Amendment AA1-SB70

SB70-AA1,125,22 (6m) Liability and penalties. (ag) 1. A contractor, subcontractor, or contractor's or subcontractor's agent who fails to pay the prevailing wage rate determined by the department under sub. (3) or who pays less than 1.5 times the hourly basic rate of pay for all hours worked in excess of the prevailing hours of labor is liable to any affected employee in the amount of his or her unpaid wages or his or her unpaid overtime compensation and in an additional amount as liquidated damages as provided in subd. 2. or 3., whichever is applicable.

SB70-AA1,126,6 2. If the department determines upon inspection under sub. (5) (b) or (c) that a contractor, subcontractor, or contractor's or subcontractor's agent has failed to pay the prevailing wage rate determined by the department under sub. (3) or has paid less than 1.5 times the hourly basic rate of pay for all hours worked in excess of the prevailing hours of labor, the department shall order the contractor to pay to any affected employee the amount of his or her unpaid wages or his or her unpaid overtime compensation and an additional amount equal to 100 percent of the amount of those unpaid wages or that unpaid overtime compensation as liquidated damages within a period specified by the department in the order.

SB70-AA1,126,17 3. In addition to or in lieu of recovering the liability specified in subd. 1. as provided in subd. 2., any employee for and on behalf of that employee and other employees similarly situated may commence an action to recover that liability in any court of competent jurisdiction. If the court finds that a contractor, subcontractor, or contractor's or subcontractor's agent has failed to pay the prevailing wage rate determined by the department under sub. (3) or has paid less than 1.5 times the hourly basic rate of pay for all hours worked in excess of the prevailing hours of labor, the court shall order the contractor, subcontractor, or agent to pay to any affected employee the amount of his or her unpaid wages or his or her unpaid overtime compensation and an additional amount equal to 100 percent of the amount of those unpaid wages or that unpaid overtime compensation as liquidated damages.

SB70-AA1,126,22 5. No employee may be a party plaintiff to an action under subd. 3. unless the employee consents in writing to become a party and the consent is filed in the court in which the action is brought. Notwithstanding s. 814.04 (1), the court shall, in addition to any judgment awarded to the plaintiff, allow reasonable attorney fees and costs to be paid by the defendant.

SB70-AA1,127,2 (am) Except as provided in pars. (b), (d), and (f), any contractor, subcontractor, or contractor's or subcontractor's agent who violates this section may be fined not more than $200 or imprisoned for not more than 6 months or both. Each day that a violation continues is a separate offense.

SB70-AA1,127,11 (b) Whoever induces an individual who seeks to be or is employed on any project of public works that is subject to this section to give up, waive, or return any part of the wages to which the individual is entitled under the contract governing the project, or who reduces the hourly basic rate of pay normally paid to an individual for work on a project that is not subject to this section during a week in which the individual works both on a project of public works that is subject to this section and on a project that is not subject to this section, by threat not to employ, by threat of dismissal from employment, or by any other means is guilty of an offense under s. 946.15 (1).

SB70-AA1,127,21 (c) Any individual who is employed on a project of public works that is subject to this section who knowingly allows a contractor, subcontractor, or contractor's or subcontractor's agent to pay him or her less than the prevailing wage rate set forth in the contract governing the project, who gives up, waives, or returns any part of the compensation to which he or she is entitled under the contract, or who gives up, waives, or returns any part of the compensation to which he or she is normally entitled for work on a project that is not subject to this section during a week in which the individual works both on a project of public works that is subject to this section and on a project that is not subject to this section, is guilty of an offense under s. 946.15 (2).

SB70-AA1,128,2 (d) Whoever induces any individual who seeks to be or is employed on any project of public works that is subject to this section to allow any part of the wages to which the individual is entitled under the contract governing the project to be deducted from the individual's pay is guilty of an offense under s. 946.15 (3), unless the deduction would be allowed under 29 CFR 3.5 or 3.6 from an individual who is working on a project that is subject to 40 USC 3142.

SB70-AA1,128,8 (e) Any individual who is employed on a project of public works that is subject to this section who knowingly allows any part of the wages to which he or she is entitled under the contract governing the project to be deducted from his or her pay is guilty of an offense under s. 946.15 (4), unless the deduction would be allowed under 29 CFR 3.5 or 3.6 from an individual who is working on a project that is subject to 40 USC 3142.

SB70-AA1,128,11 (f) Paragraph (am) does not apply to any person who fails to provide any information to the department to assist the department in determining prevailing wage rates under sub. (3) (a) or (am).

SB70-AA1,128,23 (7) Debarment. (a) Except as provided under pars. (b) and (c), the department shall distribute to all state agencies a list of all persons that the department has found to have failed to pay the prevailing wage rate determined under sub. (3) or has found to have paid less than 1.5 times the hourly basic rate of pay for all hours worked in excess of the prevailing hours of labor at any time in the preceding 3 years. The department shall include with any name the address of the person and shall specify when the person failed to pay the prevailing wage rate and when the person paid less than 1.5 times the hourly basic rate of pay for all hours worked in excess of the prevailing hours of labor. A state agency may not award any contract to the person unless otherwise recommended by the department or unless 3 years have elapsed from the date the department issued its findings or date of final determination by a court of competent jurisdiction, whichever is later.

SB70-AA1,129,4 (b) The department may not include in a notification under par. (a) the name of any person on the basis of having subcontracted a contract for a project of public works to a person that the department has found to have failed to pay the prevailing wage rate determined under sub. (3) or has found to have paid less than 1.5 times the hourly basic rate of pay for all hours worked in excess of the prevailing hours of labor.

SB70-AA1,129,8 (c) This subsection does not apply to any contractor, subcontractor, or agent who in good faith commits a minor violation of this section, as determined on a case-by-case basis through administrative hearings with all rights to due process afforded to all parties or who has not exhausted or waived all appeals.

SB70-AA1,129,17 (d) Any person submitting a bid on a project of public works that is subject to this section shall, on the date the person submits the bid, identify any construction business in which the person, or a shareholder, officer, or partner of the person if the person is a business, owns or has owned at least a 25 percent interest on the date the person submits the bid or at any other time within 3 years preceding the date the person submits the bid, if the business has been found to have failed to pay the prevailing wage rate determined under sub. (3) or to have paid less than 1.5 times the hourly basic rate of pay for all hours worked in excess of the prevailing hours of labor.

SB70-AA1,129,18 (e) The department shall promulgate rules to administer this subsection.

SB70-AA1,220 Section 220. 103.50 of the statutes is created to read:

SB70-AA1,129,20 103.50 Highway contracts. (1) Definitions. In this section:

SB70-AA1,130,2 (a) “Area" means the county in which a proposed project that is subject to this section is located or, if the department determines that there is insufficient wage data in that county, “area" means those counties that are contiguous to that county or, if the department determines that there is insufficient wage data in those counties, “area" means those counties that are contiguous to those counties or, if the department determines that there is insufficient wage data in those counties, “area" means the entire state.

SB70-AA1,130,3 (b) “Hourly basic rate of pay" has the meaning given in s. 103.49 (1) (b).

SB70-AA1,130,4 (bg) “Insufficient wage data" has the meaning given in s. 103.49 (1) (bg).

SB70-AA1,130,5 (c) “Prevailing hours of labor" has the meaning given in s. 103.49 (1) (c).

SB70-AA1,130,10 (d) 1. Except as provided in subd. 2., “prevailing wage rate" for any trade or occupation in any area means the hourly basic rate of pay, plus the hourly contribution for health insurance benefits, vacation benefits, pension benefits, and any other bona fide economic benefit, paid directly or indirectly, for a majority of the hours worked in the trade or occupation in the area.

SB70-AA1,130,17 2. If there is no rate at which a majority of the hours worked in the trade or occupation in the area is paid, “prevailing wage rate" means the average hourly basic rate of pay, weighted by the number of hours worked, plus the average hourly contribution, weighted by the number of hours worked, for health insurance benefits, vacation benefits, pension benefits, and any other bona fide economic benefit, paid directly or indirectly for all hours worked at the hourly basic rate of pay of the highest-paid 51 percent of hours worked in that trade or occupation in that area.

SB70-AA1,130,18 (e) “Truck driver" has the meaning given in s. 103.49 (1) (g).

SB70-AA1,130,22 (2) Prevailing wage rates and hours of labor. No contractor, subcontractor, agent, or other person performing any work on a project under a contract based on bids as provided in s. 84.06 (2) to which the state is a party for the construction or improvement of any highway may do any of the following:

SB70-AA1,130,25 (a) Pay an individual performing the work described in sub. (2m) less than the prevailing wage rate in the area in which the work is to be done determined under sub. (3).

SB70-AA1,131,5 (b) Allow an individual performing the work described in sub. (2m) to work a greater number of hours per day or per week than the prevailing hours of labor, unless the contractor, subcontractor, or contractor's or subcontractor's agent pays the individual for all hours worked in excess of the prevailing hours of labor at a rate of at least 1.5 times the individual's hourly basic rate of pay.

SB70-AA1,131,10 (2g) Nonapplicability. This section does not apply to a single-trade project of public works, as defined in s. 103.49 (1) (em), for which the estimated project cost of completion is less than $48,000 or a multiple-trade project of public works, as defined in s. 103.49 (1) (br), for which the estimated project cost of completion is less than $100,000.

SB70-AA1,131,16 (2m) Covered employees. (a) Subject to par. (b), any person subject to this section shall pay all of the following employees the prevailing wage rate determined under sub. (3) and may not allow such employees to work a greater number of hours per day or per week than the prevailing hours of labor, unless the person pays for all hours worked in excess of the prevailing hours of labor at a rate of at least 1.5 times the employees' hourly basic rate of pay:

SB70-AA1,131,18 1. All laborers, workers, mechanics, and truck drivers employed on the site of a project that is subject to this section.

SB70-AA1,131,23 2. All laborers, workers, mechanics, and truck drivers employed in the manufacturing or furnishing of materials, articles, supplies, or equipment on the site of a project that is subject to this section or from a facility dedicated exclusively, or nearly so, to a project that is subject to this section by a contractor, subcontractor, agent, or other person performing any work on the site of the project.

SB70-AA1,132,6 (b) A laborer, worker, mechanic, or truck driver who is employed to process, manufacture, pick up, or deliver materials or products from a commercial establishment that has a fixed place of business from which the establishment supplies processed or manufactured materials or products or from a facility that is not dedicated exclusively, or nearly so, to a project that is subject to this section is not entitled to receive the prevailing wage rate determined under sub. (3) or to receive at least 1.5 times his or her hourly basic rate of pay for all hours worked in excess of the prevailing hours of labor unless any of the following applies:

SB70-AA1,132,11 1. The laborer, worker, mechanic, or truck driver is employed to go to the source of mineral aggregate such as sand, gravel, or stone and deliver that mineral aggregate to the site of a project that is subject to this section by depositing the material directly in final place, from the transporting vehicle or through spreaders from the transporting vehicle.

SB70-AA1,132,15 2. The laborer, worker, mechanic, or truck driver is employed to go to the site of a project that is subject to this section, pick up excavated material or spoil from the site of the project, and transport that excavated material or spoil away from the site of the project and return to the site of the project.

SB70-AA1,132,18 (c) A contractor, subcontractor, agent, or other person performing work on a project subject to this section shall pay a truck driver who is an owner-operator of a truck separately for his or her work and for the use of his or her truck.

SB70-AA1,132,24 (3) Investigations; determinations. The department shall conduct investigations and hold public hearings necessary to define the trades or occupations that are commonly employed in the highway construction industry and to inform the department of the prevailing wage rates in all areas of the state for those trades or occupations, in order to ascertain and determine the prevailing wage rates accordingly.

