Rules Clearinghouse No. 23-030 Germane Modification
October 9, 2023
ORDER OF THE WISCONSIN
DEPARTMENT OF WORKFORCE DEVELOPMENT
The Wisconsin Department of Workforce Development (Department) adopts the following rule
to repeal DWD 301.04 (1), 301.05 (3), (7) and (9), 301.06 (5) to (7), (12) (b) and (16), 301.07 (5) (title), (6) (e), (7) (c) (Note), (9) (a) 2. a. and 2. b., (c), (e) and (Note), (11) (a) 1., (15) (m), (16) (q), (17) (a) 3. and (b) 3. and (21) (em) 4., (j) and (k), 301.08 (7), 301.09 (intro.), (2) (b) and (c), (4) (d), (6) (title), (c), (d) and (f) and (7) (d) and 301.13 (4); to renumber 301.07 (5) (a) and (c) and (11) (f) 1. and 301.09 (3) (title), (4) (title) and (6) (e); to renumber and amend DWD 301.04 (2), 301.05 (4), (5), (6) and (8) (b), 301.06 (2), (2m), (8), (9), (10), and (12) (a), 301.07 (3), (5) (b) and (d), (6) (a) and (Note), (8) (f) 1., 2. and 3., (9) (a) (intro.), 1. and 2. (intro.), (11) (a), (15) (d), (21) (i) and (23) (a), 301.08 (5), 301.09 (1), (2) (title) and (a), (3), (4) (a), (b) and (c), (5) and (6) (a) and (b) and 301.13 (1) (Note); to consolidate, renumber, and amend DWD 301.05 (1) and (2), 301.06 (3) and (4), 301.07 (6) (c) and (d), (16) (L) and (o) and (18) (b) and (c) and 301.13 (3) (a) and (b); to amend DWD 301.05 (8) (intro.), (a), (c), (d) and (e), 301.06 (title), (11), (14) and (15), 301.07 (1) (a) and (c) to (f), (2), (4), (6) (b) (intro.), 2. and 3. and (f), (7) (a), (b) and (c), (8) (c) to (e), (9) (d), (10) (a) and (b), (11) (a) 3., (b), (c) (intro.), (d) and (3), (i), (12), (13) (a), (c), (g) and (h), (14) (b), (d) and (h), (15) (a), (c), (d) 1. and 2., (e), (f) and (h), (16) (a) to (d), (f), (i) to (k) and (p), (17) (a) (intro.). 1. and 4., (b) (intro.) and 7., (d) (intro.). 1., 7., 8., 16. and 19., (18) (a) and (d), (20) (e), (21) (title), (b), (c), (e), (em) 1. (intro.), 1. a. and 2., (f) and (h), (22) (a), (b) and (c) (intro.). 1., 2. and 4., (23) (b), (24), 301.08 (1), (2), (3), (6), 301.09 (7) (a), (b) and (c), 301.13 (1) and (2) and 301.14; to repeal and recreate DWD 301.03, 301.04 (title), 301.07 (1) (title), (11) (a) 2., 301.13 (5) and 301.14 (Note); and to create DWD 301.015 (title), (intro.) and (Note), (1), (2), (5) to (8), (9) (Note), (11) (Note), (12), (15) and (Note), (16) to (18), (21) (Note), (25) and (26), 301.03 (Note), 301.05 (1) (title), (a) (Note), (b) and (Note) and (c), (8) (title), (am) and (d) (Note), 301.06 (1e), (3m) and (8) (b) and (d), 301.07 (1) (a) (Note), (ag), (ar) (Note), (aw) and (Note) and (g), (1m) (Note), (2) (Note), (6) (ag), (8) (bm), (9) (ag), (f) and (g), (16) (r), (17) (a) 3m. and 7., (b) 3m., (d) 7. (Note) and 8. (Note), (20) (bm) and (dm), (21) (i) 1. to 19. and (23) (a) 1. and 2., 301.075, 301.08 (1) (Note), (2) (Note) and (5) (b), 301.09 (1m) (title) and (a) (2m) (title) and (a) and 301.135, ; and to create and repeal 301.09 (2m) (title) (d) and (e), relating to migrant labor and affecting small business.
The statement of scope for this rule, SS 004-22, was approved by the Governor on January 13, 2022, published in the Wisconsin Administrative Register No. 793A3 on January 18, 2022, and approved by the Secretary of the Department of Workforce Development on April 15, 2022. Analysis Prepared by the Department of Workforce Development
Statutes interpreted
Statutory authority
Explanation of statutory authority
Section 103.905 (1), Stats., requires the Department to promulgate rules "for the enforcement and implementation of ss. 103.90 to 103.97," Stats., which is the Wisconsin Migrant Labor Law. This authority includes ensuring that migrant labor camps, transportation, and field work are safe for workers. Related statutes or rules
None.
Plain language analysis
Current ch. DWD 301 includes requirements for all of the following: 1) certification of migrant labor contractors; 2) migrant labor work agreements; 3) certification of migrant labor camps; 4) migrant labor camp standards; 5) payment of wages to migrant workers; 6) field sanitation standards; 7) assessment of penalties for violations of the chapter; and 8) notice of migrant labor rights. The Department has made no substantive revisions to the chapter since Clearinghouse Rule CR 07-018 went into effect on January 1, 2008. This rule revises current ch. DWD 301 as follows: Definitions. The rule creates one section that sets forth definitions that are interspersed throughout the current chapter. The rule also creates definitions for previously undefined terms.
Some of the definitions apply to terms used in the Migrant Labor Law but not in the chapter. For those definitions, notes are provided that cite the relevant statutory provisions in the Migrant Labor Law.
Migrant labor contractors. The rule establishes timelines for the Department to make decisions on applications for annual certificates of registration as a migrant labor contractor. As under the current chapter, the rule requires the Department to make a decision within 20 working days after receiving an application, except that the rule allows that deadline to be extended in order to determine whether an applicant is ineligible under current statutory law due to delinquencies in child or family support, taxes, or unemployment insurance contributions. The rule does not affect the $100 application fee required under the current chapter. The rule also clarifies the appeals process for Department actions regarding the certificates.
Migrant labor work agreements. The rule consolidates in one section the items required to be included in a work agreement. The rule provides that workers who are required to isolate due to disease under the rule (see below) are considered available for work for purposes of the minimum work guarantee that must be included in work agreement under s. 103.915 (4) (b), Stats. That statute allows an employer to reduce the minimum work guarantee based on unavailability to work. Because an isolated worker is considered available for work under the rule, an employer may not reduce the minimum work guarantee based on the period of isolation. The rule makes other changes that clarify how to determine the time period covered by the minimum work guarantee. In addition, the rule clarifies electronic signature requirements in accordance with ch. 137, Stats. Migrant labor camps. The rule updates requirements for migrant labor camps as follows:
The rule clarifies the deadline for the Department to make determinations on applications for annual certificates to operate a migrant labor camp. As under the current rule, the deadline is based on the date that an application is received and the date that a migrant labor camp is inspected. The rule has the effect of potentially lengthening the deadline by 10 days. The rule also establishes a $100 application fee. Under the current chapter, the fee is $50, except that the fee is $100 for applications made after March 31.
When a migrant labor camp operator annually applies for a certificate to operate a migrant labor camp, the rule requires the operator to submit to the Department documentation from local fire departments confirming that property meets local and state fire codes. This requirement clarifies how the Department verifies compliance with those codes. The rule also requires an operator to submit written procedures for the temporary isolation of sick or injured occupants of migrant labor camps.
The rule aligns water testing requirements required under the current chapter with rules of the Department of Natural Resources (DNR), including testing and posting requirements for total nitrate nitrite levels. See s. NR 809.11 (2) and (3). If maximum contaminant levels are exceeded, the rule requires a migrant labor camp operator to demonstrate to the Department's satisfaction that the operator has complied with those DNR rules. The rule also clarifies that if a migrant labor camp is regulated as a public water system under DNR rules, the camp must comply with both DNR's rules and the Department's rules. In addition, the rule requires a migrant labor camp operator to submit to the Department any well construction reports that the migrant labor camp operator is required to submit to DNR. DNR's rules are referenced to clarify their application to migrant labor camp operators. The rule creates the following new requirements, which align with requirements of other state and federal agencies:
— Food preparation areas and sleeping quarters must be 500 feet from livestock. This requirement is consistent with regulations of the federal Occupational Safety and Health Administration (OSHA). See 29 CFR 1910.142 (a) (2). — Mobile home units must be at least 10 feet from streets, in addition to at least 10 feet from other buildings and property lines as required under the current rule. This requirement is consistent with rules of the Department of Safety and Professional Services (DSPS). See s. SPS 326.12 (1) (c) 3. — As under the current chapter, the rule requires the total openable area of a window in a habitable room to be at least 45 percent of the total window area. However, the rule eliminates an exception to this requirement for a habitable room that is supplied with ventilation by mechanical or some other method.
