Chapter DWD 272

DWD 272.01(10) (10) “Month” means 30 days.

DWD 272.01(11) (11) “Opportunity employee” means an employee who is not yet 20 years old, during the first 90 consecutive days after the employee is initially employed by the employer.

DWD 272.01(12) (12) “Tipped employee” means any employee engaged in an occupation in which they customarily and regularly receive tips or gratuities from patrons or others.

DWD 272.01 History History: Cr. Register, July, 1978, No. 271, eff. 8-1-78; cr. (15), Register, August, 1987, No. 380, eff. 9-1-87; cr. (16), Register, June, 1989, No. 402, eff. 7-1-89; renum. (3) to (16) to be (4) to (9), (12), (15), (13), (17), (3), (16), (14) and (11) and am. (11), cr. (10), Register March, 1990, No. 411, eff. 4-1-90; r. (6) and (7), Register, February, 1992, No. 434, eff. 3-1-92; renum. (12) to (17) to be ILHR 272.09 (1) (g), (h), (j), (k), ILHR 272.01 (12) and ILHR 272.09 (1) (m), Register, February, 1996, No. 482, eff. 3-1-96; am. (4) and r. (11), Register, May, 1997, No. 497, eff. 6-1-97; emerg. cr. (11), eff. 5-31-97; cr. (11), Register, September, 1997, No. 501, eff. 10-1-97; emerg. cr. (9m) eff. 6-1-05; CR 05-056: cr. (9m) Register August 2005 No. 596, eff. 11-1-05.

DWD 272.02 DWD 272.02 Applicability of orders. The rates prescribed in this chapter shall apply to all employees, including indentured apprentices, employed at private employments including nonprofit organizations, whether paid on a time, piece rate, commission, or other basis.

DWD 272.02 History History: Cr. Register, July, 1978, No. 271, eff. 8-1-78.

DWD 272.025 DWD 272.025 Statement of intent. Nothing contained in s. DWD 272.03 prohibits an employer from paying more than the minimum rates listed in this chapter or from treating an employee as a probationary employee for less than the number of days specified in this chapter.

DWD 272.025 History History: Cr. Register, June, 1989, No. 402, eff. 7-1-89; correction made under s. 13.93 (2m) (b) 7., Stats., Register, February, 1996, No. 482.

DWD 272.03 DWD 272.03 Minimum rates.

DWD 272.03(1) (1) Minimum rates. This subsection is effective on July 24, 2009. Except as provided in ss. DWD 272.05 to 272.09, no employer may employ any employee in any occupation, trade, or industry at a lesser hourly rate than as follows:

DWD 272.03(1)(a) (a) All employees except opportunity and minor employees $7.25 per hour.

DWD 272.03(1)(b) (b) Minor employees $7.25 per hour.

DWD 272.03(1)(c) (c) Opportunity employees $5.90 per hour.

DWD 272.03(1m) (1m) Minimum rates. This subsection is in effect from June 1, 2006, to July 23, 2009. Except as provided in ss. DWD 272.05 to 272.09, no employer may employ any employee in any occupation, trade, or industry at a lesser hourly rate than as follows:

DWD 272.03(1m)(a) (a) All employees except opportunity and minor employees $6.50 per hour.

DWD 272.03(1m)(b) (b) Opportunity and minor employees $5.90 per hour.

DWD 272.03(2) (2) Tips. Where tips or gratuities are received by the employee from patrons or others, the employer may pay the minimum wage rate established by this subsection, providing the employer can establish by its payroll records that for each week where credit is taken, when adding the tips received to the wages paid, no less than the minimum rate prescribed in sub. (1), was received by the employee. The minimum rate shall be the rate established in par. (a).

DWD 272.03(2)(a) (a) Minimum rates for tipped employees. All employees except opportunity employees $2.33 per hr.

DWD 272.03(2)(am) (am) Opportunity employees. Opportunity employees $2.13 per hour.

DWD 272.03(2)(b) (b) Burden of proof.

DWD 272.03(2)(b)1. 1. When the employer elects to take tip credit the employer must have a tip declaration signed by the tipped employee each pay period and show on the payroll records that any required social security or taxes have been withheld each pay period to show that when adding the tips received to the wages paid by the employer, no less than the minimum rate was received by the employee. When the employer’s time and payroll records do not contain these requirements, no tip credit shall be allowed.

DWD 272.03(2)(b)2. 2. The department may refuse to take action to collect minimum wage deficiencies for a tipped employee who has refused or failed to file an accurate signed tip declaration for the employer each pay period.

DWD 272.03(2)(c) (c) General characteristics of “tips”.

DWD 272.03(2)(c)1. 1. Tip means a sum presented by a customer as a gift or gratuity in recognition of some service performed for them. It is to be distinguished from payment of a charge, if any, made for the service. Whether a tip is to be given, and its amount, are matters determined solely by the customer, and generally they have the right to determine who shall be the recipient of their gratuity. In the absence of an agreement to the contrary between the recipient and a third party, a tip becomes the property of the person in recognition of whose service it is presented by the customer. Only tips actually received by an employee as money belonging to them which they may use as they choose free of any control by the employer, may be counted in determining whether they are a “tipped employee.”

DWD 272.03(2)(c)2. 2. In addition to cash sums presented by customers which an employee keeps as their own, tips received by an employee include, amounts paid by bank check or other negotiable instrument payable at par and amounts transferred by the employer to the employee pursuant to directions from credit customers who designate amounts to be added to their bills as tips. Special gifts in forms other than money or its equivalent as above described, such as theater tickets, passes, or merchandise, are not counted as tips received by the employee.

DWD 272.03(2)(d) (d) Tip pooling. Where employees practice tip splitting, as where waiters or waitresses give a portion of their tips to the bus persons, both the amounts retained by the waiters or waitresses and those given the bus persons are considered tips of the individuals who retain them.

DWD 272.03(2)(e) (e) Service charge.

DWD 272.03(2)(e)1. 1. A compulsory charge for service, such as 15% of the amount of the bill, imposed on a customer by an employer’s establishment, is not a tip unless distributed by the employer to their employees.

DWD 272.03(2)(e)2. 2. Similarly, where negotiations between a hotel or restaurant and a customer for banquet facilities include amounts for distribution to employees of the hotel or restaurant, the amounts must be so distributed to the employees at the end of the pay period in which it is earned.

DWD 272.03(2)(e)3. 3. If the employer in their payroll records can establish a breakdown of the service charge, such as how much is for tips, room charge, decorations, and other chargeable services, only the amount for tips must be paid to the employee at the end of the pay period in which it is earned.

DWD 272.03(2)(e)4. 4. Similarly, where an accounting is made to an employer for their information only or in furtherance of a pooling arrangement whereby the employer redistributes the tips to the employees upon some basis to which they have mutually agreed among themselves, the amounts received and retained by each individual as their own are counted as their tips.

DWD 272.03(2)(f) (f) Receiving the minimum amount “customarily and regularly”. The employee must receive tips “customarily and regularly” in the occupation in which they are engaged in order to qualify as a tipped employee. If it is known that they always receive more than the stipulated amount each month, as may be the case with many employees in occupations such as those of waiters, waitresses, bellhops, taxicab drivers, barbers, or beauty operators, the employee will qualify and the tip credit provisions of s. DWD 272.03 may be applied. On the other hand, an employee who only occasionally or sporadically receives tips such as at Christmas or New Years when customers may be more generous than usual, will not be deemed a tipped employee. The phrase “customarily and regularly” signifies a frequency which must be greater than occasional, but which may be less than constant. If an employee is in an occupation in which they normally and recurrently receive tips, they will be considered a tipped employee even though occasionally, because of sickness, vacation, seasonal fluctuations or the like, they fail to receive tips in a particular month.

DWD 272.03(2)(g) (g) The tip wage credit.

DWD 272.03(2)(g)1. 1. In determining compliance with the wage payment requirements the amount paid to a tipped employee as allowable under par. (a) by an employer is deemed to be increased on account of tips to equal the minimum wage applicable under sub. (1) to such employee in the pay period for which the wage payment is made. This credit is in addition to any credit for board, lodging, or other facilities which may be allowable under s. DWD 272.03. The credit allowed on account of tips may be less than the difference between the applicable minimum wage and the rate for a tipped employee; it cannot be more.

DWD 272.03(2)(g)2. 2. It is presumed that in the application of this special provision the employee will be receiving at least the maximum tip credit in actual tips:“If the employee is receiving less than the amount credited, the employer is required to pay the balance so that the employee receives at least the minimum wage with the defined combination of wages and tips.”

DWD 272.03(2)(g)3. 3. Under employment agreements requiring tips to be turned over or credited to the employer to be treated by them as part of their gross receipts, it is clear that the employer must pay the employee the full minimum hourly wage, since for all practical purposes the employee is not receiving tip income.

DWD 272.03(2)(h) (h) Overtime payments. When overtime is worked by a tipped employee who is subject to the overtime pay of ch. DWD 274, their regular rate of pay is determined by dividing their total remuneration for employment in any workweek by the total number of hours actually worked by them in that workweek for which such compensation was paid. A tipped employee’s regular rate of pay includes the amount of tip credit taken by the employer, and the cash wages including commissions and certain bonuses paid by the employer. Any tips received by the employee in excess of the tip credit need not be included in the regular rate. Such tips are not payments made by the employer to the employee as remuneration for employment within the meaning of ch. DWD 274.

DWD 272.03(3) (3) Allowance for board and lodging. This subsection is effective on July 24, 2009. Where board or lodging or both are furnished by the employer in accordance with s. DWD 272.04, and accepted and received by a particular employee, an allowance may be made not to exceed the following amounts:

DWD 272.03(3)(a) (a) Lodging.

DWD 272.03(3)(a)1. 1. All employees except opportunity and minor employees $58.00 per week or $8.30 per day.

DWD 272.03(3)(a)2. 2. Minor employees $58.00 per week or $8.30 per day.

DWD 272.03(3)(a)3. 3. Opportunity employees $47.20 per week or $6.75 per day.

DWD 272.03(3)(b) (b) Meals.

DWD 272.03(3)(b)1. 1. All employees except opportunity and minor employees $87.00 per week or $4.15 per meal.

DWD 272.03(3)(b)2. 2. Minor employees $87.00 per week or $4.15 per meal.

DWD 272.03(3)(b)3. 3. Opportunity employees $70.80 per week or $3.35 per meal.

DWD 272.03(3m) (3m) Allowance for board and lodging. This subsection is in effect from June 1, 2006, to July 23, 2009. Where board or lodging or both are furnished by the employer in accordance with s. DWD 272.04, and accepted and received by a particular employee, an allowance may be made not to exceed the following amounts:

DWD 272.03(3m)(a) (a) Lodging.

DWD 272.03(3m)(a)1. 1. All employees except opportunity and minor employees $52.00 per week or $7.40 per day.

DWD 272.03(3m)(a)2. 2. Opportunity and minor employees $47.20 per week or $6.75 per day.

DWD 272.03(3m)(b) (b) Meals.

DWD 272.03(3m)(b)1. 1. All employees except opportunity and minor employees $78.00 per week or $3.70 per meal.

DWD 272.03(3m)(b)2. 2. Opportunity and minor employees $70.80 per week or $3.35 per meal.

DWD 272.03(4) (4) Board and lodging, value. Where board, lodging or other necessities of life, are furnished by the employer, in accordance with s. DWD 272.04, and accepted and received by the employee or their spouse or both, minor children or other dependents, an allowance may be made, not to exceed the “fair value” of such necessities on the basis of average cost to the employer, or to groups of employers similarly situated, or average values to groups of employees or other appropriate measures of fair value.

DWD 272.03(5) (5) Payment of wages on other than time basis. Where payment of wages is made upon a basis or system other than time rate, the actual wage paid per payroll period shall not be less than provided for in this order.

DWD 272.03(6) (6) Homework. Wages paid to homeworkers shall be not less than the rates prescribed in this order.

DWD 272.03(7) (7) Determination of compliance. The payroll period shall be taken as the unit of determining compliance with the minimum rates prescribed in this order.

DWD 272.03(8) (8) Proof of previous employment. An employee is responsible for providing the proof of previous employment necessary to determine whether the person is a probationary employee. An employer shall not be liable for a violation of this section if the violation is caused by the employer’s good faith reliance of the proof presented by an employee under this subsection.

DWD 272.03 History History: Cr. Register, July, 1978, No. 271, eff. 8-1-78; am. (1) and (2) (a), Register, August, 1987, No. 380, eff. 9-1-87; am. (1), (2) (a) and (3), Register, June, 1989, No. 402, eff. 7-1-89; am. (1), (2) (intro.) and (3) cr. (8), Register, March, 1990, No. 411, eff. 4-1-90; am. (1), (2) (a) and (3), Register, February, 1992, No. 434, eff. 3-1-92; corrections made under s. 13.93 (2m) (b) 7., Stats., Register, February, 1996, No. 482; r. and recr. (1), (2) (a) and (3), cr. (1m) and (3m), Register, May, 1997, No. 497, eff. 6-1-97; emerg. cr. (1) (b), (1m) (b), (2) (b), am. (3) and (3m), eff. 5-31-97; cr. (1) (b), (1m) (b), (2) (am), am. (3), (3m), Register, September, 1997, No. 501, eff. 10-1-97; emerg. am. (1) and (3), r. (1m) and (3m) eff. 6-1-05; CR 05-056: am. (1), (1m), (3) and (3m) Register August 2005 No. 596, eff. 11-1-05; CR 08-069: r. and recr. (1) and (3), am. (1m) (intro.) and (3m) (intro.) Register February 2009 No. 638, eff. 3-1-09.

DWD 272.04 DWD 272.04 Deductions for meals and lodging.

DWD 272.04(1) (1) A meal means an adequate well-balanced serving of a variety of wholesome and nutritious foods.

DWD 272.04(1)(a) (a) Deductions may be made only for bona fide meals consistent with employee’s work shift. No deductions shall be made or credit given for meals not eaten except in employments where weekly room and board is provided and accepted.

DWD 272.04(1)(b) (b) An employer shall not require that meals be accepted as part payment of wages.

DWD 272.04(1)(c) (c) Employer must pay all employees for “on duty” meal periods. Such periods are to be counted as work time. An “on duty” meal period is one where the employer does not provide at least 30 minutes free from work. Any meal period where the employee is not free to leave the premises of the employer will also be considered an “on duty” meal period.

DWD 272.04(1)(d) (d) Authorized rest periods or breaks of less than 30 consecutive minutes per shift shall be counted as work time for which there shall be no deduction from wages.

DWD 272.04(1)(e) (e) Whenever a collective bargaining agreement exists, the department may consider the written application of labor and management for a waiver or modification to the requirements of par. (c) or (d), based upon practical difficulties or unnecessary hardship in compliance. If the department determines that compliance with par. (c) or (d) is unjust or unreasonable and that granting a waiver or modification will not be dangerous or prejudicial to the life, health, safety or welfare of the employees, the department may grant a waiver or modification.

DWD 272.04(2) (2) Lodging means living accommodations which are adequate, decent and sanitary, according to usual and customary standards. Employees shall not be required to share a bed.

DWD 272.04(3) (3) Room and board deductions may not be made from the wages of a seasonal non-resident agricultural employee that would result in the employee receiving less than the prescribed minimum rate.

DWD 272.04 History History: Cr. Register, July, 1978, No. 271, eff. 8-1-78; cr. (1) (e), Register, February, 1992, No. 434, eff. 3-1-92.

DWD 272.05 DWD 272.05 Agriculture.

DWD 272.05(1) (1) Minimum rates. The minimum wage of employees employed in agriculture shall be as follows:

DWD 272.05(1)(a) (a) Employees 18 years of age and over:   $7.25 per hour.

DWD 272.05(1)(b) (b) Employees 17 years of age and under:   $7.25 per hour.

