DWD 272.09(8)(h)2.c.
c. A work measurement study shall be conducted using the same work method that will be utilized by the workers with disabilities. If a modification such as a jig or a fixture must be made to a production method to accommodate the special needs of an individual worker with a disability, an additional work measurement study need not be conducted as long as the modification enables the disabled worker to perform the work or to increase productivity but would impede the worker without disabilities. If, in a particular case, it is not possible to accommodate a worker with a disability, as for example where an adequate number of machines are not available, a second work measurement study may be required.
DWD 272.09(8)(i)
(i) The employer shall pay full earnings to each worker with a disability who is employed on a piece rate basis. Employers may “pool" earnings only where piece rates cannot be established for each individual worker.
DWD 272.09 Note
Note: An example of this situation is a team production operation where each worker's individual contribution to the finished product cannot be determined separately. However, the employer should still make every effort to objectively divide the earnings according to the productivity level of each individual worker.
DWD 272.09(8)(j)
(j) The requirements of this paragraph apply to the payment of a worker with a disability who is employed at hourly rates.
DWD 272.09(8)(j)1.
1. The employer shall base hourly rates upon the prevailing hourly wage rate paid to an experienced worker not disabled for the job who is doing essentially the same type of work and using similar methods or equipment in the vicinity.
DWD 272.09(8)(j)2.
2. The employer shall make an initial evaluation of the worker's productivity within the first month after employment begins in order to determine the worker's commensurate wage rate. The employer shall record the results of the evaluation and the employer shall adjust the worker's wages accordingly no later than the first complete pay period following the initial evaluation. The employer shall pay commensurate wages to each worker for all hours worked. If the initial evaluation shows that the wages paid to the worker during pay periods prior to the evaluation were less than the commensurate wage, the employer shall compensate the worker for the difference in pay.
DWD 272.09(8)(j)3.
3. Upon the completion of not more than 6 months of employment, the employer shall review the quantity and quality of the work of each hourly wage rate worker with a disability as compared to a nondisabled worker engaged in similar work. The review shall be in writing and shall be recorded. The employer shall conduct and record a similar productivity review at least every 6 months thereafter. The employer shall also conduct and record a productivity review after a worker changes to a new job. After any review, the employer shall adjust the worker's wages appropriately no later than the first complete pay period following the review. Because the purpose of such reviews is to ensure that a worker with a disability receives commensurate wages for all hours worked, conducting reviews at 6-month intervals is a minimum requirement. The employer shall conduct reviews in the manner and frequency necessary to ensure the payment of commensurate wages.
DWD 272.09 Note
Note: For example, evaluations shall not be conducted before a worker has had an opportunity to become familiar with the job, or at a time when the worker is fatigued or subject to conditions that result in less than normal productivity.
DWD 272.09(8)(j)4.
4. Any employer conducting a review covered by this paragraph must include for each review the name of the individual worker, the date and time of the review, and the name and position of the person conducting the review.
DWD 272.09(9)(a)(a) An employer with a special minimum wage license may file a written application for renewal with the department.
DWD 272.09(9)(b)
(b) When an application for renewal of a special minimum wage license has been properly and timely filed with the department, the existing special minimum wage license shall remain in effect until the application for renewal has been granted or denied.
DWD 272.09(9)(c)
(c) If an application for renewal is denied, the employer may not by the license.
DWD 272.09(9)(d)
(d) Before any application for renewal is denied, the department shall notify the employer in writing of the facts or conduct which may warrant denial and provide the employer an opportunity to demonstrate or achieve compliance with all legal requirements before a final decision on denial or approval of the application is made.
DWD 272.09(10)
(10) Poster. An employer that is operating under a special minimum wage license shall at all times display and make available to employees a poster as prescribed by the department. The poster shall explain, in general terms, the conditions under which special minimum wages may be paid. The employer shall post the poster in a conspicuous place on the employer's premises where it may be readily observed by workers with disabilities, the parents and guardians of workers, and other employees. As a substitute for posting, the employer may provide a copy of the poster directly to each employee subject to its terms.
DWD 272.09(11)
(11) Records to be kept by employers. Every employer of workers under a special minimum wage license, or the referring agency or facility in the case of records verifying a worker's disabilities, shall maintain and have available for inspection the records specified in this subsection.
DWD 272.09(11)(b)
(b) Evidence of the productivity of each worker with a disability which has been gathered on a continuing basis or at periodic intervals which do not exceed 6 months in the case of employees paid hourly wage rates.
DWD 272.09(11)(c)
(c) The prevailing wage paid to a worker who is not disabled for the job performed and who is employed in industry in the vicinity for the same type of work using similar methods and equipment as that used by the worker with a disability employed under the special minimum wage license.
DWD 272.09(11)(d)
(d) The production standards and supporting documentation for nondisabled workers for each job being performed by a worker with disabilities employed under the special license.
DWD 272.09(11)(e)
(e) In the case of workers with disabilities who are employed by a recognized non-profit rehabilitation facility and who are working in or about a home, apartment, or room in the residential establishment, the records required under s.
DWD 272.11.
DWD 272.09(11)(f)
(f) The employer shall maintain and preserve the records required by this section for 3 years.
DWD 272.09(12)
(12) Relation to other laws. No provision of these rules, or of any special minimum wage license issued under this section, shall excuse noncompliance with any federal law or municipal ordinance which establishes higher standards.
DWD 272.09(13)
(13) Work activity centers. This section does not prevent an employer from maintaining or establishing a work activity center to provide therapeutic activities for workers with disabilities as long as the employer complies with the requirements of this section.
DWD 272.09(14)
(14) Licensing under a special license requested by a sponsoring agency. A sponsoring agency may request a special minimum wage license on behalf of a worker with a disability. The department may issue a license to a worker with a disability which will authorize an employer to pay the rate of pay stated on the license. An employer that hires a licensed worker with a disability shall retain a photocopy of the license for the employer's records. A license issued under this subsection is effective for not more than one year.
DWD 272.09 Note
Note: The intent of issuing this type of license to a worker with a disability instead of to the employer is to permit the sponsoring agency to make short term placements which enable the worker to gain a variety of experiences without putting the burden on each employer to obtain a license. However, this does not relieve an employer from complying with the Federal Labor Standards Act which requires that an individual subminimum wage license be issued to any federally covered employer.
DWD 272.09(15)
(15) Student learners. A license may be issued for a student who is enrolled in a bona fide school training program.
DWD 272.09(15)(a)1.1. Applications shall be filed with the department by the school on behalf of the employer.
DWD 272.09(15)(a)2.
2. The application must be made on a form provided by the department, and accompanied by a copy of the training agreement, or, in the absence of such agreement, a copy of the program or curriculum may be submitted. The application must be signed by the employer, the appropriate school official, the student, and the student's parent or guardian.
DWD 272.09(15)(b)2.
2. The employment at subminimum rates is necessary to provide employment opportunities under the program.
DWD 272.09(15)(b)3.
3. The student must be at least 14 years of age and obtain a work permit if under 18 years of age.
DWD 272.09(15)(b)4.
4. The occupation for which the student is receiving preparatory training must require a sufficient degree of skill to necessitate a learning period.
DWD 272.09(15)(b)5.
5. The training must not be for the specific purpose of acquiring manual dexterity and high production speed in repetitive operation. In case of a training program which does not qualify as a bona fide training program within the meaning of s.
104.01 (6), Stats., the employer must pay the trainee the minimum wage for all time spent on the training program whether such time is instructional or work in nature.
DWD 272.09(15)(b)6.
6. The employment must not have the effect of displacing a worker employed in the establishment. A student learner must be paid minimum wage for time spent doing work which would be normally done by a regular paid employee if the student learner performed the work.
DWD 272.09(15)(b)7.
7. The employment must not tend to impair or depress the wage rates or working standards established for experienced workers for work of a like or comparable character.
DWD 272.09(15)(b)8.
8. The issuance of such license must not tend to prevent the development of apprenticeship nor impair established apprenticeship standards in the occupation or industry involved.
DWD 272.09(15)(c)1.c.
c. The name and address of the school which provides the related school instructions.
DWD 272.09(15)(c)3.
3. The license shall be effective for the period designated thereon, and no license shall be issued retroactively.
DWD 272.09(15)(c)4.
4. A student may work a number of hours in addition to the daily and weekly hours of employment training authorized by the license provided the total hours of work shall not exceed the limits set forth in s.
DWD 270.05, and that the pay for such hours is not less than that prescribed in s.
DWD 272.03.
DWD 272.09(15)(c)5.
5. Students under 18 years of age may not serve at any job prohibited by statute, or orders of the department. (See s.
DWD 270.03.)
DWD 272.09(15)(c)6.
6. A training agreement shall set down the scheduled duties and responsibilities of the local school, the employer, the student, and the student's parent or guardian. The training agreement shall be signed by an appropriate school official, the employer, the student, and the student's parent or guardian.
DWD 272.09(15)(c)7.
7. The department may set a rate of less than 75% of the rates in s.
DWD 272.03 for student learners with disabilities if justified by extraordinary circumstances. The rates granted shall be commensurate with the student's ability.
DWD 272.09(15)(d)
(d) Employment records to be kept. In addition to the records required in s.
DWD 272.11 the employer shall keep the following for each student employed at a subminimum wage rate.
DWD 272.09(15)(d)1.
1. The student shall be identified on the payroll records, showing the student's occupation and rate of pay.
DWD 272.09(15)(d)2.
2. The employer's copy of the license and training agreement must be available at all times for inspection for a period of 3 years.
DWD 272.09(16)(a)(a) The department may deny or revoke a special minimum wage or student learner license for cause at any time. The department may amend or modify a special minimum wage or student learner license if conditions or extraordinary circumstances warrant the action. The grounds for revocation or denial include but are not limited to the facts specified in this subsection.
DWD 272.09(16)(a)1.
1. A license may be revoked or denied if misrepresentations or false statements have been made to obtain the license or to permit a worker with a disability to be employed under the license.
DWD 272.09(16)(a)2.
2. A license may be revoked or denied if any provision of the Wisconsin labor standards law or any of the terms of the license has been violated.
DWD 272.09(16)(a)3.
3. A license may be revoked or denied if the license is no longer necessary in order to prevent a curtailment of opportunities for employment.
DWD 272.09(16)(b)
(b) Unless the public interest requires otherwise, the department shall notify the employer of facts or conduct which may warrant revocation before beginning revocation proceedings and shall provide the employer an opportunity to demonstrate or achieve compliance with all legal requirements.
DWD 272.09 Note
Note: The legal procedure for license revocations is established by ch.
227, Stats.
DWD 272.09(17)
(17) Review. Any person that is aggrieved by an action of the department taken under this section may, within 60 days after learning of the action or within any additional time that the department might allow, file with the department a request for reconsideration or review. The department shall determine if a review shall be granted. If a review is conducted, it shall be conducted by the department. The department may provide other interested persons an opportunity to present data and views.
DWD 272.09(18)(a)
(a) The department and community-based rehabilitation organizations are committed to the continued development and implementation of individual vocational rehabilitation programs that will facilitate the transition of persons with disabilities into employment within their communities. This transition must take place under conditions that will not jeopardize the protection afforded by the minimum wage law to program participants, employees, employers or other programs providing rehabilitation services to individuals with disabilities.
DWD 272.09(18)(b)
(b) When all of the following criteria are met, the department shall not assert an employment relationship for the purposes of the minimum wage:
DWD 272.09(18)(b)1.
1. Participants are individuals with physical or mental disabilities for whom competitive employment at or above the minimum wage level is not immediately obtainable and who, because of their disabilities, will need intensive ongoing support to perform in a work setting.
DWD 272.09(18)(b)2.
2. Participation is for vocational exploration, assessment or training in a community-based placement work site under the general supervision of rehabilitation organization personnel.
DWD 272.09(18)(b)3.
3. Community-based placements are clearly defined components of individual rehabilitation programs developed and designed for the benefit of each participant. The statement of needed transition services established for the exploration assessment or training components shall be included in each participant's IWRP.
DWD 272.09(18)(b)4.
4. The department does not require disclosure of the information contained in the IWRP. However, the department does require documentation as to the participant's enrollment in the community-based placement program. The participant and, when appropriate, the parent or guardian of the participant, shall be fully informed of the IWRP and the community-based placement component and shall have indicated voluntary participation with the understanding that participation in such a component does not entitle the participant to wages.
DWD 272.09(18)(b)5.
5. The activities of the participants at the community-based placement site do not result in an immediate advantage to the business. The department shall be more likely to conclude that there has been no immediate advantage to the business if all of the following determinations can be made:
DWD 272.09(18)(b)5.a.
a. There has been no displacement of employees, vacant positions have not been filled, employees have not been relieved of assigned duties, and the participants are not performing services that, although not ordinarily performed by employees, clearly are of benefit to the business.
DWD 272.09(18)(b)5.b.
b. The participants are under continued and direct supervision by either representatives of the rehabilitation facility or by employees of the business.
DWD 272.09(18)(b)5.c.
c. The placements are made according to the requirements of the participant's IWRP and not to meet the labor needs of the business.
DWD 272.09(18)(b)5.d.
d. The periods of time spent by the participants at any one site or in any clearly distinguishable job classification are specifically limited by the IWRP.
DWD 272.09(18)(b)7.
7. A participant is not entitled to employment at the business at the conclusion of his or her IWRP, however, if a participant does becomes an employee, he or she cannot be considered to be a trainee at that particular community-based placement unless he or she is in a clearly distinguishable occupation.
DWD 272.09(18)(c)
(c) An employment relationship shall exist unless all of the criteria described in par.
(b) are met. If an employment relationship is found to exist, the business shall be held responsible for full compliance with the applicable sections of the minimum wage law.
DWD 272.09(18)(d)
(d) Businesses and rehabilitation organizations may, at any time, consider participants to be employees and may structure a program so that the participants are compensated in accordance with the requirements of the minimum wage law. Whenever an employment relationship is established, the business may make use of the special minimum wage provisions provided by this section.
DWD 272.09 History
History: Cr.
Register, July, 1978, No. 271, eff. 8-1-78; r. and recr. (2) (a) 1. and am. (2) (a) intro. and 2.,
Register, August, 1987, No. 380, eff. 9-1-87; r. (1), (2) and (4), renum. (3) to be (15), cr. (1) to (14), (16) and (17),
Register, January, 1991, No. 421, eff. 2-1-91; am. (1) (g) (h) (intro.) and (m),
Register, May, 1997, No. 497, eff. 6-1-97; correction in (1) (h) 2. made under s.
13.92 (4) (b) 6., Stats.,
Register February 2009 No. 638;
2019 Wis. Act 1: am. (1) (e), (n)
Register May 2019 No. 761, eff. 6-1-19;
CR 20-031: am. (1) (g), (m), (15) (c) 7.
Register October 2021 No. 790, eff. 11-1-21.
DWD 272.10
DWD 272.10 Listing deductions from wages. An employer shall state clearly on the employee's paycheck, pay envelope, or paper accompanying the wage payment the number of hours worked, the rate of pay and the amount of and reason for each deduction from the wages due or earned by the employee, except such miscellaneous deductions as may have been authorized by request of individual employees for reasons personal to themselves. A reasonable coding system may be used by the employers.
DWD 272.10 History
History: Cr.
Register, July, 1978, No. 271, eff. 8-1-78;
cr. (1) (dm) and (18), renum. (1) (g) to (i) to be (1) (i), (L) and (n), (1) (g), (h), (j), (k) and (m) renum. from Ind 72.01 (12) to (15) and (17),
Register, February, 1996, No. 482, eff. 3-1-96.
DWD 272.11
DWD 272.11 Permanent records to be kept by the employer. DWD 272.11(1)(1)
Every employer shall make and keep for at least 3 years payroll or other records for each of their employees which contain:
