Number
041311
Version
SUBSTITUTE 1
Reference
Sponsor
ALD. ZIELINSKI, BAUMAN, MURPHY, DONOVAN, D'AMATO and MCGEE
Title
A substitute ordinance relating to minimum wage requirements for employers located in the city.
Sections
109-15-4-a am
109-15-4-c am
109-15-4-f-0 am
109-15-4-f-4 cr
109-15-4-g am
109-17-0 am
109-17-1 am
109-17-2-b am
109-17-4 am
109-17-12 cr
112 cr
Analysis
This ordinance requires employers to pay all persons employed in the city of Milwaukee the following minimum wage rates:
1. $5.70 per hour for all employes, except opportunity and tipped employes, as of October 1, 2005; $6.50 per hour as of October 1, 2006.
2. $5.30 per hour for opportunity employes (employes who, during their first 90 days of employment, have not yet reached 20 years of age) as of October 1, 2005; $5.90 per hour as of October 1, 2006.
3. $2.57 per hour for tipped employes, provided the employer can establish by its payroll records that the sum total of tips and wages received by the employe is not less than the required minimum wage or opportunity-employe minimum wage.
This ordinance also establishes maximum deductions from wages that employers may make in return for providing employes with lodging and/or meals.
The 2005 and 2006 regular and opportunity-employe minimum wages and the maximum lodging and meal deductions in this ordinance are the same as those recommended by the State of Wisconsin's Minimum Wage Advisory Council on March 1, 2004, to be effective at the time of rule promulgation by the Department of Workforce Development and on October 1, 2005, respectively.
The requirements of this ordinance apply to all employers except the federal government, the State of Wisconsin and its political subdivisions, and any office, department or agency of federal, state or local government other than the City of Milwaukee. They also apply to all wages paid, whether on a time, piece-work, commission or other basis.
Exceptions from the minimum wage requirements are provided for golf caddies, "casual" employes (e.g., persons providing lawn-mowing or babysitting services), counselors at recreational or educational camps, students employed by private colleges and universities who work 20 hours per week or less, employes of rehabilitation facilities and wages paid for employe sleeping time,
This ordinance also adopts by reference all employer record-keeping requirements of the state minimum wage law.
This ordinance prohibits any employer from discharging, threatening to discharge or otherwise discriminating against any employe who files a complaint against the employer for violation of the minimum wage requirements or otherwise asserts his or her rights under this ordinance. The penalty for such action on the part of an employer is a forfeiture of $25 to $2,500 for each offense.
Authority to investigate, adjudicate and dispose of complaints of alleged violations of the minimum wage requirements is assigned to the Equal Rights Commission, which shall act on complaints using a procedure similar to its procedure for acting on housing and employment discrimination complaints.
The penalties for violation of the minimum wage requirements and other provisions of this ordinance (other than the aforementioned penalty for discharging or discriminating against an employe) are as follows:
1. $25 to $200 for the first violation within one year.
2. $200 to $1,000 for the second violation within one year.
3. $1,000 to $2,500 for the third or subsequent violation within one year.
4. Payment of liquidated damages, in an amount equal to twice the difference between the required minimum wage and the wage actually paid, to the complainant or to or all employes whom the Equal Rights Commission determines were not compensated at the required level (this penalty is in addition to whichever of the first 3 penalties is applicable).
This ordinance shall take effect October 1, 2005, provided the State of Wisconsin does not increase its minimum wages to the levels specified in the ordinance before that date. If this ordinance does take effect, beginning on October 1, 2007, and on each October 1 thereafter, the established minimum wage rates shall be adjusted by increasing these rates by the rate of inflation during the 12 months prior to September 1 of the year in which the adjustment is made, using the consumer price index for urban wage earners and clerical workers, CPI-W, or a successor index, as calculated by the U. S. Department of Labor. Each adjusted wage shall take effect on the following January 1.
Body
The Mayor and Common Council of the City of Milwaukee do ordain as follows:
Part 1. Section 109-15-4-a of the code is amended to read:
109-15. Equal Rights Commission.
4. The commission shall have the following powers and duties:
a. Receive complaints alleging violation of this chapter >>or ch. 112<< and attempt to eliminate or remedy any violation by means of conciliation, persuasion, education, litigation >>, payment of damages<< or any other means, to make the complainant whole again.
Part 2. Section 109-15-4-c of the code is amended to read:
c. Adopt rules and regulations consistent with this chapter >>, ch. 112<< and the laws of the state to carry out the policy and provisions of this chapter >>and ch. 112<< and the powers and duties of the commission.
Part 3. Section 109-15-4-f-0 of the code is amended to read:
f. Following a hearing conducted under this chapter >>or ch. 112<< :
Part 4. Section 109-15-4-f-4 of the code is created to read:
f-4. Order an employer to pay liquidated damages relating to failure to pay a minimum wage required by ch. 112.
Part 5. Section 109-15-4-g of the code is amended to read:
g. Initiate proceedings seeking forfeiture for violation of this chapter >>, ch. 112<< or any lawful order issued by the commission under this chapter >>or ch. 112<< .
Part 6. Section 109-17-0 and 1 of the code is amended to read:
109-17. Complaint Procedure. The commission shall use the following procedures in acting on complaints of discrimination >>or of violations of the provisions of ch. 112<< :
1. An aggrieved person may, not later than 300 days after an alleged discriminatory housing or employment practice >>or alleged violation of ch. 112<< has occurred or terminated, file a complaint with the commission alleging such discriminatory practice >>or violation<< . The commission shall not investigate any complaint unless it is in writing and verified by the complainant.
Part 7. Section 109-17-2-b of the code is amended to read:
2. Upon the filing of a complaint:
b. Not later than 10 days after the filing or the identification of an additional respondent under sub. 3-a, the commission shall serve on the respondent a notice identifying the alleged discriminatory housing or employment practice >>or alleged violation of ch. 112<< and advising the respondent of the procedural rights and obligations of respondents under this chapter, together with a copy of the original complaint.
Part 8. Section 109-17-4 of the code is amended to read:
4. The department of administration may employ such investigators and administrative law judges as it deems necessary to hear and decide complaints of discrimination >>or of violations of ch. 112<< and to assist in the administration of this chapter >>and ch. 112<< . The administrative law judges may propose findings and orders under this chapter >>or ch. 112<< .
Part 9. Section 109-17-12 of the code is created to read:
12. Upon concluding its investigation and finding that a violation of any provision of ch. 112 has occurred, the commission shall refer the violation to the city attorney, who may, at his or her discretion, thereafter pursue action in municipal court to recover a forfeiture for the violation. In addition, if the commission determines that the employer has violated the minimum wage provisions of ch. 112, the commission shall order the employer to pay liquidated damages to any or all employes who were not paid the applicable minimum wage. For each employe, the amount of the liquidated damages shall be equal to twice the difference between the rate of pay the employe was paid and the applicable minimum wage rate.
Part 10. Chapter 112 of the code is created to read:
CHAPTER 112
MINIMUM WAGE
112-1. Purpose. 1. DECLARATION OF POLICY. In order to preserve and promote the public welfare, health, safety and prosperity of the city of Milwaukee and its residents, it is vital that all persons employed in the community receive wages that ensure they are able to provide themselves and their families with the basic necessities of life, food, shelter, clothing, health care and education. The common council has determined that, due to the higher costs associated with living and working in the city, state and federal minimum wages are inadequate to ensure that workers can supply their families' basic needs. Consequently, many workers find it necessary to work long hours or work multiple jobs. This results in hardships for workers and their families, prevents workers from pursuing further education and limits their participation in the cultural and civic life of the community. For these reasons, the common council finds it necessary to enact the minimum wage provisions of this chapter.
2. DETERMINATION OF RATES. The rates adopted in this chapter reflect compensation that has been determined to be adequate to permit any employe within the city of Milwaukee to maintain himself or herself in minimum comfort, decency and physical and moral well-being. The common council has also considered the effects that an increased minimum wage may have on the economy of the city, including effects on job creation, retention and expansion and on the availability of entry-level employment.
112-3. Definitions. In this chapter:
1. BONA FIDE SCHOOL TRAINING PROGRAM means a program, sponsored by an accredited school and authorized and approved by the state department of public instruction or the board of vocational, technical and adult education or other recognized educational body, that provides for part-time employment training which may be scheduled for part of the workday or workweek, which is supplemented by and integrated with a definitively organized plan of instruction, and for which proper scholastic credit is given by the school.
2. BONA FIDE VOCATIONAL TRAINING PROGRAM means a program, authorized and approved by the state board of vocational, technical and adult education or other recognized educational body, that provides for part-time employment training which may be scheduled for part of the workday or workweek, for alternating weeks or for other limited periods during the year, which is supplemented by and integrated with a definitely organized plan of instruction designed to teach technical knowledge, and which is related to industrial information given as a regular part of a student learner's course by an accredited school, college or university.
3. CASUAL EMPLOYMENT means employment that is on an irregular or intermittent basis for not more than 15 hours per week for any one employer. It includes, but shall not be limited to, employment in the activities of babysitting, lawn-mowing and snow-shoveling.
4. COMMISSION means the equal rights commission established pursuant to s. 109-15.
5. COUNSELOR means a person employed by a recreational or educational camp or a recreational or educational day camp who leads, directs and instructs campers in the camp's program and activities and shares responsibility for the total care and well-being of campers.
6. DOMESTIC WORKER means an individual who provides services related to the care of persons or maintenance of a private household or its premises, on a regular basis, as an employe of a private householder. This term includes, but shall not be limited to, a butler, chauffeur, cook, day worker, gardener, graduate nurse, groom, handy person, house cleaner, housekeeper, laundry person, practical nurse, valet or other similar occupation.
7. EMPLOYE means every individual who, in a calendar week, performs at least 2 hours of work for compensation in the city of Milwaukee for any employer and who is in receipt of or entitled to any compensation for work performed for any employer. This term includes a companion in a private home. This term does not mean or include any of the following:
a. Any individual engaged in house-to-house delivery of newspapers or house-to-house retail sales to consumers.
b. Any individual engaged in performing services for a person as a real estate agent or real estate salesperson if all of those services are performed for remuneration solely by commission.
c. Any individual engaged in performing services for an employer if that individual is not considered under 29 USC 203(e)(4), as amended to April 15, 1986, to be an employe for the purposes of the fair labor standards act, 29 USC 210 to 219, or if that individual is exempt under 29 USC 213, as amended to April 1, 1990, from being paid at least the federal minimum hourly wage under 29 USC 206(a)(1).
d. Any individual engaged in performing services for an employer if that individual is not subject to the civil service laws of the employer and if that individual is an elective officer, is on the personal staff of an elective officer, other than a member of the state legislature, is appointed by an elective officer to serve on a policy-making level or is an immediate adviser to an elective officer with respect to the constitutional or legal powers of the elective officer's office.
e. Any individual engaged in performing services for the federal government, the state of Wisconsin or its political subdivisions, or any office, department, independent agency, authority, institution, association, society or other body in federal, state or local government, other than the city of Milwaukee, created or authorized by federal or state constitution or any law.
8. EMPLOYER means and includes every person, firm or corporation, agent, manager, representative, contractor, subcontractor or principal, or other person having control or direction of any person employed at any labor or responsible directly or indirectly for the wages of another. This term does not include the federal government, the state of Wisconsin or its political subdivisions, or any office, department, independent agency, authority, institution, association, society or other body in federal, state or local government, other than the city of Milwaukee, created or authorized by federal or state constitution or any law.
9. MINIMUM WAGE means compensation for labor that is paid, whether by time, piece-work or otherwise, in an amount sufficient to enable the employe receiving it to maintain himself or herself under conditions consistent with his or her welfare.
10. MINOR means any person under 18 years of age.
11. OPPORTUNITY EMPLOYE means an employe who has not yet reached 20 years of age during the first 90 consecutive days after the employe is initially employed by the employer.
12. 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.
13. 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.
14. STUDENT LEARNER means a student who is receiving instruction in an accredited school and who is employed on a part-time basis pursuant to a bona fide school training program.
15. TIP CREDIT means credit that an employer receives toward meeting a minimum wage requirement based on compensation a tipped employe receives in the form of tips. It is the difference between the required minimum wage of a regular or opportunity employe and the minimum wage for a tipped employe.
16. TIPPED EMPLOYE means any employe engaged in an occupation in which the employe customarily and regularly receives tips or gratuities from patrons or others.
17. WAGE or WAGES means any compensation for labor, whether measured by time, piece-work or otherwise.
18. WELFARE means and includes reasonable comfort, reasonable physical well-being, decency and moral well-being.
112-5. Terms Not Defined. Any term not defined in s. 112-3 shall have the same definition as set forth under ch. 104, Wis. Stats. or chs. DWD 270 through 279, Wis. Adm. Code.
112-7. Applicability. The minimum wage rates and maximum lodging and board deductions prescribed in this chapter shall apply to all employes, including indenture apprentices, at private establishments, including nonprofit organizations, for each hour of work performed within the city of Milwaukee, regardless of whether compensation is paid on a time, piece-work, commission or other basis.
112-9. Unlawful Wages. It shall be unlawful for any employer to pay, offer to pay or agree to pay any employe a wage lower or less in value than the minimum wage prescribed in this chapter.
112-11. Minimum Wage Rates. No employer shall employ any employe in any occupation, trade or industry at a lesser hourly rate than:
1. All employes except opportunity and tipped employes: $5.70 per hour as of October 1, 2005; $6.50 per hour as of October 1, 2006.
2. Opportunity employes: $5.30 per hour as of October 1, 2005; $5.90 per hour as of October 1, 2006.
3. Tipped employes: $2.57 per hour, provided the employer can establish by its payroll records that, for each week where a wage less than the relevant minimum wage in sub. 1 or sub. 2 is paid, the sum total of tips and wages received by the employe is not less than the required minimum wage.
112-13. Additional Provisions Applicable to Tipped Employes. 1. BURDEN OF PROOF. When an employer elects to pay an employe in accordance with s. 112-11-3, the employer shall obtain a tip declaration signed by the tipped employe for each pay period. The employer shall also indicate on the payroll records of the tipped employe that any required social security or taxes have been withheld and that when the employe's tips are added to the wages paid, no less than the minimum wage of s. 112-11-1 or 112-11-2 was received by the employe. When an employer's payroll records do not meet these requirements, the employer shall not be permitted to use the tip credit in s. 112-11-3. The commission may refuse to take minimum wage enforcement action for a tipped employe who has refused or failed to file an accurate, signed tip declaration with the employer for each pay period.
2. GENERAL CHARACTERTISTICS OF TIPS. a. A tip is a sum of money presented by a customer as a gift or gratuity in recognition of some service performed for the customer. It is to be distinguished from payment of a charge, if any, made for the service. Whether a tip is to be given, and the amount of the tip, are matters determined solely by the customer, who generally has the right to determine who shall be the recipient of a gratuity. In the absence of an agreement to the contrary between the recipient and a third party, a tip becomes the property of the person in recognition of whose service it is presented by the customer. Only tips actually received by an employe as money belonging to the employe and which the employe may use as he or she chooses, free of any control by the employer, may be counted when determining whether an employe is a tipped employe.
b. In addition to cash sums presented by customers and which an employe is free to keep and use as he or she chooses, tips received by an employe include amounts paid by bank check or other negotiable instrument at par and amounts transferred by the employer to the employe pursuant to directions from credit customers who designate amounts to be added to their bills as tips. Non-monetary gifts to employes, such as theater tickets, passes or merchandise, shall not be considered tips received by the employe.
3. TIP POOLING. a. Where employes practice tip splitting, such as where servers give a portions of their tips to bus persons, both the amounts retained by the servers and the amounts given to the bus persons are considered tips of the persons who retain them.
b. Where an employer and employes have mutually agreed upon a tip-pooling arrangement under which the employer redistributes tips, and any declaration of tips is presented to the employer for information purposes only, the amount received and retained by each employe shall be counted as that employe's tip income.
4. SERVICE CHARGES. a. A compulsory charge for service imposed on a customer by an employer's establishment shall not be considered a tip unless it is distributed by the employer to its employes.
b. Where an agreement between a hotel or restaurant and a customer for banquet facilities include amounts for distribution to employes of the hotel or restaurant, the amounts shall be so distributed to the employes at the end of the pay period in which they are earned.
c. If an employer, in its payroll records, can establish a breakdown of a service charge, such as how much is for tips, room charges, decoration and other chargeable services, the amount paid to the employe at the end of the pay period need not exceed the designated tip amount.
5. FREQUENCY OF TIPPING. In order for an employe to be considered a tipped employe, and for an employer to be eligible for the tip credit provisions of s. 112-11-3, the employe must "customarily and regularly" receive tips in the occupation in which he or she is engaged. An employe who is known to always receive, on a monthly basis, more in tips than the difference between the regular minimum wage and the tipped-employe minimum wage, shall qualify as a tipped employe, and the tip credit provisions of s. 112-11-3 shall apply. An employe who receives tips only occasionally or sporadically, such as at Christmas or other holidays, shall not qualify as a tipped employe. The phrase "customarily and regularly" signifies a frequency that is greater than occasional, but which may not be constant. If an employe is in an occupation in which he or she normally and recurrently receives tips, the employe shall be considered a tipped employe even though, occasionally, he or she fails to receive tips in a particular month because of such factors as illness, vacations and seasonal business patterns.
6. EMPLOYER RECEIPT OF TIPS. Under an employment agreement requiring tips to be turned over or credited to the employer to be treated as part of the employer's gross receipts, the employer shall pay the employe the required minimum wage of s. 112-11-1 or 2, since, for all practical purposes, the employe is not receiving tip income.
7. OVERTIME PAYMENTS. When overtime is worked by a tipped employe who is subject to the overtime pay provisions of ch. DWD 274, Wis. Adm. Code, the employe's regular rate of pay is determined by dividing the employe's total remuneration for employment in any work week by the total number of hours actually worked by the employee in that work week. A tipped employe's regular rate of pay includes the amount of tip credit taken by the employer and the cash wages, including commissions and bonuses, paid by the employer. Any tips received by the employe in excess of the tip credit need not be included in the regular rate. These tips shall not be considered payments made by the employer to the employe as remuneration for employment within the meaning of ch. DWD 274, Wis. Adm. Code.
112-15. Lodging and Board. 1. DEDUCTIONS ALLOWED. Where lodging or board or both are furnished by the employer in accordance with s. DWD 272.04, Wis. Adm. Code, and accepted and received by a particular employe, his or her spouse, minor children or other dependents, the employer may deduct the value of the lodging or board from the wages paid to the employe, up to the following maximum rates:
a. Lodging. a-1. All employes except opportunity employes: $45.60 per week or $6.50 per day as of October 1, 2005; $52.00 per week or $7.40 per day as of October 1, 2006.
a-2. Opportunity employes: $42.40 per week or $6.05 per day as of October 1, 2005; $47.20 per week or $6.75 per day as of October 1, 2006.
b. Board. b-1. All employes except opportunity employes: $68.40 per week or $3.25 per meal as of October 1, 2005; $78.00 per week or $3.70 per day as of October 1, 2006.
b-2. Opportunity employes: $63.60 per week or $3.00 per meal as of October 1, 2005; $70.80 per week or $3.35 per meal as of October 1, 2006.
2. ADJUSTMENTS FOR INFLATION. a. When the minimum wage rates of s. 112-11 are adjusted for inflation, the maximum lodging deductions shall be adjusted by recomputing them on the basis of 20% of the prescribed minimum wage rate for employes, based on a 40-hour week and rounded off to the nearest 5 cents.
b. When the minimum wage rates of s. 112-11 are adjusted for inflation, the maximum deductions for board shall be adjusted by recomputing them on the basis of 30% of the prescribed minimum wage rate for employes based on a 40-hour week, rounded off to the nearest 5 cents.
112-15. Payment of Wages on Other Than Time Basis. Where wages are paid using a system other than time rate, the actual wage paid per payroll period shall not be less than the amount calculated by multiplying the number of hours worked by the relevant minimum wage in s. 112-11.
112-17. Work Done at Home. Wages paid to home workers shall not be less than the minimum wage rates prescribed in s. 112-11.
112-19. Determination of Compliance. The payroll period shall be the unit of time used in determining compliance with the minimum wage rates prescribed in s. 112-11.
112-21. Interpretation of Hours Worked. 1. STATE CODE ADOPTED. The city of Milwaukee adopts and incorporates into this chapter, as though fully set forth herein, the provisions of s. DWD 272.12, Wis. Adm. Code. To the extent there are conflicts between those provisions and the provisions of this chapter, the provisions of this chapter shall govern.
2. SLEEPING TIME. Any hours of work which constitute sleeping time under the provisions of s. DWD 272.12(2)(d), Wis. Adm. Code, shall be exempt from the minimum wage requirements of s. 112-11. Such hours shall be subject to the appropriate state and federal wage rates in effect at the time such wages are earned.
112-23. Prohibition of Displacement. An employer shall not displace an employe solely for the purpose of hiring an employe to be paid the opportunity wage.
112-25. Domestic Service Employment. A domestic worker who resides in the employer's household is covered by the minimum wage requirements of s. 112-11. The employer may make deductions for lodging and board provided, as specified in s. 112-15.
112-27. Casual Employment. The minimum wage requirements of s. 112-11 shall not apply to casual employment in or around a home, in work usual to the home of the employer and not in connection with or part of the business, trade or profession of the employer.
112-29. Employment at Recreational or Educational Camp. 1. MINIMUM WAGE. The minimum wage rates of s. 112-11 shall apply to all employes of recreational or educational camps and day camps, except counselors.
2. LODGING AND BOARD DEDUCTIONS. Where lodging or board or both are furnished by the employer and accepted and received by the employe, the employer may deduct the value of the lodging or board from the wages paid in accordance with s. 112-15.
3. COUNSELORS. The minimum weekly wage of counselors employed in seasonal recreational or educational camps and day camps shall be as follows:
a. If neither lodging nor board is furnished: $285 for adults, $265 for minors as of October 1, 2005; $315 for adults, $275 for minors as of October 1, 2006.
b. If board only is furninshed: $217 for adults, $202 for minors as of October 1, 2005; $240 for adults, $209 for minors as of October 1, 2006.
c. If both lodging and board are furnished: $171 for adults, $159 for minors as of October 1, 2005; $189 for adults, $165 for minors as of October 1, 2006.
4. RECORDS. Recreational or educational camps and day camps shall not be required to keep the daily and weekly time records required by s. DWD 272.11(1)(d), (e) and (f), Wis. Adm. Code, for counselors employed and paid on a weekly basis.
112-31. Caddies. The minimum wage for persons employed as golf caddies shall be:
1. 9 Holes: $5.90.
2. 18 Holes: $10.50.
112-33. Student Employment and Work-Like Activities. 1. INDEPENDENT COLLEGES AND UNIVERSITIES. An Independent college or university 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. Students who work at an independent college or university for over 20 hours per week shall be paid at rates that comply with s. 112-11.
2. ELEMENTARY AND SECONDARY SCHOOLS. The minimum wage requirements of s. 112-11 shall not apply to student work-like activities that meet the criteria of s. DWD 270.085, Wis. Adm. Code.
112-35. Subminimum Wage Licenses for Rehabilitation Facilities and for the Employment of Workers with Disabilities and Student Learners. The provisions of this chapter do not apply to any facility or employer that holds a license in good standing issued by the state of Wisconsin pursuant to s. DWD 272.09, Wis. Adm. Code, allowing the facility or employer to pay subminimum wages.
112-37. Exceptions Under State Code. Unless otherwise specified in this chapter, the provisions of this chapter shall not be applicable under any circumstance or with regard to employment where, in the absence of those provisions, any of the provisions of the Wisconsin administrative code would make the state of Wisconsin's minimum wage provisions, specified in ch. DWD 272, inapplicable.
112-39. Adjustments for Inflation. To prevent inflation fromeroding the values of the minimum age rates established in this chapter, beginning on October 1, 2007, and on each October 1 thereafter, the commission shall calculate and publish adjusted minimum wage rates under ss. 112-11, 112-29 and 112-31 by increasing these rates by the rate of inflation during the 12 months prior to September 1 of the year in which the adjustment is made, using the consumer price index for urban wage earners and clerical workers, CPI-W, or a successor index, as calculated by the United States department of labor. Each adjusted wage shall take effect on the following January 1. The city clerk shall revise the text of ss. 112-11, 112-29 and 112-31 accordingly.
112-41. Deductions and Record Keeping. The city of Milwaukee adopts and incorporates into this chapter, as though fully set forth herein, the provisions of ss. DWD 272.10 and 272.11, Wis. Adm. Code. The required listings of deductions and other required records shall be made available for inspection and copying by any authorized staff of the commission during the regular business hours of the employer.
112-43. Ability of Employers to Pay More Than Minimum Wage. No provision of this chapter shall prohibit an employer from paying more than the minimum wage rates listed in this chapter.
112-45. Discharging or Discriminating Against Employes. No employer may discharge or threaten to discharge, or in any way discriminate against or threaten to discriminate against, any employe because the employe has filed a complaint alleging a violation of this chapter, has otherwise asserted his or her rights under this chapter, has informed any other employe of his or her rights under this chapter, has testified or is about to testify, or the employer believes may testify, in any investigation or proceeding relative to enforcement of this chapter. Any employer who engages in such prohibited activity shall, upon conviction thereof, be subject to a forfeiture of not less than $25 nor more than $2,500 for each offense.
112-47. Complaints. 1. COMMISSION'S AUTHORITY. The commission shall have the authority to investigate, adjudicate and dispose of any complaint filed alleging a violation of any provision of this chapter. Such investigations, adjudications and dispositions shall be made as provided under the procedures set forth in s. 109-17-1 to 4 and 12.
2. FILING OF COMPLAINT. Any person, including any labor union or workers' rights organization, regardless of whether the person who allegedly was not paid the minimum wage is a member of that union or organization, may file with the commission a complaint that an employer violated a provision of this chapter. The complaint shall be in writing and filed not more than 300 days after the date of the alleged violation of this chapter.
112-49. Violations; Penalty. 1. GENERAL PENALTIES. Each day during which any employer employs a person for whom a wage has paid in an amount less that the minimum wage required by this chapter shall constitute a separate and distinct violation of this chapter. The penalty for each such violation, or for any other violation of this chapter other than a violation under s. 112-45, shall be a forfeiture of not less than $25 nor more than $200 for a first violation within one year, not less than $200 nor more than $1,000 for a second violation within one year and not less than $1,000 nor more than $2,500 for a third or subsequent violation within one year. The commission, upon determining that a violation has occurred, shall refer such violation to the city attorney, who may, at his or her discretion, thereafter pursue action in municipal court to recover a forfeiture for the violation.
2. DAMAGES. In addition to the penalty provisions of sub. 1, whenever the commission determines that an employer has violated the minimum wage provisions of this chapter, any employe who was not paid the applicable minimum wage shall be entitled to liquidated damages in an amount equal to twice the difference between the rate of pay the employe was paid and the applicable minimum wage rate. The commission shall have the authority to enter such an order for all employes who, in the commission's determination, were not compensated in accordance with the provisions of this chapter, regardless of whether such employes were the complainants before the commission.
112-51. Severability. The provisions of this chapter are severable. If any provision of this chapter is held to be invalid or unconstitutional, or if the application of any provision of this chapter to any person or circumstance is held to be invalid or unconstitutional, such holding shall not affect the other provisions or applications of this chapter which can be given effect without the unconstitutional provision or application. It is declared the intent of the common council that this chapter would have been adopted had any invalid or unconstitutional provisions or applications not been included herein. No portion of this chapter is intended to contravene or conflict with any portion or provision of ch. 104, Wis. Stats., or chs. DWD 271, 274 or 275, Wis. Adm. Code.
Part 11. This ordinance shall take effect October 1, 2005, provided the State of Wisconsin does not increase the State's minimum wages (s. DWD 272.03, Wis. Adm. Code) to the levels specified in s. 112-11 of the ordinance before that date.
LRB
APPROVED AS TO FORM
________________________
Legislative Reference Bureau
Date:______________________
Attorney
IT IS OUR OPINION THAT THE ORDINANCE
IS LEGAL AND ENFORCEABLE
_____________________________
Office of the City Attorney
Date:________________________
Requestor
Drafter
LRB05012-2
JDO
01/19/05