Wisconsin Legislature: DWD 301.015(25)

(5) “Common use room, shower facility, or toilet facility” means a room, toilet facility, or shower facility that is designed for use by occupants who are not members of the same family.

(6) “Communicable disease” means a disease listed in ch. DHS 145 Appendix A.

(7) “Department” means the department of workforce development.

(8) “Employer” has the meaning given in s. 103.90 (2), Stats.

(9) “Employer’s own operation” means any farm or other business enterprise wholly owned or managed by the employer.

Note: The above term is used in the definition of “migrant labor contractor” at s. 103.90 (4), Stats.

(10) “Employment” means the act of having direction and control of any worker, being responsible for the wages of a worker, or allowing a worker to perform work for the worker’s employer.

(11) “Fee or other consideration” means money or anything of value or benefit paid or promised to be paid for services as a migrant labor contractor.

Note: The above term is used in the definition of “migrant labor contractor” at s. 103.90 (4), Stats.

(12) “Habitable room” has the meaning given in s. SPS 320.07 (37).

(13) “Hand labor” means that work that is performed by hand or with hand tools in the field.

(14) “Handwashing facility” means a facility provided with running water for washing hands, arms, face, and head, including lavatories, basins, and sinks, both for cleanliness and for safety purposes.

(15) “Immediate family” means any of the following:

(a) A spouse.

(b) Natural, adopted, or foster children; stepchildren; and legal wards.

(d) Brothers, sisters, and half brothers and sisters.

(e) Grandparents.

Note: The above term is used in the definition of “migrant labor contractor” at s. 103.90 (4), Stats., and in s. DWD 301.07 (23) (b).

(16) “Migrant labor camp” has the meaning given in s. 103.90 (3), Stats.

(17) “Migrant labor contractor” has the meaning given in s. 103.90 (4), Stats.

(18) “Migrant worker” or “worker” has the meaning given in s. 103.90 (5), Stats.

(19) “Occupant” means any person who lives in a migrant labor camp.

(20) “Recruit or “recruitment” means to offer, or the offer of, employment to a migrant worker whether by personal contact, telephone, correspondence, or a recall notice due to a union contract.

(21) “Regular employee” means a person employed year round by an employer and who engages in activities as a migrant labor contractor solely for the employer.

Note: The above term is used in the definition of “migrant labor contractor” at s. 103.90 (4), Stats.

(22) “Service buildings” means common use facilities for toilets, lavatories, showers, and laundry facilities.

(23) “Terms and conditions of employment” includes job assignment, layoffs, discharge, filling vacancies, transfers, job bidding, seniority, hours, work schedule, overtime pay, leave of absence, benefits, insurance, pension, vacation, holiday leave, sick leave, and general working conditions.

(24) “Toilet facility” means a facility provided for the purpose of defecation or urination, or both, including water closets and biological or chemical toilets, and urinals.

(25) “Wisconsin commercial building code” means chs. SPS 361 to 366.

(26) “Working day” means any day except Saturday, Sunday, and holidays designated in s. 230.35 (4) (a), Stats.

History: CR 23-030: cr. (title), (intro.), (1), (2), renum. (3), (4) from DWD 301.07 (5) (a), (b) and, as renumbered, am. (4), cr. (5) to (8), renum. (9), (10), (11) from DWD 301.05 (6), DWD 301.06 (2), and DWD 301.05 (4) and am., cr. (12), renum. (13), (14) from DWD 301.09 (6) (a), (b) and am., cr. (15) to (18), renum. (19), (20), (21), (22), (23), (24) from DWD 301.07 (5) (c), DWD 301.06 (2m), DWD 301.05 (5), DWD 301.07 (5) (d), DWD 301.06 (10), and DWD 301.09 (6) (e) and, as renumbered, am. (20) to (23), cr. (25), (26) Register January 2024 No. 817, eff. 2-1-24.

DWD 301.02 Data. The department shall submit data and information relative to ss. 103.90 to 103.97, Stats., and this chapter to the council on migrant labor pursuant to specific requests from the council and through an annual report submitted to the council in January.

History: Cr. Register, April, 1978, No. 268, eff. 5-1-78; renum. from Ind 201.02, Register, February, 1993, No. 446, eff. 3-1-93.

DWD 301.03 Forms. The department shall issue and make available any forms that are required to comply with this chapter.

Note: All forms issued by the department to comply with this chapter may be obtained at https://dwd.wisconsin.gov/jobservice/MSFW/forms.htm or from the Department of Workforce Development, Migrant and Seasonal Farmworker Programs, Dane County Job Service, 1819 Aberg Avenue, Ste. C, Madison, WI 53704. Email address: MSFW@dwd.wisconsin.gov.

History: Cr. Register, April, 1978, No. 268, eff. 5-1-78; renum. from Ind 201.03, Register, February, 1993, No. 446, eff. 3-1-93; am. Register, December, 1997, No. 504, eff. 1-1-98; CR 07-018: am. Register December 2007 No. 624, eff. 1-1-08; CR 23-030: r. and recr. Register January 2024 No. 817, eff. 2-1-24.

DWD 301.04 Complainant confidentiality. The department may not disclose the name of a person filing a complaint with the department under s. 103.905 (4), Stats., if the person requests that the person’s name not be disclosed by the department.

History: Cr. Register, April, 1978, No. 268, eff. 5-1-78; renum. from Ind 201.04, Register, February, 1993, No. 446, eff. 3-1-93; CR 23-030: r. and recr. (title), r. (1), renum. (2) to DWD 301.04 and am. Register January 2024 No. 817, eff. 2-1-24.

DWD 301.05 Migrant labor contractors.

(1) Certificate of registration.

(a) A person shall apply annually to the department for issuance or renewal of a certificate of registration to engage in activities as a migrant labor contractor on a form prescribed by the department or on the form used to comply with 29 USC 1811(a). The fee for issuance or renewal of the certificate of registration shall be $100.

Note: Section 103.91 (1), Stats., prohibits a person from engaging in activities as a migrant labor contractor unless the person obtains a certificate of registration from the department. Section 103.91 (3), Stats., requires a certificate to be renewed annually.

(b) The department shall review and make a determination on a person’s application under par. (a) within 20 working days after the application is received. The department may extend the time period for making a determination in order to determine whether s. 103.91 (4) (b), (c), or (d), Stats., applies to the person.

Note: Sections 103.91 (4) (b), (c), and (d), Stats., specify the circumstances for denying, suspending, revoking, or not renewing a certificate of registration to engage in activities as a migrant labor contractor based on delinquencies in child or family support, taxes, or unemployment insurance contributions.

(c) If the department refuses to issue a certificate of registration to engage in migrant labor contractor activities to a person or suspends, revokes, or refuses to renew a person’s certificate of registration to engage in migrant labor contractor activities, the person may, within 20 days of the date of the refusal, suspension, or revocation, file a written request for a hearing under s. DWD 301.135. The request shall specify the grounds for the review and the relief sought.

(8) Duties. Every migrant labor contractor shall do all of the following:

(a) Submit a separate application for a migrant labor contractor employee identification card on a form prescribed by the department or the form used to comply with 29 USC 1811 (b) for each officer, director, partner, or agent of the migrant labor contractor at the time of application or within 10 days after hiring or contracting with such person.

(am) Provide to the department a copy of the migrant labor contractor’s certificate of registration as a farm labor contractor issued pursuant to 29 USC 1811 (a) and the certificate of registration issued to any individual hired, employed, or used by the migrant labor contractor to perform farm labor contracting activities.

(b) Keep records that show all of the following for each worker recruited:

1. Name in full and home address.

2. All fees and other consideration paid to the migrant labor contractor on account of the labor or recruitment of the worker.

3. The cost to the migrant labor contractor of goods and services provided to the worker.

4. All sums and the purpose for all sums received from or on behalf of the worker.

(bm) Preserve the records specified in par. (b) for a period of 3 years and make them available to the worker or the department for inspection upon request.

(c) Provide a policy under s. 103.91 (8) (f), Stats., the limits of which with respect to each vehicle shall be not less than $100,000 for each seat in the vehicle, but in no event is the total insurance required to be more than $5,000,000 for any one vehicle. For purposes of this paragraph, the number of seats in the vehicle is the manufacturer’s rated capacity or, for vehicles fitted or customized after manufacture, the number of seats prescribed in 29 CFR 500.105 (b) (3) (vi) (D). This paragraph shall not apply if the migrant labor contractor furnishes transportation only as the agent of an employer who has obtained a policy of insurance against liability for damages arising out of the operation of motor vehicles with coverage equivalent to the coverage required under this paragraph.

(d) Provide a completed Vehicle Mechanical Inspection Report Form WH-514 for each vehicle used to transport individuals or property in connection with activities as a migrant labor contractor.

Note: Form WH-514 is available for the U.S. Department of Labor at https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/wh514.pdf.

(e) Provide every worker recruited a written work agreement as specified in ss. 103.90 to 103.97, Stats., and this chapter. If recruitment of a worker is by telephone, the migrant labor contractor shall provide the written work agreement as soon as reasonably possible.

History: Cr. Register, April, 1978, No. 268, eff. 5-1-78; cr. (9), Register, March, 1986, No. 363, eff. 4-1-86; renum. from Ind 201.05, Register, February, 1993, No. 446, eff. 3-1-93; am. (2), (8) (a), (c) and (d), Register, December, 1997, No. 504, eff. 1-1-98; CR 07-018: am. (1) and (8) (a) Register December 2007 No. 624, eff. 1-1-08; CR 23-030: cr. (1) (title), cons. (1) and (2) and renum. to (1) (a) and am., cr. (1) (b), (c), r. (3), renum. (4), (5), (6) to DWD 301.015 (11), (21), (9) and am., r. (7), cr. (8) (title), am. (8) (intro.), (a), cr. (8) (am), renum. (8) (b) to (8) (b) (intro.) and (bm) and am., am. (8) (c) to (e), r. (9) Register January 2024 No. 817, eff. 2-1-24.

DWD 301.06 Work agreements and written disclosures.

(1) A single work agreement for a family may be used only when all of the terms and conditions of employment are substantially similar for all working family members.

(1e) A work agreement and written recruiting disclosure statement shall include all of the following:

Note: Section 103.915 (1) (a), Stats., requires that a migrant worker be provided with a written recruiting disclosure statement containing the information required in a work agreement at the time of the worker’s recruitment.

(a) A description of cooking, bathing, laundry, and toilet facilities.

(b) A statement of the maximum number of persons to be accommodated in the following:

1. If the work agreement is for employment of a single person, the sleeping area to which the person will be assigned.

2. If the work agreement is for employment of a family, the housing unit to which the family will be assigned.

(c) The positions related to planting, cultivating, raising, harvesting, handling, drying, packing, packaging, processing, freezing, grading, or storing any agricultural or horticultural commodity in its unmanufactured state.

(d) Transportation costs, if any, paid by the worker.

(e) If the employer provides transportation for the worker, the specific mode of transportation, including the type of vehicle used.

(f) If the employer makes a payroll deduction for a travel or subsistence advance, the rate of the deduction.

(3) If an employer does not use the department’s prescribed migrant labor work agreement form, the employer shall use a form approved by the department. An employer may not use a form unless it has been approved by the department prior to its use. When considering an employer’s form for approval, the department shall, in addition to the requirements of s. 103.915 (4), Stats., take into account the clarity and design of such form.

(3m) An employer may offer to provide to a migrant worker a migrant labor work agreement in an electronic form as provided in s. 137.15, Stats. If the migrant worker does not consent to receive the migrant labor work agreement electronically, the employer shall provide a physical copy of the migrant labor work agreement. By the first day of work, an employer shall provide a physical copy of the migrant labor work agreement to all migrant workers, including those who consented to receive the agreement electronically.

(8)

(a) The minimum work guarantee under s. 103.915 (4) (b), Stats., shall cover the period from the date the worker is notified by the employer to report for work, which date shall be reasonably related to the approximate beginning date specified in the work agreement or the date the worker reports for work, whichever is later, and continuing until the date of the final termination of employment, as specified in the work agreement, or earlier if the worker is terminated for cause or due to seriously adverse circumstances beyond the employer’s control. If a worker is notified by the employer to report for work or is employed prior to the approximate beginning date specified in the work agreement, the period of employment and the guarantee of minimum work shall begin on the date the worker is notified to report for work or the date the worker reports for work, whichever is later, and shall continue until the final termination of employment, as specified in the work agreement, signed at the time of recruitment, or earlier if the worker is terminated for cause or due to seriously adverse circumstances beyond the employer’s control.

(b) For purposes of par. (a), a date shall be considered “reasonably related to the approximate beginning date specified in a work agreement” if the number of days between the date the worker is notified by the employer to report for work and the approximate beginning date specified in the work agreement pursuant to s. 103.915 (4) (b), Stats., is no greater than 15% of the length of time between the approximate beginning date specified in the work agreement and the date of the final termination of employment as specified in the work agreement or 10 days, whichever is shorter.

(c) For purposes of par. (a) and s. 103.915 (4) (b) and (5), Stats., in determining whether an interruption in operations constitutes seriously adverse circumstances beyond the employer’s control, the department shall consider the circumstances that led to the interruption of the employer’s operations including loss of crops, loss of or inability to operate facilities, or inability to store or process unmarketable, perishable agricultural produce and the department may not consider change-over of equipment or between packs or crops. The department shall also consider the duration of the interruption of the employer’s operations in relation to the term of employment identified in the work agreement pursuant to s. 103.915 (4) (a), Stats.

(d) If a migrant worker is required by the employer to isolate under s. DWD 301.075 (2) (d), the migrant worker is considered available for work for purposes of s. 103.915 (4) (b), Stats, during the period of required isolation.

(11) For purposes of s. 103.915 (5), Stats., elapsed time shall be computed on the basis of 500 miles of travel per day.

(12) If the worker will be paid on a piece rate basis, the applicable wage rate included in the work agreement shall be the employer’s guaranteed hourly rate. If at the time of recruitment the employer cannot anticipate the exact rate the worker will be paid, the work agreement shall specify a base rate which shall be not less than the base rate paid by the employer at the end of the preceding season for the kind of work specified, together with the words “or more” or similar phrase.

(13) If the applicable wage rate to be paid includes a bonus provision, the work agreement shall clearly state the conditions under which the bonus shall be paid or forfeited. A work agreement may not state that a migrant worker must continue to work “until the end of the harvest” as a condition to receive a bonus. A bonus may be conditioned on a worker continuing to work up to 7 days beyond the approximate ending date in the work agreement.

(14) If an employer uses multiple sheet forms and signs the agreement first, the work agreement may provide that it may be cancelled by the employer if, by a specific date, the employer or the designated agent has not received a fully signed copy of the work agreement, but only if the provision is set forth in a conspicuous manner compared to the printing of the rest of the work agreement.

(15) The work agreement may provide for cancellation by the employer if the worker fails to notify the employer or designated agent within a reconfirmation period of not less than 15 days of the worker’s continuing intention to accept the employment, but only if the provision is set forth in a conspicuous manner compared to the printing of the rest of the work agreement. Notification of reconfirmation may be made by collect telephone call, by an employer provided prepaid postcard, or any other means paid for by the employer.

History: Emerg. cr. (13), eff. 3-30-78; Register, April, 1978, No. 268, eff. 5-1-78; emerg. cr. (12) and (13), eff. 2-21-79; cr. (12) and (13), Register, May, 1979, No. 281, eff. 6-1-79; cr. (14) to (16), Register, March, 1986, No. 363, eff. 4-1-86; renum. from Ind 201.06, Register, February, 1993, No. 446, eff. 3-1-93; am. (5) and (12) (b), Register, December, 1997, No. 504, eff. 1-1-98; CR 07-018: am. (2), (3) and (13), cr. (2m) Register December 2007 No. 624, eff. 1-1-08; CR 23-030: am. (title), cr. (1e), renum. (2), (2m), to DWD 301.015 (10), (20) and am., cons. (3) and (4) and renum. to (3)., cr. (3m), r. (5) to (7), renum. (8) to (8) (a) and am., cr. (8) (b), (d), renum. (9) to (8) (c) and am., renum. (10) to DWD 301.015 (23) and am., am. (11), renum. (12) (a) to (12) and am., r. (12) (b), am. (14), (15), r. (16) Register January 2024 No. 817, eff. 2-1-24.

DWD 301.07 Migrant labor camps.

(1) Certificate.

(a) The application fee for an annual certificate to operate a migrant labor camp shall be $100. Issuance of a certificate to operate a migrant labor camp is contingent on the migrant labor camp satisfying the minimum standards of this chapter.

Note: Section 103.92 (1) (a), Stats., requires every person maintaining a migrant labor camp in this state to apply for a certificate to operate the migrant labor camp and requires the application to be made annually by April 30 or 30 days prior to opening a new migrant labor camp. With certain exceptions, s. 103.92 (3), Stats., requires the department to issue a certificate if the migrant labor camp is in compliance with the department’s rules establishing minimum standards for migrant labor camps. Section 103.92 (3), Stats., also provides that a certificate issued by the department authorizes a migrant labor camp to operate until March 31 of the next year.