SB70-AA1,133,12 (4) Certification of prevailing wage rates. The department of workforce development shall, by May 1 of each year, certify to the department of transportation the prevailing wage rates in each area for all trades or occupations commonly employed in the highway construction industry. The certification shall, in addition to the current prevailing wage rates, include future prevailing wage rates when such prevailing wage rates can be determined for any such trade or occupation in any area and shall specify the effective date of those future prevailing wage rates. The certification shall also include wage rates for work performed on Sundays or the holidays specified in s. 103.49 (1) (c) and shift differentials based on the time of day or night when work is performed. If a construction project extends into more than one area, the department shall determine only one standard of prevailing wage rates for the entire project.

SB70-AA1,133,18 (4m) Wage rate data. In determining prevailing wage rates for projects that are subject to this section, the department shall use data from projects that are subject to this section, s. 66.0903 or 103.49, or 40 USC 3142. In determining prevailing wage rates for those projects, the department may not use data from any construction work that is performed by a state agency or a local governmental unit, as defined in s. 66.0903 (1) (d).

SB70-AA1,133,22 (5) Appeals to governor. If the department of transportation considers any determination of the department of workforce development of the prevailing wage rates in an area to be incorrect, it may appeal to the governor, whose determination is final.

SB70-AA1,134,13 (6) Contents of contracts. The department of transportation shall include a reference to the prevailing wage rates determined under sub. (3) and the prevailing hours of labor in the notice published for the purpose of securing bids for a project. Except as otherwise provided in this subsection, if any contract or subcontract for a project that is subject to this section is entered into, the prevailing wage rates determined under sub. (3) and the prevailing hours of labor shall be physically incorporated into and made a part of the contract or subcontract. For a minor subcontract, as determined by the department of workforce development, that department shall prescribe by rule the method of notifying the minor subcontractor of the prevailing wage rates and prevailing hours of labor applicable to the minor subcontract. The prevailing wage rates and prevailing hours of labor applicable to a contract or subcontract may not be changed during the time that the contract or subcontract is in force. The department of transportation shall post the prevailing wage rates determined by the department, the prevailing hours of labor, and the provisions of subs. (2) and (7) in at least one conspicuous place that is easily accessible to the employees on the site of the project.

SB70-AA1,134,17 (7) Penalties. (a) Except as provided in pars. (b), (d), and (f), any contractor, subcontractor, or contractor's or subcontractor's agent who violates this section may be fined not more than $200 or imprisoned for not more than 6 months or both. Each day that a violation continues is a separate offense.

SB70-AA1,134,25 (b) Whoever induces any individual who seeks to be or is employed on any project that is subject to this section to give up, waive, or return any part of the wages to which the individual is entitled under the contract governing the project, or who reduces the hourly basic rate of pay normally paid to an individual for work on a project that is not subject to this section during a week in which the individual works both on a project that is subject to this section and on a project that is not subject to this section, by threat not to employ, by threat of dismissal from employment, or by any other means is guilty of an offense under s. 946.15 (1).

SB70-AA1,135,9 (c) Any individual employed on a project that is subject to this section who knowingly allows a contractor, subcontractor, or contractor's or subcontractor's agent to pay him or her less than the prevailing wage rate set forth in the contract governing the project, who gives up, waives, or returns any part of the compensation to which he or she is entitled under the contract, or who gives up, waives, or returns any part of the compensation to which he or she is normally entitled for work on a project that is not subject to this section during a week in which the individual works both on a project that is subject to this section and on a project that is not subject to this section, is guilty of an offense under s. 946.15 (2).

SB70-AA1,135,15 (d) Whoever induces any individual who seeks to be or is employed on any project that is subject to this section to allow any part of the wages to which the individual is entitled under the contract governing the project to be deducted from the individual's pay is guilty of an offense under s. 946.15 (3), unless the deduction would be allowed under 29 CFR 3.5 or 3.6 from an individual who is working on a project that is subject to 40 USC 3142.

SB70-AA1,135,20 (e) Any individual employed on a project that is subject to this section who knowingly allows any part of the wages to which he or she is entitled under the contract governing the project to be deducted from his or her pay is guilty of an offense under s. 946.15 (4), unless the deduction would be allowed under 29 CFR 3.5 or 3.6 from an individual who is working on a project that is subject to 40 USC 3142.

SB70-AA1,135,23 (f) Paragraph (a) does not apply to any individual who fails to provide any information to the department to assist the department in determining prevailing wage rates under sub. (3) or (4).

SB70-AA1,136,8 (8) Enforcement and prosecution. The department of transportation shall require adherence to subs. (2), (2m), and (6). The department of transportation may demand and examine, and every contractor, subcontractor, and contractor's or subcontractor's agent shall keep and furnish upon request by the department of transportation, copies of payrolls and other records and information relating to compliance with this section. Upon request of the department of transportation or upon complaint of alleged violation, the district attorney of the county in which the work is located shall investigate as necessary and prosecute violations in a court of competent jurisdiction. Section 111.322 (2m) applies to discharge and other discriminatory acts arising in connection with any proceeding under this section.

SB70-AA1,221 Section 221. 103.503 (1) (a) of the statutes is amended to read:

SB70-AA1,136,15 103.503 (1) (a) “Accident" means an incident caused, contributed to, or otherwise involving an employee that resulted or could have resulted in death, personal injury, or property damage and that occurred while the employee was performing the work described in s. 66.0903 (4), 2013 stats., or s. 16.856 103.49 (2m), 2015 stats., on a project of public works or while the employee was performing work on a public utility project.

SB70-AA1,222 Section 222. 103.503 (1) (e) of the statutes is amended to read:

SB70-AA1,136,19 103.503 (1) (e) “Employee" means a laborer, worker, mechanic, or truck driver who performs the work described in s. 66.0903 (4), 2013 stats., or s. 16.856 103.49 (2m), 2015 stats., on a project of public works or on a public utility project.

SB70-AA1,223 Section 223. 103.503 (1) (g) of the statutes is repealed and recreated to read:

SB70-AA1,136,22 103.503 (1) (g) “Project of public works" means a project of public works that is subject to s. 66.0903 or 103.49.

SB70-AA1,224 Section 224. 103.503 (2) of the statutes is amended to read:

SB70-AA1,137,6 103.503 (2) Substance abuse prohibited. No employee may use, possess, attempt to possess, distribute, deliver, or be under the influence of a drug, or use or be under the influence of alcohol, while performing the work described in s. 66.0903 (4), 2013 stats., or s. 16.856 103.49 (2m), 2015 stats., on a project of public works or while performing work on a public utility project. An employee is considered to be under the influence of alcohol for purposes of this subsection if he or she has an alcohol concentration that is equal to or greater than the amount specified in s. 885.235 (1g) (d).

SB70-AA1,225 Section 225. 103.503 (3) (a) 2. of the statutes is amended to read:

SB70-AA1,137,15 103.503 (3) (a) 2. A requirement that employees performing the work described in s. 66.0903 (4), 2013 stats., or s. 16.856 103.49 (2m), 2015 stats., on a project of public works or performing work on a public utility project submit to random, reasonable suspicion, and post-accident drug and alcohol testing and to drug and alcohol testing before commencing work on the project, except that testing of an employee before commencing work on a project is not required if the employee has been participating in a random testing program during the 90 days preceding the date on which the employee commenced work on the project.

SB70-AA1,226 Section 226. 104.001 (3) of the statutes is created to read:

SB70-AA1,137,21 104.001 (3) This section does not affect an ordinance that, subject to s. 66.0903, requires an employee of a city, village, town, or county, an employee who performs work under a contract for the provision of services to a city, village, town, or county, or an employee who performs work that is funded by financial assistance from a city, village, town, or county to be paid at a minimum wage rate specified in the ordinance.

SB70-AA1,227 Section 227. 104.001 (4) of the statutes is created to read:

SB70-AA1,138,2 104.001 (4) This section does not affect the requirement that employees employed on a public works project contracted for by a city, village, town, or county be paid at the prevailing wage rate, as defined in s. 66.0903 (1) (g), as required under s. 66.0903.

