Wisconsin Administrative Code › Department of Workforce Development › DWD 290-294 - Public Works Construction Contracts › Chapter DWD 290 - Contracts For Construction Of Public Works › Section DWD 290.01 - Definitions

Current through June 24, 2024
The following definitions shall apply to all prevailing wage
				  rate determinations issued by the department pursuant to this chapter:
(1) "Allowable rate" means the rate
				determined by the department from its review of a collective bargaining
				agreement by subtracting items which do not represent bona fide fringe
				benefits.
Note:
This term is used in s.
				  DWD
				  290.015(3). Two examples of items
				  which do not represent bona fide fringe benefits are industry or contract
				  administration funds.
(2)
				"Area" has the same meaning as in ss.
				66.0903(1)
				(a), 66.0904(1) (a),
				103.49(1)
				(a), and
				103.50(1)
				(a), 2009 Stats.
Note:
Section
				  66.0903(1)
				  (a), 2009 Stats., provides that "area" means
				  "the county in which a proposed project of public works that is subject to this
				  section is located or, if the department determines that there is insufficient
				  wage data in that county, "area" means those counties that are contiguous to
				  that county or, if the department determines that there is insufficient wage
				  data in those counties, "area" means those counties that are contiguous to
				  those counties or, if the department determines that there is insufficient wage
				  data in those counties, "area" means the entire state or, if the department is
				  requested to review a determination under sub. (3) (br), "area" means the city,
				  village or town in which a proposed project of public works that is subject to
				  this section is located." The same definition is provided in s. 66.0904(1) (a),
				  2009 Stats., except that the cross-reference relating to the review of a
				  determination is to s. 66.0904(4) (e), 2009 Stats. The same definition is
				  provided in s.
				  103.49(1)
				  (a), 2009 Stats., except that the
				  cross-reference relating to the review of a determination is to s.
				  103.49(3)
				  (c), 2009 Stats. The same definition is
				  provided in s.
				  103.50(1)
				  (a), 2009 Stats., except that there is no
				  cross-reference relating to the review of a determination.
(3) "Bona fide economic benefit" has the same
				meaning as in ss.
				66.0903(1)
				(am), 66.0904(1) (am), and
				103.49(1)
				(am), 2009 Stats.
Note:
Sections
				  66.0903(1)
				  (am) and 66.0904(1) (am), 2009 Stats., both
				  provide that "bona fide economic benefit" has the meaning given in s.
				  103.49(1)
				  (am), 2009 Stats. Section
				  103.49(1)
				  (am), 2009 Stats., provides that "bona fide
				  economic benefit" means "an economic benefit for which an employer makes
				  irrevocable contributions to a trust or fund created under
				  29 USC
				  186(c) or to any other bona
				  fide plan, trust, program or fund no less often than quarterly or, if an
				  employer makes annual contributions to such a bona fide plan, trust, program or
				  fund, for which the employer irrevocably escrows moneys at least quarterly
				  based on the employer's expected annual contribution."
(4) "Contractor" means a person, including
				but not limited to a sole proprietor, a partnership, a corporation, a limited
				liability company, a construction manager or consultant, a Wisconsin state
				agency as defined in s.
				103.49(1)
				(f), 2009 Stats., or a local governmental
				unit as defined in s.
				66.0903(1)
				(d), 2009 Stats., who has entered into a
				contract with a state agency or local governmental unit for a project of public
				works, or who has entered into a contract with an owner or developer of real
				property for a publicly funded private construction project.
Note:
In an Opinion of the Attorney General
				  issued on November 12, 2009, OAG-5-09, the Attorney General states that,
				  effective January 1, 2010, state prevailing wage rates must be paid to the
				  employees of a local governmental unit that enters into an agreement to perform
				  services for another local governmental unit on a project of public works.
				  Under this rule, the same requirement also applies to any agreement for
				  services entered into before January 1, 2010, and to any work that is claimed
				  to be done pursuant to the joint exercise of powers or duties under s.
				  66.0301(2),
				  2009 Stats., before or after January 1, 2010, when the circumstances show that
				  the work comes under the definition of work done by a "contractor" or
				  "employer."
(5) "Department"
				means the state of Wisconsin department of workforce development.
(5m) "Direct financial assistance" has the
				same meaning as in s. 66.0904(1) (c), 2009 Stats.
Note:
Section 66.0904(1) (c), 2009 Stats.,
				  provides that "direct financial assistance" means moneys, in the form of a
				  grant or other agreement or included as part of a contract, cooperative
				  agreement, or any other arrangement, including a redevelopment agreement under
				  s.
				  66.1333(5),
				  economic development agreement, contract under s.
				  66.1105(3),
				  or assistance provided under s.
				  66.1109,
				  that a local governmental unit directly provides or otherwise directly makes
				  available to assist in the erection, construction, repair, remodeling,
				  demolition, of a private facility. " Direct financial assistance" does not
				  include any of the following:
(6) "Employer" means any contractor,
				subcontractor, agent or other person, including a Wisconsin state agency as
				defined in s.
				103.49(1)
				(f), 2009 Stats., or a local governmental
				unit as defined in s.
				66.0903(1)
				(d), 2009 Stats., doing or contracting to do
				all or a part of the work.
Note:
In an Opinion of the Attorney General
				  issued on November 12, 2009, OAG-5-09, the Attorney General states that,
				  effective January 1, 2010, state prevailing wage rates must be paid to the
				  employees of a local governmental unit that enters into an agreement to perform
				  services for another local governmental unit on a project of public works.
				  Under this rule, the same requirement also applies to any agreement for
				  services entered into before January 1, 2010, and to any work that is claimed
				  to be done pursuant to the joint exercise of powers or duties under s.
				  66.0301(2),
				  2009 Stats., before or after January 1, 2010, when the circumstances show that
				  the work comes under the definition of work done by a "contractor" or
				  "employer."
(6m) "Facility"
				means all or any portion of a building, a structure, land, infrastructure, or
				other real property.
(9) "Hourly
				basic rate of pay" has the meaning given in s.
				103.49(1)
				(b), 2009 Stats.
(10) "Hourly contributions" is the per hour
				cost of the economic benefits paid to a laborer, worker, mechanic or truck
				driver by his or her employer, in addition to the hourly basic rate of pay.
				Payment for food, lodging, mileage, riding time, waiting time, call-in pay,
				uniforms, and the use of an employer's vehicle are excluded.
Note:
Specific economic benefits.
				  (Interpretation)
(a)
Contribution irrevocably made by an employer to a trustee or to a third
				person.
Contributions for bona fide economic benefits made to a
				trustee or to a third person irrevocably shall be considered in ascertaining
				any hourly contribution. The "third person" must be one who is not affiliated
				with the employer. The trustee must assume the usual fiduciary responsibilities
				imposed upon trustees by applicable law. The trust or fund, except those used
				for apprenticeship training, must be set up so that the employer be unable to
				recapture any of the required contributions paid in or to divert the funds.
Note:
Although contributions made to a trustee
				  or third person pursuant to a benefit plan must be irrevocably made, this does
				  not prevent return to the employer of sums which were paid in excess of the
				  contributions actually called for by the plan, as where such excess payments
				  result from error or from the necessity of making payments to cover the
				  estimated cost of contributions at a time when the exact amount of the
				  necessary contributions under the plan is not yet ascertained. For example, a
				  benefit plan may provide for definite insurance benefits for employees in the
				  event of the happening of a specified contingency such as death, sickness,
				  accident, etc., and may provide that the cost of such definite benefits, either
				  in full or any balance in excess of specified employee contributions, will be
				  borne by the employer. In such case the return by the insurance company to the
				  employer of sums paid in excess of the amount required to provide the benefits
				  which, under the plan, are to be provided through contributions by the
				  employer, will not be deemed a recapture or diversion by the employer of
				  contribution made pursuant to the plan.
(b)
Fund, plan or program.
The contribution for an economic benefit must be made pursuant to a bona fide
				fund, plan, or program.
Note:
The phrase "fund, plan, or program" is
				  intended merely to recognize the various types of arrangements commonly used to
				  provide economic benefits through employer contributions. In interpreting this
				  phrase, the department will be guided by the experience of the United States
				  department of labor and United States treasury department in administering the
				  Employee Retirement Income Security Act of 1974, of the U.S. department of
				  labor in administering other related programs, and of the Wisconsin state
				  insurance commissioner in administering employee welfare funds under ch. 641,
				  Stats.
Note:
Chapter 641, Stats., was repealed by 2003
				  Wis. Act 261.
(c)
Unfunded plans.
1. The
				reasonable anticipated cost to an employer pursuant to an enforceable written
				commitment to carry out a financially responsible plan or program shall be
				considered as an economic benefit.
Note:
These provisions are intended to permit
				  the consideration of economic benefits that meet the requirements and are
				  provided from the general assets of an employer.
2. No type of economic benefit is eligible
				for consideration as a so-called unfunded plan unless all of the following
				criteria apply:
a. A copy has been supplied to
				the department.
b. It could be
				reasonably anticipated to provide economic benefits described in s.
				66.0903 or
				103.49, 2009 Stats.,
				and this subsection.
c. It is a
				bona fide commitment.
d. The plan
				or program providing the economic benefits has been communicated in writing to
				the affected laborers, workers, mechanics and truck drivers.
Note:
As in the case of fringe benefit
				  contributions made to a fund, plan, or program, an unfunded plan or program
				  must be "bona fide" and not a mere simulation or sham to avoid compliance with
				  s.
				  66.0903 or
				  103.49, 2009 Stats.
				  In evaluating the per hour cost of the fringe benefit contribution for
				  employers that "self-insure" all or a portion of their employees' health
				  insurance, the department may use guidance from the discussion on determining
				  the applicable premium for self-insured plans under the Consolidated Omnibus
				  Reconciliation Act (COBRA) in the
Employer's Handbook: Mandated Health
				  Benefits
, Thompson Publishing Group, 1725 K Street, N.W., Suite 200,
				  Washington, D.C. 20006.