Chapter 104

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:

104.035(2)(b)1. 1. For lodging, $58 per week or $8.30 per day.

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

104.035(2m) (2m) Opportunity employees.

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(2m)(b)1. 1. For lodging, $47.20 per week or $6.75 per day.

104.035(2m)(b)2. 2. For meals, $70.80 per week or $3.35 per meal.

104.035(3) (3) Tipped employees.

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) (4) Agricultural employees.

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

104.035(4)(b)2. 2. For meals, $87 per week or $4.15 per meal.

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)(b) (b) A student learner.

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 History History: 2015 a. 55 ss. 3078h, 3078i.

104.035 Annotation Under 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).

104.045 104.045 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).

104.045(2) (2) The deduction of meals or lodging provided by an employer to an employee from the employer’s obligation under this chapter.

104.045(3) (3) The determination of hours worked by an employee during which the employee is entitled to the minimum wage established under s. 104.035.

104.045 History History: 1977 c. 179; 2015 a. 55; 2021 a. 26.

104.045 Annotation Under regulations promulgated under sub. (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).

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

104.07(1) (1) The department shall promulgate rules, and, except as provided under subs. (5), (6), and (7), grant a license to any employer who employs any employee for whom the minimum wage established under s. 104.035 is not commensurate with the employee’s ability. Each license so granted shall establish a wage for any such employees of the licensee.

104.07(2) (2) The department shall promulgate rules, and, except as provided under subs. (5), (6), and (7), grant a license to a sheltered workshop, to permit the employment of workers with disabilities at a wage that is commensurate with their ability and productivity. A license granted to a sheltered workshop under this subsection may be issued for the entire workshop or a department of the workshop.

104.07(3) (3) No student learner or employee shall be employed at a wage less than the rate so established.

104.07(4) (4) 

104.07(4)(a) (a) Except as provided in par. (bm), the department shall require each applicant for a license under sub. (1) or (2) who is an individual to provide the department with the applicant’s social security number, and shall require each applicant for a license under sub. (1) or (2) 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 license.

104.07(4)(b) (b) 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 license under sub. (1) or (2) 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 par. (bm).

104.07(4)(bm) (bm) 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 license issued under sub. (1) or (2) in reliance upon a false statement submitted under this paragraph is invalid.

104.07(4)(c) (c) The department of workforce development may not disclose any information received under par. (a) 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.

104.07(5) (5) The department of workforce development shall deny, suspend, restrict, refuse to renew, or otherwise withhold a license under sub. (1) or (2) for failure of the applicant or licensee 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 licensee 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 the memorandum of understanding entered into under s. 49.857 and not as provided in ch. 227.

104.07(6) (6) The department shall deny an application for the issuance or renewal of a license under sub. (1) or (2), or revoke such a license already issued, if the department of revenue certifies under s. 73.0301 that the applicant or licensee 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.

104.07(7) (7) 

104.07(7)(a) (a) The department may deny an application for the issuance or renewal of a license under sub. (1) or (2), or revoke such a license already issued, if the department determines that the applicant or licensee 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.

104.07(7)(b) (b) If the department denies an application or revokes a license under par. (a), the department shall mail a notice of denial or revocation to the applicant or licensee. The notice shall include a statement of the facts that warrant the denial or revocation and a statement that the applicant or licensee 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 licensee is liable for delinquent contributions reviewed at a hearing under s. 108.227 (5) (a).

104.07(7)(c) (c) If, after a hearing under s. 108.227 (5) (a), the department affirms a determination under par. (a) that an applicant or licensee is liable for delinquent contributions, the department shall affirm its denial or revocation. An applicant or licensee may seek judicial review under s. 108.227 (6) of an affirmation by the department of a denial or revocation under this paragraph.

104.07(7)(d) (d) If, after a hearing under s. 108.227 (5) (a), the department determines that a person whose license 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 license or approve the application, unless there are other grounds for revocation or denial. The department may not charge a fee for reinstatement of a license under this paragraph.

104.07 History History: 1977 c. 29 s. 1651; 1977 c. 273; 1997 a. 112, 191, 237; 1999 a. 9, 32; 2005 a. 12; 2009 a. 180; 2013 a. 36; 2015 a. 55.

104.07 Cross-reference Cross-reference: See also s. DWD 272.09, Wis. adm. code.

104.08 104.08 Apprentices.

104.08(1m) (1m) In this section: