Chapter 105

105.115 105.115 Notice to home care consumers and workers.

105.115(1) (1) Definitions. In this section:

105.115(1)(a) (a) “Companionship services” means services that provide fellowship and protection for a person who, because of advanced age or physical or mental infirmity, cannot care for his or her own needs.

105.115(1)(b) (b) “Home care consumer” means a person who receives home care services in his or her temporary or permanent residence from a home care worker.

105.115(1)(c) (c) “Home care placement agency” means a person that is engaged in placing home care workers in the temporary or permanent residences of home care consumers for the purpose of providing home care services to those home care consumers, including an employment agent engaged in the business specified in s. 105.01 (1) (intro.) or a person specified in s. 105.01 (1) (f) whose fees or charges are paid entirely by a home care consumer.

105.115(1)(d) (d) “Home care services” means skilled or unskilled care provided to a person in his or her temporary or permanent residence for the purpose of enabling the person to remain safely and comfortably in that residence. “Home care services” include companionship services, homemaker services, nursing services, and personal care services.

105.115(1)(e) (e) “Home care worker” means a person who provides home care services to a home care consumer in the temporary or permanent residence of the home care consumer.

105.115(1)(f) (f) “Homemaker services” means household work, including preparing meals, laundering clothes, making beds, cleaning, performing errands and shopping, completing other miscellaneous chores, and performing any other activities that support the smooth and safe functioning of a home care consumer’s residence.

105.115(1)(g) (g) “Nursing services” means nursing procedures, other than personal care services, that are permitted to be performed by a registered nurse under s. 441.001 (2) or by a licensed practical nurse under s. 441.001 (3).

105.115(1)(h) (h) “Personal care services” means assistance with the activities of daily living, such as eating, dressing, bathing, personal hygiene, and ambulation, but does not include nursing services.

105.115(2) (2) Notice to home care consumers. Whenever a home care placement agency places a home care worker in the temporary or permanent residence of a home care consumer, the home care placement agency shall provide the home care consumer with a notice of the duties, responsibilities, and liabilities of the home care consumer with respect to the home care worker, except that a home care placement agency is not required to provide that notice when placing a home care worker who is temporarily substituting for the regular home care worker of a home care consumer. The notice shall be on a form prescribed by the department and shall include, at a minimum, all of the following:

105.115(2)(a) (a) A statement specifying the duties, responsibilities, and liabilities of the home care placement agency with respect to the home care consumer and the home care worker and the duties, responsibilities, and liabilities of the home care consumer with respect to the home care worker. The statement shall clearly specify the home care consumer’s responsibility, if any, for all of the following:

105.115(2)(a)1. 1. Day-to-day supervision of the home care worker.

105.115(2)(a)2. 2. Assigning duties to the home care worker.

105.115(2)(a)3. 3. Hiring, firing, and discipline of the home care worker.

105.115(2)(a)4. 4. Providing equipment or materials for use by the home care worker.

105.115(2)(a)5. 5. Performing a background investigation of the home care worker.

105.115(2)(a)6. 6. Ensuring that the home care worker has any credential, as defined in s. 440.01 (2) (a), or any other license, registration, certification, permit, or approval that is required for the home care worker to provide adequate home care services for the home care consumer.

105.115(2)(b) (b) A statement of the employment status of the home care worker, specifically, whether the home care worker is an employee of the home care placement agency or of the home care consumer or is an independent contractor and a statement identifying which party is responsible for paying the wages or salary of the home care worker, paying federal social security taxes and state and federal unemployment contributions or taxes with respect to the home care worker, and procuring worker’s compensation or liability insurance covering injury to the home care worker.

105.115(2)(c) (c) A statement that, notwithstanding the employment status of the home care worker specified in the notice, the home care consumer may be determined to be the employer of the home care worker for purposes of certain state and federal labor laws and that, if that is the case, the home care consumer may be held responsible for paying the wages or salary of the home care worker, paying federal social security taxes and state and federal unemployment contributions or taxes with respect to the home care worker, procuring worker’s compensation or liability insurance covering injury to the home care worker, and complying with various other state and federal labor laws.

105.115(2)(cm) (cm) A list, by county, of the telephone numbers provided under s. 46.90 (3) (c) that a person may call to report suspected cases of abuse, material abuse, neglect, or self-neglect under the elder abuse reporting system.

105.115(2)(cn) (cn) A telephone number at the department of health services that a person may call to report suspected cases of abuse or neglect of a client or of misappropriation of a client’s property under s. 146.40 (4r) (a).

105.115(2)(d) (d) A telephone number and address at which the home care consumer may contact the department if he or she has any questions about the contents of the notice.

105.115(2)(e) (e) A statement acknowledging that the home care consumer has received and understands the notice provided under this subsection and a line for the home care consumer’s signature located immediately below that statement. The home care placement agency shall give the home care consumer one copy of the notice signed by the home care consumer and shall retain one copy in its files.

105.115(3) (3) Notice to home care workers. Whenever a home care placement agency places a home care worker in the temporary or permanent residence of a home care consumer, the home care placement agency shall provide the home care worker with a notice stating the employment status of the home care worker, specifically, whether the home care worker is an employee of the home care placement agency or of the home care consumer or is an independent contractor. The notice shall be on a form prescribed by the department and shall include, at a minimum, all of the following:

105.115(3)(a) (a) A statement that, notwithstanding the employment status of the home care worker specified in the notice, the home care worker may be determined to be an independent contractor for purposes of certain state and federal labor laws and, if that is the case, a description of the duties, responsibilities, and liabilities of the home care placement agency and the home care consumer with respect to the home care worker and the duties, responsibilities, and liabilities of the home care worker as a result of that independent contractor status. That description shall include, at a minimum, all of the following information:

105.115(3)(a)1. 1. A statement identifying which party is responsible for paying the wages or salary of the home care worker, paying federal social security taxes and state and federal unemployment contributions or taxes with respect to the home care worker, and procuring worker’s compensation or liability insurance covering injury to the home care worker.

105.115(3)(a)2. 2. A statement identifying which party is responsible for the day-to-day supervision of the home care worker, assigning duties to the home care worker, hiring, firing, and discipline of the home care worker, and providing equipment or materials for use by the home care worker.

105.115(3)(b) (b) A telephone number and address at which the home care worker may contact the department if he or she has any questions about the contents of the notice.

105.115(3)(c) (c) A statement acknowledging that the home care worker has received and understands the notice provided under this subsection and a line for the home care worker’s signature located immediately below that statement. The home care placement agency shall give the home care worker one copy of the notice signed by the home care worker and shall retain one copy in its files.

105.115(4) (4) Investigations, remedies, and penalties.

105.115(4)(a) (a) A home care consumer who is not provided with the notice required under sub. (2) or a home care worker who is not provided with the notice required under sub. (3) may either file a complaint with the department or commence an action in circuit court to recover from the home care placement agency the payment under par. (b) or (c) no later than 3 years after the date on which the home care placement agency was required to provide the notice. If the department receives a complaint that is timely filed, the department shall investigate the complaint and attempt, on behalf of the home care consumer or home care worker, to recover the payment under par. (b) or (c). In investigating a complaint filed under this paragraph, the department shall have the right of entry and audit under ss. 105.08 and 105.09 as to the home care placement agency.

105.115(4)(b) (b)

105.115(4)(b)1. 1. If the department finds that a home care placement agency has failed to provide a home care consumer with the notice required under sub. (2) and that the home care consumer is liable for the payment of federal social security taxes or state or federal unemployment contributions or taxes with respect to the home care worker, for the provision of worker’s compensation or liability insurance covering injury to the home care worker, for the payment of any fine or penalty imposed on the home care consumer for noncompliance with any state or federal labor law with respect to the home care worker, or for any injury to the home care worker, the department may recover from the home care placement agency, on behalf of the home care consumer, an amount equal to the total cost of those liabilities.

105.115(4)(b)2. 2. If the home care placement agency does not pay the amount specified in subd. 1. within 30 days after demand by the department, the department may commence a civil action on behalf of the home care consumer to collect that amount, and the circuit court may order the home care placement agency to pay to the home care consumer that amount, plus an additional amount equal to 50 percent of that amount, together with costs under ch. 814 and, notwithstanding s. 814.04 (1), reasonable attorney fees.

105.115(4)(b)3. 3. In the case of a home care consumer who commences an action in circuit court under par. (a), if the circuit court finds that the home care placement agency has failed to provide the home care consumer with the notice required under sub. (2) and that the home care consumer is liable for the payment of federal social security taxes or state or federal unemployment contributions or taxes with respect to the home care worker, for the provision of worker’s compensation or liability insurance covering injury to the home care worker, for the payment of any fine or penalty imposed on the home care consumer for noncompliance with any state or federal labor law with respect to the home care worker, or for any injury to the home care worker, the court may order the home care placement agency to pay to the home care consumer an amount equal to the total cost of those liabilities, together with costs under ch. 814 and, notwithstanding s. 814.04 (1), reasonable attorney fees.

105.115(4)(c) (c)

105.115(4)(c)1. 1. If the department finds that a home care placement agency has failed to provide a home care worker with the notice required under sub. (3), that the home care worker is an independent contractor, and that the home care worker is liable for the payment of federal self-employment social security taxes or has sustained an injury as a result of performing home care services, the department may recover from the home care placement agency, on behalf of the home care worker, an amount equal to the total cost of that liability or the total amount of damages sustained as a result of that injury.

105.115(4)(c)2. 2. If the home care placement agency does not pay the amount specified in subd. 1. within 30 days after demand by the department, the department may commence a civil action on behalf of the home care worker to collect that amount, and the circuit court may order the home care placement agency to pay to the home care worker that amount, plus an additional amount equal to 50 percent of that amount, together with costs under ch. 814 and, notwithstanding s. 814.04 (1), reasonable attorney fees.

105.115(4)(c)3. 3. In the case of a home care worker who commences an action in circuit court under par. (a), if the circuit court finds that the home care placement agency has failed to provide the home care worker with the notice required under sub. (3), that the home care worker is an independent contractor, and that the home care worker is liable for the payment of federal self-employment social security taxes or has sustained an injury as a result of performing home care services, the court may order the home care placement agency to pay to the home care worker an amount equal to the total cost of that liability or the total amount of damages sustained as a result of that injury, together with costs under ch. 814 and, notwithstanding s. 814.04 (1), reasonable attorney fees.

105.115(5) (5) Rules. The department shall promulgate rules to implement this section.

105.115 History History: 2005 a. 197; 2007 a. 20 s. 9121 (6) (a).

105.115 Cross-reference Cross-reference: See also s. DWD 277.19, Wis. adm. code.

105.12 105.12 Prohibited practices. No applicant shall be placed in any employment by an employment agent in violation of any statute, order or rule of the department. Examinations given by a private employment agency may be for job-related skills only.

105.12 History History: 1973 c. 226.

105.13 105.13 Refusal to issue; suspension or revocation of license.

105.13(1) (1) The department may issue licenses to employment agents, and refuse to issue a license whenever, after investigation, the department finds that the character of the applicant makes the applicant unfit to be an employment agent, that the applicant has failed to pay court-ordered payments as provided in sub. (2), that the applicant is liable for delinquent taxes as provided in sub. (3), or that the applicant is liable for delinquent unemployment insurance contributions as provided in sub. (4), or when the premises for conducting the business of an employment agent is found upon investigation to be unfit for such use. Any license granted by the department may be suspended or revoked by it upon notice to the licensee and good cause. Failure to comply with this chapter and rules promulgated thereunder, or with any lawful orders of the department, is cause to suspend or revoke a license. Failure to pay court-ordered payments as provided in sub. (2) is cause to deny, suspend, restrict, refuse to renew or otherwise withhold a license. Liability for delinquent taxes as provided in sub. (3) or delinquent unemployment insurance contributions as provided in sub. (4) is cause to deny or revoke a license.

105.13(2) (2) The department of workforce development shall deny, suspend, restrict, refuse to renew, or otherwise withhold an employment agent’s license 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), any 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.

105.13(3) (3) The department shall deny an application for the issuance or renewal of an employment agent’s license, 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.

105.13(4) (4) 

105.13(4)(a) (a) The department may deny an application for the issuance or renewal of an employment agent’s license, 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.

105.13(4)(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).

105.13(4)(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.

105.13(4)(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.

105.13 History History: 1973 c. 226; 1993 a. 492; 1997 a. 191, 237; 2009 a. 180; 2013 a. 36.

105.13 Cross-reference Cross-reference: See also ss. DWD 277.03 and 277.07, Wis. adm. code.

105.14 105.14 Regulations; records; reports. The department may fix reasonable rules for the conduct of the business of any employment agent or employment agency as are necessary to carry out this chapter. The department may fix reasonable classifications of employments or positions and fix a reasonable scale of fees to be charged by employment agents to applicants for employment for each classification within the restrictions contained in this chapter, and may fix reasonable classifications of the business of employment agents, and make its rules and orders conform to these classifications. It may prescribe the form of books, registers or records to be kept by the employment agent, the receipts or copies of contracts to be handed to persons referred to employment, the reports to be made to the department, the refunds to be made to applicants who failed to secure employment; and it may order any other measures reasonably necessary to protect the public and persons seeking employment against fraud, misrepresentation or any other unauthorized act of any employment agent.

105.14 History History: 1973 c. 226; 1989 a. 220.

105.15 105.15 General powers of department applicable; penalties. Such investigations, classifications, and orders shall be made as provided in s. 103.005 and the penalties specified in s. 103.005 (12) shall apply to and be imposed for any violation of ss. 105.01 to 105.115 or 105.13 to 105.15. The department may also order a person who operates an employment agency in violation of s. 105.05 (1) to make refunds as provided under s. 105.16 (2). Orders issued under this section are subject to review in the manner provided in ch. 227.

105.15 History History: 1971 c. 228 s. 43; 1989 a. 220; 1991 a. 32; 1995 a. 27; 2005 a. 197.

105.16 105.16 Late fees and reports; failure to obtain license; refund.

105.16(1) (1) Every employment agent shall submit all fees, license renewal applications and reports within the time limitations or due dates specified by the department. A penalty fee of $5 per day for each day such fee, application or report is overdue may be levied by the department.

105.16(2) (2) If a person acts as an employment agent without the license required under s. 105.05 or after the person’s license is suspended or revoked under s. 105.13, the department may order the person to refund all fees and charges that the person collected while unlicensed.

105.16 History History: 1973 c. 226; 1989 a. 220.