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 of public works 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 of public works 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 of public works 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 of public works 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 of public works that is subject to this section as provided in this paragraph to ensure compliance with this section. On receipt of such a request, the department shall request the contractor, subcontractor, or agent to submit to the department a certified record of the information specified in
par. (a), other than personally identifiable information relating to an employee of the contractor, subcontractor, or agent, for no longer than a 4-week period. The department may request a contractor, subcontractor, or agent to submit those records no more than once per calendar quarter for each project of public works on which the contractor, subcontractor, or agent is performing work. The department may not charge a requester a fee for obtaining that information. The department shall make available for public inspection certified records submitted to the department under this paragraph.
103.49(6m)(ag)1.1. Any contractor, subcontractor, or contractor's or subcontractor's agent who fails to pay the prevailing wage rate determined by the department under
sub. (3) or who pays less than 1.5 times the hourly basic rate of pay for all hours worked in excess of the prevailing hours of labor is liable to any affected employee in the amount of his or her unpaid wages or his or her unpaid overtime compensation and in an additional amount as liquidated damages as provided in
subd. 2. or
3., whichever is applicable.
103.49(6m)(ag)2.
2. If the department determines upon inspection under
sub. (5) (b) or
(c) that a contractor, subcontractor, or contractor's or subcontractor's agent has failed to pay the prevailing wage rate determined by the department under
sub. (3) or has paid less than 1.5 times the hourly basic rate of pay for all hours worked in excess of the prevailing hours of labor, the department shall order the contractor to pay to any affected employee the amount of his or her unpaid wages or his or her unpaid overtime compensation and an additional amount equal to 100 percent of the amount of those unpaid wages or that unpaid overtime compensation as liquidated damages within a period specified by the department in the order.
103.49(6m)(ag)3.
3. In addition to or in lieu of recovering the liability specified in
subd. 1. as provided in
subd. 2., any employee for and in behalf of that employee and other employees similarly situated may commence an action to recover that liability in any court of competent jurisdiction. If the court finds that a contractor, subcontractor, or contractor's or subcontractor's agent has failed to pay the prevailing wage rate determined by the department under
sub. (3) or has paid less than 1.5 times the hourly basic rate of pay for all hours worked in excess of the prevailing hours of labor, the court shall order the contractor, subcontractor, or agent to pay to any affected employee the amount of his or her unpaid wages or his or her unpaid overtime compensation and an additional amount equal to 100 percent of the amount of those unpaid wages or that unpaid overtime compensation as liquidated damages.
103.49(6m)(ag)5.
5. No employee may be a party plaintiff to an action under
subd. 3. unless the employee consents in writing to become a party and the consent is filed in the court in which the action is brought. Notwithstanding
s. 814.04 (1), the court shall, in addition to any judgment awarded to the plaintiff, allow reasonable attorney fees and costs to be paid by the defendant.
103.49(6m)(am)
(am) 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 of public works 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 of public works 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 of public works 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 of public works 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 of public works 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 3142.
103.49(6m)(e)
(e) Any person employed on a project of public works 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 3142.
103.49(6m)(f)
(f) Paragraph (am) 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 of public works 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.
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(2g)
(2g) Nonapplicability. This section does not apply to a single-trade project of public works, as defined in
s. 103.49 (1) (em), for which the estimated project cost of completion is less than $48,000 or a multiple-trade project of public works, as defined in
s. 103.49 (1) (br), for which the estimated project cost of completion is less than $100,000.
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) A laborer, worker, mechanic, or truck driver who is 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 supplies processed or manufactured materials or products or from a facility that is not dedicated exclusively, or nearly so, to a project that is subject to this section 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 and deliver that mineral aggregate to the site of a project that is subject to this section by depositing the material directly in final place, from transporting the vehicle [the transporting vehicle] or through spreaders from the transporting vehicle.
103.50 Note
NOTE: The correct term is shown in brackets. Corrective legislation is pending.
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. The certification shall also include wage rates for work performed on Sundays or the holidays specified in
s. 103.49 (1) (c) and shift differentials based on the time of day or night when work is performed. 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 3142. In determining prevailing wage rates for those projects, the department may not use data from any construction work that is performed by a state agency or a local governmental unit, as defined in
s. 66.0903 (1) (d).
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(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 3142.
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 3142.
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 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 ch.
227.
103.50 Cross-reference
Cross-reference: See also ch.
DWD 290, Wis. adm. code.
103.50 Annotation
WERC had no jurisdiction to enforce wage rates on a highway project as an unfair labor practice 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 (1971).
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.
103.50 Annotation
Federal law does not preempt application of Wisconsin's prevailing wage law, s. 103.50, to truck drivers who perform transportation and delivery work pursuant to joint federal-state highway contracts. Frank Brothers, Inc. v. DOT,
409 F.3d 332 (2005).
103.503
103.503
Substance abuse prevention on public works projects. 103.503(1)(a)
(a) "Accident" means an incident caused, contributed to, or otherwise involving an employee that resulted or could have resulted in death, personal injury, or property damage and that occurred while the employee was performing the work described in
s. 66.0903 (4) or
103.49 (2m) on a project.
103.503(1)(c)
(c) "Contracting agency" means a local governmental unit, as defined in
s. 66.0903 (1) (d), or a state agency, as defined in
s. 103.49 (1) (f), that has contracted for the performance of work on a project.
103.503(1)(d)
(d) "Drug" means any controlled substance, as defined in
s. 961.01 (4), or controlled substance analog, as defined in
s. 961.01 (4m), for which testing is required by an employer under its substance abuse prevention program under this section.
103.503(1)(f)
(f) "Employer" means a contractor, subcontractor, or agent of a contractor or subcontractor that performs work on a project.
103.503(2)
(2) Substance abuse prohibited. No employee may use, possess, attempt to possess, distribute, deliver, or be under the influence of a drug, or use or be under the influence of alcohol, while performing the work described in
s. 66.0903 (4) or
103.49 (2m) on a project. An employee is considered to be under the influence of alcohol for purposes of this subsection if he or she has an alcohol concentration that is equal to or greater than the amount specified in
s. 885.235 (1g) (d).
103.503(3)
(3) Substance abuse prevention programs required. 103.503(3)(a)(a) Before an employer may commence work on a project, the employer shall have in place a written program for the prevention of substance abuse among its employees. At a minimum, the program shall include all of the following:
103.503(3)(a)2.
2. A requirement that employees performing the work described in
s. 66.0903 (4) or
103.49 (2m) on a project submit to random, reasonable suspicion, and post-accident drug and alcohol testing and to drug and alcohol testing before commencing work on a project, except that testing of an employee before commencing work on a project is not required if the employee has been participating in a random testing program during the 90 days preceding the date on which the employee commenced work on the project.
103.503(3)(a)3.
3. A procedure for notifying an employee who violates
sub. (2), who tests positive for the presence of a drug in his or her system, or who refuses to submit to drug or alcohol testing as required under the program that the employee may not perform work on a project until he or she meets the conditions specified in
sub. (4) (b) 1. and
2.
103.503(3)(b)
(b) Each employer shall be responsible for the cost of developing, implementing, and enforcing its substance abuse prevention program, including the cost of drug and alcohol testing of its employees under the program. The contracting agency is not responsible for that cost, for the cost of any medical review of a test result, or for any rehabilitation provided to an employee.
103.503(4)(a)(a) No employer may permit an employee who violates
sub. (2), who tests positive for the presence of a drug in his or her system, or who refuses to submit to drug or alcohol testing as required under the employer's substance abuse prevention program under
sub. (3) to perform work on a project until he or she meets the conditions specified in
par. (b) 1. and
2. An employer shall immediately remove an employee from work on a project if any of the following occurs:
103.503(4)(a)1.
1. The employee violates
sub. (2), tests positive for the presence of a drug in his or her system, or refuses to submit to drug or alcohol testing as required under the employer's substance abuse prevention program.
103.503(4)(a)2.
2. An officer or employee of the contracting agency has a reasonable suspicion that the employee is in violation of
sub. (2) and requests the employer to immediately remove the employee from work on the project.
103.503(4)(b)
(b) An employee who is barred or removed from work on a project under
par. (a) may commence or return to work on the project upon his or her employer providing to the contracting agency documentation showing all of the following:
