DWD 272.085(2)
(2) Elementary and secondary schools. Student worklike activities that meet the criteria of s.
DWD 270.19 are not covered by the minimum wage provisions of this chapter.
DWD 272.085 History
History: Cr.
Register, July, 1978, No. 271, eff. 8-1-78; correction made under s. 13.93 (2m) (b) 7., Stats.,
Register, February, 1996, No. 482; r. and recr.
Register, October, 2000, No. 538, eff. 11-1-00; correction in (2) made under s. 13.92 (4) (b) 7., Stats.,
Register February 2009 No. 638.
DWD 272.09
DWD 272.09 Subminimum wage licenses for rehabilitation facilities and for the employment of workers with disabilities and student learners. DWD 272.09(1)(a)
(a) “Commensurate wage" means a special minimum wage paid to a worker with a disability.
DWD 272.09(1)(c)
(c) “Employment relationship" means the relationship that exists whenever an individual, including an individual with a disability, is permitted to work.
DWD 272.09(1)(d)
(d) “Experienced worker" means a worker who has learned the basic elements or requirements of the work to be performed, ordinarily by completion of a probationary or training period.
DWD 272.09(1)(e)
(e) “Institution" means an entity which may be either a public or private entity and either a nonprofit or a for profit entity that receives more than 50% of its income from providing residential care for sick, aged, or mentally ill persons or persons with intellectual disabilities. “Institution" includes hospitals, nursing homes, intermediate care facilities, rest homes, convalescent homes, homes for the elderly and infirm, halfway houses, and residential centers for the treatment of drug addiction or alcoholism, whether licensed under s.
50.01, Stats., or not licensed.
DWD 272.09(1)(f)
(f) “Patient worker" means a worker with a disability employed by a hospital or institution providing residential care where the worker receives treatment or care without regard to whether the worker is a resident of the establishment. In determining whether a patient worker is “employed", the department shall consider whether the work performed is of any consequential economic benefit to the institution. Work is considered to be of consequential economic benefit if it is of the type that workers without disabilities normally perform. A patient does not become an employee if the patient merely performs personal housekeeping chores and receives token remuneration in connection with this activity. It may also be possible for patients in group homes or other family like settings to rotate or share household tasks or chores without becoming employees.
DWD 272.09(1)(g)
(g) “Sheltered workshop" means a rehabilitation facility which is a charitable organization or institution conducted not for profit, but for the purpose of carrying out a recognized program of rehabilitation for workers with disabilities providing such individuals with remunerative employment or other occupational rehabilitating activity of an educational or therapeutic nature.
DWD 272.09(1)(h)
(h) “Sheltered workshop training program" or ``rehabilitation training program" means a program of not more than 12 months duration designed to:
DWD 272.09(1)(h)1.
1. Develop the patterns of behavior which will help a client adjust to a work environment, or
DWD 272.09(1)(h)2.
2. Teach the skills and knowledge related to a specific occupational objective of a job family, and which meets the department of workforce development, division of vocational rehabilitation or equivalent standards.
DWD 272.09(1)(i)
(i) “Special minimum wage" means a wage authorized under a license issued to an employer that is less than the statutory minimum wage.
DWD 272.09(1)(j)
(j) “Sponsoring agency" means a sheltered workshop, governmental agency or a nonprofit charitable organization or institution carrying out an occupational rehabilitating activity of an educational or therapeutic nature.
DWD 272.09(1)(k)
(k) “Student learner" means a student who is receiving instruction in an accredited school, college or university and who is employed on a part-time basis, pursuant to a bona fide vocational training program.
DWD 272.09(1)(L)
(L) “Vicinity" or “locality" means the geographic area from which the labor force of the community is drawn.
DWD 272.09(1)(m)
(m) “Work activity center" means a rehabilitation facility, a workshop or a physically separated department of a workshop having an identifiable program, separate supervision and records, planned and designed exclusively to provide therapeutic activities for workers with disabilities whose physical or mental impairment is so severe as to make their productive capacity inconsequential.
DWD 272.09(1)(n)
(n) “Worker with a disability" means an individual whose earnings or productive capacity is impaired by a physical or intellectual disability, including those relating to age or injury, for the work to be performed. Disabilities which may affect earning or productive capacity include blindness, mental illness, intellectual disability, cerebral palsy, alcoholism and drug addiction. The following, taken by themselves, are not considered disabilities for the purposes of this section: vocational, social, cultural, or educational disabilities; chronic unemployment; receipt of welfare benefits; nonattendance at school; juvenile delinquency; and correctional parole or probation. Further, a disability which may affect earning or productive capacity for one type of work may not have this effect for another type of work.
DWD 272.09(2)(a)
(a) An individual whose earning or productive capacity is not impaired for the work being performed cannot be employed under a license and shall be paid at least the applicable minimum wage. An individual whose earning or productive capacity is impaired to the extent that the individual is unable to earn at least the applicable minimum wage may be paid a commensurate wage, but only after the employer has obtained a license authorizing the payment of a special minimum wage from the department.
DWD 272.09(2)(b)
(b) The employer may not deduct from the commensurate wages of patient workers employed in institutions to cover the cost of room, board or other services provided by the facility. A patient worker shall receive wages with no deductions except for amounts deducted for taxes and any voluntary wage assignments. These rules do not preclude the institution from assessing or collecting charges for room, board and other services actually provided to an individual to the extent permitted by federal or state law and on the same basis as it assesses and collects from nonworking patients.
DWD 272.09(2)(c)
(c) Under this chapter, an employment relationship arises whenever an individual is permitted to work. The determination as to the existence of an employment relationship does not depend upon the level of performance or whether the work is of some therapeutic benefit. It does not include such activities as making craft products when the individual voluntarily participates in such activities and the products become the property of the individual making them, or all the funds resulting from the sale of the products are divided among the participants in the activity or are used in purchasing additional materials to make craft products.
DWD 272.09(3)
(3) Compensable time. The employer shall compensate employees for all hours worked. Compensable time includes not only those hours during which the individual is actually performing productive work but also includes those hours when no work is performed but the individual is required by the employer to remain available for the next assignment. If the individual is completely relieved from duty and is not required to remain available for the next assignment, the time will not be considered compensable time. The burden of establishing that any hours are not compensable rests with the facility and the hours must be clearly distinguishable from compensable hours.
DWD 272.09 Note
Note: As an example, a person employed by a rehabilitation facility would not be engaged in a compensable activity if the person is completely relieved from duty but is provided therapy or the opportunity to participate in an alternative program or activity in the facility that does not involve work and is not directly related to the person's job (examples are self-help skills training, recreation, job seeking skills training, independent living skills, or adult basic education).
DWD 272.09(4)(a)(a) The department may grant temporary authority to an employer to permit the employment of workers with disabilities pursuant to a vocational rehabilitation program of the U.S. department of veterans affairs for veterans with a service-incurred disability or a vocational rehabilitation program administered by a state agency.
DWD 272.09(4)(b)
(b) Temporary authority under this subsection is effective for 90 days from the date that the designated section of the application form is completed and signed by the representative of the state agency or the U.S. department of veterans affairs, if the application form is sent to the department within 10 days of the signing. Temporary authority under this subsection may not be renewed or extended by the department.
DWD 272.09(4)(c)
(c) The signed application form constitutes the temporary authority to employ workers with disabilities at special minimum wage rates. The department shall review all applications under this subsection upon receipt and shall issue a license when the criteria for licensing are met. The department shall promptly notify the applicant if additional information is required or if the license is denied.
DWD 272.09(5)
(5) Criteria for employment under a special minimum wage rate license. DWD 272.09(5)(a)
(a) To determine whether the approval of special minimum wage rates is necessary in order to prevent the curtailment of opportunities for employment and to determine whether a particular employee will receive a commensurate wage, the department shall consider the following criteria:
DWD 272.09(5)(a)1.
1. The nature and extent of the disabilities of the employee as these disabilities relate to the employee's productivity.
DWD 272.09(5)(a)2.
