AB829: Bill Text

LRB-4291/1

GMM:nwn:md

2009 - 2010 LEGISLATURE

2009 Assembly BILL 829

March 11, 2010 - Introduced by Representatives M. Williams, Nass, Nygren, Suder, Kestell, Mursau, Meyer, Gottlieb, Davis, Zipperer, Pridemore, Kerkman, Spanbauer, Tauchen, Lothian, A. Ott, Montgomery, Kleefisch, Knodl, LeMahieu, Huebsch, Van Roy, Honadel, Ripp, Roth, Brooks, Murtha, Bies, Gunderson, J. Ott, Vos, Rhoades, Petersen, Strachota, Ballweg, Petrowski, Nerison, Townsend, Newcomer, Friske, Kramer, Gundrum, Vukmir, J. Fitzgerald and Ziegelbauer, cosponsored by Senators Darling, Kedzie, Grothman, Cowles, Schultz, Olsen, Lazich, A. Lasee, Kapanke, Hopper, Leibham, S. Fitzgerald and Kanavas. Referred to Committee on Workforce Development.

AB829,2,4 An Act to repeal 66.0903 (1) (am), 66.0903 (1) (dr), 66.0903 (1) (im), 66.0903 (2), 66.0903 (5) (b), 66.0903 (5) (c), 66.0903 (10) (am), 66.0903 (11) (a) 2., 66.0904, 103.49 (1) (am), 103.49 (1) (bj), 103.49 (1) (fm), 103.49 (1m), 103.49 (3g) (b), 103.49 (3g) (c), 103.49 (5) (am), 103.49 (6m) (ag) and 104.001 (3) (am); to consolidate, renumber and amend 66.0903 (5) (intro.) and (a), 66.0903 (11) (a) 1., 3. and 5. and 103.49 (3g) (intro.) and (a); to amend 19.36 (12), 66.0903 (1) (d), 66.0903 (3) (am), 66.0903 (3) (av), 66.0903 (3) (dm), 66.0903 (10) (c), 103.49 (2), 103.49 (3) (ar), 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), 946.15 (title), 946.15 (1), 946.15 (2), 946.15 (3) and 946.15 (4); and to create 66.0903 (1) (em), 66.0903 (1) (hm), 103.49 (1) (br) and 103.49 (1) (em) of the statutes; relating to: applicability of the prevailing wage law to publicly funded private construction projects and to regional transit authorities, the threshold for applicability of that law to a project of public works, the submission to the Department of Workforce Development of payroll records of persons performing work that is subject to that law, the inspection of those records, and the remedies for a violation of that law.

Analysis by the Legislative Reference Bureau

Under the current prevailing wage 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.

2009 Wisconsin Act 28 made various changes to the prevailing wage law, including: 1) expanding the applicability of that law to cover publicly funded private construction projects and projects of public works contracted by regional transit authorities; 2) lowering the threshold for applicability of that law to a project of public works; 3) requiring contractors to submit payroll records to DWD; 4) requiring DWD to charge a requester for the cost of inspecting payroll records only if the request is frivolous; and 5) permitting DWD to order back pay and liquidated damages for a violation of that law. This bill eliminates those changes, thereby restoring prior law.

Specifically:

1. Publicly funded private construction projects and regional transit authorities. 2009 Wisconsin Act 28 expanded the applicability of the prevailing wage law to cover publicly funded private construction projects that receive $1,000,000 or more in direct financial assistance from a local governmental unit. Under prior law, only projects of public works contracted for by the state or a local governmental unit were subject to the prevailing wage law. This bill eliminates coverage of publicly funded private construction projects under the prevailing wage law, so that under the bill only projects of public works are covered under the prevailing wage law.

2009 Wisconsin Act 28 expanded the definition of "local governmental unit" for purposes of applicability of the prevailing wage law to projects of public works to include regional transit authorities. This bill deletes the inclusion of regional transit authorities in that definition.

2. Threshold for applicability to public works projects. 2009 Wisconsin Act 28 lowered the threshold for applicability of the prevailing wage law to a project of public works so that a project of public works for which the estimated project cost of completion is below $25,000 is not subject to that law. The act also eliminated the authority of DWD to adjust that threshold based on changes in construction costs. Under prior law, that threshold was $234,000 for a multiple-trade project of public works and $48,000 for s single-trade project of public works and DWD was authorized to adjust those amounts annually based on changes on construction costs. This bill restores those thresholds and that authority.

3. Submission of payroll records. 2009 Wisconsin Act 28 required contractors performing work on a project of public works or a publicly funded private construction project that is subject to the prevailing wage law to submit to DWD on a monthly basis, in electronic format, certified 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 (payroll records) or, if all persons performing work on the project are covered under a collective bargaining agreement that provides for wage rates that are not less than the prevailing wage rate, to submit to DWD during the first month of the project, in electronic format, copies of all collective bargaining agreements pertaining to the project. This bill eliminates that requirement.

4. Inspection of payroll records. 2009 Wisconsin Act 28 required DWD to charge a person who requests DWD to inspect a contractor's payroll records for the purpose of ensuring compliance with the prevailing wage law the actual cost of the inspection if the contractor is found to be in compliance with that law and if the request is found to be frivolous. Prior law required DWD to charge that cost if the contractor was found to be in compliance with the prevailing wage law, but did not require the additional finding that the request was frivolous. This bill eliminates that additional finding so that under the bill DWD must charge for the cost of inspecting a contractor's payroll records if the contractor is found to be in compliance with the prevailing wage law, whether or not the request is frivolous.

5. Remedies for a violation of the prevailing wage law. 2009 Wisconsin Act 28 permitted DWD to order a contractor who failed to pay the prevailing wage rate to pay to any affected employee the amount of unpaid wages due, plus 100 percent of that amount as liquidated damages. Prior law permitted only a court to order that payment. This bill eliminates the authority of DWD to order that payment so that under the bill only a court may order that payment.

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:

AB829, s. 1 Section 1. 19.36 (12) of the statutes, as affected by 2009 Wisconsin Act 28, is amended to read:

AB829,4,10 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.

AB829, s. 2 Section 2. 66.0903 (1) (am) of the statutes, as created by 2009 Wisconsin Act 28, is repealed.

AB829, s. 3 Section 3. 66.0903 (1) (d) of the statutes, as affected by 2009 Wisconsin Act 28, is amended to read:

AB829,4,20 66.0903 (1) (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. "Local governmental unit" includes a regional transit authority created under s. 66.1039 and the southeastern regional transit authority created under s. 59.58 (7).

AB829, s. 4 Section 4. 66.0903 (1) (dr) of the statutes, as created by 2009 Wisconsin Act 28, is repealed.

AB829, s. 5 Section 5. 66.0903 (1) (em) of the statutes is created to read:

AB829,4,25 66.0903 (1) (em) "Multiple-trade project of public works" has the meaning given in s. 103.49 (1) (br).

AB829, s. 6 Section 6. 66.0903 (1) (hm) of the statutes is created to read:

AB829,5,3 66.0903 (1) (hm) "Single-trade project of public works" has the meaning given in s. 103.49 (1) (em).

AB829, s. 7 Section 7. 66.0903 (1) (im) of the statutes, as created by 2009 Wisconsin Act 28, is repealed.

AB829, s. 8 Section 8. 66.0903 (2) of the statutes, as created by 2009 Wisconsin Act 28, is repealed.

AB829, s. 9 Section 9. 66.0903 (3) (am) of the statutes, as affected by 2009 Wisconsin Act 28, is amended to read:

AB829,5,21 66.0903 (3) (am) A 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, including a highway, street, or bridge construction project, shall apply to the department to determine the prevailing wage rate for each trade or occupation required in the work contemplated. The department shall conduct investigations and hold public hearings as necessary to define the trades or occupations that are commonly employed on projects of public works that are subject to this section and to inform itself as to 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 department shall issue its determination within 30 days after receiving the request and shall file the determination with the requesting local governmental unit.

AB829, s. 10 Section 10. 66.0903 (3) (av) of the statutes, as affected by 2009 Wisconsin Act 28, is amended to read:

AB829,6,4 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 3142 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 3142.

AB829, s. 11 Section 11. 66.0903 (3) (dm) of the statutes, as affected by 2009 Wisconsin Act 28, is amended to read:

AB829,6,25 66.0903 (3) (dm) A reference to the prevailing wage rates determined by the department or a local governmental unit exempted under sub. (6) and to the prevailing hours of labor shall be published in the notice issued for the purpose of securing bids for the project of public works. If any contract or subcontract for a project of public works, including a highway, street, or bridge construction project, is entered into, the prevailing wage rates determined by the department or exempted local governmental unit 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. No person performing the work 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 week than the prevailing hours of labor, unless he or she is paid for all hours worked in excess of the prevailing hours of labor at a rate of at least 1.5 times his or her hourly basic rate of pay.

