Ch. DWD 290 Note
Note: Chapter Ind 90 was renumbered chapter ILHR 290 under s. 13.93 (2m) (b) 1., Stats.,
Register, April, 1996, No. 484. Chapter ILHR 290 was revised by emergency rule effective May 10, 1997. Chapter ILHR 290 was renumbered chapter DWD 290 under s. 13.93 (2m) (b) 1., Stats., and corrections made under s. 13.93 (2m) (b) 6. and 7., Stats.,
Register, September, 1997, No. 501.
DWD 290.001
DWD 290.001 Scope. This chapter applies to all prevailing wage rate determinations under ss.
66.0903,
66.0904, and
103.49, 2009 Stats., and to the certification of prevailing wage rates and the notification of minor subcontractors under s.
103.50, 2009 Stats.
DWD 290.001 History
History: Cr.
Register, September, 1997, No. 501, eff. 10-1-97;
correction made under s. 13.93 (2m) (b) 7., Stats.,
Register, July, 2000, No. 535;
CR 10-092: am.
Register December 2010 No. 660, eff. 1-1-11;
correction made under s. 13.92 (4) (b) 7., Stats.,
Register June 2017 No. 738.
DWD 290.01
DWD 290.01 Definitions. The following definitions shall apply to all prevailing wage rate determinations issued by the department pursuant to this chapter:
DWD 290.01(1)
(1) “Allowable rate" means the rate determined by the department from its review of a collective bargaining agreement by subtracting items which do not represent bona fide fringe benefits.
DWD 290.01 Note
Note: This term is used in s.
DWD 290.015 (3). Two examples of items which do not represent bona fide fringe benefits are industry or contract administration funds.
DWD 290.01 Note
Note: Section
66.0903 (1) (a), 2009 Stats., provides that “area" means “the county in which a proposed project of public works 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 or, if the department is requested to review a determination under sub. (3) (br), “area" means the city, village or town in which a proposed project of public works that is subject to this section is located." The same definition is provided in s.
66.0904 (1) (a), 2009 Stats., except that the cross-reference relating to the review of a determination is to s.
66.0904 (4) (e), 2009 Stats. The same definition is provided in s.
103.49 (1) (a), 2009 Stats., except that the cross-reference relating to the review of a determination is to s.
103.49 (3) (c), 2009 Stats. The same definition is provided in s.
103.50 (1) (a), 2009 Stats., except that there is no cross-reference relating to the review of a determination.
DWD 290.01 Note
Note: Sections
66.0903 (1) (am) and
66.0904 (1) (am), 2009 Stats., both provide that “bona fide economic benefit" has the meaning given in s.
103.49 (1) (am), 2009 Stats. Section
103.49 (1) (am), 2009 Stats., provides that “bona fide economic benefit" means “an economic benefit for which an employer makes irrevocable contributions to a trust or fund created under
29 USC 186(c) or to any other bona fide plan, trust, program or fund no less often than quarterly or, if an employer makes annual contributions to such a bona fide plan, trust, program or fund, for which the employer irrevocably escrows moneys at least quarterly based on the employer's expected annual contribution."
DWD 290.01(4)
(4) “Contractor" means a person, including but not limited to a sole proprietor, a partnership, a corporation, a limited liability company, a construction manager or consultant, a Wisconsin state agency as defined in s.
103.49 (1) (f), 2009 Stats., or a local governmental unit as defined in s.
66.0903 (1) (d), 2009 Stats., who has entered into a contract with a state agency or local governmental unit for a project of public works, or who has entered into a contract with an owner or developer of real property for a publicly funded private construction project.
DWD 290.01 Note
Note: In an Opinion of the Attorney General issued on November 12, 2009, OAG-5-09, the Attorney General states that, effective January 1, 2010, state prevailing wage rates must be paid to the employees of a local governmental unit that enters into an agreement to perform services for another local governmental unit on a project of public works. Under this rule, the same requirement also applies to any agreement for services entered into before January 1, 2010, and to any work that is claimed to be done pursuant to the joint exercise of powers or duties under s.
66.0301 (2), 2009 Stats., before or after January 1, 2010, when the circumstances show that the work comes under the definition of work done by a “contractor" or “employer."
DWD 290.01(5)
(5) “Department" means the state of Wisconsin department of workforce development.
DWD 290.01 Note
Note: Section
66.0904 (1) (c), 2009 Stats., provides that “direct financial assistance" means moneys, in the form of a grant or other agreement or included as part of a contract, cooperative agreement, or any other arrangement, including a redevelopment agreement under s.
66.1333 (5), economic development agreement, contract under s.
66.1105 (3), or assistance provided under s.
66.1109, that a local governmental unit directly provides or otherwise directly makes available to assist in the erection, construction, repair, remodeling, demolition, of a private facility. “
Direct financial assistance" does not include any of the following:
DWD 290.01 Note
1. A public works contract, a supply procurement contract, a contract of insurance or guaranty, a collective bargaining agreement, or any other contract under which moneys are not directly provided or otherwise directly made available for that assistance.
DWD 290.01 Note
2. Any moneys allocated by the city of Milwaukee for the purchase of public access easements that are located entirely in the Milwaukee Riverwalk Site Plan Review Overlay District established by the city of Milwaukee, as amended to June 1, 2009, or for the construction of dockwalls, walkways, plazas, parks, private roadways open to the public, or similar improvements, or for any other public infrastructure improvements, that are located entirely in that district, if the work on those improvements is subject to s.
66.0903, 2009 Stats., or is exempted from that section under s.
66.0903 (6), 2009 Stats.
DWD 290.01(6)
(6) “Employer" means any contractor, subcontractor, agent or other person, including a Wisconsin state agency as defined in s.
103.49 (1) (f), 2009 Stats., or a local governmental unit as defined in s.
66.0903 (1) (d), 2009 Stats., doing or contracting to do all or a part of the work.
DWD 290.01 Note
Note: In an Opinion of the Attorney General issued on November 12, 2009, OAG-5-09, the Attorney General states that, effective January 1, 2010, state prevailing wage rates must be paid to the employees of a local governmental unit that enters into an agreement to perform services for another local governmental unit on a project of public works. Under this rule, the same requirement also applies to any agreement for services entered into before January 1, 2010, and to any work that is claimed to be done pursuant to the joint exercise of powers or duties under s.
66.0301 (2), 2009 Stats., before or after January 1, 2010, when the circumstances show that the work comes under the definition of work done by a “contractor" or “employer."
DWD 290.01(6m)
(6m) “Facility" means all or any portion of a building, a structure, land, infrastructure, or other real property.
DWD 290.01(10)
(10) “Hourly contributions" is the per hour cost of the economic benefits paid to a laborer, worker, mechanic or truck driver by his or her employer, in addition to the hourly basic rate of pay. Payment for food, lodging, mileage, riding time, waiting time, call-in pay, uniforms, and the use of an employer's vehicle are excluded.
DWD 290.01 Note
Note: Specific economic benefits. (Interpretation)
DWD 290.01 Note
(a) The term “other bona fide economic benefit" is the so-called “open end" provision. This was included so that new economic benefits may be recognized by the department as they become prevailing. A particular economic benefit need not be recognized beyond a particular area in order for the department to find that it is prevailing in that area.
DWD 290.01 Note
(b) To insure against considering or giving credit to any and all economic benefits, some of which might be illusory or not genuine, the qualification required by the department is that the economic benefits must be bona fide. No difficulty is anticipated in determining whether a particular economic benefit is bona fide in the ordinary case where benefits are those common in the construction industry and which are established under a usual fund, plan or program. The following are typical conventional economic benefits: medical or hospital care, pensions on retirement or death, compensation for injuries or illness resulting from occupational activity, or insurance to provide any of the foregoing, unemployment benefits, life insurance, disability and sickness insurance, or accident insurance, vacation and holiday pay, defrayal of costs of apprenticeship or other similar programs, or other bona fide economic benefits, but only where the employer is not required by other federal, state, or local law to provide any of the benefits. Employers may take credit for contributions made under such conventional plans without requesting the approval of the department.
DWD 290.01 Note
(c) Economic benefits which an employer is required to pay pursuant to other federal, state, or local law are excluded. No credit shall be taken for the payments made for these economic benefits. For example, payments for worker's compensation insurance under either a compulsory or elective state statute are not payments for economic benefits under s.
66.0903 or
103.49, 2009 Stats. The omission in the above-mentioned statutes of any express reference to these payments, which are common in the construction industry, suggests that these payments shall not be regarded as an economic benefit.
DWD 290.01(10)(a)
(a) Contribution irrevocably made by an employer to a trustee or to a third person. Contributions for bona fide economic benefits made to a trustee or to a third person irrevocably shall be considered in ascertaining any hourly contribution. The “third person" must be one who is not affiliated with the employer. The trustee must assume the usual fiduciary responsibilities imposed upon trustees by applicable law. The trust or fund, except those used for apprenticeship training, must be set up so that the employer be unable to recapture any of the required contributions paid in or to divert the funds.
DWD 290.01 Note
Note: Although contributions made to a trustee or third person pursuant to a benefit plan must be irrevocably made, this does not prevent return to the employer of sums which were paid in excess of the contributions actually called for by the plan, as where such excess payments result from error or from the necessity of making payments to cover the estimated cost of contributions at a time when the exact amount of the necessary contributions under the plan is not yet ascertained. For example, a benefit plan may provide for definite insurance benefits for employees in the event of the happening of a specified contingency such as death, sickness, accident, etc., and may provide that the cost of such definite benefits, either in full or any balance in excess of specified employee contributions, will be borne by the employer. In such case the return by the insurance company to the employer of sums paid in excess of the amount required to provide the benefits which, under the plan, are to be provided through contributions by the employer, will not be deemed a recapture or diversion by the employer of contribution made pursuant to the plan.
DWD 290.01(10)(b)
(b) Fund, plan or program. The contribution for an economic benefit must be made pursuant to a bona fide fund, plan, or program.
DWD 290.01 Note
Note: The phrase “fund, plan, or program" is intended merely to recognize the various types of arrangements commonly used to provide economic benefits through employer contributions. In interpreting this phrase, the department will be guided by the experience of the United States department of labor and United States treasury department in administering the Employee Retirement Income Security Act of 1974, of the U.S. department of labor in administering other related programs, and of the Wisconsin state insurance commissioner in administering employee welfare funds under ch. 641
, Stats.
DWD 290.01(10)(c)1.1. The reasonable anticipated cost to an employer pursuant to an enforceable written commitment to carry out a financially responsible plan or program shall be considered as an economic benefit.
DWD 290.01 Note
Note: These provisions are intended to permit the consideration of economic benefits that meet the requirements and are provided from the general assets of an employer.
DWD 290.01(10)(c)2.
2. No type of economic benefit is eligible for consideration as a so-called unfunded plan unless all of the following criteria apply:
DWD 290.01(10)(c)2.d.
d. The plan or program providing the economic benefits has been communicated in writing to the affected laborers, workers, mechanics and truck drivers.
DWD 290.01 Note
Note: As in the case of fringe benefit contributions made to a fund, plan, or program, an unfunded plan or program must be “bona fide" and not a mere simulation or sham to avoid compliance with s.
66.0903 or
103.49, 2009 Stats. In evaluating the per hour cost of the fringe benefit contribution for employers that “self-insure" all or a portion of their employees' health insurance, the department may use guidance from the discussion on determining the applicable premium for self-insured plans under the Consolidated Omnibus Reconciliation Act (COBRA) in the
Employer's Handbook: Mandated Health Benefits, Thompson Publishing Group, 1725 K Street, N.W., Suite 200, Washington, D.C. 20006.
DWD 290.01(10m)
(10m) “Incidental work" means work performed in a classification other than an employee's primary classification that is paid a lower prevailing wage rate and performed for 15% or less of the employee's time spent working on a particular project of public works or a particular publicly funded private construction project during a given work week.
DWD 290.01(11)
(11) “Laborers, workers, mechanics and truck drivers" includes subjourneypersons and properly registered and indentured apprentices but excludes clerical, supervisory, and other personnel not performing manual labor.
DWD 290.01 Note
Note: Section
66.0903 (1) (dr), 2009 Stats., provides that “minor service or maintenance work" means “a project of public works that is limited to minor crack filling, chip or slurry sealing, or other minor pavement patching, not including overlays, that has a projected life span of no longer than 5 years; the depositing of gravel on an existing gravel road applied solely to maintain the road; road shoulder maintenance; cleaning of drainage or sewer ditches or structures; or any other limited, minor work on public facilities or equipment that is routinely performed to prevent breakdown or deterioration."
DWD 290.01(12)(b)
(b) For the projects of the state or a state agency under s.
103.49, 2009 Stats., “minor service or maintenance work" has the same meaning as in s.
103.49 (1) (bj), 2009 Stats.
DWD 290.01 Note
Note: Section
103.49 (1) (bj), 2009 Stats., provides that “minor service or maintenance work" means “a project of public works that is limited to minor crack filling, chip or slurry sealing, or other minor pavement patching, not including overlays, that has a projected life span of no longer than 5 years cleaning of drainage or sewer ditches or structures; or any other limited, minor work on public facilities or equipment that is routinely performed to prevent breakdown or deterioration."
DWD 290.01 Note
Note: Section
66.0904 (1) (fm), 2009 Stats., provides that “minor service or maintenance work" means “a publicly funded private construction project that is limited to minor crack filling, chip or slurry sealing, or other minor pavement patching, not including overlays, that has a projected life span of no longer than 5 years; the depositing of gravel on an existing gravel road applied solely to maintain the road; road shoulder maintenance; cleaning of drainage or sewer ditches or structures; or any other limited, minor work on private facilities or equipment that is routinely performed to prevent breakdown or deterioration."
DWD 290.01(13)
(13) “Minor subcontract" means a subcontract with an estimated cost that is less than $2,000.00 and an estimated work duration of less than 3 days.
DWD 290.01 Note
Note: Section
66.0903 (1) (g), 2009 Stats., provides: “1. Except as provided in subd. 2., “prevailing wage rate" for any trade or occupation engaged in the erection, construction, remodeling, repairing or demolition of any project of public works 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 on projects in the area.
DWD 290.01 Note
2. If there is no rate at which a majority of the hours worked in the trade or occupation on projects in the area is paid, “prevailing wage rate" for any trade or occupation engaged in the erection, construction, remodeling, repairing or demolition of any project of public works in any area 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% of hours worked in that trade or occupation on projects in that area." Sections
103.49 (1) (d) and
103.50 (1) (d), 2009 Stats., contain the same definition. Section
66.0904 (1) (h), 2009 Stats., contains the same definition except that it refers to a “publicly funded private construction project" instead of a “project of public works."
DWD 290.01(16)(b)
(b) In determining whether there is a majority of hours worked at a particular rate of pay, the department shall consider the sum of the hourly basic rate of pay plus corresponding hourly contributions rate. If there is a majority of hours worked at the rate that is that sum and there is more than one combination of hourly basic rates plus hourly contributions rates that equal that sum, the prevailing wage rate shall be the hourly basic rate of pay and corresponding hourly contributions rate with the most hours reported that resulted in that sum.
DWD 290.01(16)(c)
(c) In calculating the weighted average of the “highest-paid 51% of hours worked" in a trade or occupation, the department shall include all hours worked at the sum of the hourly basic rates of pay and corresponding hourly contributions rates that include the highest-paid 51% of hours worked.
DWD 290.01(16m)
(16m) “Prevailing wage rate determination" includes the original determination and subsequent determinations modifying or otherwise changing the provisions of the original determination.
DWD 290.01(17)(a)(a) For the projects of a local governmental unit under s.
66.0903, 2009 Stats., “project of public works" or “public works project" or “project" has the same meaning as in s.
66.0903 (2), 2009 Stats.
DWD 290.01 Note
Note: Section
66.0903 (2), 2009 Stats., provides: “Subject to sub. (5), this section applies to any project of public works erected, constructed, repaired, remodeled, demolished for a local governmental unit, including all of the following:
DWD 290.01 Note
(a) A highway, street, bridge, building, or other infrastructure project.
DWD 290.01 Note
(b) A project erected, constructed, repaired, remodeled, demolished by one local governmental unit for another local governmental unit under a contract under s.
66.0301 (2),
83.03,
83.035, or
86.31 (2) (b) or under any other statute specifically authorizing cooperation between local governmental units.
DWD 290.01 Note
(c) A project in which the completed facility is leased, purchased, lease purchased, or otherwise acquired by, or dedicated to, a local governmental unit in lieu of the local governmental unit contracting for the erection, construction, repair, remodeling, demolition of the facility.
DWD 290.01 Note
(d) A road, street, bridge, sanitary sewer, or water main project in which the completed road, street, bridge, sanitary sewer, or water main is acquired by, or dedicated to, a local governmental unit, including under s.
236.13 (2), for ownership or maintenance by the local governmental unit."
DWD 290.01(17)(b)
(b) For the projects of the state or a state agency under s.
103.49, 2009 Stats., “project of public works" or “public works project" or “project" has the same meaning as in s.
103.49 (1m), 2009 Stats.
DWD 290.01 Note
Note: Section
103.49 (1m), 2009 Stats., provides: “Subject to sub. (3g), this section applies to any project of public works erected, constructed, repaired, remodeled, demolished for the state or a state agency, other than a highway, street, or bridge construction or maintenance project, including all of the following:
DWD 290.01 Note
(a) A project erected, constructed, repaired, remodeled, demolished by one state agency for another state agency under any contract or under any statute specifically authorizing cooperation between state agencies.
DWD 290.01 Note
(b) A project in which the completed facility is leased, purchased, lease purchased, or otherwise acquired by, or dedicated to, the state in lieu of the state or a state agency contracting for the erection, construction, repair, remodeling, demolition of the facility.
DWD 290.01 Note
(c) A “sanitary sewer" or water main project in which the completed sanitary sewer or water main is acquired by, or dedicated to, the state for ownership or maintenance by the state."
DWD 290.01 Note
Note: Section
66.0904 (1) (i), 2009 Stats., provides that “publicly funded private construction project" means: “a construction project in which the developer, investor, or owner of the project receives direct financial assistance from a local governmental unit for the erection, construction, repair, remodeling, demolition, including any alteration, painting, decorating, or grading, of a private facility, including land, a building, or other infrastructure. `Publicly funded private construction project' does not include a project of public works or a housing project involving the erection, construction, repair, remodeling, demolition of any of the following:
DWD 290.01 Note
1. An residential property, if the project is supported by affordable housing grants, home improvement grants, or grants from a local housing trust fund.
DWD 290.01 Note
2. A residential property containing 4 dwelling units or less.
DWD 290.01 Note
3. A residential property that contains retail, office, or commercial components, if the project is intended to increase the supply of affordable housing in a community."
DWD 290.01(18)(a)(a) “Site of project" means the physical place or places where the construction called for in the contract will remain when work on it has been completed and other adjacent or nearby property used by a contractor or subcontractor in connection with the project.
DWD 290.01(18)(b)
(b) “Site of project" includes fabrication plants, mobile factories, batch plants, borrow pits, job headquarters, tool yards and similar facilities, when these facilities are substantially dedicated to the performance of the contract or project and are located in proximity to the actual construction location.
DWD 290.01(18)(c)1.
1. A permanent home office, branch plant establishment, fabrication plant or tool yard whose location and continued operation is determined without regard to a particular contract or project.
DWD 290.01(18)(c)2.
2. A fabrication plant, batch plant, borrow pit, job headquarters, tool yard or similar facility which is established by a supplier of materials before the opening of bids, whether or not the operations of the facility may be substantially dedicated to the performance of the contract for a period of time.
DWD 290.01(19)
(19) “Subcontractor" means any subcontractor of a contractor and subcontractor of a subcontractor, regardless of tier of subcontractor.
DWD 290.01(20)
(20) “Subjourneyperson" means a worker who primarily works under the direction of, and assists, a skilled trade employee by frequently using the tools of a specific trade. “Subjourneyperson" does not include an apprentice, a laborer, a heavy equipment operator or a truck driver.
DWD 290.01 Note
Note: Each of the statutes cited provides that “supply and installation contract" means “a contract under which the material is installed by the supplier, the material is installed by means of simple fasteners or connectors such as screws or nuts and bolts and no other work is performed on the site, and the total labor cost to install the material does not exceed 20 percent of the total cost of the contract."
DWD 290.01(21)
(21) “Trade or occupation" means one of the job classifications recognized by the department that identifies the primary purpose and typical duties regularly performed by laborers, workers, mechanics and truck drivers employed in the erection, construction, remodeling, repairing or demolition of any building or any other public works project.
DWD 290.01(22)
(22) “Volunteer" means an individual who by choice offers and performs the work identified in s.
66.0903 (4),
66.0904 (3), or
103.49 (2m), 2009 Stats., without compensation or expectation of compensation and under the direction of the project owner, except that a volunteer may receive reimbursement payments for the costs of food, lodging, mileage and other reasonable expenses.
DWD 290.01 History
History: Cr.
Register, January, 1967, No. 133, eff. 2-1-67; am. (intro.), (1), (4), (9) (a), (c) 1., (c) 2a, (10), (11), (12), (14), (15), r. and recr. (8) and (9) (intro.), cr. (16) to (18),
Register, January, 1976, No. 241, eff. 2-1-76; am. (4) to (6), (9) (d), (10) to (13) and (15),
Register, January, 1986, No. 361, eff. 2-1-86;
am. (intro.),(2), cr. (1), (13), (16) (b) and (18), renum. (3) to (14) and (16) to (18) to be (12), (21), (7), (11), (16) (a), (14), (10), (22), (17), (3), (9), (8), (5), (4) and (19) and am. (11), (16) (a), and (5), r. (15); corrections made under s. 13.93 (2m) (b) 1.,
Register, September, 1997, No. 501, eff. 10-1-97; am. (intro.), (4), (6), (10) (a) to (c) and (18) (a) to (c) (intro.), r. (3), (7) to (9), (12) and (14), cr. (9), (17m) and (20p), r. and recr. (10) (intro.), (17) and (21), renum. (22) to be (16m) and am.,
Register, July, 2000, No. 535, eff. 8-1-00; corrections in (2), (10) (c) 2. b., (16) (a) and (17) made under s. 13.93 (2m) (b) 7., Stats.,
Register, July, 2000, No. 535;
CR 04-081: renum. (16) (b) to be (16) (c) and am., cr. (16) (b),
Register December 2006 No. 612, eff. 1-1-07;
CR 10-092: am. (2), (4), (6), (16) (a), (20), (20p), cr. (3), (5m), (6m), (10m), (12), (22), r. and recr. (17), (17m)
Register December 2010 No. 660, eff. 1-1-11; renumbering of (10m) and correction in (12) (c) made under s. 13.92 (4) (b) 1. and 7., Stats.,
Register December 2010 No. 660; correction in (2) to (4), (5m), (6), (9), (10) (c) 2. b., (12), (15), (16) (a), (17), (17m), (20p), (22) made under s. 13.92 (4) (b) 7., Stats.,
Register June 2017 No. 738.
DWD 290.015
DWD 290.015 Collecting and compiling wage rate information.
