Chapter 103

103.90 Annotation “Sharecropping” or other agreements attempting to establish a migrant worker as an independent contractor violate migrant law. 71 Atty. Gen. 92.

103.905 103.905 Department’s duties. The department shall:

103.905(1) (1) Promulgate rules for the enforcement and implementation of ss. 103.90 to 103.97.

103.905(2) (2) Cooperate and enter into agreements with departments or agencies of this state or of the United States to coordinate, administer or enforce all other laws and programs designed to assist, serve or protect migrant workers.

103.905(3) (3) Gather, compile and submit to the council on migrant labor data and information relative to ss. 103.90 to 103.97.

103.905(4) (4) Investigate, or cause to be investigated, any complaint filed with the department concerning any violation of ss. 103.90 to 103.97, and during reasonable daylight hours, and upon notice to the employer or person in charge, enter and inspect any premises, inspect such records and make transcriptions thereof, question such persons, and investigate such facts, conditions, practices or matters as may be necessary or appropriate to determine whether a violation of such sections has been committed.

103.905(5) (5) Enforce, or cause to be enforced, ss. 103.90 to 103.97 and any rules promulgated under ss. 103.90 to 103.97, and cooperate with other officers, departments, boards, agencies or commissions of this state, or of the United States, or of any other state, or of any local government in the enforcement of such sections.

103.905 History History: 1977 c. 17.

103.905 Cross-reference Cross-reference: See also ch. DWD 301, Wis. adm. code.

103.91 103.91 Migrant labor contractors.

103.91(1) (1) Registration required. No person may engage in activities as a migrant labor contractor without first obtaining a certificate of registration from the department. The certificate shall constitute a permit from this state to operate as a migrant labor contractor, and shall not be transferable to any person.

103.91(2) (2) Application.

103.91(2)(a) (a) A migrant labor contractor shall apply to the department for a certificate in such manner and on such forms as the department prescribes. The migrant labor contractor may submit a copy of a federal application filed under 7 USC 2045 in lieu of the forms prescribed by the department under this paragraph.

103.91(2)(b) (b)

103.91(2)(b)1. 1. Except as provided in subd. 2m., the department shall require each applicant for a certificate under par. (a) who is an individual to provide the department with the applicant’s social security number, and shall require each applicant for a certificate under par. (a) who is not an individual to provide the department with the applicant’s federal employer identification number, when initially applying for or applying to renew the certificate.

103.91(2)(b)2. 2. If an applicant who is an individual fails to provide the applicant’s social security number to the department or if an applicant who is not an individual fails to provide the applicant’s federal employer identification number to the department, the department may not issue or renew a certificate under par. (a) to or for the applicant unless the applicant is an individual who does not have a social security number and the applicant submits a statement made or subscribed under oath or affirmation as required under subd. 2m.

103.91(2)(b)2m. 2m. If an applicant who is an individual does not have a social security number, the applicant shall submit a statement made or subscribed under oath or affirmation to the department that the applicant does not have a social security number. The form of the statement shall be prescribed by the department. A certificate issued under par. (a) in reliance upon a false statement submitted under this subdivision is invalid.

103.91(2)(b)3. 3. The department of workforce development may not disclose any information received under subd. 1. to any person except to the department of revenue for the sole purpose of requesting certifications under s. 73.0301 or the department of children and families for purposes of administering s. 49.22.

103.91(3) (3) Annual fees. Each certificate shall be renewed annually. The fee for the certificate or renewal shall be in an amount determined by the department. The department may not require an individual who is eligible for a fee waiver under the veterans fee waiver program under s. 45.44 to pay a fee for a certificate.

103.91(4) (4) Qualifications.

103.91(4)(a) (a) The department may refuse to issue a certificate and may suspend or revoke any certificate previously issued whenever it finds that the applicant or registrant has:

103.91(4)(a)1. 1. Made a material misrepresentation or false statement in his or her application for a certificate.

103.91(4)(a)2. 2. Violated ss. 103.90 to 103.97, or any rules promulgated under such sections.

103.91(4)(b) (b) The department of workforce development shall deny, suspend, restrict, refuse to renew, or otherwise withhold a certificate of registration under sub. (1) for failure of the applicant or registrant to pay court-ordered payments of child or family support, maintenance, birth expenses, medical expenses, or other expenses related to the support of a child or former spouse or for failure of the applicant or registrant to comply, after appropriate notice, with a subpoena or warrant issued by the department of children and families or a county child support agency under s. 59.53 (5) and related to paternity or child support proceedings, as provided in a memorandum of understanding entered into under s. 49.857. Notwithstanding s. 103.005 (10), an action taken under this paragraph is subject to review only as provided in the memorandum of understanding entered into under s. 49.857 and not as provided in ch. 227.