AB829, s. 12 Section 12. 66.0903 (5) (intro.) and (a) of the statutes, as affected by 2009 Wisconsin Act 28, are consolidated, renumbered 66.0903 (5) and amended to read:

AB829,7,13 66.0903 (5) Nonapplicability. This section does not apply to any of the following: (a) A single-trade project of public works, including a highway, street, or bridge construction project for which the estimated project cost of completion is below $25,000 $48,000 or an amount determined by the department under this subsection or to any multiple-trade project of public works, including a highway, street, or bridge construction project, for which the estimated project cost of completion is below $234,000 or an amount determined by the department under this subsection. The department shall adjust those dollar amounts every year, the first adjustment to be made not sooner than December 1, 2010. The adjustments shall be in proportion to any change in construction costs since the effective date of the dollar amounts established under this subsection.

AB829, s. 13 Section 13. 66.0903 (5) (b) of the statutes, as created by 2009 Wisconsin Act 28, is repealed.

AB829, s. 14 Section 14. 66.0903 (5) (c) of the statutes, as created by 2009 Wisconsin Act 28, is repealed.

AB829, s. 15 Section 15. 66.0903 (10) (am) of the statutes, as created by 2009 Wisconsin Act 28, is repealed.

AB829, s. 16 Section 16. 66.0903 (10) (c) of the statutes, as affected by 2009 Wisconsin Act 28, is amended to read:

AB829,8,13 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 of public works that is subject to this section to ensure compliance with this section. 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 in compliance and that the request is frivolous, the department shall charge the person making the request the actual cost of the inspection. 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 in compliance and 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.

AB829, s. 17 Section 17. 66.0903 (11) (a) 1., 3. and 5. of the statutes, as affected by 2009 Wisconsin Act 28, are consolidated, renumbered 66.0903 (11) (a) and amended to read:

AB829,9,14 66.0903 (11) (a) Any contractor, subcontractor, or contractor's or subcontractor's agent who fails to pay the prevailing wage rate determined by the department under sub. (3) or who pays less than 1.5 times the hourly basic rate of pay for all hours worked in excess of the prevailing hours of labor is liable to any affected employee in the amount of his or her unpaid wages or his or her unpaid overtime compensation and in an additional amount as liquidated damages as provided under subd. 2., 3., whichever is applicable. 3. In addition to or in lieu of recovering the liability specified in subd. 1. as provided in subd. 2., any. An action to recover the liability may be maintained in any court of competent jurisdiction by any employee for and in behalf of that employee and other employees similarly situated may commence an action to recover that liability in any court of competent jurisdiction. If the court finds that a contractor, subcontractor, or contractor's or subcontractor's agent has failed to pay the prevailing wage rate determined by the department under sub. (3) or has paid less than 1.5 times the hourly basic rate of pay for all hours worked in excess of the prevailing hours of labor, the court shall order the contractor, subcontractor, or agent to pay to any affected employee the amount of his or her unpaid wages or his or her unpaid overtime compensation and an additional amount equal to 100 percent of the amount of those unpaid wages or that unpaid overtime compensation as liquidated damages. 5. No employee may be a party plaintiff to an the action under subd. 3. unless the employee consents in writing to become a party and the consent is filed in the court in which the action is brought. Notwithstanding s. 814.04 (1), the court shall, in addition to any judgment awarded to the plaintiff, allow reasonable attorney fees and costs to be paid by the defendant.

AB829, s. 18 Section 18. 66.0903 (11) (a) 2. of the statutes, as created by 2009 Wisconsin Act 28, is repealed.

AB829, s. 19 Section 19. 66.0904 of the statutes, as created by 2009 Wisconsin Act 28, is repealed.

AB829, s. 20 Section 20. 103.49 (1) (am) of the statutes, as created by 2009 Wisconsin Act 28, is repealed.

AB829, s. 21 Section 21. 103.49 (1) (bj) of the statutes, as created by 2009 Wisconsin Act 28, is repealed.

AB829, s. 22 Section 22. 103.49 (1) (br) of the statutes is created to read: