STATEMENT OF SCOPE
Department of Workforce Development
Rule No.
Relating to
Minimum Wage and Hours of Work and Overtime
Rule Type
Permanent
Detailed Description of the Objective of the Proposed Rule
The proposed permanent rule will modify ch. DWD 272 relating to minimum wages to implement various statutory updates from the past several years, clarify, and update the language of the rule. The proposed permanent rule will also modify ch. DWD 274 relating to hours of work and overtime to conform to state statutes, clarify, and update the language of the rule. Description of Existing Policies Relevant to the Rule, New Policies Proposed to be Included in the Rule, and an Analysis of Policy Alternatives
Outdated definitions
Various definitions in chs. DWD 272 and 274 are outdated. The proposed rule will update these definitions to be consistent with current statutory definitions and current usage. Updates to conform with statutory changes
2015 Wis. Act 55 modified ch. 104, Stats. and made several changes related to minimum wage and how tips or similar gratuities are counted towards the minimum wage. 2021 Wis. Act 26 requires the Department to modify ch. DWD 272 to allow an employer to require tipped employees to sign electronically or otherwise acknowledge electronically, the counting of tips to fulfill the employer's requirement to pay minimum wage. Chapter DWD 272 will be modified to conform with these statutory changes. 2013 Wis. Act 286 updated s. 104.09, Stats., to clarify that employers are not required to keep a record of the hours worked by an employee not paid on an hourly basis who is exempt from the overtime requirements of s. 103.02, Stats. The proposed rule will revise ch. DWD 272 to conform to the statute. Clarification and updating of certain provisions
The proposed rule may update rules in ch. DWD 272 for clarity, to eliminate sections that repeat statutory language without providing additional interpretation, to update out-of-date language, and to correct typographical errors. The proposed rule may update ch. DWD 272.09 to clarify and modernize these provisions given changes in federal laws, including the federal Workforce Innovation and Opportunity Act (WIOA). The proposed rule may update rules in chs. DWD 274 consistent with regulations interpreting the federal Fair Labor Standards Act (FLSA) at 29 CFR parts 541, 778, and 785. The proposed rule will also correct obvious typographical errors in ch. DWD 274. Policy Alternatives
The policy alternative is to do nothing, which would leave unchanged rules in chs. DWD 272 and 274 that are inconsistent with changes to federal and state statutes and contain outdated and archaic language and typographical errors. Also, rules in ch. DWD 272 would continue to fail to address direct deposit, payroll debit cards, and electronic access to paystubs. Detailed Explanation of Statutory Authority for the Rule (Including the Statutory Citation and Language)
"(7) MINIMUM WAGE ESTABLISHED BY DEPARTMENT. The department shall promulgate rules providing the minimum wage for all of the following:
(a) An employee or worker with a disability covered under s. 104.07. (b) A student learner.
(c) A student employed by an independent college or university for less than 20 hours per week.
(8) EMPLOYMENT EXEMPTED BY DEPARTMENT. The department shall promulgate rules exempting from the minimum wage requirements under subs. (1) to (7) all of the following:
(a) A person engaged in casual employment in and around an employer’s home on an irregular or intermittent basis for not more than 15 hours per week.
(b) A person who resides in the home of an employer who, due to advanced age or physical or mental disability, cannot care for his or her own needs, for the purpose of companionship and who spends not spends not more than 15 hours per week on general household work for the employer.
(c) An elementary or secondary school student performing student performing student work-like activities in the student’s school."
"104.045 Tips, meals, lodging, and hours worked. The department shall promulgate rules governing all of the following:
