Chapter 103

103.02 Cross-reference Cross-reference: See also ch. DWD 274, Wis. adm. code.

103.02 Annotation This chapter does not provide the exclusive remedy for enforcement of claims under this section. Claims may be enforced by a private action brought under s. 109.03 (5). German v. DOT, 223 Wis. 2d 525, 589 N.W.2d 651 (Ct. App. 1998), 98-0250.

103.02 Annotation Affirmed. 2000 WI 62, 235 Wis. 2d 576, 612 N.W.2d 50, 98-0250.

103.02 Annotation A violation of the public policy expressed by this section is grounds for a wrongful discharge action. Wilcox v. Niagra of Wisconsin Paper Corp., 965 F.2d 355 (1992).

103.02 Annotation Wisconsin requires time spent donning and doffing safety gear to be compensated at the minimum wage or higher, and that this time counts toward the limit after which the overtime rate kicks in. Wisconsin law is not preempted by federal law. Spoerle v. Kraft Foods Global, Inc., 614 F.3d 427 (2010).

103.025 103.025 Hours of labor; compensatory time.

103.025(1) (1) In this section:

103.025(1)(a) (a) “Compensatory time” means hours during which an employee is not working, which are not counted as hours worked during the workweek or other work period classified by the department by rule promulgated under s. 103.02 for purposes of calculating overtime compensation, and for which the employee is compensated at the employee’s regular rate of pay.

103.025(1)(b) (b) “Employee” has the meaning given in s. 104.01 (2).

103.025(1)(c) (c) “Overtime compensation” means the compensation required to be paid for hours worked during periods that the department has classified, by rule promulgated under s. 103.02, as periods to be paid for at the rate of at least 1.5 times an employee’s regular rate of pay.

103.025(2) (2) An employer described in s. 103.01 (1) (b) may provide an employee, in lieu of overtime compensation, compensatory time off as permitted under 29 USC 207 (o), as amended to April 15, 1986.

103.025 History History: 1993 a. 144.

103.03 103.03 Violations; penalty. The employment of any person in any employment or place of employment at any time other than the permissible hours of labor shall be prima facie evidence of a violation of this section. Every day for each person employed, and every week for each person employed, during which any employer fails to observe or to comply with any order of the department, or to perform any duty enjoined by ss. 103.01 to 103.03, shall constitute a separate offense.

103.03 History History: 1975 c. 94; Stats. s. 103.03.

103.04 103.04 Labor and industry review commission.

103.04(1) (1) The commission shall issue its decision in any case where a petition for review is filed under ch. 102 or 108 or s. 66.191, 1981 stats., or s. 40.65 (2), 106.52 (4), 106.56 (4), 111.39, 303.07 (7) or 303.21.

103.04(2) (2) Notwithstanding s. 227.11, the commission may not promulgate rules except that it may promulgate its rules of procedure.

103.04(3) (3) The commission may employ professional and other persons to assist in the execution of its duties.

103.04 History History: 1977 c. 29; 1981 c. 278 s. 6; 1981 c. 334 s. 25 (2); 1983 a. 122; 1983 a. 191 s. 6; 1985 a. 182 s. 57; 1987 a. 403 s. 256; 1989 a. 31; 1991 a. 295; 1995 a. 27 s. 3651; Stats. 1995 s. 103.04; 1999 a. 82.

103.04 Cross-reference Cross-reference: See also LIRC, Wis. adm. code.

103.05 103.05 Hiring reporting system; state directory of new hires.

103.05(1) (1) The department shall establish and operate a hiring reporting system that includes a state directory of new hires. All requirements under the reporting system shall be consistent with federal laws and regulations that relate to the reporting of newly hired employees for support collection purposes, as part of the state location service under s. 49.22 (2), or any other purposes specified in 42 USC 653a (h).

103.05(2) (2) 

103.05(2)(a) (a) Except as provided in par. (b), every employer that employs individuals in the state shall provide to the department information about each newly hired employee.

