Judge dismisses ABC’s prevailing wage case

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By Paul Snyder

The state’s prevailing wage reporting requirements that were on hold while a judge considered a request for an injunction are back in effect.

Dane County Circuit Court Judge John Markson Thursday denied the request for an injunction by the Associated Builders and Contractors of Wisconsin Inc. The ABC had sought the injunction to block the state’s enforcement of the new prevailing wage law.

Markson also dismissed the association’s complaint that the Wisconsin Department of Workforce Development requires too much unnecessary information in its wage-reporting spreadsheet.

“It has the authority to create a form pursuant to the literal requirements of the statute,” Markson said of the department.

ABC argued the 34-field spreadsheet for nonunion contractors went far beyond the four fields of information the state Legislature requested in the 2009-11 state budget.

Prevailing wages are based on annual contractor survey results that show what workers are paid on private projects. The state uses the results to set a prevailing wage in each county for a particular type of job.

As required in the budget, the state’s prevailing wage law changed Jan. 1. It now requires contractors to prove they are paying prevailing wages to employees working on state and local government public works projects valued at $25,000 or more. Under previous law, the proof was not required unless the project was valued at $234,000 or more.

In order to prove they are paying prevailing wages, union contractors must submit their collective bargaining agreements to the state, along with a seven-field reporting spreadsheet. Nonunion contractors must submit a 34-field spreadsheet, which DWD in March whittled from 50 fields.

The state budget called for reports to include contractors’ names, the type of work performed by every employee on a prevailing-wage project, an accurate record of all hours worked and the wages paid for that work.

The 34-field spreadsheet includes requests for the last four digits of Social Security numbers, straight and overtime hours for each day, weekly wage and hour totals and union affiliation.

ABC Vice President John Mielke said after the ruling ABC board members will meet Friday to discuss the ruling and whether to appeal.

“I think despite the decision today, our action still had value,” Mielke said of the legal battle. “The DWD did reduce the information required from contractors, and I’m not entirely sure that would have happened had we not brought a suit forward.”

Robb Kahl, executive director of the Construction Business Group, a joint labor-management organization that supported the law changes, disagreed. He said ABC could have talked with DWD about changing the spreadsheet without filing the lawsuit.

“I didn’t have to a file a lawsuit when I saw things that I was concerned about,” he said. “We brought contractors in, we talked with DWD, and that was it. We didn’t need other action.”

According to an interim order filed before Thursday’s ruling, contractors will have 45 days to comply with reporting requirements. ABC’s attorney, Doug Witte, said contractors who have not submitted reports between January and May will likely have to take that time to gather their information and prepare to submit it to DWD.

During his ruling, Markson said the complaints by ABC and many contractors that the reporting requirement is overly burdensome on business went beyond the purview of the case. He said the issue at hand was whether the department had the authority to request all the information in the spreadsheet, not whether it hurt companies.

“If it’s burdensome, well, it’s burdensome,” Markson said. “I guess time will tell whether ultimately this leads to better or enforcement or it doesn’t. But it’s not something I think is relevant to the outcome today.”