103.32 History
History: 1971 c. 271,
307;
1975 c. 380 s.
5.
103.33
103.33
Discriminatory acts; street trades. Section 111.322 (2m) applies to discharge and other discriminatory acts against an employe arising in connection with any proceeding under
s. 103.28 or
103.32.
103.33 History
History: 1989 a. 228.
103.35
103.35
Information required for licensure. No state office, department, board, examining board, affiliated credentialing board, commission, council or independent agency in the executive branch, the legislature or the courts may, as a condition for receiving an occupational or professional certificate, license, permit or registration, require the submission of information by the applicant which is not essential for the determination of eligibility for the issuance or renewal of the certificate, license, permit or registration. Information which is not essential to determine eligibility for issuance or renewal may be requested but the applicant shall be notified in a prominent place on or accompanying the request that she or he is not required to provide such information.
103.35 History
History: 1979 c. 34;
1993 a. 107.
103.37
103.37
Certain requirements to obtaining employment prohibited. 103.37(1)(1) It shall be unlawful for any employer, as defined in
sub. (3) to require any employe or applicant for employment to pay the cost of a medical examination required by the employer as a condition of employment.
103.37(2)
(2) The term "employe" shall mean and include every person who may be permitted, required or directed by any employer, as defined in
sub. (3) in consideration of direct or indirect gain or profit, to engage in any employment.
103.37(3)
(3) "Employer", as used in this section means an individual, a partnership, an association, a corporation, a limited liability company, a legal representative, trustee, receiver, trustee in bankruptcy, and any common carrier by rail, motor, water or air doing business in or operating within the state.
103.37(4)
(4) Any employer who violates this section may be fined not more than $100 for each violation. The department shall enforce this section.
103.37 Annotation
State, its political subdivisions, and counties are not employers under this section. 69 Atty. Gen. 103.
103.38
103.38
Eight hours a day's work, when. In all engagements to labor in any manufacturing or mechanical business, where there is no express contract to the contrary, a day's work shall consist of eight hours and all engagements or contracts for labor in such cases shall be so construed; but this shall not apply to any contract for labor by the week, month or year.
103.43
103.43
Fraudulent advertising for labor. 103.43(1)
(1) It shall be unlawful to influence, induce, persuade or attempt to influence, induce, persuade or engage workmen to change from one place of employment to another in this state or to accept employment in this state or to bring workmen of any class or calling into this state to work in any department of labor in this state, through or by means of any false or deceptive representations, false advertising or false pretenses concerning the kind and character of the work to be done, or amount and character of the compensation to be paid for such work, or the sanitary or other conditions of the employment, or failure to state in any advertisement, proposal or contract for the employment that there is a strike or lockout at the place of the proposed employment, when in fact such strike or lockout then actually exists in such employment at such place. Any of such unlawful acts shall be deemed a false advertisement, or misrepresentation for the purposes of this section.
103.43(1a)
(1a) A strike or lockout shall be deemed to exist as long as the usual concomitants of a strike or lockout exist; or unemployment on the part of workers affected continues; or any payments of strike benefits is being made; or any picketing is maintained; or publication is being made of the existence of such strike or lockout.
103.43(2)
(2) Any person who, by himself or herself, or by a servant or agent, or as the servant or agent of any other person, or as an officer, director, servant or agent of any firm, corporation, association or organization of any kind, violates
sub. (1) shall upon conviction thereof be punished by a fine of not more than $2,000 or by imprisonment in the county jail not more than one year or by both such fine and imprisonment.
103.43(3)
(3) Any person who shall be influenced, induced or persuaded to engage with any persons mentioned in
sub. (1), through or by means of any of the things therein prohibited, shall have a right of action for recovery of all damages that the person shall have sustained in consequence of the false or deceptive representation, false advertising or false pretenses used to induce the person to change his or her place of employment or to accept such employment, against any person or persons, corporations or companies or associations, directly or indirectly, causing such damage; and in addition to all such actual damages such workman may have sustained, shall be entitled to recover such reasonable attorney fees as the court shall fix, to be taxed as costs in any judgment recovered.
103.43 History
History: 1993 a. 492;
1995 a. 225.
103.45
103.45
Time checks; penalty. All persons paying wages in time checks or other paper than legal money shall make such time checks or paper payable in some designated place of business in the county in which the work was performed or at the office of the person if within this state, or at any bank within this state. Any person failing to comply with this section shall be fined not to exceed $100 nor less than $10.
103.455
103.455
Deductions for faulty workmanship, loss, theft or damage. No employer shall make any deduction from the wages due or earned by any employe, who is not an independent contractor, for defective or faulty workmanship, lost or stolen property or damage to property, unless the employe authorizes the employer in writing to make such deduction or unless the employer and a representative designated by the employe shall determine that such defective or faulty work, loss or theft, or damage is due to worker's negligence, carelessness, or wilful and intentional conduct on the part of such employe, or unless the employe is found guilty or held liable in a court of competent jurisdiction by reason thereof. If any such deduction is made or credit taken by any employer, that is not in accordance with this section, the employer shall be liable for twice the amount of the deduction or credit taken in a civil action brought by said employe. Any agreement entered into between employer and employe contrary to this section shall be void and of no force and effect. In case of a disagreement between the 2 parties, the department shall be the 3rd determining party subject to any appeal to the court.
Section 111.322 (2m) applies to discharge and other discriminatory acts arising in connection with any proceeding to recover a deduction under this section.
103.455 History
History: 1989 a. 228.
103.455 Annotation
The consent of the employe may only serve as a basis for a deduction where it is given in writing after the loss and before the deduction. Donovan v. Schlesner, 72 W (2d) 74, 240 NW (2d) 135.
103.455 Annotation
Termination of employe-at-will may have violated public policy underlying this section. Wandry v. Bull's Eye Credit, 129 W (2d) 37, 384 NW (2d) 325 (1986).
103.455 Annotation
Commissions earned over and above a salary are wages under this section. The 6 year statute of limitations under s. 893.43 applicable to claims for commissions applies to the recovery of deductions from commissions under this section. A claimant need not first bring a claim before DILHR if the employer has never given the employe an opportunity to contest the deductions. Erdman v. Jovoco, Inc. 181 W (2d) 736, 512 NW (2d) 487 (1994).
103.457
103.457
Listing deductions from wages. An employer shall state clearly on the employe's pay check, pay envelope, or paper accompanying the wage payment the amount of and reason for each deduction from the wages due or earned by the employe, except such miscellaneous deductions as may have been authorized by request of the individual employe for reasons personal to the employe. A reasonable coding system may be used by the employer.
103.457 History
History: 1993 a. 492.
103.46
103.46
Contracts; promises to withdraw from or not to join labor, employers' or cooperative organizations are void. Every undertaking or promise hereafter made, whether written or oral, express or implied, constituting or contained in either:
103.46(1)
(1) A contract or agreement of hiring or employment between any employer and any employe or prospective employe, whereby either party to such contract or agreement undertakes or promises not to join, become or remain, a member of any labor organization or of any organization of employers, or either party to such contract or agreement undertakes or promises to withdraw from the employment relation in the event that he or she joins, becomes or remains, a member of any labor organization or of any organization of employers; or
103.46(2)
(2) In a contract or agreement for the sale of agricultural, horticultural or dairy products between a producer of such products and a distributor or purchaser thereof, whereby either party to such contract or agreement undertakes or promises not to join, become or remain a member of any cooperative association organized under
ch. 185 or of any trade association of the producers, distributors or purchasers of such products, is hereby declared to be contrary to public policy and wholly void and shall not afford any basis for the granting of legal or equitable relief by any court.
103.46 History
History: 1985 a. 30 s.
42;
1993 a. 492.
103.465
103.465
Restrictive covenants in employment contracts. A covenant by an assistant, servant or agent not to compete with his or her employer or principal during the term of the employment or agency, or thereafter, within a specified territory and during a specified time is lawful and enforceable only if the restrictions imposed are reasonably necessary for the protection of the employer or principal. Any such restrictive covenant imposing an unreasonable restraint is illegal, void and unenforceable even as to so much of the covenant or performance as would be a reasonable restraint.
103.465 History
History: 1995 a. 225.
103.465 Annotation
A provision in an employer's profit sharing and retirement plan that calls for forfeiture of benefits by employes who engage in competitive enterprises is valid and enforceable only if it meets the requirements of this section. Holsen v. Marshall & Ilsley Bank, 52 W (2d) 281, 190 NW (2d) 189.
103.465 Annotation
A provision of a pension plan denying benefits if the retired employe accepts any employment in the same industry without limit as to time or area is void. Estate of Schroeder, 53 W (2d) 59, 191 NW (2d) 860.
103.465 Annotation
This section, limiting the enforceability of covenants not to compete to those containing restrictions reasonably necessary for the protection of the employer or principal, incorporates the pre-existing structure of the common law, under which contracts in restraint of trade are viewed with disfavor. Behnke v. Hertz Corp. 70 W (2d) 818, 235 NW (2d) 690.
103.465 Annotation
Where profit sharing plan provided for forfeiture in event covered employe worked for "competitive business", term was construed to mean only businesses which seek out and appeal to same customers and offer substantially identical services. Zimmerman v. Brennan, 78 W (2d) 510, 254 NW (2d) 719.
103.465 Annotation
Five basic requirements necessary to enforcement of a restrictive covenant discussed. Chuck Wagon Catering, Inc. v. Raduege, 88 W (2d) 740, 277 NW (2d) 787 (1979).
103.465 Annotation
Covenant prohibiting executive employe from contacting company clients with whom employe had had no previous contact was not unreasonable per se. Hunter of Wisconsin, Inc. v. Hamilton, 101 W (2d) 460, 304 NW (2d) 752 (1981).
103.465 Annotation
Covenant by employes not to compete is not automatically voided by presence of unreasonable provision for liquidated damages. Whether specific restraints as to area and time are necessary to protect employer is question of law to be resolved on basis of facts. Fields Foundation, Ltd. v. Christensen, 103 W (2d) 465, 309 NW (2d) 125 (Ct. App. 1981).
103.465 Annotation
Agreement requiring agents of insurance company to forfeit their extended earnings if after termination they engaged in certain competitive practices was unenforceable. Streiff v. American Family Mut. Ins. Co. 118 W (2d) 602, 348 NW (2d) 505 (1984).
103.465 Annotation
Territorial limits in a restrictive covenant need not be expressed in geographical terms. General Medical Corp. v. Kobs, 179 W (2d) 422, 507 NW (2d) 381 (Ct. App. 1993).
103.465 Annotation
Interests of employers which may be protected by covenants discussed. Wausau Medical Center v. Asplund, 182 W (2d) 274, 514 NW (2d) 34 (Ct. App. 1994).
103.465 Annotation
A valid covenant not to compete requires consideration. Continued employment absent a requirement that that employment requires executing the agreement is not consideration. NBZ, Inc. v. Pilarski, 185 W (2d) 827, 520 NW (2d) 93 (Ct. App. 1994).
103.465 Annotation
Restrictive covenant was not overbroad. Brunswick Corp. v. Jones, 784 F (2d) 271 (1986).
103.465 Annotation
An agreement to accept an education loan funded by certain employers on the condition that the recipient repay it in kind by working for a contributor or repaying it in cash if the recipient accepts employment with a non-contributor was not a covenant subject to s. 103.465. Milwaukee Apprentice Training Committee v. Howell, 67 F (3d) 1333 (1995).
103.465 Annotation
Drafting and enforcing restrictive covenants not to compete. Richards, 55 MLR 241.
103.465 Annotation
Drafting enforceable covenants not to compete. Nettesheim. WBB Oct. 1986.
103.49
103.49
Wage rate on state work. 103.49(1)(a)
(a) "Area" means the county in which a proposed 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. (3) (c), "area" means the city, village or town in which a proposed project that is subject to this section is located.
103.49(1)(b)
(b) "Hourly basic rate of pay" means the hourly wage paid to any employe, excluding any contributions or payments for health insurance benefits, vacation benefits, pension benefits and any other bona fide economic benefits, whether paid directly or indirectly.
103.49(1)(bg)
(bg) "Insufficient wage data" means less than 500 hours of work performed in a particular trade or occupation on projects that are similar to a proposed project that is subject to this section.
103.49(1)(bm)
(bm) "Multiple-trade public works project" means a public works project in which no single trade accounts for 85% or more of the total labor cost of the project.
103.49(1)(c)
(c) "Prevailing hours of labor" for any trade or occupation in any area means no more than 10 hours per day nor more than 40 hours per week and may not include any hours worked on a Saturday or Sunday or on any of the following holidays:
103.49(1)(c)7.
7. The day before if January 1, July 4 or December 25 falls on a Saturday.
103.49(1)(c)8.
8. The day following if January 1, July 4 or December 25 falls on a Sunday.
103.49(1)(d)
(d) "Prevailing wage rate" for any trade or occupation engaged in the erection, construction, remodeling, repairing or demolition of any project of public works 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, or 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, then the prevailing wage rate for any trade or occupation engaged in the erection, construction, remodeling, repairing or demolition of any project of public works in any area shall be 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% of hours worked in that trade or occupation.