103.05(2)(b) (b) Paragraph (a) does not apply to an employer that employs individuals in this state and in at least one other state, if the employer has designated, to the secretary of the federal department of health and human services, a state other than this state for the purpose of providing the information required under par. (a). An employer under this paragraph shall notify the department of its designation of another state to the secretary of the federal department of health and human services.

103.05(3) (3) The department shall specify all of the following:

103.05(3)(a) (a) The information that employers must provide under sub. (2) (a).

103.05(3)(b) (b) A number of different ways in which employers may report the information required under sub. (2) (a), including paper and electronic means.

103.05(3)(c) (c) A timetable for the actions and procedures required under the reporting system, including the reporting required under sub. (2) (a).

103.05(4) (4) 

103.05(4)(a) (a) Except as provided in par. (b), no person may use or disclose information obtained under this section except in the administration of the program under s. 49.22 or a program specified in 42 USC 653a (h).

103.05(4)(b) (b) The department may, to the extent permitted under federal law, disclose information obtained under this section to the department of revenue for the purposes of locating persons, or the assets of persons, who have failed to file tax returns, who have underreported their taxable income or who are delinquent taxpayers, identifying fraudulent tax returns or providing information for tax-related prosecutions.

103.05(5) (5) 

103.05(5)(a) (a) Except as provided in par. (b), and subject to par. (c), an employer that violates any provision of this section, or any rule promulgated under this section, may be required to forfeit up to $25 for each employee concerning whom a violation has occurred.

103.05(5)(b) (b) Subject to par. (c), an employer may be required to forfeit up to $500 for a failure to supply the information under sub. (2) (a) about an employee, or for supplying false or incomplete information under sub. (2) (a) about an employee, as a result of a conspiracy between the employer and the employee to not supply the information or to supply false or incomplete information.

103.05(5)(c) (c) The department shall provide an employer with notice of any violation for which a penalty may be imposed under par. (a) or (b), and with an opportunity to correct the violation, before imposing any penalty under par. (a) or (b).

103.05(5)(d) (d) The department shall deposit all moneys received under this subsection in the appropriation account under s. 20.445 (1) (gd).

103.05 History History: 1997 a. 27, 237; 2015 a. 197.

103.05 Cross-reference Cross-reference: See also ch. DWD 142, Wis. adm. code.

103.06 103.06 Worker classification compliance.

103.06(1) (1) Definitions. In this section:

103.06(1)(a) (a) “Business day” means any day on which the offices of the department are open.

103.06(1)(b) (b) “Employee” means any of the following who is employed by an employer:

103.06(1)(b)1. 1. For purposes of compliance with the requirement specified in sub. (3) (a) 1., an employee, as defined in s. 103.001 (5).

103.06(1)(b)2. 2. For purposes of compliance with the requirement specified in sub. (3) (a) 2., an employee, as defined in s. 102.07.

103.06(1)(b)3. 3. For purposes of compliance with the requirement specified in sub. (3) (a) 3., an employee, as defined in rules promulgated under s. 103.05.

103.06(1)(b)4. 4. For purposes of maintaining records under sub. (3) (a) 4. as required under rules promulgated under s. 103.02, an employee, as defined in s. 103.001 (5).

103.06(1)(b)5. 5. For purposes of maintaining records under sub. (3) (a) 4. as required under rules promulgated under s. 104.035, an employee, as defined in s. 104.01 (2).

103.06(1)(b)6. 6. For purposes of listing deductions from wages under sub. (3) (a) 4. as required under s. 103.457, an employee, as defined in s. 103.001 (5).

103.06(1)(b)7. 7. For purposes of compliance with the requirement specified in sub. (3) (a) 5., an employee, as defined in s. 108.02 (12).

103.06(1)(c) (c) “Employer” means any of the following that is engaged in the work described in s. 108.18 (2) (c):

103.06(1)(c)1. 1. For purposes of compliance with the requirement specified in sub. (3) (a) 1., an employer, as defined in s. 103.001 (6).

103.06(1)(c)2. 2. For purposes of compliance with the requirement specified in sub. (3) (a) 2., an employer, as defined in s. 102.04.

103.06(1)(c)3. 3. For purposes of compliance with the requirement specified in sub. (3) (a) 3., an employer, as defined in rules promulgated under s. 103.05.

103.06(1)(c)4. 4. For purposes of maintaining records under sub. (3) (a) 4. as required under rules promulgated under s. 103.02, an employer, as defined in s. 103.01 (1).

103.06(1)(c)5. 5. For purposes of maintaining records under sub. (3) (a) 4. as required under rules promulgated under s. 104.035, an employer, as defined in s. 104.01 (3).

103.06(1)(c)6. 6. For purposes of listing deductions from wages under sub. (3) (a) 4. as required under s. 103.457, an employer, as defined in s. 103.001 (6).

103.06(1)(c)7. 7. For purposes of compliance with the requirement specified in sub. (3) (a) 5., an employer, as defined in s. 108.02 (13).

103.06(2) (2) Worker classification compliance; duties of department. For purposes of promoting and achieving compliance by employers with the laws specified in sub. (3) (a) through the proper classification of persons performing services for an employer as employees and nonemployees, the department shall do all of the following:

103.06(2)(a) (a) Educate employers, employees, nonemployees, and the public about the proper classification of persons performing services for an employer as employees and nonemployees.

103.06(2)(b) (b) Receive and investigate complaints alleging violations of the requirements specified in sub. (3) (a), or investigate any such alleged violations on its own initiative, and, if the department finds that an employer is in violation of a requirement specified in sub. (3) (a), order the employer to stop work and pay a forfeiture as provided under sub. (5).

103.06(2)(c) (c) Refer complaints of misclassification of employees as nonemployees to other state or local agencies that administer laws whose enforcement depends on the proper classification of employees.

103.06(2)(d) (d) Cooperate with other state or local agencies in the investigation and enforcement of laws whose enforcement depends on the proper classification of employees.

103.06(2)(e) (e) Appoint attorneys licensed to practice in this state as appeal tribunals to conduct hearings and issue decisions under sub. (6) (b).

103.06(3) (3) Compliance requirements.

103.06(3)(a) (a) For purposes of ensuring that an employer is properly classifying the persons performing services for the employer as employees and nonemployees, the department may require an employer to prove all of the following:

103.06(3)(a)1. 1. That the employer is maintaining records identifying all persons performing work for the employer, including the name, address, and social security number of each of those persons.

103.06(3)(a)2. 2. That the employer is maintaining worker’s compensation coverage for its employees as required under s. 102.28 (2).

103.06(3)(a)3. 3. That the employer has provided to the department the information required under s. 103.05 with respect to each newly hired employee of the employer.

103.06(3)(a)4. 4. That the employer is maintaining records of the hours worked by its employees, the wages paid to those employees, any deductions from those wages, and any other information that the employer is required to keep under rules promulgated under s. 103.02 or 104.035, and is listing deductions from wages as required under s. 103.457.

103.06(3)(a)5. 5. That the employer is in compliance with ch. 108.

103.06(3)(b) (b) Any agreement between an employer and employee purporting to waive or modify any requirement under par. (a) is void.

103.06(4) (4) Compliance investigations.

103.06(4)(a) (a) The department may conduct investigations to ensure compliance with the requirements specified in sub. (3) (a). In conducting an investigation, the department may do any of the following:

103.06(4)(a)1. 1. Enter and inspect any place of business or place of employment and examine and copy any records that the employer is required to keep under rules promulgated under s. 103.02 or 104.035; any books, registers, payroll records, records of wage withholdings, records of work activity and hours of work, and records or indicia of the employment status of persons performing work for the employer; and any other records relating to compliance with the requirements specified in sub. (3) (a).

103.06(4)(a)2. 2. Determine the identity and activities of any person performing work at any location where the work described in s. 108.18 (2) (c) is being performed.

103.06(4)(a)3. 3. Interview and obtain statements in writing from any employer or person performing work or present at any location where the work described in s. 108.18 (2) (c) is being performed with respect to the names and addresses of persons performing work for the employer, the payment of wages to and hours worked by those persons, and any other information relating to the remuneration of those persons and the nature and extent of services performed by those persons.

103.06(4)(b) (b) The department may conduct the activities under par. (a) 1. to 3. at any location where the work described in s. 108.18 (2) (c) is performed by or for an employer. In addition, the department may conduct the activities specified under par. (a) 1. at any other location where the records specified in par. (a) 1. are maintained by an employer or an agent of an employer.

103.06(4)(c) (c) If in the course of an investigation of an employer the department determines that there is reason to believe that the employer is not the prime contractor of the work being performed by or for the employer, the department shall seek to determine the identity of the prime contractor. If the department identifies any person other than the employer that it believes to be the prime contractor of the work being performed, the department, for informational purposes, shall serve on that person copies of any notices or orders served on the employer under sub. (5) with respect to the work. Failure of the department to serve a copy of a notice or order under sub. (5) on a person believed to be a prime contractor does not relieve the employer from any liability arising out of the notice or order or impair the department from pursuing any remedy relating to the notice or order.

103.06(5) (5) Stop work orders and civil penalties.

103.06(5)(a) (a) If after an investigation under sub. (4) the department determines that an employer has failed to demonstrate compliance with any of the requirements specified in sub. (3) (a), the department may serve on the employer a notice of the department’s intent to issue an order requiring the employer to stop work at the locations specified in the notice. The notice shall advise the employer that the order will be issued within 3 business days after the date of the notice unless within those 3 business days the employer provides information satisfactory to the department indicating that the employer is in compliance with the requirements specified in sub. (3) (a) at each location specified in the notice.

103.06(5)(b) (b) If within 3 business days after service of a notice under par. (a) an employer does not demonstrate compliance with the requirements listed under sub. (3) (a) with respect to a location specified in the notice, the department may serve an order on the employer requiring the employer to stop work at the locations specified in the order. The order shall advise the employer that the employer may request a hearing on the order under sub. (6) (a), describe how the employer may request a hearing, and be accompanied by a form for requesting a hearing. The order shall take effect as provided in the order and shall remain in effect until the employer provides evidence satisfactory to the department that it is in compliance with the requirements under sub. (3) (a) and pays the forfeiture under par. (c).

103.06(5)(c) (c) An employer that does not stop work as required under an order under par. (b) may be required to forfeit $250 for each day beginning on the day on which the order is served and ending on the day on which the employer provides evidence satisfactory to the department that it has stopped work as required under the order or is in compliance with sub. (3) (a), whichever occurs first.

103.06(5)(d) (d) An order under this subsection is final unless appealed under sub. (6). An order under this subsection is subject to review only as provided in sub. (6) and not as provided in ch. 227.

103.06(6) (6) Appeal of stop work order and civil penalty.

103.06(6)(a) (a) Any employer that is aggrieved by an order to stop work under sub. (5) (b) may appeal the order by filing with the department a written request for a hearing to review the order within 10 days after service of the order. If a request for a hearing is filed within those 10 days, the department shall hold the hearing within 14 days after receipt of the request. The order to stop work shall be automatically stayed from the filing of the request for a hearing until the date on which a decision on the appeal is issued under par. (b). Notwithstanding the stay of the order to stop work, the forfeiture under sub. (5) (c) shall continue to accrue as provided in sub. (5) (c).

103.06(6)(b) (b)

103.06(6)(b)1. 1. The hearing shall be held before an appeal tribunal and shall be conducted in the manner described in s. 108.09 (5). Within 7 days after the hearing, the appeal tribunal shall issue a decision in writing affirming, reversing, or modifying the order to stop work and forfeiture.

103.06(6)(b)2. 2. If the appeal tribunal finds that the employer has at all times been in compliance with the requirements specified in sub. (3) (a), the appeal tribunal shall reverse the order to stop work and forfeiture.