SB70-AA1,228 Section 228. 104.01 (1h) of the statutes is created to read:

SB70-AA1,138,7 104.01 (1h) “Consumer price index” means the average of the consumer price index over each 12-month period for all urban consumers, U.S. city average, all items, not seasonally adjusted, as determined by the bureau of labor statistics of the U.S. department of labor.

SB70-AA1,229 Section 229. 104.035 (1) (a) of the statutes is renumbered 104.035 (1) (a) (intro.) and amended to read:

SB70-AA1,138,11 104.035 (1) (a) Minimum rates. (intro.) Except as provided in subs. (2) to (8) (8m), the minimum wage is as follows:

SB70-AA1,138,13 1. For wages earned prior to the effective date of this subdivision .... [LRB inserts date], $7.25 per hour.

SB70-AA1,230 Section 230. 104.035 (1) (a) 2. of the statutes is created to read:

SB70-AA1,138,16 104.035 (1) (a) 2. For wages earned on or after the effective date of this subdivision .... [LRB inserts date], and prior to January 1, 2025, $8.25 per hour.

SB70-AA1,231 Section 231. 104.035 (1) (a) 3. of the statutes is created to read:

SB70-AA1,138,19 104.035 (1) (a) 3. For wages earned on or after January 1, 2025, and prior to January 1, 2026, $9.25.

SB70-AA1,232 Section 232. 104.035 (1) (a) 4. of the statutes is created to read:

SB70-AA1,138,22 104.035 (1) (a) 4. For wages earned on or after January 1, 2026, and prior to January 1, 2027, $10.25.

SB70-AA1,233 Section 233. 104.035 (2) (a) of the statutes is renumbered 104.035 (2) (a) (intro.) and amended to read:

SB70-AA1,139,2 104.035 (2) (a) Minimum rates. (intro.) Except as provided in subs. (2m) to (8) (8m), the minimum wage for a minor employee is as follows:

SB70-AA1,139,4 1. For wages earned prior to the effective date of this subdivision .... [LRB inserts date], $7.25 per hour.

SB70-AA1,234 Section 234. 104.035 (2) (a) 2. of the statutes is created to read:

SB70-AA1,139,7 104.035 (2) (a) 2. For wages earned on or after the effective date of this subdivision .... [LRB inserts date], and prior to January 1, 2025, $8.25 per hour.

SB70-AA1,235 Section 235. 104.035 (2) (a) 3. of the statutes is created to read:

SB70-AA1,139,10 104.035 (2) (a) 3. For wages earned on or after January 1, 2025, and prior to January 1, 2026, $9.25.

SB70-AA1,236 Section 236. 104.035 (2) (a) 4. of the statutes is created to read:

SB70-AA1,139,13 104.035 (2) (a) 4. For wages earned on or after January 1, 2026, and prior to January 1, 2027, $10.25.

SB70-AA1,237 Section 237. 104.035 (2m) (a) of the statutes is renumbered 104.035 (2m) (a) (intro.) and amended to read:

SB70-AA1,139,17 104.035 (2m) (a) Minimum rates. (intro.) Except as provided in subs. (3) to (8) (8m), the minimum wage for an opportunity employee is as follows:

SB70-AA1,139,19 1. For wages earned prior to the effective date of this subdivision .... [LRB inserts date], $5.90 per hour.

SB70-AA1,238 Section 238. 104.035 (2m) (a) 2. of the statutes is created to read:

SB70-AA1,139,22 104.035 (2m) (a) 2. For wages earned on or after the effective date of this subdivision .... [LRB inserts date], and prior to January 1, 2025, $6.71 per hour.

SB70-AA1,239 Section 239. 104.035 (2m) (a) 3. of the statutes is created to read:

SB70-AA1,139,25 104.035 (2m) (a) 3. For wages earned on or after January 1, 2025, and prior to January 1, 2026, $7.52.

SB70-AA1,240 Section 240. 104.035 (2m) (a) 4. of the statutes is created to read: