103.46(1)
(1) A contract or agreement of hiring or employment between any employer and any employe or prospective employe, in which either party to the 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 in which either party to the contract or agreement undertakes or promises to withdraw from the employment relation if the party joins, becomes or remains a member of any labor organization or of any organization of employers.
103.46(2)
(2) A contract or agreement for the sale of agricultural, horticultural or dairy products between a producer of those products and a distributor or purchaser of those products, in which either party to the 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 those products.
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 after the termination of that employment or agency, 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 covenant, described in this subsection, imposing an unreasonable restraint is illegal, void and unenforceable even as to any part of the covenant or performance that would be a reasonable restraint.
103.465 History
History: 1995 a. 225;
1997 a. 253.
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
This section sets out its own remedy. A violation does not grant an automatic right to pursue a wrongful discharge claim, but voids the the covenant. Tagte v. Chambers and Owens, Inc. 210 W (2d) 51, 565 NW (2d) 150 (Ct. App. 1997).
103.465 Annotation
It would be an exercise in semantics to overlook this section merely because a contract provision is labeled a non-disclosure provision rather than a covenant not to compete. This section does not create an exception to the at will employment doctrine that allows an employe to refuse to sign a non-disclosure or non-compete clause which the employe considers to be unreasonable. Tatge v. Chambers & Owen, Inc. 219 W (2d) 99, 579 NW (2d) 217 (1998).
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(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 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(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.
103.49(5)(b)
(b) It shall be the duty of the department to enforce this section. To this end it may demand and examine, and it shall be the duty of every contractor, subcontractor and agent thereof to keep and furnish to the department, copies of payrolls and other records and information relating to the wages paid to persons described in
sub. (2m) for work to which this section applies. The department may inspect records in the manner provided in this chapter and
chs. 104 to
106. Every contractor, subcontractor or agent performing work on a project that is subject to this section is subject to the requirements of this chapter and
chs. 104 to
106 relating to the examination of records.
Section 111.322 (2m) applies to discharge and other discriminatory acts arising in connection with any proceeding under this section.
103.49(5)(c)
(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 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 specified in
sub. (2m), the department shall charge the person making the request the actual cost of the inspection. If 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 specified in
sub. (2m), the department shall charge the person making the request $250 or the actual cost of the inspection, whichever is greater.
103.49(6m)(a)(a) Except as provided in
pars. (b),
(d) and
(f), any contractor, subcontractor or agent thereof who violates this section may be fined not more than $200 or imprisoned for not more than 6 months or both. Each day that any such violation continues shall be considered a separate offense.
103.49(6m)(b)
(b) Whoever induces any individual who seeks to be or is employed on any project that is subject to this section to give up, waive or return any part of the wages to which the individual is entitled under the contract governing such project, or who reduces the hourly basic rate of pay normally paid to an employe for work on a project that is not subject to this section during a week in which the employe works both on a project that is subject to this section and on a project that is not subject to this section, by threat not to employ, by threat of dismissal from such employment or by any other means is guilty of an offense under
s. 946.15 (1).
103.49(6m)(c)
(c) Any person employed on a project that is subject to this section who knowingly permits a contractor, subcontractor or agent thereof to pay him or her less than the prevailing wage rate set forth in the contract governing such project, who gives up, waives or returns any part of the compensation to which he or she is entitled under the contract, or who gives up, waives or returns any part of the compensation to which he or she is normally entitled for work on a project that is not subject to this section during a week in which the person works both on a project that is subject to this section and on a project that is not subject to this section, is guilty of an offense under
s. 946.15 (2).
103.49(6m)(d)
(d) Whoever induces any individual who seeks to be or is employed on any project that is subject to this section to permit any part of the wages to which the individual is entitled under the contract governing such project to be deducted from the individual's pay is guilty of an offense under
s. 946.15 (3), unless the deduction would be permitted under
29 CFR 3.5 or
3.6 from an individual who is working on a project that is subject to
40 USC 276c.
103.49(6m)(e)
(e) Any person employed on a project that is subject to this section who knowingly permits any part of the wages to which he or she is entitled under the contract governing such project to be deducted from his or her pay is guilty of an offense under
s. 946.15 (4), unless the deduction would be permitted under
29 CFR 3.5 or
3.6 from a person who is working on a project that is subject to
40 USC 276c.
103.49(6m)(f)
(f) Paragraph (a) does not apply to any person who fails to provide any information to the department to assist the department in determining prevailing wage rates and prevailing hours of labor under
sub. (3) (a) or
(am).
103.49(7)(a)(a) Except as provided under
pars. (b) and
(c), the department shall distribute to all state agencies and to the University of Wisconsin Hospitals and Clinics Authority a list of all persons whom the department has found to have failed to pay the prevailing wage rate determined under
sub. (3) or has found to have paid less than 1.5 times the hourly basic rate of pay for all hours worked in excess of the prevailing hours of labor determined under
sub. (3) at any time in the preceding 3 years. The department shall include with any such name the address of such person and shall specify when such person failed to pay the prevailing wage rate and when such person paid less than 1.5 times the hourly basic rate of pay for all hours worked in excess of the prevailing hours of labor. A state agency or the University of Wisconsin Hospitals and Clinics Authority may not award any contract to such person unless otherwise recommended by the department or unless 3 years have elapsed from the date the department issued its findings or date of final determination by a court of competent jurisdiction, whichever is later.
103.49(7)(b)
(b) The department may not include in a notification under
par. (a) the name of any person on the basis of having let work to a person whom the department has found to have failed to pay the prevailing wage rate determined under
sub. (3) or has found to have paid less than 1.5 times the hourly basic rate of pay for all hours worked in excess of the prevailing hours of labor determined under
sub. (3).
103.49(7)(c)
(c) This subsection does not apply to any contractor, subcontractor or agent who in good faith commits a minor violation of this section, as determined on a case-by-case basis through administrative hearings with all rights to due process afforded to all parties or who has not exhausted or waived all appeals.
103.49(7)(d)
(d) Any person submitting a bid on a project that is subject to this section shall be required, on the date the person submits the bid, to identify any construction business in which the person, or a shareholder, officer or partner of the person, if the person is a business, owns, or has owned at least a 25% interest on the date the person submits the bid or at any other time within 3 years preceding the date the person submits the bid, if the business has been found to have failed to pay the prevailing wage rate determined under
sub. (3) or to have paid less than 1.5 times the hourly basic rate of pay for all hours worked in excess of the prevailing hours of labor determined under
sub. (3).
103.49(7)(e)
(e) The department shall promulgate rules to administer this subsection.
103.50
103.50
Highway contracts. 103.50(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.
103.50(1)(d)
(d) "Prevailing wage rate" for any trade or occupation 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 in the area, or if there is no rate at which a majority of the hours worked in the trade or occupation in the area is paid, then the prevailing wage rate 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 in that area.
103.50(2)
(2) Prevailing wage rates and hours of labor. No person described in
sub. (2m) in the employ of a contractor, subcontractor, agent or other person performing any work on a project under a contract based on bids as provided in
s. 84.06 (2) to which the state is a party for the construction or improvement of any highway may be permitted to work a longer number of hours per day or per calendar week than the prevailing hours of labor determined under
sub. (3); nor may he or she be paid a lesser rate of wages than the prevailing wage rate in the area in which the work is to be done 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.
103.50(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:
103.50(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.
