Wisconsin 2023-2024 Regular Session

Wisconsin Senate Bill SB540 Compare Versions

Only one version of the bill is available at this time.

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3	3	2023 - 2024 LEGISLATURE
4	4	2023 SENATE BILL 540
5	5	October 16, 2023 - Introduced by Senators CARPENTER, L. JOHNSON, AGARD,
6	6	HESSELBEIN, LARSON, PFAFF, ROYS, SMITH, SPREITZER, TAYLOR and WIRCH,
7	7	cosponsored by Representatives SHANKLAND, SINICKI, OHNSTAD, C. ANDERSON,
8	8	J. ANDERSON, BARE, CABRERA, CLANCY, CONLEY, CONSIDINE, DOYLE, DRAKE,
9	9	EMERSON, GOYKE, HAYWOOD, HONG, JACOBSON, JOERS, MADISON, MOORE
10	10	OMOKUNDE, NEUBAUER, ORTIZ-VELEZ, PALMERI, RATCLIFF, SHELTON, SNODGRASS,
11	11	STUBBS, SUBECK and VINING. Referred to Committee on Labor, Regulatory
12	12	Reform, Veterans and Military Affairs.
13	13	AN ACT to repeal 84.54 and 86.51; to amend 66.0129 (5), 66.0903 (1) (c), 66.0903
14	14	(1) (f), 66.0903 (1) (j), 66.0903 (1m) (b), 103.005 (12) (a), 103.503 (1) (a), 103.503
15	15	(1) (e), 103.503 (2), 103.503 (3) (a) 2., 109.09 (1), 111.322 (2m) (a), 111.322 (2m)
16	16	(b) and 978.05 (6) (a); to repeal and recreate 66.0903 (1) (g) and 103.503 (1)
17	17	(g); and to create 19.36 (12), 66.0903 (1) (a), (am), (b), (cm), (dr), (em), (hm) and
18	18	(im), 66.0903 (2) to (12), 84.41 (3), 103.49, 103.50, 104.001 (4), 106.04, 111.322
19	19	(2m) (c), 227.01 (13) (t), 229.682 (2), 229.8275 and 946.15 of the statutes;
20	20	relating to: prevailing wage, granting rule-making authority, and providing
21	21	a penalty.
22	22	Analysis by the Legislative Reference Bureau
23	23	Prevailing wage
24	24	This bill requires that laborers, workers, mechanics, and truck drivers
25	25	employed on the site of certain projects of public works be paid the prevailing wage
26	26	and not be required or allowed to work a greater number of hours per day and per
27	27	week than the prevailing hours of labor unless they are paid overtime for all hours
28	28	worked in excess of the prevailing hours of labor. Projects subject to the bill include
29	29	state and local projects of public works, including state highway projects, with
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40	40	SENATE BILL 540
41	41	exceptions including projects below certain cost thresholds, minor service or
42	42	maintenance work, and certain residential projects. Under the bill, “prevailing wage
43	43	rate” is defined as the hourly basic rate of pay, plus the hourly contribution for bona
44	44	fide economic benefits, paid for a majority of the hours worked in a trade or
45	45	occupation in the area in which the project is located, except that, if there is no rate
46	46	at which a majority of those hours is paid, “prevailing wage rate” means the average
47	47	hourly basic rate of pay, plus the average hourly contribution for bona fide economic
48	48	benefits, paid for the highest-paid 51 percent of hours worked in a trade or
49	49	occupation in the area. “Prevailing hours of labor" is defined as 10 hours per day and
50	50	40 hours per week, excluding weekends and holidays. The bill requires the
51	51	Department of Workforce Development to conduct investigations and hold public
52	52	hearings as necessary to define the trades or occupations that are commonly
53	53	employed on projects that are subject to the prevailing wage law and to inform itself
54	54	of the prevailing wage rates in all areas of the state for those trades or occupations,
55	55	in order to determine the prevailing wage rate for each trade or occupation. The bill
56	56	contains certain other provisions regarding the calculation of prevailing wage rates
57	57	by DWD, including provisions allowing persons to request recalculations or reviews
58	58	of the prevailing wage rates determined by DWD.
59	59	The bill requires contracts and notices for bids for projects subject to the bill to
60	60	include and incorporate provisions ensuring compliance with the requirements. The
61	61	bill also establishes a requirement that state agencies and local governments post
62	62	prevailing wage rates and hours of labor in areas readily accessible to persons
63	63	employed on the project or in sites regularly used for posting notices.
64	64	The bill makes a contractor that fails to pay the prevailing wage rate or
65	65	overtime pay to an employee as required under the prevailing wage law liable to the
66	66	affected employee for not only the amount of unpaid wages and overtime pay, but also
67	67	for liquidated damages in an amount equal to 100 percent of the unpaid wages and
68	68	overtime pay.
69	69	Finally, the bill includes, for both state and local projects of public works,
70	70	provisions regarding coverage, compliance, enforcement, and penalties, including 1)
71	71	requirements for affidavits to be filed by contractors affirming compliance with the
72	72	prevailing wage law; 2) record retention requirements for contractors regarding
73	73	wages paid to workers and provisions allowing for the inspection of those records by
74	74	DWD; 3) liability and penalty provisions for certain violations, including criminal
75	75	penalties; and 4) provisions prohibiting contracts from being awarded to persons who
76	76	have failed to comply with the prevailing wage law.
77	77	Transportation projects
78	78	Under current law, for certain highway projects for which the Department of
79	79	Transportation spends federal money, federal money must make up at least 70
80	80	percent of the funding for those projects. DOT is required to notify political
81	81	subdivisions receiving aid for local projects whether the aid includes federal moneys
82	82	and how those moneys must be spent. For certain projects that receive no federal
83	83	money, DOT may not require political subdivisions to comply with any portion of
84	84	DOT's facilities development manual other than design standards. Any local project
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89	89	program must be let through competitive bidding and by contract to the lowest
90	90	responsible bidder. The bill repeals all of these requirements.
91	91	Because this bill creates a new crime or revises a penalty for an existing crime,
92	92	the Joint Review Committee on Criminal Penalties may be requested to prepare a
93	93	report.
94	94	For further information see the state and local fiscal estimate, which will be
95	95	printed as an appendix to this bill.
96	96	The people of the state of Wisconsin, represented in senate and assembly, do
97	97	enact as follows:
98	98	SECTION 1. 19.36 (12) of the statutes is created to read:
99	99	19.36 (12) INFORMATION RELATING TO CERTAIN EMPLOYEES. Unless access is
100	100	specifically authorized or required by statute, an authority may not provide access
101	101	to a record prepared or provided by an employer performing work on a project to
102	102	which s. 66.0903, 103.49, or 103.50 applies, or on which the employer is otherwise
103	103	required to pay prevailing wages, if that record contains the name or other personally
104	104	identifiable information relating to an employee of that employer, unless the
105	105	employee authorizes the authority to provide access to that information. In this
106	106	subsection, “personally identifiable information" does not include an employee's
107	107	work classification, hours of work, or wage or benefit payments received for work on
108	108	such a project.
109	109	SECTION 2. 66.0129 (5) of the statutes is amended to read:
110	110	66.0129 (5) BIDS FOR CONSTRUCTION. The nonprofit corporation shall let all
111	111	contracts exceeding $1,000 for the construction, maintenance or repair of hospital
112	112	facilities to the lowest responsible bidder after advertising for bids by the publication
113	113	of a class 2 notice under ch. 985. Section Sections 66.0901 applies and 66.0903 apply
114	114	to bids and contracts under this subsection.
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133	133	SECTION 3 SENATE BILL 540
134	134	SECTION 3. 66.0903 (1) (a), (am), (b), (cm), (dr), (em), (hm) and (im) of the
135	135	statutes are created to read:
136	136	66.0903 (1) (a) “Area" means the county in which a proposed project of public
137	137	works that is subject to this section is located or, if the department determines that
138	138	there is insufficient wage data in that county, “area" means those counties that are
139	139	contiguous to that county or, if the department determines that there is insufficient
140	140	wage data in those counties, “area" means those counties that are contiguous to those
141	141	counties or, if the department determines that there is insufficient wage data in those
142	142	counties, “area" means the entire state or, if the department is requested to review
143	143	a determination under sub. (3) (br), “area" means the city, village, or town in which
144	144	a proposed project of public works that is subject to this section is located.
145	145	(am) “Bona fide economic benefit" has the meaning given in s. 103.49 (1) (am).
146	146	(b) “Department" means the department of workforce development.
147	147	(cm) “Insufficient wage data" has the meaning given in s. 103.49 (1) (bg).
148	148	(dr) “Minor service or maintenance work" means a project of public works that
149	149	is limited to minor crack filling, chip or slurry sealing, or other minor pavement
150	150	patching, not including overlays, that has a projected life span of no longer than 5
151	151	years or that is performed for a town and is not funded under s. 86.31, regardless of
152	152	projected life span; the depositing of gravel on an existing gravel road applied solely
153	153	to maintain the road; road shoulder maintenance; cleaning of drainage or sewer
154	154	ditches or structures; or any other limited, minor work on public facilities or
155	155	equipment that is routinely performed to prevent breakdown or deterioration.
156	156	(em) “Multiple-trade project of public works" has the meaning given in s.
157	157	103.49 (1) (br).
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184	184	SECTION 3
185	185	SENATE BILL 540
186	186	(hm) “Single-trade project of public works" has the meaning given in s. 103.49
187	187	(1) (em).
188	188	(im) “Supply and installation contract" has the meaning given in s. 103.49 (1)
189	189	(fm).
190	190	SECTION 4. 66.0903 (1) (c) of the statutes is amended to read:
191	191	66.0903 (1) (c) “Hourly basic rate of pay" has the meaning given in s. 16.856
192	192	103.49 (1) (b), 2015 stats.
193	193	SECTION 5. 66.0903 (1) (f) of the statutes is amended to read:
194	194	66.0903 (1) (f) “Prevailing hours of labor" has the meaning given in s. 16.856
195	195	103.49 (1) (e), 2015 stats. (c).
196	196	SECTION 6. 66.0903 (1) (g) of the statutes is repealed and recreated to read:
197	197	66.0903 (1) (g) “Prevailing wage rate" has the meaning given in s. 103.49 (1)
198	198	(d).
199	199	SECTION 7. 66.0903 (1) (j) of the statutes is amended to read:
200	200	66.0903 (1) (j) “Truck driver" includes an owner-operator of a truck has the
201	201	meaning given in s. 103.49 (1) (g).
202	202	SECTION 8. 66.0903 (1m) (b) of the statutes is amended to read:
203	203	66.0903 (1m) (b) The legislature finds that the enactment of ordinances or
204	204	other enactments by local governmental units requiring laborers, workers,
205	205	mechanics, and truck drivers employed on projects of public works or on publicly
206	206	funded private construction projects to be paid the prevailing wage rate and to be
207	207	paid at least 1.5 times their hourly basic rate of pay for hours worked in excess of the
208	208	prevailing hours of labor would be logically inconsistent with, would defeat the
209	209	purpose of, and would go against the repeals spirit of this section and the repeal of
210	210	s. 66.0904, 2009 stats., and s. 66.0903 (2) to (12), 2013 stats. Therefore, this section
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237	237	SECTION 8 SENATE BILL 540
238	238	shall be construed as an enactment of statewide concern for the purposes of
239	239	facilitating broader participation with respect to bidding on projects of public works,
240	240	ensuring that wages accurately reflect market conditions, providing local
241	241	governments with the flexibility to reduce costs on capital projects, and reducing
242	242	spending at all levels of government in this state purpose of providing uniform
243	243	prevailing wage rate and prevailing hours of labor requirements throughout the
244	244	state.
245	245	SECTION 9. 66.0903 (2) to (12) of the statutes are created to read:
246	246	66.0903 (2) APPLICABILITY. Subject to sub. (5), this section applies to any project
247	247	of public works erected, constructed, repaired, remodeled, or demolished for a local
248	248	governmental unit, including all of the following:
249	249	(a) A highway, street, bridge, building, or other infrastructure project.
250	250	(b) A project erected, constructed, repaired, remodeled, or demolished by one
251	251	local governmental unit for another local governmental unit under a contract under
252	252	s. 66.0301 (2), 83.03, 83.035, or 86.31 (2) (b) or under any other statute specifically
253	253	authorizing cooperation between local governmental units.
254	254	(c) A project in which the completed facility is leased, purchased, lease
255	255	purchased, or otherwise acquired by, or dedicated to, a local governmental unit in lieu
256	256	of the local governmental unit contracting for the erection, construction, repair,
257	257	remodeling, or demolition of the facility.
258	258	(d) A road, street, bridge, sanitary sewer, or water main project in which the
259	259	completed road, street, bridge, sanitary sewer, or water main is acquired by, or
260	260	dedicated to, a local governmental unit, including under s. 236.13 (2), for ownership
261	261	or maintenance by the local governmental unit.
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288	288	SECTION 9
289	289	SENATE BILL 540
290	290	(3) PREVAILING WAGE RATES AND HOURS OF LABOR. (am) A local governmental unit,
291	291	before making a contract by direct negotiation or soliciting bids on a contract for the
292	292	erection, construction, remodeling, repairing, or demolition of any project of public
293	293	works, shall apply to the department to determine the prevailing wage rate for each
294	294	trade or occupation required in the work contemplated. The department shall
295	295	conduct investigations and hold public hearings as necessary to define the trades or
296	296	occupations that are commonly employed on projects of public works that are subject
297	297	to this section and to inform itself of the prevailing wage rates in all areas of the state
298	298	for those trades or occupations, in order to determine the prevailing wage rate for
299	299	each trade or occupation. The department shall issue its determination within 30
300	300	days after receiving the request and shall file the determination with the requesting
301	301	local governmental unit.
302	302	(ar) The department shall, by January 1 of each year, compile the prevailing
303	303	wage rates for each trade or occupation in each area. The compilation shall, in
304	304	addition to the current prevailing wage rates, include future prevailing wage rates
305	305	when those prevailing wage rates can be determined for any trade or occupation in
306	306	any area and shall specify the effective date of those future prevailing wage rates.
307	307	If a project of public works extends into more than one area, the department shall
308	308	determine only one standard of prevailing wage rates for the entire project.
309	309	(av) In determining prevailing wage rates under par. (am) or (ar), the
310	310	department may not use data from projects that are subject to this section, s. 103.49
311	311	or 103.50, or 40 USC 3142 unless the department determines that there is
312	312	insufficient wage data in the area to determine those prevailing wage rates, in which
313	313	case the department may use data from projects that are subject to this section, s.
314	314	103.49 or 103.50, or 40 USC 3142. In determining prevailing wage rates under par.
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341	341	SECTION 9 SENATE BILL 540
342	342	(am) or (ar), the department may not use data from any construction work that is
343	343	performed by a local governmental unit or a state agency.
344	344	(bm) Any person may request a recalculation of any portion of an initial
345	345	determination within 30 days after the initial determination date if the person
346	346	submits evidence with the request showing that the prevailing wage rate for any
347	347	given trade or occupation included in the initial determination does not represent the
348	348	prevailing wage rate for that trade or occupation in the area. The evidence shall
349	349	include wage rate information reflecting work performed by individuals working in
350	350	the contested trade or occupation in the area during the current survey period. The
351	351	department shall affirm or modify the initial determination within 15 days after the
352	352	date on which the department receives the request for recalculation.
353	353	(br) In addition to the recalculation under par. (bm), the local governmental
354	354	unit that requested the determination under this subsection may request a review
355	355	of any portion of a determination within 30 days after the date of issuance of the
356	356	determination if the local governmental unit submits evidence with the request
357	357	showing that the prevailing wage rate for any given trade or occupation included in
358	358	the determination does not represent the prevailing wage rate for that trade or
359	359	occupation in the city, village, or town in which the proposed project of public works
360	360	is located. That evidence shall include wage rate information for the contested trade
361	361	or occupation on at least 3 similar projects located in the city, village, or town where
362	362	the proposed project of public works is located and on which some work has been
363	363	performed during the current survey period and which were considered by the
364	364	department in issuing its most recent compilation under par. (ar). The department
365	365	shall affirm or modify the determination within 15 days after the date on which the
366	366	department receives the request for review.
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394	394	SECTION 9
395	395	SENATE BILL 540
396	396	(dm) A local governmental unit that is subject to this section shall include a
397	397	reference to the prevailing wage rates determined by the department and to the
398	398	prevailing hours of labor in the notice published for the purpose of securing bids for
399	399	the project of public works. Except as otherwise provided in this paragraph, if any
400	400	contract or subcontract for a project of public works is entered into, the prevailing
401	401	wage rates determined by the department and the prevailing hours of labor shall be
402	402	physically incorporated into and made a part of the contract or subcontract. For a
403	403	minor subcontract, as determined by the department, the department shall
404	404	prescribe by rule the method of notifying the minor subcontractor of the prevailing
405	405	wage rates and prevailing hours of labor applicable to the minor subcontract. The
406	406	prevailing wage rates and prevailing hours of labor applicable to a contract or
407	407	subcontract may not be changed during the time that the contract or subcontract is
408	408	in force.
409	409	(e) No contractor, subcontractor, or contractor's or subcontractor's agent that
410	410	is subject to this section may do any of the following:
411	411	1. Pay an individual performing the work described in sub. (4) less than the
412	412	prevailing wage rate in the same or most similar trade or occupation determined
413	413	under this subsection.
414	414	2. Allow an individual performing the work described in sub. (4) to work a
415	415	greater number of hours per day or per week than the prevailing hours of labor,
416	416	unless the contractor, subcontractor, or contractor's or subcontractor's agent pays
417	417	the individual for all hours worked in excess of the prevailing hours of labor at a rate
418	418	of at least 1.5 times the individual's hourly basic rate of pay.
419	419	(4) COVERED EMPLOYEES. (a) Subject to par. (b), any person subject to this
420	420	section shall pay all of the following employees the prevailing wage rate determined
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447	447	SECTION 9 SENATE BILL 540
448	448	under sub. (3) and may not allow such employees to work a greater number of hours
449	449	per day or per week than the prevailing hours of labor, unless the person pays the
450	450	employee for all hours worked in excess of the prevailing hours of labor at a rate of
451	451	at least 1.5 times the employee's hourly basic rate of pay:
452	452	1. All laborers, workers, mechanics, and truck drivers employed on the site of
453	453	a project of public works that is subject to this section.
454	454	2. All laborers, workers, mechanics, and truck drivers employed in the
455	455	manufacturing or furnishing of materials, articles, supplies, or equipment on the site
456	456	of a project of public works that is subject to this section or from a facility dedicated
457	457	exclusively, or nearly so, to a project of public works that is subject to this section by
458	458	a contractor, subcontractor, agent, or other person performing any work on the site
459	459	of the project.
460	460	(b) A laborer, worker, mechanic, or truck driver who is employed to process,
461	461	manufacture, pick up, or deliver materials or products from a commercial
462	462	establishment that has a fixed place of business from which the establishment
463	463	supplies processed or manufactured materials or products or from a facility that is
464	464	not dedicated exclusively, or nearly so, to a project of public works that is subject to
465	465	this section is not entitled to receive the prevailing wage rate determined under sub.
466	466	(3) or to receive at least 1.5 times his or her hourly basic rate of pay for all hours
467	467	worked in excess of the prevailing hours of labor unless any of the following applies:
468	468	1. The laborer, worker, mechanic, or truck driver is employed to go to the source
469	469	of mineral aggregate such as sand, gravel, or stone and deliver that mineral
470	470	aggregate to the site of a project of public works that is subject to this section by
471	471	depositing the material directly in final place, from the transporting vehicle or
472	472	through spreaders from the transporting vehicle.
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500	500	SECTION 9
501	501	SENATE BILL 540
502	502	2. The laborer, worker, mechanic, or truck driver is employed to go to the site
503	503	of a project of public works that is subject to this section, pick up excavated material
504	504	or spoil from the site of the project, and transport that excavated material or spoil
505	505	away from the site of the project.
506	506	(c) A person subject to this section shall pay a truck driver who is an
507	507	owner-operator of a truck separately for his or her work and for the use of his or her
508	508	truck.
509	509	(5) NONAPPLICABILITY. This section does not apply to any of the following:
510	510	(a) A single-trade project of public works for which the estimated project cost
511	511	of completion is less than $48,000, a multiple-trade project of public works for which
512	512	the estimated project cost of completion is less than $100,000, or, in the case of a
513	513	multiple-trade project of public works erected, constructed, repaired, remodeled, or
514	514	demolished by a private contractor for a city or village having a population of less
515	515	than 2,500 or for a town, a multiple-trade project of public works for which the
516	516	estimated project cost of completion is less than $234,000.
517	517	(b) Work performed on a project of public works for which the local
518	518	governmental unit contracting for the project is not required to compensate any
519	519	contractor, subcontractor, contractor's or subcontractor's agent, or individual for
520	520	performing the work.
521	521	(c) Minor service or maintenance work, warranty work, or work under a supply
522	522	and installation contract.
523	523	(f) A project of public works involving the erection, construction, repair,
524	524	remodeling, or demolition of a residential property containing 2 dwelling units or
525	525	less.
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551	551	SECTION 9 SENATE BILL 540
552	552	(g) A road, street, bridge, sanitary sewer, or water main project that is a part
553	553	of a development in which not less than 90 percent of the lots contain or will contain
554	554	2 dwelling units or less, as determined by the local governmental unit at the time of
555	555	approval of the development, and that, on completion, is acquired by, or dedicated to,
556	556	a local governmental unit, including under s. 236.13 (2), for ownership or
557	557	maintenance by the local governmental unit.
558	558	(8) POSTING. A local governmental unit that has contracted for a project of
559	559	public works shall post the prevailing wage rates determined by the department, the
560	560	prevailing hours of labor, and the provisions of subs. (10) (a) and (11) (a) in at least
561	561	one conspicuous place on the site of the project that is easily accessible by employees
562	562	working on the project, or, if there is no common site on the project, at the place
563	563	normally used by the local governmental unit to post public notices.
564	564	(9) COMPLIANCE. (a) When the department finds that a local governmental unit
565	565	has not requested a determination under sub. (3) (am) or that a local governmental
566	566	unit, contractor, or subcontractor has not physically incorporated a determination
567	567	into a contract or subcontract as required under this section or has not notified a
568	568	minor subcontractor of a determination in the manner prescribed by the department
569	569	by rule promulgated under sub. (3) (dm), the department shall notify the local
570	570	governmental unit, contractor, or subcontractor of the noncompliance and shall file
571	571	the determination with the local governmental unit, contractor, or subcontractor
572	572	within 30 days after the notice.
573	573	(b) Upon completion of a project of public works and before receiving final
574	574	payment for his or her work on the project, each agent or subcontractor shall furnish
575	575	the contractor with an affidavit stating that the agent or subcontractor has complied
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600	600	LRB-4299/1
601	601	MIM:amn
602	602	SECTION 9
603	603	SENATE BILL 540
604	604	fully with the requirements of this section. A contractor may not authorize final
605	605	payment until the affidavit is filed in proper form and order.
606	606	(c) Upon completion of a project of public works and before receiving final
607	607	payment for his or her work on the project, each contractor shall file with the local
608	608	governmental unit authorizing the work an affidavit stating that the contractor has
609	609	complied fully with the requirements of this section and that the contractor has
610	610	received an affidavit under par. (b) from each of the contractor's agents and
611	611	subcontractors. A local governmental unit may not authorize a final payment until
612	612	the affidavit is filed in proper form and order. If a local governmental unit authorizes
613	613	a final payment before an affidavit is filed in proper form and order or if the
614	614	department determines, based on the greater weight of the credible evidence, that
615	615	any person performing the work specified in sub. (4) has been or may have been paid
616	616	less than the prevailing wage rate or less than 1.5 times the hourly basic rate of pay
617	617	for all hours worked in excess of the prevailing hours of labor and requests that the
618	618	local governmental unit withhold all or part of the final payment, but the local
619	619	governmental unit fails to do so, the local governmental unit is liable for all back
620	620	wages payable up to the amount of the final payment.
621	621	(10) RECORDS; INSPECTION; ENFORCEMENT. (a) Each contractor, subcontractor, or
622	622	contractor's or subcontractor's agent that performs work on a project of public works
623	623	that is subject to this section shall keep full and accurate records clearly indicating
624	624	the name and trade or occupation of every individual performing the work described
625	625	in sub. (4) and an accurate record of the number of hours worked by each of those
626	626	individuals and the actual wages paid for the hours worked.
627	627	(b) The department or the contracting local governmental unit may demand
628	628	and examine, and every contractor, subcontractor, and contractor's or
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655	655	SECTION 9 SENATE BILL 540
656	656	subcontractor's agent shall keep, and furnish upon request by the department or
657	657	local governmental unit, copies of payrolls and other records and information
658	658	relating to the wages paid to individuals performing the work described in sub. (4)
659	659	for work to which this section applies. The department may inspect records in the
660	660	manner provided in ch. 103. Every contractor, subcontractor, or agent performing
661	661	work on a project of public works that is subject to this section is subject to the
662	662	requirements of ch. 103 relating to the examination of records.
663	663	(c) If requested by any person, the department shall inspect the payroll records
664	664	of any contractor, subcontractor, or agent performing work on a project of public
665	665	works that is subject to this section as provided in this paragraph to ensure
666	666	compliance with this section. On receipt of such a request, the department shall
667	667	request that the contractor, subcontractor, or agent submit to the department a
668	668	certified record of the information specified in par. (a), other than personally
669	669	identifiable information relating to an employee of the contractor, subcontractor, or
670	670	agent, for no longer than a 4-week period. The department may request that a
671	671	contractor, subcontractor, or agent submit those records no more than once per
672	672	calendar quarter for each project of public works on which the contractor,
673	673	subcontractor, or agent is performing work. The department may not charge a
674	674	requester a fee for obtaining that information. Certified records submitted to the
675	675	department under this paragraph are open for public inspection and copying under
676	676	s. 19.35 (1).
677	677	(d) Section 103.005 (5) (f), (11), (12), and (13) applies to this section, except that
678	678	s. 103.005 (12) (a) does not apply to a person who fails to provide any information to
679	679	the department to assist the department in determining prevailing wage rates under
680	680	sub. (3) (am) or (ar). Section 111.322 (2m) applies to discharge and other
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707	707	MIM:amn
708	708	SECTION 9
709	709	SENATE BILL 540
710	710	discriminatory acts arising in connection with any proceeding under this section,
711	711	including proceedings under sub. (11) (a).
712	712	(11) LIABILITY AND PENALTIES. (a) 1. A contractor, subcontractor, or contractor's
713	713	or subcontractor's agent who fails to pay the prevailing wage rate determined by the
714	714	department under sub. (3) or who pays less than 1.5 times the hourly basic rate of
715	715	pay for all hours worked in excess of the prevailing hours of labor is liable to any
716	716	affected employee in the amount of his or her unpaid wages or his or her unpaid
717	717	overtime compensation and in an additional amount as liquidated damages as
718	718	provided under subd. 2. or 3., whichever is applicable.
719	719	2. If the department determines upon inspection under sub. (10) (b) or (c) that
720	720	a contractor, subcontractor, or contractor's or subcontractor's agent has failed to pay
721	721	the prevailing wage rate determined by the department under sub. (3) or has paid
722	722	less than 1.5 times the hourly basic rate of pay for all hours worked in excess of the
723	723	prevailing hours of labor, the department shall order the contractor to pay to any
724	724	affected employee the amount of his or her unpaid wages or his or her unpaid
725	725	overtime compensation and an additional amount equal to 100 percent of the amount
726	726	of those unpaid wages or that unpaid overtime compensation as liquidated damages
727	727	within a period specified by the department in the order.
728	728	3. In addition to or in lieu of recovering the liability specified in subd. 1. as
729	729	provided in subd. 2., any employee for and on behalf of that employee and other
730	730	employees similarly situated may commence an action to recover that liability in any
731	731	court of competent jurisdiction. If the court finds that a contractor, subcontractor,
732	732	or contractor's or subcontractor's agent has failed to pay the prevailing wage rate
733	733	determined by the department under sub. (3) or has paid less than 1.5 times the
734	734	hourly basic rate of pay for all hours worked in excess of the prevailing hours of labor,
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760	760	MIM:amn
761	761	SECTION 9 SENATE BILL 540
762	762	the court shall order the contractor, subcontractor, or agent to pay to any affected
763	763	employee the amount of his or her unpaid wages or his or her unpaid overtime
764	764	compensation and an additional amount equal to 100 percent of the amount of those
765	765	unpaid wages or that unpaid overtime compensation as liquidated damages.
766	766	5. No employee may be a party plaintiff to an action under subd. 3. unless the
767	767	employee consents in writing to become a party and the consent is filed in the court
768	768	in which the action is brought. Notwithstanding s. 814.04 (1), the court shall, in
769	769	addition to any judgment awarded to the plaintiff, allow reasonable attorney fees
770	770	and costs to be paid by the defendant.
771	771	(b) 1. Except as provided in subds. 2., 4., and 6., any contractor, subcontractor,
772	772	or contractor's or subcontractor's agent who violates this section may be fined not
773	773	more than $200 or imprisoned for not more than 6 months or both. Each day that
774	774	any violation continues is a separate offense.
775	775	2. Whoever induces any individual who seeks to be or is employed on any
776	776	project of public works that is subject to this section to give up, waive, or return any
777	777	part of the wages to which the individual is entitled under the contract governing the
778	778	project, or who reduces the hourly basic rate of pay normally paid to an individual
779	779	for work on a project that is not subject to this section during a week in which the
780	780	individual works both on a project of public works that is subject to this section and
781	781	on a project that is not subject to this section, by threat not to employ, by threat of
782	782	dismissal from employment, or by any other means is guilty of an offense under s.
783	783	946.15 (1).
784	784	3. Any individual employed on a project of public works that is subject to this
785	785	section who knowingly allows a contractor, subcontractor, or contractor's or
786	786	subcontractor's agent to pay him or her less than the prevailing wage rate set forth
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812	812	LRB-4299/1
813	813	MIM:amn
814	814	SECTION 9
815	815	SENATE BILL 540
816	816	in the contract governing the project, who gives up, waives, or returns any part of the
817	817	compensation to which he or she is entitled under the contract, or who gives up,
818	818	waives, or returns any part of the compensation to which he or she is normally
819	819	entitled for work on a project that is not subject to this section during a week in which
820	820	the individual works both on a project of public works that is subject to this section
821	821	and on a project that is not subject to this section, is guilty of an offense under s.
822	822	946.15 (2).
823	823	4. Whoever induces any individual who seeks to be or is employed on any
824	824	project of public works that is subject to this section to allow any part of the wages
825	825	to which the individual is entitled under the contract governing the project to be
826	826	deducted from the individual's pay is guilty of an offense under s. 946.15 (3), unless
827	827	the deduction would be allowed under 29 CFR 3.5 or 3.6 from an individual who is
828	828	working on a project that is subject to 40 USC 3142.
829	829	5. Any individual who is employed on a project of public works that is subject
830	830	to this section who knowingly allows any part of the wages to which he or she is
831	831	entitled under the contract governing the project to be deducted from his or her pay
832	832	is guilty of an offense under s. 946.15 (4), unless the deduction would be allowed
833	833	under 29 CFR 3.5 or 3.6 from an individual who is working on a project that is subject
834	834	to 40 USC 3142.
835	835	6. Subdivision 1. does not apply to any person who fails to provide any
836	836	information to the department to assist the department in determining prevailing
837	837	wage rates under sub. (3) (am) or (ar).
838	838	(12) DEBARMENT. (a) Except as provided under pars. (b) and (c), the department
839	839	shall notify any local governmental unit applying for a determination under sub. (3)
840	840	of the names of all persons that the department has found to have failed to pay the
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867	867	SECTION 9 SENATE BILL 540
868	868	prevailing wage rate determined under sub. (3) or has found to have paid less than
869	869	1.5 times the hourly basic rate of pay for all hours worked in excess of the prevailing
870	870	hours of labor at any time in the preceding 3 years. The department shall include
871	871	with each name the address of the person and shall specify when the person failed
872	872	to pay the prevailing wage rate and when the person paid less than 1.5 times the
873	873	hourly basic rate of pay for all hours worked in excess of the prevailing hours of labor.
874	874	A local governmental unit may not award any contract to the person unless otherwise
875	875	recommended by the department or unless 3 years have elapsed from the date the
876	876	department issued its findings or the date of final determination by a court of
877	877	competent jurisdiction, whichever is later.
878	878	(b) The department may not include in a notification under par. (a) the name
879	879	of any person on the basis of having subcontracted a contract for a project of public
880	880	works to a person that the department has found to have failed to pay the prevailing
881	881	wage rate determined under sub. (3) or has found to have paid less than 1.5 times
882	882	the hourly basic rate of pay for all hours worked in excess of the prevailing hours of
883	883	labor.
884	884	(c) This subsection does not apply to any contractor, subcontractor, or agent
885	885	who in good faith commits a minor violation of this section, as determined on a
886	886	case-by-case basis through administrative hearings with all rights to due process
887	887	afforded to all parties or who has not exhausted or waived all appeals.
888	888	(d) Any person submitting a bid or negotiating a contract on a project of public
889	889	works that is subject to this section shall, on the date the person submits the bid or
890	890	negotiates the contract, identify any construction business in which the person, or
891	891	a shareholder, officer, or partner of the person, if the person is a business, owns, or
892	892	has owned at least a 25 percent interest on the date the person submits the bid or
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919	919	MIM:amn
920	920	SECTION 9
921	921	SENATE BILL 540
922	922	negotiates the contract or at any other time within 3 years preceding the date the
923	923	person submits the bid or negotiates the contract, if the business has been found to
924	924	have failed to pay the prevailing wage rate determined under sub. (3) or to have paid
925	925	less than 1.5 times the hourly basic rate of pay for all hours worked in excess of the
926	926	prevailing hours of labor.
927	927	(e) The department shall promulgate rules to administer this subsection.
928	928	SECTION 10. 84.41 (3) of the statutes is created to read:
929	929	84.41 (3) EMPLOYMENT REGULATIONS. Employment regulations set forth in s.
930	930	103.50 pertaining to wages and hours shall apply to all projects constructed under
931	931	s. 84.40 in the same manner as such laws apply to projects on other state highways.
932	932	Where applicable, the federal wages and hours law known as the Davis-Bacon act
933	933	shall apply.
934	934	SECTION 11. 84.54 of the statutes is repealed.
935	935	SECTION 12. 86.51 of the statutes is repealed.
936	936	SECTION 13. 103.005 (12) (a) of the statutes is amended to read:
937	937	103.005 (12) (a) If any employer, employee, owner, or other person violates chs.
938	938	103 to 106, or fails or refuses to perform any duty required under chs. 103 to 106,
939	939	within the time prescribed by the department, for which no penalty has been
940	940	specifically provided, or fails, neglects or refuses to obey any lawful order given or
941	941	made by the department or any judgment or decree made by any court in connection
942	942	with chs. 103 to 106, for each such violation, failure or refusal, the employer,
943	943	employee, owner or other person shall forfeit not less than $10 nor more than $100
944	944	for each offense. This paragraph does not apply to any person that fails to provide
945	945	any information to the department to assist the department in determining
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971	971	SECTION 13 SENATE BILL 540
972	972	prevailing wage rates or prevailing hours of labor under s. 103.49 (3) (a) or (am) or
973	973	103.50 (3) or (4).
974	974	SECTION 14. 103.49 of the statutes is created to read:
975	975	103.49 Wage rate on state work. (1) DEFINITIONS. In this section:
976	976	(a) “Area" means the county in which a proposed project of public works that
977	977	is subject to this section is located or, if the department determines that there is
978	978	insufficient wage data in that county, “area" means those counties that are
979	979	contiguous to that county or, if the department determines that there is insufficient
980	980	wage data in those counties, “area" means those counties that are contiguous to those
981	981	counties or, if the department determines that there is insufficient wage data in those
982	982	counties, “area" means the entire state or, if the department is requested to review
983	983	a determination under sub. (3) (c), “area" means the city, village, or town in which
984	984	a proposed project of public works that is subject to this section is located.
985	985	(am) “Bona fide economic benefit" means an economic benefit for which an
986	986	employer makes irrevocable contributions to a trust or fund created under 29 USC
987	987	186 (c) or to any other bona fide plan, trust, program, or fund no less often than
988	988	quarterly or, if an employer makes annual contributions to such a bona fide plan,
989	989	trust, program, or fund, for which the employer irrevocably escrows moneys at least
990	990	quarterly based on the employer's expected annual contribution.
991	991	(b) “Hourly basic rate of pay" means the hourly wage paid to any employee,
992	992	excluding any contributions or payments for health insurance benefits, vacation
993	993	benefits, pension benefits, and any other bona fide economic benefits, whether paid
994	994	directly or indirectly.
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1020	1020	SECTION 14
1021	1021	SENATE BILL 540
1022	1022	(bg) “Insufficient wage data" means less than 500 hours of work performed in
1023	1023	a particular trade or occupation on projects that are similar to a proposed project of
1024	1024	public works that is subject to this section.
1025	1025	(bj) “Minor service or maintenance work" means a project of public works that
1026	1026	is limited to minor crack filling, chip or slurry sealing, or other minor pavement
1027	1027	patching, not including overlays, that has a projected life span of no longer than 5
1028	1028	years; cleaning of drainage or sewer ditches or structures; or any other limited, minor
1029	1029	work on public facilities or equipment that is routinely performed to prevent
1030	1030	breakdown or deterioration.
1031	1031	(br) “Multiple-trade project of public works" means a project of public works
1032	1032	in which no single trade accounts for 85 percent or more of the total labor cost of the
1033	1033	project.
1034	1034	(c) “Prevailing hours of labor" for any trade or occupation in any area means
1035	1035	10 hours per day and 40 hours per week and may not include any hours worked on
1036	1036	a Saturday or Sunday or on any of the following holidays:
1037	1037	1. January 1.
1038	1038	2. The last Monday in May.
1039	1039	3. July 4.
1040	1040	4. The first Monday in September.
1041	1041	5. The 4th Thursday in November.
1042	1042	6. December 25.
1043	1043	7. The day before if January 1, July 4, or December 25 falls on a Saturday.
1044	1044	8. The day following if January 1, July 4, or December 25 falls on a Sunday.
1045	1045	(d) 1. Except as provided in subd. 2., “prevailing wage rate" for any trade or
1046	1046	occupation engaged in the erection, construction, remodeling, repairing, or
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1073	1073	SECTION 14 SENATE BILL 540
1074	1074	demolition of any project of public works in any area means the hourly basic rate of
1075	1075	pay, plus the hourly contribution for health insurance benefits, vacation benefits,
1076	1076	pension benefits, and any other bona fide economic benefit, paid directly or indirectly
1077	1077	for a majority of the hours worked in the trade or occupation on projects in the area.
1078	1078	2. If there is no rate at which a majority of the hours worked in the trade or
1079	1079	occupation on projects in the area is paid, “prevailing wage rate" for any trade or
1080	1080	occupation engaged in the erection, construction, remodeling, repairing, or
1081	1081	demolition of any project of public works in any area means the average hourly basic
1082	1082	rate of pay, weighted by the number of hours worked, plus the average hourly
1083	1083	contribution, weighted by the number of hours worked, for health insurance benefits,
1084	1084	vacation benefits, pension benefits, and any other bona fide economic benefit, paid
1085	1085	directly or indirectly for all hours worked at the hourly basic rate of pay of the
1086	1086	highest-paid 51 percent of hours worked in that trade or occupation on projects in
1087	1087	that area.
1088	1088	(em) “Single-trade project of public works" means a project of public works in
1089	1089	which a single trade accounts for 85 percent or more of the total labor cost of the
1090	1090	project.
1091	1091	(f) “State agency" means any office, department, independent agency,
1092	1092	institution of higher education, association, society, or other body in state
1093	1093	government created or authorized to be created by the constitution or any law,
1094	1094	including the legislature and the courts. “State agency" also includes the University
1095	1095	of Wisconsin Hospitals and Clinics Authority, the Fox River Navigational System
1096	1096	Authority, and the Wisconsin Aerospace Authority.
1097	1097	(fm) “Supply and installation contract" means a contract under which the
1098	1098	material is installed by the supplier, the material is installed by means of simple
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1125	1125	MIM:amn
1126	1126	SECTION 14
1127	1127	SENATE BILL 540
1128	1128	fasteners or connectors such as screws or nuts and bolts, and no other work is
1129	1129	performed on the site of the project of public works, and the total labor cost to install
1130	1130	the material does not exceed 20 percent of the total cost of the contract.
1131	1131	(g) “Truck driver" includes an owner-operator of a truck.
1132	1132	(1m) APPLICABILITY. Subject to sub. (3g), this section applies to any project of
1133	1133	public works erected, constructed, repaired, remodeled, or demolished for the state
1134	1134	or a state agency, including all of the following:
1135	1135	(a) A project erected, constructed, repaired, remodeled, or demolished by one
1136	1136	state agency for another state agency under any contract or under any statute
1137	1137	specifically authorizing cooperation between state agencies.
1138	1138	(b) A project in which the completed facility is leased, purchased, lease
1139	1139	purchased, or otherwise acquired by, or dedicated to, the state in lieu of the state or
1140	1140	a state agency contracting for the erection, construction, repair, remodeling, or
1141	1141	demolition of the facility.
1142	1142	(c) A sanitary sewer or water main project in which the completed sanitary
1143	1143	sewer or water main is acquired by, or dedicated to, the state for ownership or
1144	1144	maintenance by the state.
1145	1145	(2) PREVAILING WAGE RATES AND HOURS OF LABOR. Any contract made for the
1146	1146	erection, construction, remodeling, repairing, or demolition of any project of public
1147	1147	works to which the state or any state agency is a party shall contain a stipulation that
1148	1148	no individual performing the work described in sub. (2m) may be allowed to work a
1149	1149	greater number of hours per day or per week than the prevailing hours of labor,
1150	1150	except that any such individual may be allowed or required to work more than such
1151	1151	prevailing hours of labor per day and per week if he or she is paid for all hours worked
1152	1152	in excess of the prevailing hours of labor at a rate of at least 1.5 times his or her hourly
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1179	1179	SECTION 14 SENATE BILL 540
1180	1180	basic rate of pay; nor may he or she be paid less than the prevailing wage rate
1181	1181	determined under sub. (3) in the same or most similar trade or occupation in the area
1182	1182	in which the project of public works is situated. The notice published for the purpose
1183	1183	of securing bids for the project must contain a reference to the prevailing wage rates
1184	1184	determined under sub. (3) and the prevailing hours of labor. Except as otherwise
1185	1185	provided in this subsection, if any contract or subcontract for a project of public works
1186	1186	that is subject to this section is entered into, the prevailing wage rates determined
1187	1187	under sub. (3) and the prevailing hours of labor shall be physically incorporated into
1188	1188	and made a part of the contract or subcontract. For a minor subcontract, as
1189	1189	determined by the department, the department shall prescribe by rule the method
1190	1190	of notifying the minor subcontractor of the prevailing wage rates and prevailing
1191	1191	hours of labor applicable to the minor subcontract. The prevailing wage rates and
1192	1192	prevailing hours of labor applicable to a contract or subcontract may not be changed
1193	1193	during the time that the contract or subcontract is in force.
1194	1194	(2m) COVERED EMPLOYEES. (a) Subject to par. (b), any person subject to this
1195	1195	section shall pay all of the following employees the prevailing wage rate determined
1196	1196	under sub. (3) and may not allow such employees to work a greater number of hours
1197	1197	per day or per week than the prevailing hours of labor, unless the person pays for all
1198	1198	hours worked in excess of the prevailing hours of labor at a rate of at least 1.5 times
1199	1199	the employees' hourly basic rate of pay:
1200	1200	1. All laborers, workers, mechanics, and truck drivers employed on the site of
1201	1201	a project of public works that is subject to this section.
1202	1202	2. All laborers, workers, mechanics, and truck drivers employed in the
1203	1203	manufacturing or furnishing of materials, articles, supplies, or equipment on the site
1204	1204	of a project of public works that is subject to this section or from a facility dedicated
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1232	1232	SECTION 14
1233	1233	SENATE BILL 540
1234	1234	exclusively, or nearly so, to a project of public works that is subject to this section by
1235	1235	a contractor, subcontractor, agent, or other person performing any work on the site
1236	1236	of the project.
1237	1237	(b) A laborer, worker, mechanic, or truck driver who is employed to process,
1238	1238	manufacture, pick up, or deliver materials or products from a commercial
1239	1239	establishment that has a fixed place of business from which the establishment
1240	1240	supplies processed or manufactured materials or products or from a facility that is
1241	1241	not dedicated exclusively, or nearly so, to a project of public works that is subject to
1242	1242	this section is not entitled to receive the prevailing wage rate determined under sub.
1243	1243	(3) or to receive at least 1.5 times his or her hourly basic rate of pay for all hours
1244	1244	worked in excess of the prevailing hours of labor unless any of the following applies:
1245	1245	1. The laborer, worker, mechanic, or truck driver is employed to go to the source
1246	1246	of mineral aggregate such as sand, gravel, or stone and deliver that mineral
1247	1247	aggregate to the site of a project of public works that is subject to this section by
1248	1248	depositing the material directly in final place, from the transporting vehicle or
1249	1249	through spreaders from the transporting vehicle.
1250	1250	2. The laborer, worker, mechanic, or truck driver is employed to go to the site
1251	1251	of a project that is subject to this section, pick up excavated material or spoil from
1252	1252	the site of the project of public works, and transport that excavated material or spoil
1253	1253	away from the site of the project.
1254	1254	(c) A person that is subject to this section shall pay a truck driver who is an
1255	1255	owner-operator of a truck separately for his or her work and for the use of his or her
1256	1256	truck.
1257	1257	(3) INVESTIGATION; DETERMINATION. (a) Before a state agency issues a request
1258	1258	for bids for any work to which this section applies, the state agency having the
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1285	1285	SECTION 14 SENATE BILL 540
1286	1286	authority to prescribe the specifications shall apply to the department to determine
1287	1287	the prevailing wage rate for each trade or occupation required in the work under
1288	1288	contemplation in the area in which the work is to be done. The department shall
1289	1289	conduct investigations and hold public hearings as necessary to define the trades or
1290	1290	occupations that are commonly employed on projects that are subject to this section
1291	1291	and to inform itself of the prevailing wage rates in all areas of the state for those
1292	1292	trades or occupations, in order to determine the prevailing wage rate for each trade
1293	1293	or occupation. The department shall issue its determination within 30 days after
1294	1294	receiving the request and shall file the determination with the requesting state
1295	1295	agency. A state agency that has contracted for a project of public works subject to this
1296	1296	section shall post the prevailing wage rates determined by the department, the
1297	1297	prevailing hours of labor, and the provisions of subs. (2) and (6m) in at least one
1298	1298	conspicuous place on the site of the project that is easily accessible by employees
1299	1299	working on the project.
1300	1300	(am) The department shall, by January 1 of each year, compile the prevailing
1301	1301	wage rates for each trade or occupation in each area. The compilation shall, in
1302	1302	addition to the current prevailing wage rates, include future prevailing wage rates
1303	1303	when those prevailing wage rates can be determined for any trade or occupation in
1304	1304	any area and shall specify the effective date of those future prevailing wage rates.
1305	1305	If a project of public works extends into more than one area, the department shall
1306	1306	determine only one standard of prevailing wage rates for the entire project.
1307	1307	(ar) In determining prevailing wage rates under par. (a) or (am), the
1308	1308	department may not use data from projects that are subject to this section, s. 66.0903,
1309	1309	103.50, or 229.8275, or 40 USC 3142 unless the department determines that there
1310	1310	is insufficient wage data in the area to determine those prevailing wage rates, in
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1337	1337	MIM:amn
1338	1338	SECTION 14
1339	1339	SENATE BILL 540
1340	1340	which case the department may use data from projects that are subject to this
1341	1341	section, s. 66.0903, 103.50, or 229.8275, or 40 USC 3142. In determining prevailing
1342	1342	wage rates under par. (a) or (am), the department may not use data from any
1343	1343	construction work performed by a state agency or a local governmental unit, as
1344	1344	defined in s. 66.0903 (1) (d).
1345	1345	(b) Any person may request a recalculation of any portion of an initial
1346	1346	determination within 30 days after the initial determination date if the person
1347	1347	submits evidence with the request showing that the prevailing wage rate for any
1348	1348	given trade or occupation included in the initial determination does not represent the
1349	1349	prevailing wage rate for that trade or occupation in the area. The evidence shall
1350	1350	include wage rate information reflecting work performed by individuals working in
1351	1351	the contested trade or occupation in the area during the current survey period. The
1352	1352	department shall affirm or modify the initial determination within 15 days after the
1353	1353	date on which the department receives the request for recalculation.
1354	1354	(c) In addition to the recalculation under par. (b), the state agency that
1355	1355	requested the determination under this subsection may request a review of any
1356	1356	portion of a determination within 30 days after the date of issuance of the
1357	1357	determination if the state agency submits evidence with the request showing that
1358	1358	the prevailing wage rate for any given trade or occupation included in the
1359	1359	determination does not represent the prevailing wage rate for that trade or
1360	1360	occupation in the city, village, or town in which the proposed project of public works
1361	1361	is located. That evidence shall include wage rate information for the contested trade
1362	1362	or occupation on at least 3 similar projects located in the city, village, or town where
1363	1363	the proposed project of public works is located on which some work has been
1364	1364	performed during the current survey period and that were considered by the
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1391	1391	SECTION 14 SENATE BILL 540
1392	1392	department in issuing its most recent compilation under par. (am). The department
1393	1393	shall affirm or modify the determination within 15 days after the date on which the
1394	1394	department receives the request for review.
1395	1395	(3g) NONAPPLICABILITY. This section does not apply to any of the following:
1396	1396	(a) A single-trade project of public works for which the estimated project cost
1397	1397	of completion is less than $48,000 or a multiple-trade project of public works for
1398	1398	which the estimated project cost of completion is less than $100,000.
1399	1399	(b) Work performed on a project of public works for which the state or the state
1400	1400	agency contracting for the project is not required to compensate any contractor,
1401	1401	subcontractor, contractor's or subcontractor's agent, or individual for performing the
1402	1402	work.
1403	1403	(c) Minor service or maintenance work, warranty work, or work under a supply
1404	1404	and installation contract.
1405	1405	(f) A public highway, street, or bridge project.
1406	1406	(g) A project of public works involving the erection, construction, repair,
1407	1407	remodeling, or demolition of a residential property containing 2 dwelling units or
1408	1408	less.
1409	1409	(h) A road, street, bridge, sanitary sewer, or water main project that is a part
1410	1410	of a development in which not less than 90 percent of the lots contain or will contain
1411	1411	2 dwelling units or less, as determined by the local governmental unit at the time of
1412	1412	approval of the development, and that, on completion, is acquired by, or dedicated to,
1413	1413	the state for ownership or maintenance by the state.
1414	1414	(4r) COMPLIANCE. (a) When the department finds that a state agency has not
1415	1415	requested a determination under sub. (3) (a) or that a state agency, contractor, or
1416	1416	subcontractor has not physically incorporated a determination into a contract or
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1443	1443	MIM:amn
1444	1444	SECTION 14
1445	1445	SENATE BILL 540
1446	1446	subcontract as required under sub. (2) or has not notified a minor subcontractor of
1447	1447	a determination in the manner prescribed by the department by rule promulgated
1448	1448	under sub. (2), the department shall notify the state agency, contractor, or
1449	1449	subcontractor of the noncompliance and shall file the determination with the state
1450	1450	agency, contractor, or subcontractor within 30 days after the notice.
1451	1451	(b) Upon completion of a project of public works and before receiving final
1452	1452	payment for his or her work on the project, each agent or subcontractor shall furnish
1453	1453	the contractor with an affidavit stating that the agent or subcontractor has complied
1454	1454	fully with the requirements of this section. A contractor may not authorize final
1455	1455	payment until the affidavit is filed in proper form and order.
1456	1456	(c) Upon completion of a project of public works and before receiving final
1457	1457	payment for his or her work on the project, each contractor shall file with the state
1458	1458	agency authorizing the work an affidavit stating that the contractor has complied
1459	1459	fully with the requirements of this section and that the contractor has received an
1460	1460	affidavit under par. (b) from each of the contractor's agents and subcontractors. A
1461	1461	state agency may not authorize a final payment until the affidavit is filed in proper
1462	1462	form and order. If a state agency authorizes a final payment before an affidavit is
1463	1463	filed in proper form and order or if the department determines, based on the greater
1464	1464	weight of the credible evidence, that any person performing the work specified in sub.
1465	1465	(2m) has been or may have been paid less than the prevailing wage rate or less than
1466	1466	1.5 times the hourly basic rate of pay for all hours worked in excess of the prevailing
1467	1467	hours of labor and requests that the state agency withhold all or part of the final
1468	1468	payment, but the state agency fails to do so, the state agency is liable for all back
1469	1469	wages payable up to the amount of the final payment.
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1495	1495	SECTION 14 SENATE BILL 540
1496	1496	(5) RECORDS; INSPECTION; ENFORCEMENT. (a) Each contractor, subcontractor, or
1497	1497	contractor's or subcontractor's agent that performs work on a project of public works
1498	1498	that is subject to this section shall keep full and accurate records clearly indicating
1499	1499	the name and trade or occupation of every individual performing the work described
1500	1500	in sub. (2m) and an accurate record of the number of hours worked by each of those
1501	1501	individuals and the actual wages paid for the hours worked.
1502	1502	(b) The department shall enforce this section. The department may demand
1503	1503	and examine, and every contractor, subcontractor, and contractor's and
1504	1504	subcontractor's agent shall keep, and furnish upon request by the department,
1505	1505	copies of payrolls and other records and information relating to the wages paid to
1506	1506	individuals performing the work described in sub. (2m) for work to which this section
1507	1507	applies. The department may inspect records in the manner provided in this chapter.
1508	1508	Every contractor, subcontractor, or agent performing work on a project of public
1509	1509	works that is subject to this section is subject to the requirements of this chapter
1510	1510	relating to the examination of records. Section 111.322 (2m) applies to discharge and
1511	1511	other discriminatory acts arising in connection with any proceeding under this
1512	1512	section.
1513	1513	(c) If requested by any person, the department shall inspect the payroll records
1514	1514	of any contractor, subcontractor, or agent performing work on a project of public
1515	1515	works that is subject to this section as provided in this paragraph to ensure
1516	1516	compliance with this section. On receipt of such a request, the department shall
1517	1517	request that the contractor, subcontractor, or agent submit to the department a
1518	1518	certified record of the information specified in par. (a), other than personally
1519	1519	identifiable information relating to an employee of the contractor, subcontractor, or
1520	1520	agent, for no longer than a 4-week period. The department may request a contractor,
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1548	1548	SECTION 14
1549	1549	SENATE BILL 540
1550	1550	subcontractor, or agent to submit those records no more than once per calendar
1551	1551	quarter for each project of public works on which the contractor, subcontractor, or
1552	1552	agent is performing work. The department may not charge a requester a fee for
1553	1553	obtaining that information. Certified records submitted to the department under
1554	1554	this paragraph are open for public inspection and copying under s. 19.35 (1).
1555	1555	(6m) LIABILITY AND PENALTIES. (ag) 1. A contractor, subcontractor, or
1556	1556	contractor's or subcontractor's agent who fails to pay the prevailing wage rate
1557	1557	determined by the department under sub. (3) or who pays less than 1.5 times the
1558	1558	hourly basic rate of pay for all hours worked in excess of the prevailing hours of labor
1559	1559	is liable to any affected employee in the amount of his or her unpaid wages or his or
1560	1560	her unpaid overtime compensation and in an additional amount as liquidated
1561	1561	damages as provided in subd. 2. or 3., whichever is applicable.
1562	1562	2. If the department determines upon inspection under sub. (5) (b) or (c) that
1563	1563	a contractor, subcontractor, or contractor's or subcontractor's agent has failed to pay
1564	1564	the prevailing wage rate determined by the department under sub. (3) or has paid
1565	1565	less than 1.5 times the hourly basic rate of pay for all hours worked in excess of the
1566	1566	prevailing hours of labor, the department shall order the contractor to pay to any
1567	1567	affected employee the amount of his or her unpaid wages or his or her unpaid
1568	1568	overtime compensation and an additional amount equal to 100 percent of the amount
1569	1569	of those unpaid wages or that unpaid overtime compensation as liquidated damages
1570	1570	within a period specified by the department in the order.
1571	1571	3. In addition to or in lieu of recovering the liability specified in subd. 1. as
1572	1572	provided in subd. 2., any employee for and on behalf of that employee and other
1573	1573	employees similarly situated may commence an action to recover that liability in any
1574	1574	court of competent jurisdiction. If the court finds that a contractor, subcontractor,
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1601	1601	SECTION 14 SENATE BILL 540
1602	1602	or contractor's or subcontractor's agent has failed to pay the prevailing wage rate
1603	1603	determined by the department under sub. (3) or has paid less than 1.5 times the
1604	1604	hourly basic rate of pay for all hours worked in excess of the prevailing hours of labor,
1605	1605	the court shall order the contractor, subcontractor, or agent to pay to any affected
1606	1606	employee the amount of his or her unpaid wages or his or her unpaid overtime
1607	1607	compensation and an additional amount equal to 100 percent of the amount of those
1608	1608	unpaid wages or that unpaid overtime compensation as liquidated damages.
1609	1609	5. No employee may be a party plaintiff to an action under subd. 3. unless the
1610	1610	employee consents in writing to become a party and the consent is filed in the court
1611	1611	in which the action is brought. Notwithstanding s. 814.04 (1), the court shall, in
1612	1612	addition to any judgment awarded to the plaintiff, allow reasonable attorney fees
1613	1613	and costs to be paid by the defendant.
1614	1614	(am) Except as provided in pars. (b), (d), and (f), any contractor, subcontractor,
1615	1615	or contractor's or subcontractor's agent who violates this section may be fined not
1616	1616	more than $200 or imprisoned for not more than 6 months or both. Each day that
1617	1617	a violation continues is a separate offense.
1618	1618	(b) Whoever induces an individual who seeks to be or is employed on any project
1619	1619	of public works that is subject to this section to give up, waive, or return any part of
1620	1620	the wages to which the individual is entitled under the contract governing the
1621	1621	project, or who reduces the hourly basic rate of pay normally paid to an individual
1622	1622	for work on a project that is not subject to this section during a week in which the
1623	1623	individual works both on a project of public works that is subject to this section and
1624	1624	on a project that is not subject to this section, by threat not to employ, by threat of
1625	1625	dismissal from employment, or by any other means is guilty of an offense under s.
1626	1626	946.15 (1).
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1654	1654	SECTION 14
1655	1655	SENATE BILL 540
1656	1656	(c) Any individual who is employed on a project of public works that is subject
1657	1657	to this section who knowingly allows a contractor, subcontractor, or contractor's or
1658	1658	subcontractor's agent to pay him or her less than the prevailing wage rate set forth
1659	1659	in the contract governing the project, who gives up, waives, or returns any part of the
1660	1660	compensation to which he or she is entitled under the contract, or who gives up,
1661	1661	waives, or returns any part of the compensation to which he or she is normally
1662	1662	entitled for work on a project that is not subject to this section during a week in which
1663	1663	the individual works both on a project of public works that is subject to this section
1664	1664	and on a project that is not subject to this section, is guilty of an offense under s.
1665	1665	946.15 (2).
1666	1666	(d) Whoever induces any individual who seeks to be or is employed on any
1667	1667	project of public works that is subject to this section to allow any part of the wages
1668	1668	to which the individual is entitled under the contract governing the project to be
1669	1669	deducted from the individual's pay is guilty of an offense under s. 946.15 (3), unless
1670	1670	the deduction would be allowed under 29 CFR 3.5 or 3.6 from an individual who is
1671	1671	working on a project that is subject to 40 USC 3142.
1672	1672	(e) Any individual who is employed on a project of public works that is subject
1673	1673	to this section who knowingly allows any part of the wages to which he or she is
1674	1674	entitled under the contract governing the project to be deducted from his or her pay
1675	1675	is guilty of an offense under s. 946.15 (4), unless the deduction would be allowed
1676	1676	under 29 CFR 3.5 or 3.6 from an individual who is working on a project that is subject
1677	1677	to 40 USC 3142.
1678	1678	(f) Paragraph (am) does not apply to any person who fails to provide any
1679	1679	information to the department to assist the department in determining prevailing
1680	1680	wage rates under sub. (3) (a) or (am).
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1707	1707	SECTION 14 SENATE BILL 540
1708	1708	(7) DEBARMENT. (a) Except as provided under pars. (b) and (c), the department
1709	1709	shall distribute to all state agencies a list of all persons that the department has
1710	1710	found to have failed to pay the prevailing wage rate determined under sub. (3) or has
1711	1711	found to have paid less than 1.5 times the hourly basic rate of pay for all hours worked
1712	1712	in excess of the prevailing hours of labor at any time in the preceding 3 years. The
1713	1713	department shall include with any name the address of the person and shall specify
1714	1714	when the person failed to pay the prevailing wage rate and when the person paid less
1715	1715	than 1.5 times the hourly basic rate of pay for all hours worked in excess of the
1716	1716	prevailing hours of labor. A state agency may not award any contract to the person
1717	1717	unless otherwise recommended by the department or unless 3 years have elapsed
1718	1718	from the date the department issued its findings or date of final determination by a
1719	1719	court of competent jurisdiction, whichever is later.
1720	1720	(b) The department may not include in a notification under par. (a) the name
1721	1721	of any person on the basis of having subcontracted a contract for a project of public
1722	1722	works to a person that the department has found to have failed to pay the prevailing
1723	1723	wage rate determined under sub. (3) or has found to have paid less than 1.5 times
1724	1724	the hourly basic rate of pay for all hours worked in excess of the prevailing hours of
1725	1725	labor.
1726	1726	(c) This subsection does not apply to any contractor, subcontractor, or agent
1727	1727	who in good faith commits a minor violation of this section, as determined on a
1728	1728	case-by-case basis through administrative hearings with all rights to due process
1729	1729	afforded to all parties or who has not exhausted or waived all appeals.
1730	1730	(d) Any person submitting a bid on a project of public works that is subject to
1731	1731	this section shall, on the date the person submits the bid, identify any construction
1732	1732	business in which the person, or a shareholder, officer, or partner of the person if the
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1760	1760	SECTION 14
1761	1761	SENATE BILL 540
1762	1762	person is a business, owns or has owned at least a 25 percent interest on the date the
1763	1763	person submits the bid or at any other time within 3 years preceding the date the
1764	1764	person submits the bid, if the business has been found to have failed to pay the
1765	1765	prevailing wage rate determined under sub. (3) or to have paid less than 1.5 times
1766	1766	the hourly basic rate of pay for all hours worked in excess of the prevailing hours of
1767	1767	labor.
1768	1768	(e) The department shall promulgate rules to administer this subsection.
1769	1769	SECTION 15. 103.50 of the statutes is created to read:
1770	1770	103.50 Highway contracts. (1) DEFINITIONS. In this section:
1771	1771	(a) “Area" means the county in which a proposed project that is subject to this
1772	1772	section is located or, if the department determines that there is insufficient wage
1773	1773	data in that county, “area" means those counties that are contiguous to that county
1774	1774	or, if the department determines that there is insufficient wage data in those
1775	1775	counties, “area" means those counties that are contiguous to those counties or, if the
1776	1776	department determines that there is insufficient wage data in those counties, “area"
1777	1777	means the entire state.
1778	1778	(b) “Hourly basic rate of pay" has the meaning given in s. 103.49 (1) (b).
1779	1779	(bg) “Insufficient wage data" has the meaning given in s. 103.49 (1) (bg).
1780	1780	(c) “Prevailing hours of labor" has the meaning given in s. 103.49 (1) (c).
1781	1781	(d) 1. Except as provided in subd. 2., “prevailing wage rate" for any trade or
1782	1782	occupation in any area means the hourly basic rate of pay, plus the hourly
1783	1783	contribution for health insurance benefits, vacation benefits, pension benefits, and
1784	1784	any other bona fide economic benefit, paid directly or indirectly, for a majority of the
1785	1785	hours worked in the trade or occupation in the area.
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1811	1811	SECTION 15 SENATE BILL 540
1812	1812	2. If there is no rate at which a majority of the hours worked in the trade or
1813	1813	occupation in the area is paid, “prevailing wage rate" means the average hourly basic
1814	1814	rate of pay, weighted by the number of hours worked, plus the average hourly
1815	1815	contribution, weighted by the number of hours worked, for health insurance benefits,
1816	1816	vacation benefits, pension benefits, and any other bona fide economic benefit, paid
1817	1817	directly or indirectly for all hours worked at the hourly basic rate of pay of the
1818	1818	highest-paid 51 percent of hours worked in that trade or occupation in that area.
1819	1819	(e) “Truck driver" has the meaning given in s. 103.49 (1) (g).
1820	1820	(2) PREVAILING WAGE RATES AND HOURS OF LABOR. No contractor, subcontractor,
1821	1821	agent, or other person performing any work on a project under a contract based on
1822	1822	bids as provided in s. 84.06 (2) to which the state is a party for the construction or
1823	1823	improvement of any highway may do any of the following:
1824	1824	(a) Pay an individual performing the work described in sub. (2m) less than the
1825	1825	prevailing wage rate in the area in which the work is to be done determined under
1826	1826	sub. (3).
1827	1827	(b) Allow an individual performing the work described in sub. (2m) to work a
1828	1828	greater number of hours per day or per week than the prevailing hours of labor,
1829	1829	unless the contractor, subcontractor, or contractor's or subcontractor's agent pays
1830	1830	the individual for all hours worked in excess of the prevailing hours of labor at a rate
1831	1831	of at least 1.5 times the individual's hourly basic rate of pay.
1832	1832	(2g) NONAPPLICABILITY. This section does not apply to a single-trade project of
1833	1833	public works, as defined in s. 103.49 (1) (em), for which the estimated project cost of
1834	1834	completion is less than $48,000 or a multiple-trade project of public works, as
1835	1835	defined in s. 103.49 (1) (br), for which the estimated project cost of completion is less
1836	1836	than $100,000.
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1864	1864	SECTION 15
1865	1865	SENATE BILL 540
1866	1866	(2m) COVERED EMPLOYEES. (a) Subject to par. (b), any person subject to this
1867	1867	section shall pay all of the following employees the prevailing wage rate determined
1868	1868	under sub. (3) and may not allow such employees to work a greater number of hours
1869	1869	per day or per week than the prevailing hours of labor, unless the person pays for all
1870	1870	hours worked in excess of the prevailing hours of labor at a rate of at least 1.5 times
1871	1871	the employees' hourly basic rate of pay:
1872	1872	1. All laborers, workers, mechanics, and truck drivers employed on the site of
1873	1873	a project that is subject to this section.
1874	1874	2. All laborers, workers, mechanics, and truck drivers employed in the
1875	1875	manufacturing or furnishing of materials, articles, supplies, or equipment on the site
1876	1876	of a project that is subject to this section or from a facility dedicated exclusively, or
1877	1877	nearly so, to a project that is subject to this section by a contractor, subcontractor,
1878	1878	agent, or other person performing any work on the site of the project.
1879	1879	(b) A laborer, worker, mechanic, or truck driver who is employed to process,
1880	1880	manufacture, pick up, or deliver materials or products from a commercial
1881	1881	establishment that has a fixed place of business from which the establishment
1882	1882	supplies processed or manufactured materials or products or from a facility that is
1883	1883	not dedicated exclusively, or nearly so, to a project that is subject to this section is not
1884	1884	entitled to receive the prevailing wage rate determined under sub. (3) or to receive
1885	1885	at least 1.5 times his or her hourly basic rate of pay for all hours worked in excess
1886	1886	of the prevailing hours of labor unless any of the following applies:
1887	1887	1. The laborer, worker, mechanic, or truck driver is employed to go to the source
1888	1888	of mineral aggregate such as sand, gravel, or stone and deliver that mineral
1889	1889	aggregate to the site of a project that is subject to this section by depositing the
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1915	1915	SECTION 15 SENATE BILL 540
1916	1916	material directly in final place, from the transporting vehicle or through spreaders
1917	1917	from the transporting vehicle.
1918	1918	2. The laborer, worker, mechanic, or truck driver is employed to go to the site
1919	1919	of a project that is subject to this section, pick up excavated material or spoil from
1920	1920	the site of the project, and transport that excavated material or spoil away from the
1921	1921	site of the project and return to the site of the project.
1922	1922	(c) A contractor, subcontractor, agent, or other person performing work on a
1923	1923	project subject to this section shall pay a truck driver who is an owner-operator of
1924	1924	a truck separately for his or her work and for the use of his or her truck.
1925	1925	(3) INVESTIGATIONS; DETERMINATIONS. The department shall conduct
1926	1926	investigations and hold public hearings necessary to define the trades or occupations
1927	1927	that are commonly employed in the highway construction industry and to inform the
1928	1928	department of the prevailing wage rates in all areas of the state for those trades or
1929	1929	occupations, in order to ascertain and determine the prevailing wage rates
1930	1930	accordingly.
1931	1931	(4) CERTIFICATION OF PREVAILING WAGE RATES. The department of workforce
1932	1932	development shall, by May 1 of each year, certify to the department of transportation
1933	1933	the prevailing wage rates in each area for all trades or occupations commonly
1934	1934	employed in the highway construction industry. The certification shall, in addition
1935	1935	to the current prevailing wage rates, include future prevailing wage rates when such
1936	1936	prevailing wage rates can be determined for any such trade or occupation in any area
1937	1937	and shall specify the effective date of those future prevailing wage rates. The
1938	1938	certification shall also include wage rates for work performed on Sundays or the
1939	1939	holidays specified in s. 103.49 (1) (c) and shift differentials based on the time of day
1940	1940	or night when work is performed. If a construction project extends into more than
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1968	1968	SECTION 15
1969	1969	SENATE BILL 540
1970	1970	one area, the department shall determine only one standard of prevailing wage rates
1971	1971	for the entire project.
1972	1972	(4m) WAGE RATE DATA. In determining prevailing wage rates for projects that
1973	1973	are subject to this section, the department shall use data from projects that are
1974	1974	subject to this section, s. 66.0903 or 103.49, or 40 USC 3142. In determining
1975	1975	prevailing wage rates for those projects, the department may not use data from any
1976	1976	construction work that is performed by a state agency or a local governmental unit,
1977	1977	as defined in s. 66.0903 (1) (d).
1978	1978	(5) APPEALS TO GOVERNOR. If the department of transportation considers any
1979	1979	determination of the department of workforce development of the prevailing wage
1980	1980	rates in an area to be incorrect, it may appeal to the governor, whose determination
1981	1981	is final.
1982	1982	(6) CONTENTS OF CONTRACTS. The department of transportation shall include
1983	1983	a reference to the prevailing wage rates determined under sub. (3) and the prevailing
1984	1984	hours of labor in the notice published for the purpose of securing bids for a project.
1985	1985	Except as otherwise provided in this subsection, if any contract or subcontract for a
1986	1986	project that is subject to this section is entered into, the prevailing wage rates
1987	1987	determined under sub. (3) and the prevailing hours of labor shall be physically
1988	1988	incorporated into and made a part of the contract or subcontract. For a minor
1989	1989	subcontract, as determined by the department of workforce development, that
1990	1990	department shall prescribe by rule the method of notifying the minor subcontractor
1991	1991	of the prevailing wage rates and prevailing hours of labor applicable to the minor
1992	1992	subcontract. The prevailing wage rates and prevailing hours of labor applicable to
1993	1993	a contract or subcontract may not be changed during the time that the contract or
1994	1994	subcontract is in force. The department of transportation shall post the prevailing
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2021	2021	SECTION 15 SENATE BILL 540
2022	2022	wage rates determined by the department, the prevailing hours of labor, and the
2023	2023	provisions of subs. (2) and (7) in at least one conspicuous place that is easily
2024	2024	accessible to the employees on the site of the project.
2025	2025	(7) PENALTIES. (a) Except as provided in pars. (b), (d), and (f), any contractor,
2026	2026	subcontractor, or contractor's or subcontractor's agent who violates this section may
2027	2027	be fined not more than $200 or imprisoned for not more than 6 months or both. Each
2028	2028	day that a violation continues is a separate offense.
2029	2029	(b) Whoever induces any individual who seeks to be or is employed on any
2030	2030	project that is subject to this section to give up, waive, or return any part of the wages
2031	2031	to which the individual is entitled under the contract governing the project, or who
2032	2032	reduces the hourly basic rate of pay normally paid to an individual for work on a
2033	2033	project that is not subject to this section during a week in which the individual works
2034	2034	both on a project that is subject to this section and on a project that is not subject to
2035	2035	this section, by threat not to employ, by threat of dismissal from employment, or by
2036	2036	any other means is guilty of an offense under s. 946.15 (1).
2037	2037	(c) Any individual employed on a project that is subject to this section who
2038	2038	knowingly allows a contractor, subcontractor, or contractor's or subcontractor's
2039	2039	agent to pay him or her less than the prevailing wage rate set forth in the contract
2040	2040	governing the project, who gives up, waives, or returns any part of the compensation
2041	2041	to which he or she is entitled under the contract, or who gives up, waives, or returns
2042	2042	any part of the compensation to which he or she is normally entitled for work on a
2043	2043	project that is not subject to this section during a week in which the individual works
2044	2044	both on a project that is subject to this section and on a project that is not subject to
2045	2045	this section, is guilty of an offense under s. 946.15 (2).
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2070	2070	LRB-4299/1
2071	2071	MIM:amn
2072	2072	SECTION 15
2073	2073	SENATE BILL 540
2074	2074	(d) Whoever induces any individual who seeks to be or is employed on any
2075	2075	project that is subject to this section to allow any part of the wages to which the
2076	2076	individual is entitled under the contract governing the project to be deducted from
2077	2077	the individual's pay is guilty of an offense under s. 946.15 (3), unless the deduction
2078	2078	would be allowed under 29 CFR 3.5 or 3.6 from an individual who is working on a
2079	2079	project that is subject to 40 USC 3142.
2080	2080	(e) Any individual employed on a project that is subject to this section who
2081	2081	knowingly allows any part of the wages to which he or she is entitled under the
2082	2082	contract governing the project to be deducted from his or her pay is guilty of an
2083	2083	offense under s. 946.15 (4), unless the deduction would be allowed under 29 CFR 3.5
2084	2084	or 3.6 from an individual who is working on a project that is subject to 40 USC 3142.
2085	2085	(f) Paragraph (a) does not apply to any individual who fails to provide any
2086	2086	information to the department to assist the department in determining prevailing
2087	2087	wage rates under sub. (3) or (4).
2088	2088	(8) ENFORCEMENT AND PROSECUTION. The department of transportation shall
2089	2089	require adherence to subs. (2), (2m), and (6). The department of transportation may
2090	2090	demand and examine, and every contractor, subcontractor, and contractor's or
2091	2091	subcontractor's agent shall keep and furnish upon request by the department of
2092	2092	transportation, copies of payrolls and other records and information relating to
2093	2093	compliance with this section. Upon request of the department of transportation or
2094	2094	upon complaint of alleged violation, the district attorney of the county in which the
2095	2095	work is located shall investigate as necessary and prosecute violations in a court of
2096	2096	competent jurisdiction. Section 111.322 (2m) applies to discharge and other
2097	2097	discriminatory acts arising in connection with any proceeding under this section.
2098	2098	SECTION 16. 103.503 (1) (a) of the statutes is amended to read:
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2125	2125	SECTION 16 SENATE BILL 540
2126	2126	103.503 (1) (a) “Accident" means an incident caused, contributed to, or
2127	2127	otherwise involving an employee that resulted or could have resulted in death,
2128	2128	personal injury, or property damage and that occurred while the employee was
2129	2129	performing the work described in s. 66.0903 (4), 2013 stats., or s. 16.856 103.49 (2m),
2130	2130	2015 stats., on a project of public works or while the employee was performing work
2131	2131	on a public utility project.
2132	2132	SECTION 17. 103.503 (1) (e) of the statutes is amended to read:
2133	2133	103.503 (1) (e) “Employee" means a laborer, worker, mechanic, or truck driver
2134	2134	who performs the work described in s. 66.0903 (4), 2013 stats., or s. 16.856 103.49
2135	2135	(2m), 2015 stats., on a project of public works or on a public utility project.
2136	2136	SECTION 18. 103.503 (1) (g) of the statutes is repealed and recreated to read:
2137	2137	103.503 (1) (g) “Project of public works" means a project of public works that
2138	2138	is subject to s. 66.0903 or 103.49.
2139	2139	SECTION 19. 103.503 (2) of the statutes is amended to read:
2140	2140	103.503 (2) SUBSTANCE ABUSE PROHIBITED. No employee may use, possess,
2141	2141	attempt to possess, distribute, deliver, or be under the influence of a drug, or use or
2142	2142	be under the influence of alcohol, while performing the work described in s. 66.0903
2143	2143	(4), 2013 stats., or s. 16.856 103.49 (2m), 2015 stats., on a project of public works or
2144	2144	while performing work on a public utility project. An employee is considered to be
2145	2145	under the influence of alcohol for purposes of this subsection if he or she has an
2146	2146	alcohol concentration that is equal to or greater than the amount specified in s.
2147	2147	885.235 (1g) (d).
2148	2148	SECTION 20. 103.503 (3) (a) 2. of the statutes is amended to read:
2149	2149	103.503 (3) (a) 2. A requirement that employees performing the work described
2150	2150	in s. 66.0903 (4), 2013 stats., or s. 16.856 103.49 (2m), 2015 stats., on a project of
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2176	2176	LRB-4299/1
2177	2177	MIM:amn
2178	2178	SECTION 20
2179	2179	SENATE BILL 540
2180	2180	public works or performing work on a public utility project submit to random,
2181	2181	reasonable suspicion, and post-accident drug and alcohol testing and to drug and
2182	2182	alcohol testing before commencing work on the project, except that testing of an
2183	2183	employee before commencing work on a project is not required if the employee has
2184	2184	been participating in a random testing program during the 90 days preceding the
2185	2185	date on which the employee commenced work on the project.
2186	2186	SECTION 21. 104.001 (4) of the statutes is created to read:
2187	2187	104.001 (4) This section does not affect the requirement that employees
2188	2188	employed on a public works project contracted for by a city, village, town, or county
2189	2189	be paid at the prevailing wage rate, as defined in s. 66.0903 (1) (g), as required under
2190	2190	s. 66.0903.
2191	2191	SECTION 22. 106.04 of the statutes is created to read:
2192	2192	106.04 Employment of apprentices on state public works projects. (1)
2193	2193	DEFINITION. In this section, “project" means a project of public works that is subject
2194	2194	to s. 103.49 or 103.50 in which work is performed by employees employed in trades
2195	2195	that are apprenticeable under this subchapter.
2196	2196	(2) WAIVER. If the department grants an exception or modification to any
2197	2197	requirement in any contract for the performance of work on a project relating to the
2198	2198	employment and training of apprentices, the department shall post that information
2199	2199	on its website, together with a detailed explanation for granting the exception or
2200	2200	modification.
2201	2201	SECTION 23. 109.09 (1) of the statutes is amended to read:
2202	2202	109.09 (1) The department shall investigate and attempt equitably to adjust
2203	2203	controversies between employers and employees as to regarding alleged wage
2204	2204	claims. The department may receive and investigate any wage claim that is filed
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2231	2231	SECTION 23 SENATE BILL 540
2232	2232	with the department, or received by the department under s. 109.10 (4), no later than
2233	2233	2 years after the date the wages are due. The department may, after receiving a wage
2234	2234	claim, investigate any wages due from the employer against whom the claim is filed
2235	2235	to any employee during the period commencing 2 years before the date the claim is
2236	2236	filed. The department shall enforce this chapter and s. ss. 66.0903, 2013 stats., s.
2237	2237	103.49, 2013 stats., s. 229.8275, 2013 stats., and s. 16.856, 2015 stats., and ss. 103.02,
2238	2238	103.49, 103.82, and 104.12, and 229.8275. In pursuance of this duty, the department
2239	2239	may sue the employer on behalf of the employee to collect any wage claim or wage
2240	2240	deficiency and ss. 109.03 (6) and 109.11 (2) and (3) shall apply to such actions. Except
2241	2241	for actions under s. 109.10, the department may refer such an action to the district
2242	2242	attorney of the county in which the violation occurs for prosecution and collection and
2243	2243	the district attorney shall commence an action in the circuit court having appropriate
2244	2244	jurisdiction. Any number of wage claims or wage deficiencies against the same
2245	2245	employer may be joined in a single proceeding, but the court may order separate
2246	2246	trials or hearings. In actions that are referred to a district attorney under this
2247	2247	subsection, any taxable costs recovered by the district attorney shall be paid into the
2248	2248	general fund of the county in which the violation occurs and used by that county to
2249	2249	meet its financial responsibility under s. 978.13 (2) (b) for the operation of the office
2250	2250	of the district attorney who prosecuted the action.
2251	2251	SECTION 24. 111.322 (2m) (a) of the statutes is amended to read:
2252	2252	111.322 (2m) (a) The individual files a complaint or attempts to enforce any
2253	2253	right under s. 103.02, 103.10, 103.11, 103.13, 103.28, 103.32, 103.34, 103.455,
2254	2254	103.50, 104.12, 109.03, 109.07, 109.075, 146.997, or 995.55, or ss. 101.58 to 101.599
2255	2255	or 103.64 to 103.82.
2256	2256	SECTION 25. 111.322 (2m) (b) of the statutes is amended to read:
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2283	2283	MIM:amn
2284	2284	SECTION 25
2285	2285	SENATE BILL 540
2286	2286	111.322 (2m) (b) The individual testifies or assists in any action or proceeding
2287	2287	held under or to enforce any right under s. 103.02, 103.10, 103.11, 103.13, 103.28,
2288	2288	103.32, 103.34, 103.455, 103.50, 104.12, 109.03, 109.07, 109.075, 146.997, or 995.55,
2289	2289	or ss. 101.58 to 101.599 or 103.64 to 103.82.
2290	2290	SECTION 26. 111.322 (2m) (c) of the statutes is created to read:
2291	2291	111.322 (2m) (c) The individual files a complaint or attempts to enforce a right
2292	2292	under s. 66.0903, 103.49, or 229.8275 or testifies or assists in any action or
2293	2293	proceeding under s. 66.0903, 103.49, or 229.8275.
2294	2294	SECTION 27. 227.01 (13) (t) of the statutes is created to read:
2295	2295	227.01 (13) (t) Ascertains and determines prevailing wage rates under ss.
2296	2296	66.0903, 103.49, 103.50, and 229.8275, except that any action or inaction which
2297	2297	ascertains and determines prevailing wage rates under ss. 66.0903, 103.49, 103.50,
2298	2298	and 229.8275 is subject to judicial review under s. 227.40.
2299	2299	SECTION 28. 229.682 (2) of the statutes is created to read:
2300	2300	229.682 (2) PREVAILING WAGE. The construction of a baseball park facility that
2301	2301	is financed in whole or in part by a district is subject to s. 66.0903.
2302	2302	SECTION 29. 229.8275 of the statutes is created to read:
2303	2303	229.8275 Prevailing wage. A district may not enter into a contract under s.
2304	2304	229.827 with a professional football team, as described in s. 229.823, or a related
2305	2305	party that requires the team or related party to acquire and construct or renovate
2306	2306	football stadium facilities that are part of any facilities that are leased by the district
2307	2307	to the team or to a related party unless the professional football team or related party
2308	2308	agrees to all of the following:
2309	2309	(1) Not to allow any employee working on the football stadium facilities who
2310	2310	would be entitled to receive the prevailing wage rate under s. 66.0903 and who would
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2337	2337	SECTION 29 SENATE BILL 540
2338	2338	not be required or allowed to work more than the prevailing hours of labor, if the
2339	2339	football stadium facilities were a project of public works subject to s. 66.0903, to be
2340	2340	paid less than the prevailing wage rate or to be required or allowed to work more than
2341	2341	the prevailing hours of labor, except as allowed under s. 66.0903 (4) (a).
2342	2342	(2) To require any contractor, subcontractor, or agent of a contractor or
2343	2343	subcontractor performing work on the football stadium facilities to keep and allow
2344	2344	inspection of records in the same manner as a contractor, subcontractor, or agent of
2345	2345	a contractor or subcontractor performing work on a project of public works that is
2346	2346	subject to s. 66.0903 is required to keep and allow inspection of records under s.
2347	2347	66.0903 (10).
2348	2348	(3) To comply with s. 66.0903 in the same manner as a local governmental unit
2349	2349	contracting for the erection, construction, remodeling, repairing, or demolition of a
2350	2350	project of public works is required to comply with s. 66.0903 and to require any
2351	2351	contractor, subcontractor, or agent of a contractor or subcontractor performing work
2352	2352	on the football stadium facilities to comply with s. 66.0903 in the same manner as
2353	2353	a contractor, subcontractor, or agent of a contractor or subcontractor performing
2354	2354	work on a project of public works that is subject to s. 66.0903 is required to comply
2355	2355	with s. 66.0903.
2356	2356	SECTION 30. 946.15 of the statutes is created to read:
2357	2357	946.15 Public construction contracts at less than full rate. (1) Any
2358	2358	employer, or any agent or employee of an employer, who induces any individual who
2359	2359	seeks to be or is employed pursuant to a public contract, as defined in s. 66.0901 (1)
2360	2360	(c), or who seeks to be or is employed on a project on which a prevailing wage rate
2361	2361	determination has been issued by the department of workforce development under
2362	2362	s. 66.0903 (3), 103.49 (3), 103.50 (3), or 229.8275 (3) to give up, waive, or return any
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2388	2388	LRB-4299/1
2389	2389	MIM:amn
2390	2390	SECTION 30
2391	2391	SENATE BILL 540
2392	2392	part of the compensation to which that individual is entitled under his or her contract
2393	2393	of employment or under the prevailing wage rate determination issued by the
2394	2394	department, or who reduces the hourly basic rate of pay normally paid to an
2395	2395	employee for work on a project on which a prevailing wage rate determination has
2396	2396	not been issued under s. 66.0903 (3), 103.49 (3), 103.50 (3), or 229.8275 (3) during a
2397	2397	week in which the employee works both on a project on which a prevailing wage rate
2398	2398	determination has been issued and on a project on which a prevailing wage rate
2399	2399	determination has not been issued, is guilty of a Class I felony.
2400	2400	(2) Any individual employed pursuant to a public contract, as defined in s.
2401	2401	66.0901 (1) (c), or employed on a project on which a prevailing wage rate
2402	2402	determination has been issued by the department of workforce development under
2403	2403	s. 66.0903 (3), 103.49 (3), 103.50 (3), or 229.8275 (3) who gives up, waives, or returns
2404	2404	to the employer or agent of the employer any part of the compensation to which the
2405	2405	employee is entitled under his or her contract of employment or under the prevailing
2406	2406	wage determination issued by the department, or who gives up any part of the
2407	2407	compensation to which he or she is normally entitled for work on a project on which
2408	2408	a prevailing wage rate determination has not been issued under s. 66.0903 (3),
2409	2409	103.49 (3), 103.50 (3), or 229.8275 (3) during a week in which the individual works
2410	2410	part-time on a project on which a prevailing wage rate determination has been
2411	2411	issued and part-time on a project on which a prevailing wage rate determination has
2412	2412	not been issued, is guilty of a Class C misdemeanor.
2413	2413	(3) Any employer or labor organization, or any agent or employee of an
2414	2414	employer or labor organization, who induces any individual who seeks to be or is
2415	2415	employed on a project on which a prevailing wage rate determination has been issued
2416	2416	by the department of workforce development under s. 66.0903 (3), 103.49 (3), 103.50
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2443	2443	SECTION 30 SENATE BILL 540
2444	2444	(3), or 229.8275 (3) to allow any part of the wages to which that individual is entitled
2445	2445	under the prevailing wage rate determination issued by the department or local
2446	2446	governmental unit to be deducted from the individual's pay is guilty of a Class I
2447	2447	felony, unless the deduction would be allowed under 29 CFR 3.5 or 3.6 from an
2448	2448	individual who is working on a project that is subject to 40 USC 3142.
2449	2449	(4) Any individual employed on a project on which a prevailing wage rate
2450	2450	determination has been issued by the department of workforce development under
2451	2451	s. 66.0903 (3), 103.49 (3), 103.50 (3), or 229.8275 (3) who allows any part of the wages
2452	2452	to which that individual is entitled under the prevailing wage rate determination
2453	2453	issued by the department or local governmental unit to be deducted from his or her
2454	2454	pay is guilty of a Class C misdemeanor, unless the deduction would be allowed under
2455	2455	29 CFR 3.5 or 3.6 from an individual who is working on a project that is subject to
2456	2456	40 USC 3142.
2457	2457	SECTION 31. 978.05 (6) (a) of the statutes is amended to read:
2458	2458	978.05 (6) (a) Institute, commence, or appear in all civil actions or special
2459	2459	proceedings under and perform the duties set forth for the district attorney under ch.
2460	2460	980 and ss. 17.14, 30.03 (2), 48.09 (5), 59.55 (1), 59.64 (1), 70.36, 89.08, 103.50 (8),
2461	2461	103.92 (4), 109.09, 343.305 (9) (a), 806.05, 938.09, 938.18, 938.355 (6) (b) and (6g) (a),
2462	2462	946.86, 946.87, 961.55 (5), 971.14 and 973.075 to 973.077, perform any duties in
2463	2463	connection with court proceedings in a court assigned to exercise jurisdiction under
2464	2464	chs. 48 and 938 as the judge may request and perform all appropriate duties and
2465	2465	appear if the district attorney is designated in specific statutes, including matters
2466	2466	within chs. 782, 976 and 979 and ss. 51.81 to 51.85. Nothing in this paragraph limits
2467	2467	the authority of the county board to designate, under s. 48.09 (5), that the corporation
2468	2468	counsel provide representation as specified in s. 48.09 (5) or to designate, under s.
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2495	2495	MIM:amn
2496	2496	SECTION 31
2497	2497	SENATE BILL 540
2498	2498	48.09 (6) or 938.09 (6), the district attorney as an appropriate person to represent the
2499	2499	interests of the public under s. 48.14 or 938.14.
2500	2500	SECTION 32.0Initial applicability.
2501	2501	(1) PREVAILING WAGE. The appropriate provisions regarding prevailing wage
2502	2502	first apply, with respect to a project of public works that is subject to bidding, to a
2503	2503	project for which the request for bids is issued on the effective date of this subsection
2504	2504	and, with respect to a project of public works that is not subject to bidding, to a project
2505	2505	the contract for which is entered into on the effective date of this subsection.
2506	2506	(2) DISCRIMINATION. The treatment of ss. 66.0903 (10) (d), 111.322 (2m) (c), and
2507	2507	229.8275 first applies to acts of discrimination that occur on the effective date of this
2508	2508	subsection.
2509	2509	(END)
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