.

AB621-ASA2,5 Section 5. 66.0901 (1) (ae) of the statutes is repealed.

AB621-ASA2,6 Section 6. 66.0901 (1) (am) of the statutes is repealed.

AB621-ASA2,7 Section 7. 66.0901 (6) of the statutes is amended to read:

AB621-ASA2,5,12 66.0901 (6) Separation of contracts; classification of contractors. In public contracts for the construction, repair, remodeling or improvement of a public building or structure, other than highway structures and facilities, a municipality may bid projects based on a single or multiple division of the work. Public contracts shall be awarded according to the division of work selected for bidding. Except as provided in sub. (6m), the The municipality may set out in any public contract reasonable and lawful conditions as to the hours of labor, wages, residence, character and classification of workers to be employed by any contractor, classify contractors as to their financial responsibility, competency and ability to perform work and set up a classified list of contractors. The municipality may reject the bid of any person, if the person has not been classified for the kind or amount of work in the bid.

AB621-ASA2,8 Section 8. 66.0901 (6m) of the statutes is repealed.

AB621-ASA2,9 Section 9. 66.0901 (6s) of the statutes is repealed.

AB621-ASA2,10 Section 10 . 66.0903 (1) (a), (am), (b), (cm), (dr), (em), (hm) and (im) of the statutes are created to read:

AB621-ASA2,5,25 66.0903 (1) (a) “Area" means the county in which a proposed project of public works that is subject to this section is located or, if the department determines that there is insufficient wage data in that county, “area" means those counties that are contiguous to that county or, if the department determines that there is insufficient wage data in those counties, “area" means those counties that are contiguous to those counties or, if the department determines that there is insufficient wage data in those counties, “area" means the entire state 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 of public works that is subject to this section is located.

AB621-ASA2,6,1 (am) “Bona fide economic benefit" has the meaning given in s. 103.49 (1) (am).

AB621-ASA2,6,2 (b) “Department" means the department of workforce development.

AB621-ASA2,6,3 (cm) “Insufficient wage data" has the meaning given in s. 103.49 (1) (bg).

AB621-ASA2,6,11 (dr) “Minor service or maintenance work" means a project of public works that is limited to minor crack filling, chip or slurry sealing, or other minor pavement patching, not including overlays, that has a projected life span of no longer than 5 years or that is performed for a town and is not funded under s. 86.31, regardless of projected life span; the depositing of gravel on an existing gravel road applied solely to maintain the road; road shoulder maintenance; cleaning of drainage or sewer ditches or structures; or any other limited, minor work on public facilities or equipment that is routinely performed to prevent breakdown or deterioration.

AB621-ASA2,6,13 (em) “Multiple-trade project of public works" has the meaning given in s. 103.49 (1) (br).

AB621-ASA2,6,15 (hm) “Single-trade project of public works" has the meaning given in s. 103.49 (1) (em).

AB621-ASA2,6,17 (im) “Supply and installation contract" has the meaning given in s. 103.49 (1) (fm).

AB621-ASA2,11 Section 11 . 66.0903 (1) (c) of the statutes is amended to read:

AB621-ASA2,6,20 66.0903 (1) (c) “Hourly basic rate of pay" has the meaning given in s. 16.856 103.49 (1) (b), 2015 stats.

AB621-ASA2,12 Section 12 . 66.0903 (1) (f) of the statutes is amended to read:

AB621-ASA2,6,23 66.0903 (1) (f) “Prevailing hours of labor" has the meaning given in s. 16.856 103.49 (1) (e), 2015 stats. (c).

AB621-ASA2,13 Section 13 . 66.0903 (1) (g) of the statutes is repealed and recreated to read:

AB621-ASA2,7,2 66.0903 (1) (g) “Prevailing wage rate" has the meaning given in s. 103.49 (1) (d).

AB621-ASA2,14 Section 14 . 66.0903 (1) (j) of the statutes is amended to read:

AB621-ASA2,7,5 66.0903 (1) (j) “Truck driver" includes an owner-operator of a truck has the meaning given in s. 103.49 (1) (g).