2. The prevailing wages of experienced employees not disabled for the job that are employed in the vicinity in industry engaged in work comparable to the work under consideration.
DWD 272.09(5)(a)3.
3. The productivity of a worker with a disability compared to the norm established for nondisabled employees through the use of a verifiable work measurement method, or the productivity of experienced nondisabled employees employed in the vicinity on comparable work.
DWD 272.09(5)(a)4.
4. The wage rates to be paid to a worker with a disability for work comparable to that performed by experienced nondisabled employees.
DWD 272.09(5)(b)
(b) Before the license authorizing special minimum wage rates for workers with disabilities is issued, the employer shall provide the following written assurances concerning the employment:
DWD 272.09(5)(b)1.
1. In the case of employees paid at hourly rates, the special minimum wage rates shall be reviewed by the employer at periodic intervals with a minimum interval of once every 6 months.
DWD 272.09(5)(b)2.
2. Wages for all employees shall be adjusted by the employer at periodic intervals with a minimum interval of once each year to reflect changes in the prevailing wages paid to experienced nondisabled employees employed in the locality for essentially the same type of work.
DWD 272.09(6)(a)
(a) A prevailing wage rate is a wage rate that is paid to an experienced employee not disabled for the work to be performed. There may be more than one prevailing wage rate for a specific type of work in the given area. The department shall require an employer applying for a special minimum wage rate license to demonstrate that the wage rate used as prevailing for determining a commensurate wage was objectively determined according to the requirements of this subsection.
DWD 272.09(6)(b)
(b) An employer whose work force consists primarily of nondisabled employees or who employs more than a token number of nondisabled employees doing similar work shall use as the prevailing wage the wage rate paid to that employer's experienced nondisabled employees performing similar work. This requirement also applies to the determination of the prevailing wage rate when a sponsoring agency places a disabled employee on the premises of an employer covered by this paragraph.
DWD 272.09(6)(c)
(c) An employer whose work force primarily consists of employees disabled for the work to be performed may determine the prevailing wage by ascertaining the wage rates paid to the experienced nondisabled employees of other employers in the vicinity. This information may be obtained by conducting a survey of comparable businesses in the area that employ primarily nondisabled employees doing similar work. The businesses that are surveyed should be representative of the area in terms of wages paid to experienced employees doing similar work. The appropriate size of the sample will depend on the number of firms doing similar work but should include no less than 3 businesses unless there are fewer businesses doing similar work in the area. A comparable firm is one which is of similar size in terms of employees or which competes for or bids on contracts of a similar size or nature.
DWD 272.09(6)(d)
(d) If a survey is not practical, an employer may contact other sources such as the federal bureau of labor statistics or private or state employment services. If similar businesses cannot be found in the area defined by the geographic labor market, the closest comparable community may be used.
DWD 272.09(6)(e)
(e) The prevailing wage rate shall be based upon the wage rate paid to experienced nondisabled employees. Employment services which only provide entry level wage data are not acceptable as sources for prevailing wage information.
DWD 272.09(6)(f)
(f) The prevailing wage survey shall be based upon work utilizing similar methods and equipment. The employer shall employ a consistent methodology for tabulating the results of the survey.
DWD 272.09(6)(g)
(g) The employer shall record the following information in documenting the determination of prevailing wage rates:
DWD 272.09(6)(g)3.
3. Title and name of the individual contacted within the firm or source.
DWD 272.09(6)(g)6.
6. Basis for the conclusion that the wage rate is not based upon an entry level position.
DWD 272.09(6)(h)
(h) A prevailing wage may not be less than the minimum wage specified in this chapter.
DWD 272.09 Note
Note: If the employer is unable to obtain the prevailing wage for a specific job to be performed on the premises (for example, collating documents), it is acceptable to use as the prevailing wage the wage paid to experienced individuals employed in similar jobs requiring the same general skill levels (for example, file clerk or general office clerk).
DWD 272.09(7)(a)
(a) After considering the criteria given in sub.
(5), the department may issue a special license.
DWD 272.09(7)(b)
(b) If the department issues a special minimum wage license, it shall send a copy to the employer. If the department denies a license, it shall notify the employer in writing and provide the reasons for the denial.
DWD 272.09(8)
(8) Terms and conditions of special minimum wage licenses. DWD 272.09(8)(a)(a) The department shall specify the terms and conditions under which a special minimum wage license is granted.
DWD 272.09(8)(b)
(b) The department shall provide that a special minimum wage license applies to each worker employed by the employer receiving the license, provided that the worker is in fact disabled for the work that he or she is to perform.
DWD 272.09(8)(c)
(c) The department shall designate the period for which a special minimum wage license shall be effective. The employer may pay a wage lower than the minimum wage to a worker with a disability only during the effective period of a license which applies to that worker.
DWD 272.09(8)(d)
(d) No special minimum wage license shall authorize workers with disabilities to be paid wages that are less than commensurate with those paid to experienced nondisabled workers employed in the vicinity for essentially the same type, quality and quantity of work.
DWD 272.09(8)(e)
(e) Any special minimum wage license issued by the department shall require that workers with disabilities be paid not less than one and one half times the regular rate of pay for all hours worked in excess of 40 hours per week.
DWD 272.09(8)(f)
(f) The special minimum wage license shall require that the wage of each worker covered by the license be adjusted by the employer at periodic intervals of at least once per year to reflect changes in the prevailing wages paid to experienced persons who are not disabled and who are employed in the vicinity for essentially the same type of work.
DWD 272.09(8)(g)
(g) Each worker with a disability and, when appropriate, a parent or guardian of the worker, shall be informed, verbally and in writing, of the terms of the license under which the worker is employed. This requirement may be satisfied by making copies of the license available. If a worker with a disability displays an understanding of the terms of the license and requests that other parties not be informed, it is not necessary to inform a parent or guardian.
DWD 272.09(8)(h)
(h) The department shall use the criteria in this paragraph to establish piece rates for workers with disabilities.
DWD 272.09(8)(h)1.
1. The employer may establish standard production rates for workers not disabled for the work to be performed by using industrial work measurement methods, including but not limited to stop watch time studies, predetermined time systems, or standard data. The department may require the employer to demonstrate that a particular method is generally accepted by industrial engineers and has been properly executed. The employer may not require specific training or certification. An employer shall not be required to repeat the application of work measurement methods that have already been applied by another employer or source and that can be properly documented.
DWD 272.09(8)(h)1.a.
a. The piece rate paid to a worker with a disability shall be based on the standard production rate. The standard production rate is the number of units that an experienced worker who is not disabled for the work is expected to produce in one hour. The piece rate paid to a worker with a disability shall also be based on the prevailing industry wage rate paid to an experienced nondisabled worker in the vicinity for essentially the same type and quality of work or for work requiring similar skill. The piece rate is determined by dividing the prevailing industry wage rate by the standard number of units per hour.
DWD 272.09(8)(h)1.b.
b. The piece rate for a worker with a disability shall not be less than the actual prevailing piece rate paid to any experienced worker not disabled for the work who is doing the same or similar work in the vicinity.
DWD 272.09(8)(h)2.
2. Work measurement methods used to establish piece rates shall meet the following criteria:
DWD 272.09(8)(h)2.a.
a. If a stop watch time study is made, it shall be made with a person whose productivity represents normal performance. If this is not possible, an appropriate adjustment shall be made. An adjustment of this type, which may be referred to as a “performance rating"or “leveling", may be made only by a person knowledgeable in this technique, as evidenced by successful completion of training. The person observed in the stop watch time study shall be given time to practice the work to be performed in order to provide the person with an opportunity to overcome the initial learning curve. In addition, the person observed shall be trained to use the specific work method and tools which are available to the disabled workers for whom rates are to be established.
DWD 272.09(8)(h)2.b.
b. Work measurement methods shall allow appropriate time for personal time, fatigue, and unavoidable delays. In general, this should amount to an allowance of at least 15%, or nine to ten minutes per hour.
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.
