Chapter 104

CHAPTER 104

MINIMUM WAGE LAW

104.001   Statewide concern; uniformity.

104.01   Definitions.

104.015   Franchisors excluded.

104.02   Minimum wage: requirement to pay.

104.035   Minimum wage.

104.045   Tips, meals, lodging, and hours worked.

104.07   Rules; license to employ; student learners; sheltered workshops.

104.08   Apprentices.

104.09   Records.

104.10   Penalty for intimidating witness.

104.12   Complaints.

Ch. 104 Cross-reference Cross-reference: See definitions in s. 103.001.

Ch. 104 Cross-reference Cross-reference: See also ch. DWD 272, Wis. adm. code.

104.001 104.001 Statewide concern; uniformity.

104.001(1) (1) The legislature finds that the provision of a minimum wage that is uniform throughout the state is a matter of statewide concern and that the enactment of a minimum wage ordinance by a city, village, town, or county would be logically inconsistent with, would defeat the purpose of, and would go against the spirit of this chapter. Therefore, this chapter shall be construed as an enactment of statewide concern for the purpose of providing a minimum wage that is uniform throughout the state.

104.001(2) (2) A city, village, town, or county may not enact and administer an ordinance establishing a minimum wage. Any city, village, town, or county minimum wage ordinance that is in effect on June 16, 2005, is void.

104.001 History History: 2005 a. 12; 2009 a. 28; 2011 a. 32; 2015 a. 55; 2017 a. 327.

104.001 Annotation Madison’s Minimum-Wage Ordinance, Section 104.001, and the Future of Home Rule in Wisconsin. Burchill. 2007 WLR 151.

104.01 104.01 Definitions. In this chapter:

104.01(1d) (1d) “Agricultural employee” means an employee who is employed in the operation of farm premises, as described in s. 102.04 (3).

104.01(1m) (1m) “Department” means the department of workforce development.

104.01(2) (2) 

104.01(2)(a) (a) “Employee” means every individual who is in receipt of or is entitled to any compensation for labor performed for any employer.

104.01(2)(b) (b) “Employee” does not mean:

104.01(2)(b)1. 1. Any individual engaged in the house to house delivery of newspapers to the consumer or engaged in direct retail sale to the consumer.

104.01(2)(b)2. 2. An individual excluded under s. 452.38.

104.01(2)(b)3. 3. Any individual engaged in performing services for an employer described in sub. (3) (b) if that individual is not considered under 29 USC 203 (e) (4), as amended to April 15, 1986, to be an employee for the purposes of the fair labor standards act, 29 USC 201 to 219, or if that individual is exempt under 29 USC 213, as amended to April 1, 1990, from being paid at least the federal minimum hourly wage under 29 USC 206 (a) (1).

104.01(2)(b)4. 4. Any individual engaged in performing services for an employer described in sub. (3) (b) if that individual is not subject to the civil service laws of the employer and if that individual is an elective officer; is on the personal staff of an elective officer, other than a member of the legislature; is appointed by an elective officer to serve on a policymaking level; or is an immediate adviser to an elective officer with respect to the constitutional or legal powers of the elective officer’s office.

104.01(2)(b)5. 5. Any individual whose primary duty is making sales, as defined in 29 USC 203 (k), or obtaining orders or contracts for services or for the use of facilities for which a consideration will be paid by the client or customer and who is customarily and regularly engaged away from the employer’s place of business in performing that primary duty.

104.01(3) (3) 

104.01(3)(a) (a) The term “employer” shall mean and include every person, firm or corporation, agent, manager, representative, contractor, subcontractor or principal, or other person having control or direction of any person employed at any labor or responsible directly or indirectly for the wages of another.

104.01(3)(b) (b) “Employer” includes the state, its political subdivisions and any office, department, independent agency, authority, institution, association, society or other body in state or local government created or authorized to be created by the constitution or any law, including the legislature and the courts.

104.01(5g) (5g) “Minor employee” means an employee who is under 18 years of age.

104.01(5m) (5m) “Opportunity employee” means a person under 20 years of age who is in the first 90 consecutive days of employment with his or her employer.

104.01(6) (6) “Sheltered workshop” means a charitable organization or institution conducted not for profit, but for the purpose of carrying out a recognized program of rehabilitation for workers with disabilities and of providing workers with disabilities with remunerative employment or other occupational rehabilitating activity of an educational or therapeutic nature.

104.01(7) (7) “Student learner” means a student who is receiving instruction in an accredited school and who is employed on a part-time basis, pursuant to a bona fide school training program. A “bona fide school training program” means a program authorized and approved by the department of public instruction or the technical college system board, or other recognized educational body, and provided for part-time employment training which may be scheduled for a part of the workday or workweek, supplemented by and integrated with, a definitely organized plan of instruction and where proper scholastic credit is given by the accredited school.

104.01(7m) (7m) “Tipped employee” means an employee who in the course of employment customarily and regularly receives money or other gratuities from persons other than the employee’s employer.

104.01(8) (8) “Wage” means any compensation for labor measured by time, piece, or otherwise.

104.01(10) (10) “Worker with a disability” means a worker whose earning capacity is impaired by age or physical or mental deficiency or injury and who is being served in accordance with the recognized rehabilitation program of a sheltered workshop within the facilities of such agency or in or about the home of the worker.

104.01 History History: 1977 c. 29; 1983 a. 189, 458; 1989 a. 225; 1993 a. 144, 399; 1995 a. 27 ss. 9130 (4), 9145 (1); 1997 a. 3, 27, 112; 2005 a. 12; 2013 a. 285; 2015 a. 55, 258; 2017 a. 364.

104.01 Annotation Based on the text of sub. (3) (a) and the consistent focus on control shown across various areas of Wisconsin employment law, allegations giving rise to a plausible inference of control over a person employed at labor are enough to plead that a person or business is an employer under Wisconsin’s minimum wage law. Brant v. Schneider National, Inc., 43 F.4th 656 (2022).

104.015 104.015 Franchisors excluded. For purposes of this chapter, a franchisor, as defined in 16 CFR 436.1 (k), is not considered to be an employer of a franchisee, as defined in 16 CFR 436.1 (i), or of an employee of a franchisee, unless any of the following applies:

104.015(1) (1) The franchisor has agreed in writing to assume that role.

104.015(2) (2) The franchisor has been found by the department to have exercised a type or degree of control over the franchisee or the franchisee’s employees that is not customarily exercised by a franchisor for the purpose of protecting the franchisor’s trademarks and brand.

104.015 History History: 2015 a. 203.

104.02 104.02 Minimum wage: requirement to pay. Every wage paid or agreed to be paid by any employer to any employee, except as otherwise provided in s. 104.07, shall be not less than the applicable minimum wage established under s. 104.035. Any employer paying, offering to pay, or agreeing to pay any employee a wage lower or less in value than the applicable minimum wage established under s. 104.035 is guilty of a violation of this chapter as provided in s. 103.005 (11) and is subject to the penalties provided in s. 103.005 (12).

104.02 History History: 1975 c. 94; 2005 a. 12; 2015 a. 55.

104.035 104.035 Minimum wage.

104.035(1) (1) Employees generally.

104.035(1)(a) (a) Minimum rates. Except as provided in subs. (2) to (8), the minimum wage is $7.25 per hour.

104.035(1)(b) (b) Allowances for meals and lodging. Except as provided in subs. (2) (b), (2m) (b), and (4) (b) and subject to sub. (3) (b), if an employer furnishes an employee with meals or lodging in accordance with rules promulgated by the department under s. 104.045 (2), the employer may deduct the following amounts from the wages of the employee:

104.035(1)(b)1. 1. For lodging, $58 per week or $8.30 per day.

104.035(1)(b)2. 2. For meals, $87 per week or $4.15 per meal.

104.035(2) (2) Minor employees.

104.035(2)(a) (a) Minimum rates. Except as provided in subs. (2m) to (8), the minimum wage for a minor employee is $7.25 per hour.

104.035(2)(b) (b) Allowances for meals and lodging. Except as provided in subs. (2m) (b) and (4) (b) and subject to sub. (3) (b), if an employer furnishes a minor employee with meals or lodging in accordance with rules promulgated by the department under s. 104.045 (2), the employer may deduct the following amounts from the wages of the employee: