103.465 Annotation
A provision of a pension plan denying benefits if the retired employee accepts any employment in the same industry without limit as to time or area is void. Estate of Schroeder,
53 Wis. 2d 59,
191 N.W.2d 860 (1971).
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 pre-existing common law principals that contracts in restraint of trade are viewed with disfavor. Behnke v. Hertz Corp.
70 Wis. 2d 818,
235 N.W.2d 690 (1975).
103.465 Annotation
A profit-sharing plan that provided for forfeiture in the event that a covered employee worked for a "competitive business" was construed to apply only to businesses that seek out and appeal to the same customers and offer substantially identical services. Zimmerman v. Brennan,
78 Wis. 2d 510,
254 N.W.2d 719 (1977).
103.465 Annotation
The basic requirements for an enforceable restrictive covenant are that the agreement must: 1) be necessary for the protection of the employer; 2) provide a reasonable time period; 3) cover a reasonable territory; 4) not be unreasonable to the employee; 5) not be unreasonable to the general public. Chuck Wagon Catering, Inc. v. Raduege,
88 Wis. 2d 740,
277 N.W.2d 787 (1979).
103.465 Annotation
A covenant prohibiting an executive employee from contacting company clients with whom the employee had had no previous contact was not unreasonable per se. Hunter of Wisconsin, Inc. v. Hamilton,
101 Wis. 2d 460,
304 N.W.2d 752 (1981).
103.465 Annotation
A covenant not to compete is not automatically voided by the presence of an unreasonable provision for liquidated damages. Whether specific restraints as to area and time are necessary to protect the employer is a question of law to be resolved on the basis of the facts. Fields Foundation, Ltd. v. Christensen,
103 Wis. 2d 465,
309 N.W.2d 125 (Ct. App. 1981).
103.465 Annotation
An agreement requiring agents of an insurance company to forfeit their extended earnings if after termination they engaged in certain competitive practices was unenforceable. Streiff v. American Family Mutual Insurance Co.
118 Wis. 2d 602,
348 N.W.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 Wis. 2d 422,
507 N.W.2d 381 (Ct. App. 1993).
103.465 Annotation
An employer is not entitled to protection against ordinary competition of the type a stranger would give. There must be special facts that render the covenant necessary for the protection of the employer's business. Wausau Medical Center v. Asplund,
182 Wis. 2d 274,
514 N.W.2d 34 (Ct. App. 1994).
103.465 Annotation
A valid covenant not to compete requires consideration. Continued employment, absent a requirement that the employment requires executing the agreement, is not consideration. NBZ, Inc. v. Pilarski,
185 Wis. 2d 827,
520 N.W.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 Wis. 2d 51,
565 N.W.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 would allow an employee to refuse to sign a non-disclosure or non-compete clause that the employee considers to be unreasonable. Tatge v. Chambers & Owen, Inc.
219 Wis. 2d 99,
579 N.W.2d 217 (1998).
103.465 Annotation
Any part of an indivisible covenant, even if reasonable on its own, will not be given effect if any other part is unreasonable. A provision that an insurance agent was to have no contact with company clients without geographic restriction was overbroad, as was a provision that the agent not work for a named competitor in any capacity. Mutual Service Casualty Insurance Co. v. Brass, 2001 WI App. 92,
242 Wis. 2d 733,
625 N.W.2d 648.
103.465 Annotation
"Specified territory" in this section encompasses customer lists as well as geographic locations. A covenant not to compete based on a customer list limitation is not invalid per se. Farm Credit Services of North Central Wisconsin v. Wysocki, 2001 WI 51,
243 Wis. 2d 305,
627 N.W.2d 444.
103.465 Annotation
A covenant not to compete cannot escape the requirement of territorial reasonableness by not including any geographical parameters. A covenant without any specified territory is void. Equity Enterprises, Inc. v. Milosch, 2001 WI App 186,
247 Wis. 2d 172,
633 N.W.2d 662.
103.465 Annotation
A penalty provision in a contract that is invoked if there is a violation of an unreasonable covenant not to compete must be read with, and is intertwined with, the covenant. As such, it is an unreasonable covenant itself. Equity Enterprises, Inc. v. Milosch, 2001 WI App 186,
247 Wis. 2d 172,
633 N.W.2d 662.
103.465 Annotation
An employer is not allowed to circumvent the protections under this section by restricting the employment opportunities of its employees through contracts with other employers without employee knowledge and consent. An employer cannot indirectly restrict employees in a way that it cannot do directly under this section. Heyde Companies, Inc. v. Dove Healthcare, LLC, 2002 WI 131,
258 Wis. 2d 28,
654 N.W.2d 830,
01-0863.
103.465 Annotation
This section does not apply to franchisees under franchise agreements. H & R Block Eastern Tax Services, Inc. v. Vorpahl,
255 F. Supp. 2d 930 (2003).
103.465 AnnotationA 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
An obligation to repay an employer's costs for training an employee if the employee did not remain employed for a specified time was not a covenant not to compete under this section. This section applies only to the extent a consequence is linked to working for the employer's competition. Heder v. City of Two Rivers,
295 F. 3d 777 (2002).
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.
103.465 Annotation
Can Employers Force Employees to Sign Noncompete Agreements as a Condition of Their Employment? Cohen & Stuart. Wis. Law. May 1999.
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 employee, 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 10 hours per day and 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)1.1. Except as provided in
subd. 2., "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.
103.49(1)(d)2.
2. 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, "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 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 on projects in that area.
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. "State agency" also includes the University of Wisconsin Hospitals and Clinics Authority and the Fox River Navigational System Authority.
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 or any state agency is a party shall contain a stipulation that no person performing the work described in
sub. (2m) may be permitted to work a greater number of hours per day or per week than the prevailing hours of labor, 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; nor may he or she be paid less than the prevailing wage rate determined under
sub. (3) in the same or most similar trade or occupation in the area wherein such project of public works is situated. 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 the 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, 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) 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:
103.49(2m)(a)1.
1. All laborers, workers, mechanics and truck drivers employed on the site of a project that is subject to this section.
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) 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:
103.49(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.
103.49(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.
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 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 conduct investigations and hold public hearings as 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 in all areas of the state for those trades or occupations, in order to determine the prevailing wage rate for each trade or occupation. The department shall issue its determination within 30 days after receiving the request and shall file the determination with the requesting state agency. 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
(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 for each trade or occupation in each area. The compilation shall, in addition to the current prevailing wage rates, include future prevailing wage rates when those prevailing wage rates can be determined for any 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.
103.49(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(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(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(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 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 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(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(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 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 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(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(7)(e)
(e) The department shall promulgate rules to administer this subsection.
103.49 Cross-reference
Cross Reference: See also chs.
DWD 290 and
294, Wis. adm. code.
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.
