103.49(3)(ar)
(ar) In determining prevailing wage rates under
par. (a) or
(am), the department may not use data from projects that are subject to this section,
s. 66.0903,
103.50 or
229.8275 or
40 USC 276a unless the department determines that there is insufficient wage data in the area to determine those prevailing wage rates, in which case the department may use data from projects that are subject to this section,
s. 66.0903,
103.50 or
229.8275 or
40 USC 276a.
103.49(3)(b)
(b) Any person may request a recalculation of any portion of an initial determination within 30 days after the initial determination date if the person submits evidence with the request showing that the prevailing wage rate for any given trade or occupation included in the initial determination does not represent the prevailing wage rate for that trade or occupation in the area. The evidence shall include wage rate information reflecting work performed by persons working in the contested trade or occupation in the area during the current survey period. 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 Note
NOTE: Par. (b) is shown as affected by two acts of the 1999 legislature and as merged by the revisor under s. 13.93 (2) (c).
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 for any given trade or occupation included in the determination does not represent the prevailing wage rate for that trade or occupation in the city, village or town in which the proposed project is located. That evidence shall include wage rate 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 during the current survey period 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 public works project for which the estimated project cost of completion is less than $30,000 or an amount determined by the department under
s. 66.0903 (5) or to any multiple-trade public works project for which the estimated project cost of completion is less than $150,000 or an amount determined by the department under
s. 66.0903 (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 the 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 the 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 the affidavit is filed in proper form and order. If a state agency authorizes a final payment before 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 performing the work 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 Note
NOTE: Par. (c) is shown as affected by two acts of the 1999 legislature and as merged by the revisor under s. 13.93 (2) (c).
103.49(5)
(5) Records; inspection; enforcement. 103.49(5)(a)(a) Each contractor, subcontractor or contractor's or subcontractor's agent performing work on a project that is subject to this section shall keep full and accurate records clearly indicating the name and trade or occupation of every person performing the work described in
sub. (2m) and an accurate record of the number of hours worked by each of those persons and the actual wages paid for the hours worked.
103.49 Note
NOTE: Par. (a) is shown as affected by two acts of the 1999 legislature and as merged by the revisor under s. 13.93 (2) (c).
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 every contractor, subcontractor and contractor's and subcontractor's agent shall keep, and furnish upon request by the department, copies of payrolls and other records and information relating to the wages paid to persons performing the work described in
sub. (2m) for work to which this section applies. The department may inspect records in the manner provided in this chapter. Every contractor, subcontractor or agent performing work on a project that is subject to this section is subject to the requirements of this chapter [
ch. 101] 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 Note
NOTE: Par. (b) is shown as affected by two acts of the 1999 legislature and as merged by the revisor under s. 13.93 (2) (c). The bracketed language was inserted by
1999 Wis. Act 150. No change was intended. Corrective legislation is pending.
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 performing the work 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 performing the work 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 contractor's or subcontractor's agent who violates this section may be fined not more than $200 or imprisoned for not more than 6 months or both. Each day that a violation continues is a separate offense.
103.49(6m)(b)
(b) Whoever induces any person 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 person is entitled under the contract governing the project, or who reduces the hourly basic rate of pay normally paid to a person 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, by threat not to employ, by threat of dismissal from employment or by any other means is guilty of an offense under
s. 946.15 (1).
103.49 Note
NOTE: Par. (b) is shown as affected by two acts of the 1999 legislature and as merged by the revisor under s. 13.93 (2) (c).
103.49(6m)(c)
(c) Any person employed on a project that is subject to this section who knowingly permits a contractor, subcontractor or contractor's or subcontractor's agent to pay him or her less than the prevailing wage rate set forth in the contract governing the 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 person 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 person is entitled under the contract governing the project to be deducted from the person'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 a person who is working on a project that is subject to
40 USC 276c.
103.49 Note
NOTE: Par. (d) is shown as affected by two acts of the 1999 legislature and as merged by the revisor under s. 13.93 (2) (c).
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 the 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 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 at any time in the preceding 3 years. The department shall include with any name the address of the person and shall specify when the person failed to pay the prevailing wage rate and when the 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 the 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 Note
NOTE: Par. (a) is shown as affected by two acts of the 1999 legislature and as merged by the revisor under s. 13.93 (2) (c).
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.
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, on the date the person submits the bid, 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.
103.49 Note
NOTE: Par. (d) is shown as affected by two acts of the 1999 legislature and as merged by the revisor under s. 13.93 (2) (c).
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)1.1. Except as provided in
subd. 2., "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.
103.50(1)(d)2.
2. If there is no rate at which a majority of the hours worked in the trade or occupation in the area is paid, "prevailing wage rate" means the average hourly basic rate of pay, weighted by the number of hours worked, plus the average hourly contribution, weighted by the number of hours worked, for health insurance benefits, vacation benefits, pension benefits and any other bona fide economic benefit, paid directly or indirectly for all hours worked at the hourly basic rate of pay of the highest-paid 51% of hours worked in that trade or occupation in that area.
103.50(2)
(2) Prevailing wage rates and hours of labor. No person performing the work 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 greater number of hours per day or per week than the prevailing hours of labor; 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 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) Subject to
par. (b), all of the following employees 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 week than the prevailing hours of labor, unless they are paid for all hours worked in excess of the prevailing hours of labor at a rate of at least 1.5 times their hourly basic rate of pay:
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.
103.50(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.
103.50(2m)(b)
(b) Notwithstanding
par. (a) 1., a laborer, worker, mechanic or truck driver who is regularly employed to process, manufacture, pick up or deliver materials or products from 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 unless any of the following applies:
103.50(2m)(b)1.
1. The laborer, worker, mechanic or truck driver is employed to go to the source of mineral aggregate such as sand, gravel or stone that is to be immediately incorporated into the work, and not stockpiled or further transported by truck, pick up that mineral aggregate and deliver that mineral aggregate to 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.
103.50(2m)(b)2.
2. The laborer, worker, mechanic or truck driver is employed to go to the site of a project that is subject to this section, pick up excavated material or spoil from the site of the project and transport that excavated material or spoil away from the site of the project and return to the site of the project.
103.50(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.
103.50(3)
(3) Investigations; determinations. The department shall conduct investigations and hold public hearings necessary to define the trades or occupations that are commonly employed in the highway construction industry and to inform itself as to the prevailing wage rates in all areas of the state for those trades or occupations, in order to ascertain and determine the prevailing wage rates accordingly.
103.50(4)
(4) Certification of prevailing wage rates. The department of workforce development shall, by May 1 of each year, certify to the department of transportation the prevailing wage rates in each area for all trades or occupations commonly employed in the highway construction industry. The certification shall, in addition to the current prevailing wage rates, include future prevailing wage rates when such prevailing wage rates can be determined for any such trade or occupation in any area and shall specify the effective date of those future prevailing wage rates. If a construction project extends into more than one area there shall be but one standard of prevailing wage rates for the entire project.
103.50(4m)
(4m) Wage rate data. In determining prevailing wage rates for projects that are subject to this section, the department shall use data from projects that are subject to this section,
s. 66.0903 or
103.49 or
40 USC 276a.
103.50(5)
(5) Appeals to governor. If the department of transportation considers any determination of the department of workforce development as to the prevailing wage rates in an area to have been incorrect, it may appeal to the governor, whose determination shall be final.
103.50(6)
(6) Contents of contracts. A reference to the prevailing wage rates determined under
sub. (3) and the prevailing hours of labor shall be published in the notice issued for the purpose of securing bids for a project. If any contract or subcontract for a project that is subject to this section is entered into, the prevailing wage rates determined under
sub. (3) 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 of workforce development, that 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. For the information of the employees working on the project, the prevailing wage rates determined by the department, the prevailing hours of labor and the provisions of
subs. (2) and
(7) shall be kept posted by the department of transportation in at least one conspicuous and easily accessible place on the site of the project.
103.50(7)(a)(a) Except as provided in
pars. (b),
(d) and
(f), any contractor, subcontractor or contractor's or subcontractor's agent who violates this section may be fined not more than $200 or imprisoned for not more than 6 months or both. Each day that a violation continues is a separate offense.
103.50(7)(b)
(b) Whoever induces any person 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 person is entitled under the contract governing the project, or who reduces the hourly basic rate of pay normally paid to a person 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, by threat not to employ, by threat of dismissal from employment or by any other means is guilty of an offense under
s. 946.15 (1).
103.50 Note
NOTE: Par. (b) is shown as affected by two acts of the 1999 legislature and as merged by the revisor under s. 13.93 (2) (c).
103.50(7)(c)
(c) Any person employed on a project that is subject to this section who knowingly permits a contractor, subcontractor or contractor's or subcontractor's agent to pay him or her less than the prevailing wage rate set forth in the contract governing the 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).
103.50(7)(d)
(d) Whoever induces any person 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 person is entitled under the contract governing the project to be deducted from the person'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 a person who is working on a project that is subject to
40 USC 276c.
103.50 Note
NOTE: Par. (d) is shown as affected by two acts of the 1999 legislature and as merged by the revisor under s. 13.93 (2) (c).
103.50(7)(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 the 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.
103.50 Note
NOTE: Par. (e) is shown as affected by two acts of the 1999 legislature and as merged by the revisor under s. 13.93 (2) (c).
103.50(7)(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 under
sub. (3) or
(4).
103.50(8)
(8) Enforcement and prosecution. The department of transportation shall require adherence to
subs. (2),
(2m) and
(6). The department of transportation may demand and examine, and every contractor, subcontractor and contractor's or subcontractor's agent shall keep and furnish upon request by the department of transportation, copies of payrolls and other records and information relating to compliance with this section. Upon request of the department of transportation or upon complaint of alleged violation, the district attorney of the county in which the work is located shall investigate as necessary and prosecute violations in a court of competent jurisdiction.
Section 111.322 (2m) applies to discharge and other discriminatory acts arising in connection with any proceeding under this section.
103.50 Note
NOTE: Sub. (8) is shown as affected by two acts of the 1999 legislature and as merged by the revisor under s. 13.93 (2) (c).
103.50 Cross-reference
Cross-reference: See s.
227.01 (13) (t) for provision that determinations of hours, wages and truck rentals need not be filed as rules but are subject to review under Chapter
227.
103.50 Annotation
WERC had no jurisdiction to enforce wage rates on a highway project as an unfair labor practice if the rates are violated when the complaining union had no members among the employees affected and was not seeking to represent them. Chauffeurs, Teamsters & Helpers v. WERC,
51 Wis. 2d 391,
187 N.W.2d 364.
103.50 Annotation
The department may not make more than one annual certification of the prevailing hours of labor or prevailing wage rates to apply to state highway project contracts. 59 Atty. Gen. 23.
103.505
103.505
Collective bargaining; definitions. When used in
ss. 103.505 to
103.61, and for the purposes of those sections:
103.505(1)
(1) A case shall be held to involve or to grow out of a labor dispute when the case involves persons who are engaged in a single industry, trade, craft, or occupation; or who are employees of one employer; or who are members of the same or an affiliated organization of employers or employees; whether such dispute is any of the following:
103.505(1)(a)
(a) Between one or more employers or associations of employers and one or more employees or associations of employees.
103.505(1)(b)
(b) Between one or more employers or associations of employers and one or more employers or associations of employers.
103.505(1)(c)
(c) Between one or more employees or associations of employees and one or more employees or associations of employees.
103.505(1)(d)
(d) Between any conflicting or competing interests in a labor dispute of persons participating or interested in the labor dispute.
103.505(2)
(2) A person or association shall be held to be a person participating or interested in a labor dispute if relief is sought against the person or association and if the person or association is engaged in the industry, trade, craft, or occupation in which the labor dispute occurs, or is a member, officer, or agent of any association of employers or employees engaged in that industry, trade, craft, or occupation.
103.505(3)
(3) ``Labor dispute" means any controversy between an employer and the majority of the employer's employees in a collective bargaining unit concerning the right or process or details of collective bargaining or the designation of representatives. Any organization with which either the employer or the majority of the employer's employees is affiliated may be considered a party to the labor dispute.
103.505 History
History: 1993 a. 492;
1995 a. 225;
1997 a. 35;
1997 a. 253 ss.
104,
105; Stats. 1997 s. 103.505.
103.51
103.51
Public policy as to collective bargaining. In the interpretation and application of
ss. 103.505 to
103.61, the public policy of this state is declared as follows:
103.51(1)
(1) Negotiation of terms and conditions of labor should result from voluntary agreement between employer and employees. Governmental authority has permitted and encouraged employers to organize in the corporate and other forms of capital control. In dealing with such employers, the individual unorganized worker is helpless to exercise actual liberty of contract and to protect his or her freedom of labor, and thereby to obtain acceptable terms and conditions of employment. Therefore it is necessary that the individual worker have full freedom of association, self-organization, and the designation of representatives of the worker's own choosing, to negotiate the terms and conditions of the worker's employment, and that the worker shall be free from the interference, restraint or coercion of employers of labor, or their agents, in the designation of such representatives or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.
103.51 History
History: 1995 a. 225;
1997 a. 253.
103.52
103.52
"Yellow-dog" contracts. 103.52(1)
(1) Every undertaking or promise made after July 1, 1931, whether written or oral, express or implied, between any employee or prospective employee and that person's employer, prospective employer or any other individual, firm, company, association or corporation is declared to be against public policy if either party to the undertaking or promise undertakes or promises any of the following:
103.52(1)(a)
(a) To join or to remain a member of some specific labor organization or to join or remain a member of some specific employer organization or any employer organization.