DWD 272.05(2) (2) Allowance for board and lodging. Where board or lodging or both are furnished by the employer in accordance with s. DWD 272.04, and accepted and received by the employee, an allowance may be made not to exceed the following amounts:

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DWD 272.05 History History: Cr. Register, July, 1978, No. 271, eff. 8-1-78; am. (1), Register, August, 1987, No. 380, eff. 9-1-87; am. Register, June, 1989, No. 402, eff. 7-1-89; am. Register, March, 1990, No. 411, eff. 4-1-90; am. (5), Register, February, 1992, No. 434, eff. 3-1-92; correction made under s. 13.93 (2m) (b) 7., Stats., Register, February, 1996, No. 482; emerg. am. (1) (a), (b), (2) (a) and (b) eff. 6-1-05; CR 05-056: am. (1) (a), (b), (2) (a) and (b) Register August 2005 No. 596, eff. 11-1-05; CR 08-069: am. Register February 2009 No. 638, eff. 3-1-09.

DWD 272.06 DWD 272.06 Domestic service employment, casual employment, and companions in private homes.

DWD 272.06(1) (1) Domestic service employment.

DWD 272.06(1)(a) (a) “Domestic service employment” means all services related to the care of persons or maintenance of a private household or its premises, on a regular basis, by an employee of a private householder. Such occupations shall include, but not be limited to, the following: butlers, chauffeurs, cooks, day workers, gardeners, graduate nurses, grooms, handy persons, house cleaners, housekeepers, laundry persons, practical nurses, tutors, valets and other similar occupations.

DWD 272.06(1)(b) (b) Domestic workers who reside in the employer’s household are covered under the rates prescribed by s. DWD 272.03. Employers may take credit for board and lodging as prescribed by s. DWD 272.03 (3). Record keeping requirement provided in s. DWD 272.11 shall apply.

DWD 272.06(2) (2) Casual employment. “Casual employment” means employment which is on an irregular or intermittent basis for not more than 15 hours per week for any one employer. This applies to the following: baby-sitting, mowing lawns, raking leaves, shoveling snow or other similar odd jobs. The minimum rates prescribed by s. DWD 272.03 shall not apply to casual employment in or around a home in work usual to the home of the employer, and not in connection with or part of the business, trade or profession of the employer.

DWD 272.06(3) (3) Companions in private homes. Persons who reside in the employer’s household for the purpose of companionship and who spend less than 15 hours per week on general household work are not covered under the rates prescribed in s. DWD 272.03. As used in this section, the term“companionship services” shall mean those services which provide fellowship, care and protection for a person, who, because of advanced age or physical mental infirmity, cannot care for his or her own needs. Such services may include, but not be limited to, household work related to the care of the aged or infirmed person such as meal preparation, bed making, washing of clothes and other similar services. They may also include the performance of general household work. The term “companionship services” does not include services relating to the care and protection of the aged or infirmed which require and are performed by trained personnel such as registered or practical nurses. While trained personnel do not qualify as companions, this fact does not remove them from the category of covered domestic service employees when employed in or about a private household.

DWD 272.06 History History: Cr. Register, July, 1978, No. 271, eff. 8-1-78; corrections made under s. 13.93 (2m) (b) 7., Stats., Register, February, 1996, No. 482.

DWD 272.07 DWD 272.07 Recreational or educational camps.

DWD 272.07(1) (1) Minimum rates. The minimum wage of all employees employed in recreational or educational camps and day camps, except counselors, shall be computed on an hourly basis as prescribed in s. DWD 272.03 (1).

DWD 272.07(2) (2) Allowance for board and lodging. Where board or lodging or both are furnished by the employer in accordance with s. DWD 272.04, and accepted and received by the employee, an allowance may be made not to exceed the amounts specified in s. DWD 272.03 (3).

DWD 272.07(3) (3) Counselors. This subsection is effective on July 24, 2009. The minimum wage of counselors employed in seasonal recreational or educational camps and day camps may be computed on a weekly basis as follows:

DWD 272.07(3)(a) (a) Adult counselors 18 years of age and over:

  PER WEEK