104.001 Statewide concern; uniformity. 104.015 Franchisors excluded. 104.02 Minimum wage: requirement to pay. 104.045 Tips, meals, lodging, and hours worked. 104.07 Rules; license to employ; student learners; sheltered workshops. 104.10 Penalty for intimidating witness. Ch. 104 Cross-referenceCross-reference: See definitions in s. 103.001. Ch. 104 Cross-referenceCross-reference: See also ch. DWD 272, Wis. adm. code. 104.001104.001 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 AnnotationMadison’s Minimum-Wage Ordinance, Section 104.001, and the Future of Home Rule in Wisconsin. Burchill. 2007 WLR 151.
104.01104.01 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)(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)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)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)(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 AnnotationBased 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). 104.015104.015 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 HistoryHistory: 2015 a. 203. 104.02104.02 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). 104.035(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(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: 104.035(2m)(a)(a) Minimum rates. Except as provided in subs. (3) to (8), the minimum wage for an opportunity employee is $5.90 per hour. 104.035(2m)(b)(b) Allowances for meals and lodging. Except as provided in sub. (4) (b) and subject to sub. (3) (b), if an employer furnishes an opportunity 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(3)(a)(a) Minimum rates. Except as provided in subs. (4) to (8), if an employer of a tipped employee establishes by the employer’s payroll records that, when adding the tips received by the tipped employee in a week to the wages paid to the tipped employee in that week, the tipped employee receives not less than the applicable minimum wage specified in sub. (1), (2), or (2m), the minimum wage for the tipped employee is as follows: 104.035(3)(a)1.1. For wages earned by a tipped employee who is not an opportunity employee, $2.33 per hour. 104.035(3)(a)2.2. For wages earned by a tipped employee who is an opportunity employee, $2.13 per hour. 104.035(3)(b)(b) Allowances for meals and lodging. If an employer furnishes a tipped employee with meals or lodging in accordance with rules promulgated by the department under s. 104.045 (2), the employer may deduct the applicable amounts specified in sub. (1) (b), (2) (b), or (2m) (b) from the wages of the tipped employee. 104.035(4)(a)(a) Minimum rates. Except as provided in subs. (7) and (8), the minimum wage for an agricultural employee is $7.25 per hour. 104.035(4)(b)(b) Allowances for meals and lodging. If an employer furnishes an agricultural 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(5)(5) Camp counselors. The minimum wage for a counselor at a seasonal recreational or educational camp, including a day camp, is $350 per week if meals and lodging are not furnished, $265 per week if only meals are furnished, and $210 per week if both meals and lodging are furnished. 104.035(6)(6) Golf caddies. The minimum wage for a golf caddy is $10.50 for caddying 18 holes and $5.90 for caddying 9 holes. 104.035(7)(7) Minimum wage established by department. The department shall promulgate rules providing the minimum wage for all of the following: 104.035(7)(a)(a) An employee or worker with a disability covered under a license under s. 104.07. 104.035(7)(c)(c) A student employed by an independent college or university for less than 20 hours per week. 104.035(8)(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: 104.035(8)(a)(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. 104.035(8)(b)(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 more than 15 hours per week on general household work for the employer. 104.035(8)(c)(c) An elementary or secondary school student performing student work-like activities in the student’s school. 104.035(9)(9) Gender-specific minimum wage prohibited. The department may not establish a different minimum wage for men and women. 104.035 HistoryHistory: 2015 a. 55 ss. 3078h, 3078i. 104.035 AnnotationUnder regulations promulgated under s. 104.045 (1), an employer taking a tip credit must have a tip declaration signed by the tipped employee each pay period to show that, when adding the tips received to the wages paid by the employer, no less than the minimum rate was received by the employee. When the employer’s time and payroll records do not contain these requirements, no tip credit is allowed, and a plaintiff may pursue back wages under s. 109.03 (5) for alleged violations of such regulations. Hussein v. Jun-Yan, LLC, 502 F. Supp. 3d 1366 (2020). 104.045104.045 Tips, meals, lodging, and hours worked. The department shall promulgate rules governing all of the following: 104.045(1)(1) The counting of tips or similar gratuities toward fulfillment of the employer’s obligation under s. 104.035 (3). The rules promulgated under this subsection shall allow an employer to require a tipped employee to use an electronic signature or other electronic means that uniquely identifies the employee to acknowledge the counting of tips or similar gratuities for purposes of s. 104.035 (3). In this subsection, “electronic signature” has the meaning given in s. 137.11 (8).
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