103.06 Worker classification compliance.
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103.06 Worker classification compliance.
(1)Definitions. In this section:
(a)“Business day” means any day on which the offices of the department are open.
(b)“Employee” means any of the following who is employed by an employer:
1. For purposes of compliance with the requirement specified in sub.
(a)1. , an employee, as defined in s. 103.001
(5).
2. For purposes of compliance with the requirement specified in sub.
(a)2. , an employee, as defined in s. 102.07 .
3. For purposes of compliance with the requirement specified in sub.
(a)3. , an employee, as defined in rules promulgated under s. 103.05 .
4. For purposes of maintaining records under sub.
(a)4. as required under rules promulgated under s. 103.02 , an employee, as defined in s. 103.001
(5).
5. For purposes of maintaining records under sub.
(a)4. as required under rules promulgated under s. 104.035 , an employee, as defined in s. 104.01
(2).
6. For purposes of listing deductions from wages under sub.
(a)4. as required under s. 103.457 , an employee, as defined in s. 103.001
(5).
7. For purposes of compliance with the requirement specified in sub.
(a)5. , an employee, as defined in s. 108.02
(12).
(c)“Employer” means any of the following that is engaged in the work described in s. 108.18
(c):
1. For purposes of compliance with the requirement specified in sub.
(a)1. , an employer, as defined in s. 103.001
(6).
2. For purposes of compliance with the requirement specified in sub.
(a)2. , an employer, as defined in s. 102.04 .
3. For purposes of compliance with the requirement specified in sub.
(a)3. , an employer, as defined in rules promulgated under s. 103.05 .
4. For purposes of maintaining records under sub.
(a)4. as required under rules promulgated under s. 103.02 , an employer, as defined in s. 103.01
(1).
5. For purposes of maintaining records under sub.
(a)4. as required under rules promulgated under s. 104.035 , an employer, as defined in s. 104.01
(3).
6. For purposes of listing deductions from wages under sub.
(a)4. as required under s. 103.457 , an employer, as defined in s. 103.001
(6).
7. For purposes of compliance with the requirement specified in sub.
(a)5. , an employer, as defined in s. 108.02
(13).
(2)Worker classification compliance; duties of department. For purposes of promoting and achieving compliance by employers with the laws specified in sub.
(a)through the proper classification of persons performing services for an employer as employees and nonemployees, the department shall do all of the following:
(a)Educate employers, employees, nonemployees, and the public about the proper classification of persons performing services for an employer as employees and nonemployees.
(b)Receive and investigate complaints alleging violations of the requirements specified in sub.
(a), or investigate any such alleged violations on its own initiative, and, if the department finds that an employer is in violation of a requirement specified in sub.
(a), order the employer to stop work and pay a forfeiture as provided under sub.
(5).
(c)Refer complaints of misclassification of employees as nonemployees to other state or local agencies that administer laws whose enforcement depends on the proper classification of employees.
(d)Cooperate with other state or local agencies in the investigation and enforcement of laws whose enforcement depends on the proper classification of employees.
(e)Appoint attorneys licensed to practice in this state as appeal tribunals to conduct hearings and issue decisions under sub.
(b).
(3)Compliance requirements.
(a)For purposes of ensuring that an employer is properly classifying the persons performing services for the employer as employees and nonemployees, the department may require an employer to prove all of the following:
1. That the employer is maintaining records identifying all persons performing work for the employer, including the name, address, and social security number of each of those persons.
2. That the employer is maintaining worker’s compensation coverage for its employees as required under s. 102.28
(2).
3. That the employer has provided to the department the information required under s. 103.05 with respect to each newly hired employee of the employer.
4. That the employer is maintaining records of the hours worked by its employees, the wages paid to those employees, any deductions from those wages, and any other information that the employer is required to keep under rules promulgated under s. 103.02 or 104.035 , and is listing deductions from wages as required under s. 103.457 .
5. That the employer is in compliance with ch. 108 .
(b)Any agreement between an employer and employee purporting to waive or modify any requirement under par.
(a)is void.
(4)Compliance investigations.
(a)The department may conduct investigations to ensure compliance with the requirements specified in sub.
(a). In conducting an investigation, the department may do any of the following:
1. Enter and inspect any place of business or place of employment and examine and copy any records that the employer is required to keep under rules promulgated under s. 103.02 or 104.035 ; any books, registers, payroll records, records of wage withholdings, records of work activity and hours of work, and records or indicia of the employment status of persons performing work for the employer; and any other records relating to compliance with the requirements specified in sub.
(a).
2. Determine the identity and activities of any person performing work at any location where the work described in s. 108.18
(c)is being performed.
3. Interview and obtain statements in writing from any employer or person performing work or present at any location where the work described in s. 108.18
(c)is being performed with respect to the names and addresses of persons performing work for the employer, the payment of wages to and hours worked by those persons, and any other information relating to the remuneration of those persons and the nature and extent of services performed by those persons.
(b)The department may conduct the activities under par.
(a)1. to 3. at any location where the work described in s. 108.18
(c)is performed by or for an employer. In addition, the department may conduct the activities specified under par.
(a)1. at any other location where the records specified in par.
(a)1. are maintained by an employer or an agent of an employer.
(c)If in the course of an investigation of an employer the department determines that there is reason to believe that the employer is not the prime contractor of the work being performed by or for the employer, the department shall seek to determine the identity of the prime contractor. If the department identifies any person other than the employer that it believes to be the prime contractor of the work being performed, the department, for informational purposes, shall serve on that person copies of any notices or orders served on the employer under sub.
(5)with respect to the work. Failure of the department to serve a copy of a notice or order under sub.
(5)on a person believed to be a prime contractor does not relieve the employer from any liability arising out of the notice or order or impair the department from pursuing any remedy relating to the notice or order.
(5)Stop work orders and civil penalties.