Chapter DWD 272

  PER WEEK

DWD 272.07(3r)(a)1. 1. If board and lodging are not furnished   $315.00

DWD 272.07(3r)(a)2. 2. If board only is furnished   $240.00

DWD 272.07(3r)(a)3. 3. If board and lodging are furnished   $189.00

DWD 272.07(3r)(b) (b) Counselors 17 years of age and under:

  PER WEEK

DWD 272.07(3r)(b)1. 1. If board and lodging are not furnished   $275.00

DWD 272.07(3r)(b)2. 2. If board only is furnished   $209.00

DWD 272.07(3r)(b)3. 3. If board and lodging are furnished   $165.00

DWD 272.07(4) (4) Records. Recreational or educational camps and day camps are not required to keep the daily and weekly time records required by s. DWD 272.11 (1) (d), (e), and (f), for counselors employed and paid on a weekly basis.

DWD 272.07(5) (5) Definitions. For the purpose of this section:

DWD 272.07(5)(a) (a) A “recreational or educational camp” means a camp operated under trained leadership for the purpose of providing group experience for and contributing to the physical, mental, spiritual and social growth of campers who are less than 18 years of age and who make such camp their residence during the camping period.

DWD 272.07(5)(b) (b) A “recreational or educational day camp” means a camp operated under trained leadership for the purpose of providing group experience and contributing to the physical, mental, spiritual and social growth of campers who participate in such camping program during daytime periods, but not overnight.

DWD 272.07(5)(c) (c) A “camp counselor” means a person employed by a “recreational or educational camp” or “recreational or educational day camp” who leads, directs and instructs campers in such camps in their camping program and activities and shares responsibility for the total care and well-being of campers.

DWD 272.07 History History: Cr. Register, July, 1978, No. 271, eff. 8-1-78; r. and recr. (3) (a) and (b), Register, February, 1980, No. 290, eff. 3-1-80; am. (3) (a) and (b), Register, February, 1992, No. 434, eff. 3-1-92; corrections made under s. 13.93 (2m) (b) 7., Stats., Register, February, 1996, No. 482; am. (title), (1), (4) and (5), Register, May, 1997, No. 497, eff. 6-1-97; emerg. am. (3) eff. 6-1-05; CR 05-056: am. (3), cr. (3g) and (3r) Register August 2005 No. 596, eff. 11-1-05; CR 08-069: r. and recr. (3), r. (3g), am. (3r) (intro.) Register February 2009 No. 638, eff. 3-1-09.

DWD 272.08 DWD 272.08 Caddies. The minimum wage of employees employed as caddies shall be:

$5.90   9 holes

$10.50   18 holes

DWD 272.08 History History: Cr. Register, July, 1978, No. 271, eff. 8-1-78; r. and recr. Register, February, 1980, No. 290, eff. 3-1-80; am. Register, February, 1992, No. 434, eff. 3-1-92; emerg. am. eff. 6-1-05; CR 05-056: am. Register August 2005 No. 596, eff. 11-1-05.

DWD 272.085 DWD 272.085 Student worklike activities and employment.

DWD 272.085(1) (1) Independent colleges and universities.

DWD 272.085(1)(a) (a) Independent colleges and universities may employ full-time students who are 18 years of age and over for 20 hours per week or less at the federal minimum wage rates established under 29 USC 206.

DWD 272.085(1)(b) (b) Students who work at independent colleges or universities for over 20 hours per week shall be paid at the rates established under s. DWD 272.03.

DWD 272.085(2) (2) Elementary and secondary schools. Student worklike activities that meet the criteria of s. DWD 270.19 are not covered by the minimum wage provisions of this chapter.

DWD 272.085 History History: Cr. Register, July, 1978, No. 271, eff. 8-1-78; correction made under s. 13.93 (2m) (b) 7., Stats., Register, February, 1996, No. 482; r. and recr. Register, October, 2000, No. 538, eff. 11-1-00; correction in (2) made under s. 13.92 (4) (b) 7., Stats., Register February 2009 No. 638.

DWD 272.09 DWD 272.09 Subminimum wage licenses for rehabilitation facilities and for the employment of workers with disabilities and student learners.

DWD 272.09(1) (1) Definitions. For the purposes of this section:

DWD 272.09(1)(a) (a) “Commensurate wage” means a special minimum wage paid to a worker with a disability.

DWD 272.09(1)(b) (b) “Employ” means to permit work.

DWD 272.09(1)(c) (c) “Employment relationship” means the relationship that exists whenever an individual, including an individual with a disability, is permitted to work.

DWD 272.09(1)(d) (d) “Experienced worker” means a worker who has learned the basic elements or requirements of the work to be performed, ordinarily by completion of a probationary or training period.

DWD 272.09(1)(dm) (dm) “IWRP” means individualized written rehabilitation plan.

DWD 272.09(1)(e) (e) “Institution” means an entity which may be either a public or private entity and either a nonprofit or a for profit entity that receives more than 50% of its income from providing residential care for sick, aged, or mentally ill persons or persons with intellectual disabilities. “Institution” includes hospitals, nursing homes, intermediate care facilities, rest homes, convalescent homes, homes for the elderly and infirm, halfway houses, and residential centers for the treatment of drug addiction or alcoholism, whether licensed under s. 50.01, Stats., or not licensed.

DWD 272.09(1)(f) (f) “Patient worker” means a worker with a disability employed by a hospital or institution providing residential care where the worker receives treatment or care without regard to whether the worker is a resident of the establishment. In determining whether a patient worker is “employed”, the department shall consider whether the work performed is of any consequential economic benefit to the institution. Work is considered to be of consequential economic benefit if it is of the type that workers without disabilities normally perform. A patient does not become an employee if the patient merely performs personal housekeeping chores and receives token remuneration in connection with this activity. It may also be possible for patients in group homes or other family like settings to rotate or share household tasks or chores without becoming employees.

DWD 272.09(1)(g) (g) “Sheltered workshop” means a rehabilitation facility which is 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 providing such individuals with remunerative employment or other occupational rehabilitating activity of an educational or therapeutic nature.

DWD 272.09(1)(h) (h) “Sheltered workshop training program” or ‘‘rehabilitation training program” means a program of not more than 12 months duration designed to:

DWD 272.09(1)(h)1. 1. Develop the patterns of behavior which will help a client adjust to a work environment, or

DWD 272.09(1)(h)2. 2. Teach the skills and knowledge related to a specific occupational objective of a job family, and which meets the department of workforce development, division of vocational rehabilitation or equivalent standards.

DWD 272.09(1)(i) (i) “Special minimum wage” means a wage authorized under a license issued to an employer that is less than the statutory minimum wage.

DWD 272.09(1)(j) (j) “Sponsoring agency” means a sheltered workshop, governmental agency or a nonprofit charitable organization or institution carrying out an occupational rehabilitating activity of an educational or therapeutic nature.

DWD 272.09(1)(k) (k) “Student learner” means a student who is receiving instruction in an accredited school, college or university and who is employed on a part-time basis, pursuant to a bona fide vocational training program.

DWD 272.09(1)(L) (L) “Vicinity” or “locality” means the geographic area from which the labor force of the community is drawn.

DWD 272.09(1)(m) (m) “Work activity center” means a rehabilitation facility, a workshop or a physically separated department of a workshop having an identifiable program, separate supervision and records, planned and designed exclusively to provide therapeutic activities for workers with disabilities whose physical or mental impairment is so severe as to make their productive capacity inconsequential.

DWD 272.09(1)(n) (n) “Worker with a disability” means an individual whose earnings or productive capacity is impaired by a physical or intellectual disability, including those relating to age or injury, for the work to be performed. Disabilities which may affect earning or productive capacity include blindness, mental illness, intellectual disability, cerebral palsy, alcoholism and drug addiction. The following, taken by themselves, are not considered disabilities for the purposes of this section: vocational, social, cultural, or educational disabilities; chronic unemployment; receipt of welfare benefits; nonattendance at school; juvenile delinquency; and correctional parole or probation. Further, a disability which may affect earning or productive capacity for one type of work may not have this effect for another type of work.

DWD 272.09(2) (2) Wage payments.

DWD 272.09(2)(a) (a) An individual whose earning or productive capacity is not impaired for the work being performed cannot be employed under a license and shall be paid at least the applicable minimum wage. An individual whose earning or productive capacity is impaired to the extent that the individual is unable to earn at least the applicable minimum wage may be paid a commensurate wage, but only after the employer has obtained a license authorizing the payment of a special minimum wage from the department.

DWD 272.09(2)(b) (b) The employer may not deduct from the commensurate wages of patient workers employed in institutions to cover the cost of room, board or other services provided by the facility. A patient worker shall receive wages with no deductions except for amounts deducted for taxes and any voluntary wage assignments. These rules do not preclude the institution from assessing or collecting charges for room, board and other services actually provided to an individual to the extent permitted by federal or state law and on the same basis as it assesses and collects from nonworking patients.

DWD 272.09(2)(c) (c) Under this chapter, an employment relationship arises whenever an individual is permitted to work. The determination as to the existence of an employment relationship does not depend upon the level of performance or whether the work is of some therapeutic benefit. It does not include such activities as making craft products when the individual voluntarily participates in such activities and the products become the property of the individual making them, or all the funds resulting from the sale of the products are divided among the participants in the activity or are used in purchasing additional materials to make craft products.

DWD 272.09(3) (3) Compensable time. The employer shall compensate employees for all hours worked. Compensable time includes not only those hours during which the individual is actually performing productive work but also includes those hours when no work is performed but the individual is required by the employer to remain available for the next assignment. If the individual is completely relieved from duty and is not required to remain available for the next assignment, the time will not be considered compensable time. The burden of establishing that any hours are not compensable rests with the facility and the hours must be clearly distinguishable from compensable hours.

DWD 272.09 Note Note: As an example, a person employed by a rehabilitation facility would not be engaged in a compensable activity if the person is completely relieved from duty but is provided therapy or the opportunity to participate in an alternative program or activity in the facility that does not involve work and is not directly related to the person’s job (examples are self-help skills training, recreation, job seeking skills training, independent living skills, or adult basic education).

DWD 272.09(4) (4) Special provisions for temporary authority.

DWD 272.09(4)(a) (a) The department may grant temporary authority to an employer to permit the employment of workers with disabilities pursuant to a vocational rehabilitation program of the U.S. department of veterans affairs for veterans with a service-incurred disability or a vocational rehabilitation program administered by a state agency.

DWD 272.09(4)(b) (b) Temporary authority under this subsection is effective for 90 days from the date that the designated section of the application form is completed and signed by the representative of the state agency or the U.S. department of veterans affairs, if the application form is sent to the department within 10 days of the signing. Temporary authority under this subsection may not be renewed or extended by the department.

DWD 272.09(4)(c) (c) The signed application form constitutes the temporary authority to employ workers with disabilities at special minimum wage rates. The department shall review all applications under this subsection upon receipt and shall issue a license when the criteria for licensing are met. The department shall promptly notify the applicant if additional information is required or if the license is denied.

DWD 272.09(5) (5) Criteria for employment under a special minimum wage rate license.

DWD 272.09(5)(a) (a) To determine whether the approval of special minimum wage rates is necessary in order to prevent the curtailment of opportunities for employment and to determine whether a particular employee will receive a commensurate wage, the department shall consider the following criteria:

DWD 272.09(5)(a)1. 1. The nature and extent of the disabilities of the employee as these disabilities relate to the employee’s productivity.

DWD 272.09(5)(a)2. 2. The prevailing wages of experienced employees not disabled for the job that are employed in the vicinity in industry engaged in work comparable to the work under consideration.

DWD 272.09(5)(a)3. 3. The productivity of a worker with a disability compared to the norm established for nondisabled employees through the use of a verifiable work measurement method, or the productivity of experienced nondisabled employees employed in the vicinity on comparable work.

DWD 272.09(5)(a)4. 4. The wage rates to be paid to a worker with a disability for work comparable to that performed by experienced nondisabled employees.

DWD 272.09(5)(b) (b) Before the license authorizing special minimum wage rates for workers with disabilities is issued, the employer shall provide the following written assurances concerning the employment:

DWD 272.09(5)(b)1. 1. In the case of employees paid at hourly rates, the special minimum wage rates shall be reviewed by the employer at periodic intervals with a minimum interval of once every 6 months.

DWD 272.09(5)(b)2. 2. Wages for all employees shall be adjusted by the employer at periodic intervals with a minimum interval of once each year to reflect changes in the prevailing wages paid to experienced nondisabled employees employed in the locality for essentially the same type of work.

DWD 272.09(6) (6) Prevailing wage rates.

DWD 272.09(6)(a) (a) A prevailing wage rate is a wage rate that is paid to an experienced employee not disabled for the work to be performed. There may be more than one prevailing wage rate for a specific type of work in the given area. The department shall require an employer applying for a special minimum wage rate license to demonstrate that the wage rate used as prevailing for determining a commensurate wage was objectively determined according to the requirements of this subsection.

DWD 272.09(6)(b) (b) An employer whose work force consists primarily of nondisabled employees or who employs more than a token number of nondisabled employees doing similar work shall use as the prevailing wage the wage rate paid to that employer’s experienced nondisabled employees performing similar work. This requirement also applies to the determination of the prevailing wage rate when a sponsoring agency places a disabled employee on the premises of an employer covered by this paragraph.

DWD 272.09(6)(c) (c) An employer whose work force primarily consists of employees disabled for the work to be performed may determine the prevailing wage by ascertaining the wage rates paid to the experienced nondisabled employees of other employers in the vicinity. This information may be obtained by conducting a survey of comparable businesses in the area that employ primarily nondisabled employees doing similar work. The businesses that are surveyed should be representative of the area in terms of wages paid to experienced employees doing similar work. The appropriate size of the sample will depend on the number of firms doing similar work but should include no less than 3 businesses unless there are fewer businesses doing similar work in the area. A comparable firm is one which is of similar size in terms of employees or which competes for or bids on contracts of a similar size or nature.

DWD 272.09(6)(d) (d) If a survey is not practical, an employer may contact other sources such as the federal bureau of labor statistics or private or state employment services. If similar businesses cannot be found in the area defined by the geographic labor market, the closest comparable community may be used.

DWD 272.09(6)(e) (e) The prevailing wage rate shall be based upon the wage rate paid to experienced nondisabled employees. Employment services which only provide entry level wage data are not acceptable as sources for prevailing wage information.

DWD 272.09(6)(f) (f) The prevailing wage survey shall be based upon work utilizing similar methods and equipment. The employer shall employ a consistent methodology for tabulating the results of the survey.

DWD 272.09(6)(g) (g) The employer shall record the following information in documenting the determination of prevailing wage rates:

DWD 272.09(6)(g)1. 1. Date of contact with a firm or other source.

DWD 272.09(6)(g)2. 2. Name, address and phone number of firm or other source contact.

DWD 272.09(6)(g)3. 3. Title and name of the individual contacted within the firm or source.

DWD 272.09(6)(g)4. 4. Wage rate information provided.

DWD 272.09(6)(g)5. 5. Brief description of work for which wage information is provided.

DWD 272.09(6)(g)6. 6. Basis for the conclusion that the wage rate is not based upon an entry level position.

DWD 272.09(6)(h) (h) A prevailing wage may not be less than the minimum wage specified in this chapter.

DWD 272.09 Note Note: If the employer is unable to obtain the prevailing wage for a specific job to be performed on the premises (for example, collating documents), it is acceptable to use as the prevailing wage the wage paid to experienced individuals employed in similar jobs requiring the same general skill levels (for example, file clerk or general office clerk).

DWD 272.09(7) (7) Issuance of licenses.

DWD 272.09(7)(a) (a) After considering the criteria given in sub. (5), the department may issue a special license.

DWD 272.09(7)(b) (b) If the department issues a special minimum wage license, it shall send a copy to the employer. If the department denies a license, it shall notify the employer in writing and provide the reasons for the denial.

DWD 272.09(8) (8) Terms and conditions of special minimum wage licenses.

DWD 272.09(8)(a) (a) The department shall specify the terms and conditions under which a special minimum wage license is granted.

DWD 272.09(8)(b) (b) The department shall provide that a special minimum wage license applies to each worker employed by the employer receiving the license, provided that the worker is in fact disabled for the work that he or she is to perform.

DWD 272.09(8)(c) (c) The department shall designate the period for which a special minimum wage license shall be effective. The employer may pay a wage lower than the minimum wage to a worker with a disability only during the effective period of a license which applies to that worker.

DWD 272.09(8)(d) (d) No special minimum wage license shall authorize workers with disabilities to be paid wages that are less than commensurate with those paid to experienced nondisabled workers employed in the vicinity for essentially the same type, quality and quantity of work.

DWD 272.09(8)(e) (e) Any special minimum wage license issued by the department shall require that workers with disabilities be paid not less than one and one half times the regular rate of pay for all hours worked in excess of 40 hours per week.

DWD 272.09(8)(f) (f) The special minimum wage license shall require that the wage of each worker covered by the license be adjusted by the employer at periodic intervals of at least once per year to reflect changes in the prevailing wages paid to experienced persons who are not disabled and who are employed in the vicinity for essentially the same type of work.