SB568: Bill Text

LRB-3798/2

GMM:bjk:jf

2007 - 2008 LEGISLATURE

2007 Senate BILL 568

March 12, 2008 - Introduced by Senators Wirch, Hansen, Decker and Erpenbach, cosponsored by Representatives Mason, Kessler, Boyle, Soletski, Zepnick, Pocan, Berceau, Pope-Roberts, Black, Sheridan, Parisi, Turner, Jorgensen, Nelson, Hixson, Fields, Kreuser, Hintz, Garthwaite, Hilgenberg and Van Akkeren. Referred to Committee on Labor, Elections and Urban Affairs.

SB568,2,2 An Act to amend 19.36 (12), 66.0903 (3) (av), 66.0903 (10) (a), 66.0903 (10) (c), 103.49 (3) (ar), 103.49 (5) (a), 103.49 (5) (c), 103.50 (4m), 103.503 (title), 103.503 (1) (a), 103.503 (1) (c), 103.503 (1) (e), 103.503 (1) (g), 103.503 (2), 103.503 (3) (a) 2., 109.09 (1), 111.322 (2m) (c), 227.01 (13) (t) and 946.15; and to create 66.0904 and 104.001 (3) (am) of the statutes; relating to: payment of the prevailing wage rate to laborers, workers, mechanics, and truck drivers employed on a publicly funded private construction project, submission of certain payroll information on a weekly basis by a contractor, subcontractor, or agent performing work on a project that is subject to the prevailing wage law to the local governmental unit, state agency, or owner or developer authorizing the work, inspection of the payroll records of contractors, subcontractors, and agents performing work on projects that are subject to the prevailing wage law, granting rule-making authority, and providing penalties.

Analysis by the Legislative Reference Bureau

Under current law, certain laborers, workers, mechanics, and truck drivers employed on a state or local project of public works must be paid at the rate paid for a majority of the hours worked in the person's trade or occupation in the county in which the project is located, as determined by the Department of Workforce Development (DWD), and may not be required or permitted to work a greater number of hours per day and per week than the prevailing hours of labor, that is, no more than ten hours per day and 40 hours per week, unless they are paid 1.5 times their basic rate of pay (overtime pay) for all hours worked in excess of the prevailing hours of labor (prevailing wage law).

This bill requires all laborers, workers, mechanics, and truck drivers working on the site of a publicly funded private construction project to be paid not less than the prevailing wage rate and to be paid overtime pay for all hours worked in excess of the prevailing hours of labor. The bill defines a "publicly funded private construction project" as a construction project, other than a project of public works, that receives financial assistance from a local governmental unit and "financial assistance" as any grant, cooperative agreement, loan, contract, or any other arrangement by which a local governmental unit provides or otherwise makes available assistance in any of the following forms:

1. Funding.

2. A transfer or lease of real or personal property of the local governmental unit or of any interest in or permission to use that property for less than fair market value or for reduced consideration.

3. Proceeds from a subsequent transfer or lease of real or personal property transferred or leased from the local governmental unit, if the local governmental unit's share of the fair market value of the property is not returned to the local governmental unit.

4. A redevelopment contract, economic development agreement, industrial development revenue agreement, contract for the development or redevelopment of a tax incremental district or a blighted area, or assistance provided to develop, redevelopment, maintain, operate, or promote a business improvement district.

Current law requires each contractor, subcontractor, and contractor's or subcontractor's agent performing work on a project that is subject to the prevailing wage law to keep records indicating the name and trade or occupation of every person performing work that is subject to the prevailing wage law and an accurate record of the number of hours worked by each of those persons and the actual wages paid for those hours worked.

This bill requires a contractor, subcontractor, or agent performing work on a project that is subject to the prevailing wage law to submit, on a weekly basis, to the contracting local governmental unit, state agency, or private owner or developer authorizing the work a certified record indicating for the preceding week the name and trade or occupation of every person performing work that is subject to the prevailing wage law and an accurate record of the number of hours worked by each of those persons and the actual wages paid for those hours worked.

Current law requires DWD, if requested by any person, to inspect the payroll records of any contractor, subcontractor, or agent performing work on a project that is subject to the prevailing wage law to ensure compliance with that law. If the contractor, subcontractor, or agent is found to be in compliance with that law and if the person making the request is a person performing work that is subject to that law, DWD must charge the person the actual cost of the inspection. If the contractor, subcontractor, or agent is found to be in compliance with that law and if the person making the request is not a person performing work that is subject to that law, DWD must charge the person $250 or the actual cost of the inspection, whichever is greater.

This bill requires DWD to charge a person making a request for the inspection of the payroll records of a contractor, subcontractor, or agent performing work on a project that is subject to the prevailing wage law, as affected by the bill, only if DWD finds that the contractor, subcontractor, or agent is in compliance with that law and that the request is frivolous. In order to find that a request is frivolous, DWD must find that the person making the request made the request in bad faith, solely for the purpose of harassing or maliciously injuring the contractor, subcontractor, or agent, or that the person making the request knew, or should have known, that there was no reasonable basis for believing that a violation of the prevailing wage law had been committed.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

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

SB568, s. 1 Section 1. 19.36 (12) of the statutes is amended to read:

SB568,4,3 19.36 (12) Information relating to certain employees. Unless access is specifically authorized or required by statute, an authority shall not provide access to a record prepared or provided by an employer performing work on a project to which s. 66.0903, 66.0904, 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.

SB568, s. 2 Section 2. 66.0903 (3) (av) of the statutes is amended to read:

SB568,4,10 66.0903 (3) (av) In determining prevailing wage rates under par. (am) or (ar), the department may not use data from projects that are subject to this section, s. 66.0904, 103.49, or 103.50 or 40 USC 276a unless the department determines that there is insufficient wage data in the area to determine those prevailing wage rates, in which case the department may use data from projects that are subject to this section, s. 66.0904, 103.49, or 103.50 or 40 USC 276a.

SB568, s. 3 Section 3. 66.0903 (10) (a) of the statutes is amended to read:

SB568,4,21 66.0903 (10) (a) Each contractor, subcontractor, or contractor's or subcontractor's agent performing work on a project that is subject to this section shall keep full and accurate records clearly indicating the name and trade or occupation of every person performing the work described in sub. (4) and an accurate record of the number of hours worked by each of those persons and the actual wages paid for the hours worked. By no later than the end of the week following a week in which a contractor, subcontractor, or contractor's or subcontractor's agent performs work on a project that is subject to this section, the contractor, subcontractor, or agent shall submit to the contracting local governmental unit a certified record of the information specified in the preceding sentence for that preceding week.

SB568, s. 4 Section 4. 66.0903 (10) (c) of the statutes is amended to read:

SB568,5,16 66.0903 (10) (c) If requested by any person, the department shall inspect the payroll records of any contractor, subcontractor, or agent performing work on a project that is subject to this section to ensure compliance with this section. If In the case of a request made by a person performing the work specified in sub. (4), if the department finds that the contractor, subcontractor, or agent subject to the inspection is found to be in compliance and if the person making the request is a person performing the work specified in sub. (4) that the request is frivolous, the department shall charge the person making the request the actual cost of the inspection. If In the case of a request made by a person not performing the work specified in sub. (4), if the department finds that the contractor, subcontractor, or agent subject to the inspection is found to be in compliance and if the person making the request is not a person performing the work specified in sub. (4) that the request is frivolous, the department shall charge the person making the request $250 or the actual cost of the inspection, whichever is greater. In order to find that a request is frivolous, the department must find that the person making the request made the request in bad faith, solely for the purpose of harassing or maliciously injuring the contractor, subcontractor, or agent subject to the inspection, or that the person making the request knew, or should have known, that there was no reasonable basis for believing that a violation of this section had been committed.

SB568, s. 5 Section 5. 66.0904 of the statutes is created to read:

SB568,5,19 66.0904 Wage rates; publicly funded private construction projects. (1) Definitions. In this section:

SB568,6,4 (a) "Area" means the county in which a proposed publicly funded private construction project 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. (4) (e), "area" means the city, village, or town in which a proposed publicly funded private construction project that is subject to this section is located.

SB568,6,5 (b) "Department" means the department of workforce development.

SB568,6,10 (c) "Financial assistance" means any grant, cooperative agreement, loan, contract, other than a public works contract, a supply procurement contract, a contract of insurance or guaranty, or a collective bargaining agreement, or any other arrangement by which a local governmental unit provides or otherwise makes available assistance in any of the following forms:

SB568,6,11 1. Funding.

SB568,6,14 2. A transfer or lease of real or personal property of the local governmental unit or of any interest in or permission to use, other than on a casual or transient basis, that property for less than fair market value or for reduced consideration.

SB568,6,18 3. Proceeds from a subsequent transfer or lease of real or personal property transferred or leased from the local governmental unit, if the local governmental unit's share of the fair market value of the property is not returned to the local governmental unit.

SB568,6,21 4. A redevelopment contract, economic development agreement, revenue agreement under s. 66.1103, contract under s. 66.1105 (3) or 66.1333 (5), or assistance provided under s. 66.1109.

SB568,6,22 (d) "Hourly basic rate of pay" has the meaning given in s. 103.49 (1) (b).

SB568,6,23 (e) "Insufficient wage data" has the meaning given in s. 103.49 (1) (bg).

SB568,6,24 (f) "Local governmental unit" has the meaning given in s. 66.0903 (1) (d).

SB568,7,3 (g) "Multiple-trade publicly funded private construction project" means a publicly funded private construction project in which no single trade accounts for more than 85 percent or more of the total labor cost of the project.

SB568,7,4 (h) "Prevailing hours of labor" has the meaning given in s. 103.49 (1) (c).

SB568,7,11 (i) 1. Except as provided in subd. 2., "prevailing wage rate" for any trade or occupation engaged in the erection, construction, remodeling, repairing, or demolition of any publicly funded private construction project 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.

SB568,7,21 2. 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, "prevailing wage rate" for any trade or occupation engaged in the erection, construction, remodeling, repairing, or demolition of any publicly funded private construction project in any area means 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 percent of hours worked in that trade or occupation on projects in that area.

SB568,7,24 (j) "Publicly funded private construction project" means a construction project, other than a project of public works, that receives financial assistance from a local governmental unit.

SB568,8,3 (k) "Single-trade publicly funded private construction project" means a publicly funded private construction project in which a single trade accounts for 85 percent or more of the total labor cost of the project.

SB568,8,4 (L) "Truck driver" has the meaning given in s. 103.49 (1) (g).

SB568,8,16 (2) Prevailing wage rates and hours of labor. (a) Any owner or developer of real property who enters into a contract for the erection, construction, remodeling, repairing, or demolition of any publicly funded private construction project on that real property shall include in the contract a stipulation that no person performing the work described in sub. (3) may be permitted to work a greater number of hours per day or per week than the prevailing hours of labor, except that any such person may be permitted or required to work more than the prevailing hours of labor per day and per week if he or she is paid for all hours worked in excess of the prevailing hours of labor at a rate of at least 1.5 times his or her hourly basic rate of pay; nor may he or she be paid less than the prevailing wage rate determined under sub. (4) in the same or most similar trade or occupation in the area in which the publicly funded private construction project is situated.

SB568,9,3 (b) A reference to the prevailing wage rates determined under sub. (4) and the prevailing hours of labor shall be published in any notice issued for the purpose of securing bids for the publicly funded private construction project. If any contract or subcontract for a publicly funded private construction project that is subject to this section is entered into, the prevailing wage rates determined under sub. (4) and the prevailing hours of labor 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.

SB568,9,8 (3) Covered employees. (a) Subject to par. (b), all of the following employes shall be paid the prevailing wage rate determined under sub. (4) and may not be permitted to work a greater number of hours per day or per week than the prevailing hours of labor, unless they are paid for all hours worked in excess of the prevailing hours of labor at a rate of at least 1.5 times their hourly basic rate of pay:

SB568,9,10 1. All laborers, workers, mechanics, and truck drivers employed on the site of a publicly funded private construction project that is subject to this section.