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. DWD 290.015(1)(1)
Annual survey. For the purpose of making prevailing wage rate determinations, the department shall conduct an annual survey of employers and compile the prevailing wage rate for each trade or occupation in each area. The survey shall consist of forms mailed by the department to employers or an electronic survey application for completion and return.
DWD 290.015 Note
Note: The form referred to in this subsection may be obtained from the Department of Workforce Development, Equal Rights Division, P. O. Box 8928, Madison, WI 53708.
DWD 290.015(2)
(2) Survey deadline. The department shall include a deadline date on the forms sent to employers. A survey form shall be accepted for initial compilation if it is received at the department's offices with a postmark or an electronic filing date that is on or before the deadline date and it is properly completed.
DWD 290.015(3)
(3) Collective bargaining agreements. If the sum of the hourly basic rate of pay and allowable hourly contributions rate in a collective bargaining agreement that has been filed with the department for the current survey period is equal to the sum of the hourly basic rate of pay and hourly contributions rate that is found to prevail in a particular area for that particular trade or occupation on that particular type of work and the majority of hours used to determine the prevailing wage rates were submitted under a collective bargaining agreement, the department shall include in its determinations any future contractual increase or decrease provided for in the collective bargaining agreement or a successor agreement, that is filed before January 1 of the calendar year following the end of the survey period. The department, upon request, shall also include in its determinations any future contractual increase or decrease in overtime and premium pay, with the exception of height pay, pay for work with particular products, shift differential, and supervisory pay.
DWD 290.015(4)
(4) Corrections. The department may correct errors in compiling data from the completed surveys, based upon its own determination or its inquiry to an employer.
DWD 290.015(5)
(5) Insufficient data. If the wage rate data which the department may consider from all sources is insufficient to determine the prevailing wage rate for a particular trade or occupation in a particular area or for a particular type of project, the department may consider wage rate data compiled for a similar trade or occupation.
DWD 290.015(6)(a)(a) The department shall issue its initial prevailing wage determinations based on the annual survey. Any person may request a recalculation of any portion of an initial determination, based upon the submission of the evidence required by s.
66.0903 (3) (bm),
66.0904 (4) (d), or
103.49 (3) (b), 2009 Stats., if the request and the accompanying evidence are received at the department's offices within 30 days after the initial determination date.
DWD 290.015(6)(b)
(b) The department will accept a recalculation request on the basis of evidence that the employer did not receive a survey, that the employer properly mailed a survey form which the department did not receive, or that the survey data previously submitted was erroneous. A recalculation request will not be granted for the consideration of data that could have been submitted as a part of the annual survey but was not submitted on time.
DWD 290.015 Note
Note: The department is required to affirm or modify the initial determination within 15 days after the date on which the department receives the request for recalculation. Sections
66.0903 (3) (bm),
66.0904 (4) (d), and
103.49 (3) (b), 2009 Stats.
DWD 290.015(7)
(7) Final determinations. The department shall issue its final annual prevailing wage determinations after it has issued decisions on all timely recalculation requests. No corrections under sub.
(4) or recalculations under sub.
(6) for the preceding year's survey may be completed after March 1.
DWD 290.015 History
History: Cr.
Register, January, 1986, No. 361, eff. 2-1-86; correction in (5) (e) and (7) made under s. 13.93 (2m) (b) 7., Stats.,
Register, June, 1987, No. 378; r. and recr.
Register, September, 1997, No. 501, eff. 10-1-97; correction in (6) (a) made under s. 13.93 (2m) (b) 7., Stats.,
Register, July, 2000, No. 535;
CR 04-081: am. (3)
Register December 2006 No. 612, eff. 1-1-07;
CR 10-092: am. (1), (2), (3), (6), (7), r. (6m)
Register December 2010 No. 660, eff. 1-1-11; correction in (6) (a) made under s. 13.92 (4) (b) 7., Stats.,
Register June 2017 No. 738.
DWD 290.02(1)(1)
Apprentices may work at less than the prevailing wage rate for the work they perform when they are employed pursuant to and individually registered in a bona fide apprenticeship program administered by the U.S. department of labor, a state agency recognized by the U.S. department of labor, or under Wisconsin's apprenticeship law, ch.
106, Stats.
DWD 290.02(2)
(2) Any employee who is not properly registered as an apprentice under sub.
(1) shall be paid not less than the prevailing wage rate applicable to the work actually performed.
DWD 290.02(3)
(3) Apprentices shall be paid a percentage of the applicable journeyperson's hourly basic rate of pay and hourly fringe benefit contributions specified in the prevailing wage rate determination issued for a project.
DWD 290.02(4)
(4) The appropriate percentage shall be obtained from each apprentice's contract or indenture.
DWD 290.02 History
History: Cr.
Register, January, 1967, No. 133, eff. 2-1-67; am.
Register, January, 1976, No. 241, eff. 2-1-76; r. and recr.
Register, January, 1986, No. 361, eff. 2-1-86; am. (3) and (4), r. (5),
Register, July, 2000, No. 535, eff. 8-1-00.
DWD 290.025(1)(1)
The department shall include a determination of one or more subjourneyperson wage rates for a particular trade or occupation in a prevailing wage determination under the criteria set forth in this section.
DWD 290.025(2)
(2) The department shall determine whether there are at least 500 countable hours reported for a particular trade or occupation within a county, whether a collectively bargained wage rate and fringe benefit package prevails in the county for that trade or occupation, whether that wage rate is identical to an allowable rate in a collective bargaining agreement for that trade or occupation which has been filed with the department during the current survey period, and whether the collective bargaining agreement includes a wage rate for a classification equivalent to a subjourneyperson. If these conditions are present, the department shall determine subjourneyperson wage rates for the particular trade or occupation, based on the wage rates in the collective bargaining agreement applicable to that county. The department shall not consider data from contiguous counties when making a determination under this subsection.
DWD 290.025(3)
(3) As an alternative to sub.
(2), the department shall determine whether there are at least 500 countable hours reported for a particular trade or occupation within a county and whether the majority of the total hours reported for the trade or occupation were worked under collective bargaining agreements. If these conditions are present, the department shall determine subjourneyperson wage rates for the particular trade or occupation in accordance with the collective bargaining agreement that covers the greatest number of employees in the particular trade or occupation and is applicable to that county. The department shall not consider data from contiguous counties when making a determination under this subsection.
DWD 290.025(4)
(4) If neither the conditions in sub.
(2) nor the conditions in sub.
(3) are met, and there are at least 500 countable hours reported for a particular trade or occupation within a county, then the department shall determine subjourneyperson wage rates under this subsection.
DWD 290.025(4)(a)
(a) The entry-level subjourneyperson hourly basic rate of pay shall be equal to 35% of the journeyperson's hourly basic rate of pay for the trade or occupation plus 35% of the journeyperson's fringe benefit package.
DWD 290.025(4)(b)
(b) The regular subjourneyperson hourly basic rate of pay shall be equal to 65% of the journeyperson's hourly basic rate of pay for the trade or occupation plus 65% of the journeyperson's fringe benefit package.
DWD 290.025(4)(d)
(d) An employee shall not be employed at the entry-level subjourneyperson wage rate after one year of cumulative service in the trade or occupation. After one year of cumulative service, the employee shall be advanced to the regular subjourneyperson wage rate or be enrolled in an apprenticeship program or the employer shall not employ that employee on any project subject to a prevailing wage rate determination.
DWD 290.025(4)(f)
(f) Subject to the job site ratios in par.
(e), an employer may employ one person as an entry-level subjourneyperson for each current apprentice employed in the same trade or occupation.