103.49(1)(e)
(e) "Single-trade public works project" means a public works project in which a single trade accounts for 85% or more of the total labor cost of the project.
103.49(1)(f)
(f) "State agency" means any office, department, independent agency, institution of higher education, association, society or other body in state government created or authorized to be created by the constitution or any law, including the legislature and the courts.
103.49(1)(g)
(g) "Truck driver" includes an owner-operator of a truck.
103.49(2)
(2) Prevailing wage rates and hours of labor. Any contract hereafter made for the erection, construction, remodeling, repairing or demolition of any project of public works, except contracts for the construction or maintenance of public highways, streets and bridges, to which the state, any state agency or the University of Wisconsin Hospitals and Clinics Authority is a party shall contain a stipulation that no person described in
sub. (2m) may be permitted to work a greater number of hours per day or per calendar week than the prevailing hours of labor determined under
sub. (3), except that any such person may be permitted or required to work more than such prevailing hours of labor per day and per calendar 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 in the same or most similar trade or occupation in the area wherein such project of public works is situated determined under
sub. (3). A reference to the prevailing wage rates and prevailing hours of labor determined under
sub. (3) shall be published in the notice issued for the purpose of securing bids for the project. If any contract or subcontract for a project that is subject to this section is entered into, the prevailing wage rates and prevailing hours of labor determined under
sub. (3) 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.
103.49 Note
NOTE: Sub. (2) is shown as amended by
1995 Wis. Act 215. Changes to sub. (2) made by
1995 Wis. Act 225 are not shown. Act 225 is a revisor's correction bill which made nonsubstantive changes which conflicted in form with the changes made by Act 215. The Act 225 treatment will be repealed by future revisor's correction bill.
103.49(2m)(a)(a) All of the following employes shall be paid the prevailing wage rate determined under
sub. (3) and may not be permitted to work a greater number of hours per day or per calendar week than the prevailing hours of labor determined under
sub. (3), 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:
103.49(2m)(a)1.
1. All laborers, workers, mechanics and truck drivers employed on the site of a project that is subject to this section, or employed to deliver mineral aggregate such as sand, gravel or stone that is immediately incorporated into the work, and not stockpiled or further transported by truck, to or from the site of a project that is subject to this section by depositing the material substantially in place, directly or through spreaders from the transporting vehicle, or employed to transport excavated material or spoil from and return to the site of a project that is subject to this section.
103.49(2m)(a)2.
2. All laborers, workers, mechanics and truck drivers employed in the manufacturing or furnishing of materials, articles, supplies or equipment on the site of a project that is subject to this section or from a facility dedicated exclusively, or nearly so, to a project that is subject to this section by a contractor, subcontractor, agent or other person performing any work on the site of the project.
103.49(2m)(b)
(b) Notwithstanding
par. (a), a laborer, worker, mechanic or truck driver who is regularly employed in the processing, manufacturing or delivery of materials or products by or for a commercial establishment that has a fixed place of business from which the establishment regularly supplies processed or manufactured materials or products is not entitled to receive the prevailing wage rate determined under
sub. (3) or to receive at least 1.5 times his or her hourly basic rate of pay for all hours worked in excess of the prevailing hours of labor determined under
sub. (3).
103.49(2m)(c)
(c) A truck driver who is an owner-operator of a truck shall be paid separately for his or her work and for the use of his or her truck.
103.49(3)(a)(a) Before bids are asked for any work to which this section applies, the state agency having the authority to prescribe the specifications shall apply to the department to determine the prevailing wage rate and prevailing hours of labor for each trade or occupation required in the work under contemplation in the area in which the work is to be done. The department shall make such investigations and hold such public hearings as may be necessary to define the trades or occupations that are commonly employed on projects that are subject to this section and to inform itself as to the prevailing wage rates and prevailing hours of labor in all areas of the state for those trades or occupations with a view to ascertaining the prevailing wage rate and prevailing hours of labor for each such trade or occupation. The department shall issue its determination within 30 days after receiving the request and shall file the same with the state agency applying therefor. For the information of the employes working on the project, the prevailing wage rates and prevailing hours of labor determined by the department and the provisions of
subs. (2) and
(6m) shall be kept posted by the state agency in at least one conspicuous and easily accessible place on the site of the project.