103.91(4)(c) (c) The department shall deny an application for the issuance or renewal of a certificate under sub. (1), or revoke such a certificate already issued, if the department of revenue certifies under. s. 73.0301 that the applicant or registrant is liable for delinquent taxes. Notwithstanding s. 103.005 (10), an action taken under this paragraph is subject to review only as provided under s. 73.0301 (5) and not as provided in ch. 227.

103.91(4)(d) (d)

103.91(4)(d)1. 1. The department may deny an application for the issuance or renewal of a certificate of registration under sub. (1), or revoke such a certificate already issued, if the department determines that the applicant or registrant is liable for delinquent contributions, as defined in s. 108.227 (1) (d). Notwithstanding s. 103.005 (10), an action taken under this subdivision is subject to review only as provided under s. 108.227 (5) and not as provided in ch. 227.

103.91(4)(d)2. 2. If the department denies an application or revokes a certificate of registration under subd. 1., the department shall mail a notice of denial or revocation to the applicant or registrant. The notice shall include a statement of the facts that warrant the denial or revocation and a statement that the applicant or registrant may, within 30 days after the date on which the notice of denial or revocation is mailed, file a written request with the department to have the determination that the applicant or registrant is liable for delinquent contributions reviewed at a hearing under s. 108.227 (5) (a).

103.91(4)(d)3. 3. If, after a hearing under s. 108.227 (5) (a), the department affirms a determination under subd. 1. that an applicant or registrant is liable for delinquent contributions, the department shall affirm its denial or revocation. An applicant or registrant may seek judicial review under s. 108.227 (6) of an affirmation by the department of a denial or revocation under this subdivision.

103.91(4)(d)4. 4. If, after a hearing under s. 108.227 (5) (a), the department determines that a person whose certificate is revoked or whose application is denied under subd. 1. is not liable for delinquent contributions, as defined in s. 108.227 (1) (d), the department shall reinstate the certificate or approve the application, unless there are other grounds for revocation or denial. The department may not charge a fee for reinstatement of a certificate under this subdivision.

103.91(5) (5) Real party in interest. The department may refuse to issue a certificate, and may suspend or revoke any certificate previously issued, whenever it determines that the real party in interest in any such application or certificate is a person who previously has applied for and has been denied a certificate, or is a person who previously had been issued a certificate which subsequently was revoked or suspended by the department.

103.91(6) (6) Penalties. Refusal to issue or to renew a certificate or the suspension or revocation of a certificate or renewal shall be in addition to any other penalties imposed.

103.91(7) (7) Agents exempt from registration. A full-time employee of any person holding a valid certificate under ss. 103.90 to 103.97 who has been designated as agent of the registrant and who is employed partly or solely for the purpose of engaging in activities as a migrant labor contractor on behalf of the registrant, shall not be required to obtain a certificate in his or her own name under this section. Every such agent shall have in his or her immediate possession, when engaging in activities as a migrant labor contractor, such identification as the department may require, showing such employee to be an agent of a registrant. Every agent shall be subject to ss. 103.90 to 103.97 and any rules promulgated under such sections to the same extent as if the agent were required to obtain a certificate in his or her own name. The department shall require that every registrant identify to the department all persons who have been, or who subsequently become, agents of the registrant, and may disallow, suspend or revoke the designation as agent of any person pursuant to the qualifications of registrants required by this section. For the purposes of ss. 103.90 to 103.97, every registrant shall be responsible for the activities of every agent designated by him or her, and shall be subject to any penalties, including the refusal, suspension or revocation of a certificate, proceeding from any act of any agent so designated, while the agent is engaged in activities as a migrant labor contractor. No agent shall be permitted separately to engage in activities as a migrant labor contractor.

103.91(8) (8) Duties. Every person engaged in activities as a migrant labor contractor and every agent of a migrant labor contractor shall:

103.91(8)(a) (a) Carry at all times the certificate or other identification of such certification as the department may prescribe, and exhibit the same to all persons with whom he or she intends to deal as a migrant labor contractor prior to so dealing.

103.91(8)(b) (b) File at the U.S. post office serving the address of such migrant labor contractor, a correct address within 10 days after a change of address.

103.91(8)(c) (c) Promptly pay or deliver when due to the individuals entitled thereto, all moneys or other things of value entrusted to the contractor by any person.

103.91(8)(d) (d) Comply with the terms and provisions of all legal agreements and contracts entered into between himself or herself as a migrant labor contractor and any person.

103.91(8)(e) (e) Keep such records as the department prescribes and preserve such records for inspection by the department for such periods of time as the department shall prescribe.

103.91(8)(f) (f) Obtain a policy of insurance from any insurance carrier authorized to do business in this state in an amount as prescribed by the department, which policy insures the migrant labor contractor against liability for damages to persons or property arising out of the operation or ownership by the migrant labor contractor or by his or her agent of any vehicle for the transportation of individuals or property in connection with activities as a migrant labor contractor. This paragraph shall not apply if the 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.

103.91(9) (9) Prohibited activities. No person engaged in activities as a migrant labor contractor, and no person acting as an agent for any such person, may:

103.91(9)(a) (a) Knowingly give to any migrant worker or a prospective migrant worker any false or misleading information, or fail to disclose fully to any such worker information concerning terms, conditions or existence of employment.

103.91(9)(b) (b) Receive, disburse or withhold the wages of any worker except to immediately distribute a check payable to a worker.

103.91(9)(c) (c) Charge or collect interest from any worker on account of any loan or extension of credit.

103.91(9)(d) (d) Charge or collect from any worker for the provision of goods or services an amount in excess of the costs to him or her of providing such goods and services.

103.91(9)(e) (e) Recruit any migrant worker except as provided in s. 103.915.

103.91 History History: 1977 c. 17; 1995 a. 27; 1997 a. 191, 237; 1999 a. 9; 2009 a. 180; 2011 a. 209; 2013 a. 36.

103.91 Cross-reference Cross-reference: See also s. DWD 301.05, Wis. adm. code.

103.915 103.915 Migrant work agreements.

103.915(1) (1) No person may bring or arrange for another to bring a migrant worker into this state for employment, by means of an express or implied job offer induce a migrant worker to come into this state for employment, otherwise recruit a migrant worker to come into this state for employment, or hire a migrant worker for employment in this state unless that person does all of the following:

103.915(1)(a) (a) At the time of the worker’s recruitment, provides the migrant worker a written recruiting disclosure statement containing the information required in a work agreement under this section.

103.915(1)(b) (b) At the time of hiring, provides the migrant worker a written work agreement as specified in this section, which shall be signed by the employer and by each migrant worker or head of a family if a family is employed.

103.915(2) (2) The department shall issue a standard form for written work agreements required under this section. An employer may elect not to use such form. If an employer does not use the standard form, the employer shall use a form approved by the department.

103.915(3) (3) In fulfilling its duties under s. 103.905, the department may inspect any work agreement signed under this section.

103.915(4) (4) The work agreement shall include the following:

103.915(4)(a) (a) A statement of the place of employment, kind of work available, applicable wage rates, pay period, approximate hours of employment including overtime applicable, term of employment including approximate beginning and ending dates, kind of housing and any charges in connection therewith, cost of meals if provided by the employer, transportation arrangements, the names of all persons in the family employed if a family is employed and any other charges or deductions from wages beyond those required by law.

103.915(4)(b) (b) A guarantee of a minimum of 20 hours of work in a one-week period or a minimum of 64 hours of work in a 2-week period, the work to be the same as or similar to the kind of work specified in the work agreement. The work agreement shall clearly state whether the guarantee is on the basis of a one-week or 2-week period. In the case of a migrant worker employed exclusively in agricultural labor as defined in s. 108.02 (2), the guarantee shall be a minimum of 45 hours in each 2-week period, the work to be the same as or similar to the kind of work specified in the work agreement. The minimum guarantee shall be satisfied if the worker’s earnings equal the number of hours guaranteed under this paragraph multiplied by the wage rate specified in the work agreement. The guarantee 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 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 the beginning or ending period of employment does not coincide with the employer’s pay period, the employer may reduce the guarantee for such beginning or ending period to an amount which is equal to the number of days in the beginning or ending period of employment multiplied by one-sixth of the guarantee if the employer’s guarantee is on a weekly basis or multiplied by one-twelfth of the guarantee if the employer’s guarantee is on a biweekly basis. If a worker is not available for work, the employer may reduce the minimum guarantee by an amount equal to the wages the worker would have earned if the worker had been available for work. This paragraph shall not apply to any person who is under the age of 18 years and who is a member of a household which contains a worker covered by a migrant work agreement under this section. The payment of the minimum guarantee under this paragraph shall be considered the payment of wages under ch. 108.

103.915(4)(c) (c) A guarantee that the wages together with the other terms and conditions of employment are not less favorable than those provided by the employer for local workers for similar work.

103.915(5) (5) If a worker reports for work as notified by an employer and the worker is never employed due to seriously adverse circumstances beyond the employer’s control, the employer shall not be obligated to pay the minimum guarantee under sub. (4) (b) but shall be obligated to pay wages to the worker at the agreed rate of pay for the job for which the worker was recruited for the elapsed time from departure to return to the point of departure, which amount shall not be less than 3 nor more than 6 days’ pay at 8 hours per day. The employer shall pay the worker the amount required under this subsection within 24 hours after the worker reports to the employer for work.

103.915(6) (6) The work agreement may contain a guarantee which differs from the guarantee required under sub. (4) (b) if the department finds the guarantee to be no less favorable than the guarantee under sub. (4) (b) and approves the terms of the guarantee prior to the time the employer offers the work agreement to any worker.

103.915(7) (7) Temporary work for another employer with the consent of the worker and his or her first employer shall count toward the guarantee required under sub. (4) (b). Such other employer shall not be required to provide the worker a work agreement.

103.915(8) (8) The recruiting disclosure statement and work agreement required under this section shall be written in English and, if the customary language of the migrant worker is not English, in the language of the worker. The department shall, upon request, provide assistance in translating these statements and agreements.

103.915(9) (9) Any employer who does not satisfy the employer’s guarantees in a work agreement as required under sub. (4) shall be considered not in compliance with this section.

103.915 History History: 1977 c. 17; 1983 a. 189 s. 329 (28); 1985 a. 191.

103.915 Cross-reference Cross-reference: See also s. DWD 301.06, Wis. adm. code.

103.917 103.917 Safe transportation. Any transportation provided by the employer to a migrant worker between the worker’s places of residence shall be safe and adequate.

103.917 History History: 1977 c. 17.

103.92 103.92 Certification of migrant labor camps.

103.92(1) (1) Application; fee.

103.92(1)(a) (a) Every person maintaining a migrant labor camp shall, annually by April 1 or 30 days prior to the opening of a new camp, make application to the department for a certificate to operate a camp. Each application shall be accompanied by an application fee in an amount determined by the department. The department may not require an individual who is eligible for a fee waiver under the veterans fee waiver program under s. 45.44 to pay an application fee for a certificate to operate a migrant labor camp.

103.92(1)(b) (b)

103.92(1)(b)1. 1. Except as provided in subd. 2m., the department shall require each applicant for a certificate under par. (a) who is an individual to provide the department with the applicant’s social security number, and shall require each applicant for a certificate under par. (a) who is not an individual to provide the department with the applicant’s federal employer identification number, when initially applying for or applying to renew the certificate.

103.92(1)(b)2. 2. If an applicant who is an individual fails to provide the applicant’s social security number to the department or if an applicant who is not an individual fails to provide the applicant’s federal employer identification number to the department, the department may not issue or renew a certificate under par. (a) to or for the applicant w unless the applicant is an individual who does not have a social security number and the applicant submits a statement made or subscribed under oath or affirmation as required under subd. 2m.

103.92(1)(b)2m. 2m. If an applicant who is an individual does not have a social security number, the applicant shall submit a statement made or subscribed under oath or affirmation to the department that the applicant does not have a social security number. The form of the statement shall be prescribed by the department. A certificate issued under par. (a) in reliance upon a false statement submitted under this subdivision is invalid.

103.92(1)(b)3. 3. The department of workforce development may not disclose any information received under subd. 1. to any person except to the department of revenue for the sole purpose of requesting certifications under. s. 73.0301 or the department of children and families for purposes of administering s. 49.22.

103.92(2) (2) Inspection. The department shall administer and enforce this section and any rules promulgated under this section and may during reasonable daylight hours enter and inspect camps. No agent or employee of the department may enter the premises of a camp for inspection purposes until he or she has given notice to the owner or to the person in charge of the camp that he or she intends to make an inspection. Upon notice an agent or employee of the department may also enter any property to determine whether a camp under this section exists.

103.92(3) (3) Certificate. The department shall inspect each camp for which application to operate is made, to determine if it is in compliance with the rules of the department establishing minimum standards for migrant labor camps. Except as provided under subs. (6), (7), and (8), if the department finds that the camp is in compliance with the rules, it shall issue a certificate authorizing the camp to operate until March 31 of the next year. The department shall refuse to issue a certificate if it finds that the camp is in violation of such rules, if the person maintaining the camp has failed to pay court-ordered payments as provided in sub. (6) or if the person maintaining the camp is liable for delinquent taxes as provided in sub. (7) or delinquent unemployment insurance contributions as provided in sub. (8).

103.92(4) (4) Operation. Only certified camps may operate in this state. The department shall order the immediate closing of all other camps. A violation of any such order shall be deemed a public nuisance. All orders shall be enforced by the attorney general or the district attorney for the county in which the violation occurred at the election of the department. The circuit court of any county where violation of such an order has occurred in whole or in part shall have jurisdiction to enforce the order by injunctive and other appropriate relief.

103.92(5) (5) Maintenance. The department may revoke any certificate previously issued if it finds that a camp is in violation of the department’s rules for migrant labor camps.

103.92(6) (6) Failure to pay support or to comply with subpoena or warrant; memorandum of understanding. The department of workforce development shall deny, suspend, restrict, refuse to renew, or otherwise withhold a certificate to operate a migrant labor camp for failure of the applicant or person operating the camp to pay court-ordered payments of child or family support, maintenance, birth expenses, medical expenses, or other expenses related to the support of a child or former spouse or for failure of the applicant or person operating the camp to comply, after appropriate notice, with a subpoena or warrant issued by the department of children and families or a county child support agency under s. 59.53 (5) and related to paternity or child support proceedings, as provided in a memorandum of understanding entered into under s. 49.857. Notwithstanding s. 103.005 (10), an action taken under this subsection is subject to review only as provided in a memorandum of understanding entered into under s. 49.857 and not as provided in ch. 227.

103.92(7) (7) Liability for delinquent taxes. The department shall deny an application for the issuance or renewal of a certificate to operate a migrant labor camp, or revoke such a certificate already issued, if the department of revenue certifies under s. 73.0301 that the applicant or person operating the camp is liable for delinquent taxes. Notwithstanding s. 103.005 (10), an action taken under this subsection is subject to review only as provided under s. 73.0301 (5) and not as provided in ch. 227.

103.92(8) (8) Liability for delinquent unemployment insurance contributions.

103.92(8)(a) (a) The department may deny an application for the issuance or renewal of a certificate to operate a migrant labor camp, or revoke such a certificate already issued, if the department determines that the applicant or person operating the camp is liable for delinquent contributions, as defined in s. 108.227 (1) (d). Notwithstanding s. 103.005 (10), an action taken under this paragraph is subject to review only as provided under s. 108.227 (5) and not as provided in ch. 227.

103.92(8)(b) (b) If the department denies an application or revokes a certificate under par. (a), the department shall mail a notice of denial or revocation to the applicant or person operating the camp. The notice shall include a statement of the facts that warrant the denial or revocation and a statement that the applicant or person operating the camp may, within 30 days after the date on which the notice of denial or revocation is mailed, file a written request with the department to have the determination that the applicant or person operating the camp is liable for delinquent contributions reviewed at a hearing under s. 108.227 (5) (a).

103.92(8)(c) (c) If, after a hearing under s. 108.227 (5) (a), the department affirms a determination under par. (a) that an applicant or person operating a camp is liable for delinquent contributions, the department shall affirm its denial or revocation. An applicant or person operating a camp may seek judicial review under s. 108.227 (6) of an affirmation by the department of a denial or revocation under this paragraph.

103.92(8)(d) (d) If, after a hearing under s. 108.227 (5) (a), the department determines that a person whose certificate is revoked or whose application is denied under par. (a) is not liable for delinquent contributions, as defined in s. 108.227 (1) (d), the department shall reinstate the certificate or approve the application, unless there are other grounds for revocation or denial. The department may not charge a fee for reinstatement of a certificate under this paragraph.

103.92 History History: 1977 c. 17; 1995 a. 27; 1997 a. 191, 237; 1999 a. 9, 185; 2009 a. 180; 2011 a. 209; 2013 a. 36.

103.92 Cross-reference Cross-reference: See also s. DWD 301.07, Wis. adm. code.

103.925 103.925 Access and entry. Any worker shall have the right to decide who may visit with him or her in his or her residence. No person other than the resident may prohibit, bar or interfere with, or attempt to prohibit, bar or interfere with, the access to or egress from the residence of any worker by any person, either by the erection or maintenance of any physical barrier, or by physical force or violence, or by threat of force or violence, or by posting, or by any order or notice given in any manner. This section shall not prohibit the erection or maintenance of a fence around a migrant labor camp if one or more unlocked gates or gateways in the fence are provided, nor shall this section prohibit the posting of land adjacent to a migrant labor camp if access to the camp is clearly marked, nor shall this section prevent a majority of the residents of a migrant labor camp from imposing reasonable limitations on access to common use facilities.