103.49(3)(am)
(am) The department shall, by January 1 of each year, compile the prevailing wage rates and the prevailing hours of labor for each trade or occupation in each area. The compilation shall, in addition to the current prevailing wage rates and prevailing hours of labor, include future prevailing wage rates and prevailing hours of labor when those prevailing wage rates and prevailing hours of labor can be determined for any trade or occupation in any area and shall specify the effective date of those future prevailing wage rates and prevailing hours of labor. If a construction project extends into more than one area there shall be but one standard of prevailing wage rates and prevailing hours of labor for the entire project.
103.49(3)(ar)
(ar) In determining prevailing wage rates under
par. (a) or
(am) for building, residential or agricultural projects, the department may not use data from projects that are subject to this section,
s. 66.293 or
103.50 or
40 USC 276a. In determining prevailing wage rates for projects involving the use of heavy equipment, the department may use data from projects that are subject to this section,
s. 66.293 or
103.50 or
40 USC 276a.
103.49(3)(b)
(b) Any person may request a recalculation of any portion of a determination within 30 days after the initial determination date if the person submits evidence with the request showing that the prevailing wage rate or prevailing hours of labor for any given trade or occupation included in the initial determination does not represent the prevailing wage rate or prevailing hours of labor for that trade or occupation in the area. Such evidence shall include wage rate and hours of labor information for work performed in the contested trade or occupation in the area within the previous 12 months. The department shall affirm or modify the initial determination within 15 days after the date on which the department receives the request for recalculation.
103.49(3)(c)
(c) In addition to the recalculation under
par. (b), the state agency that requested the determination under this subsection may request a review of any portion of a determination within 30 days after the date of issuance of the determination if the state agency submits evidence with the request showing that the prevailing wage rate or prevailing hours of labor for any given trade or occupation included in the determination does not represent the prevailing wage rate or prevailing hours of labor for that trade or occupation in the city, village or town in which the proposed project is located. That evidence shall include wage rate and hours of labor information for the contested trade or occupation on at least 3 similar projects located in the city, village or town where the proposed project is located on which some work has been performed within the previous 12 months and which were considered by the department in issuing its most recent compilation under
par. (am). The department shall affirm or modify the determination within 15 days after the date on which the department receives the request for review.
103.49(3g)
(3g) Nonapplicability. This section does not apply to [(a) (intro.)] any single-trade project for which the estimated cost of completion is less than $30,000 or an amount determined under
s. 66.293 (5) or to any multiple-trade project for which the estimated cost of completion is less than $150,000 or an amount determined by the department under
s. 66.293 (5).
103.49 Note
NOTE: Sub. (3g) is shown as affected by two acts of the 1995 legislature and as merged by the revisor under s. 13.93 (2) (c). The bracketed language was inserted by
1995 Wis. Act 225, but rendered surplusage by the treatment of this provision by
1995 Wis. Act 215. Corrective legislation is pending.
103.49(4r)(a)(a) When the department finds that a state agency has not requested a determination under
sub. (3) (a) or that a state agency, contractor or subcontractor has not physically incorporated a determination into a contract or subcontract as required under
sub. (2) or has not notified a minor subcontractor of a determination in the manner prescribed by the department by rule promulgated under
sub. (2), the department shall notify the state agency, contractor or subcontractor of such noncompliance and shall file the determination with the state agency, contractor or subcontractor within 30 days after such notice.
103.49(4r)(b)
(b) Upon completion of a project and before receiving final payment for his or her work on the project, each agent or subcontractor shall furnish the contractor with an affidavit stating that the agent or subcontractor has complied fully with the requirements of this section. A contractor may not authorize final payment until such an affidavit is filed in proper form and order.
103.49(4r)(c)
(c) Upon completion of a project and before receiving final payment for his or her work on the project, each contractor shall file with the state agency authorizing the work an affidavit stating that the contractor has complied fully with the requirements of this section and that the contractor has received an affidavit under
par. (b) from each of the contractor's agents and subcontractors. A state agency may not authorize a final payment until such an affidavit is filed in proper form and order. If a state agency authorizes a final payment before such an affidavit is filed in proper form and order or if the department determines, based on the greater weight of the credible evidence, that any person specified in
sub. (2m) has been or may have been paid less than the prevailing wage rate or less than 1.5 times the hourly basic rate of pay for all hours worked in excess of the prevailing hours of labor and requests that the state agency withhold all or part of the final payment, but the state agency fails to do so, the state agency is liable for all back wages payable up to the amount of the final payment.
103.49(5)
(5) Records; inspection; enforcement. 103.49(5)(a)(a) Each contractor, subcontractor or agent thereof 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 described in
sub. (2m) and an accurate record of the number of hours worked by each of those persons and the actual wages paid therefor.
