DWD 140.04(1)
(1) The hearing office may schedule a hearing on the question of whether a late appeal was for a reason beyond the appellant's control. The hearing office may also schedule a provisional hearing on any matter in the determination at the same time as the hearing on the appellant's late appeal.
DWD 140.04(2)
(2) The administrative law judge shall issue a decision which makes ultimate findings of fact and conclusions of law as to whether or not the appellant's late appeal was for a reason beyond the appellant's control. If the administrative law judge decides this question in favor of the appellant, the same or another administrative law judge shall then make ultimate findings of fact and conclusions of law on the merits of the case. If the administrative law judge decides that the late appeal was late for a reason within the appellant's control, the administrative law judge shall dismiss the appeal.
DWD 140.04 History
History: Cr.
Register, November, 1985, No. 359, eff. 12-1-85; am. (3),
Register, November, 1988, No. 395, eff. 12-1-88; r. and recr.
Register, June, 1997, No. 498, eff. 7-1-97.
DWD 140.05
DWD 140.05
Withdrawal of appeal and retraction. DWD 140.05(1)(1) An appellant may withdraw its appeal at any time before the issuance of a decision on the merits by notifying the hearing office or by choosing not to continue to participate in a hearing. The administrative law judge shall issue a withdrawal decision after determining that an appeal has been withdrawn.
DWD 140.05(2)
(2) An appellant may submit a request to retract its withdrawal and reinstate its appeal. The retraction request shall be in writing and state a reason for the request. The administrative law judge may not grant a request to retract a withdrawal unless the request establishes good cause for the retraction and is received within 21 days after the withdrawal decision was mailed to the appellant.
DWD 140.05(3)
(3) If the hearing office receives a timely retraction request before the issuance of a withdrawal decision and the request establishes good cause for the retraction, the administrative law judge shall acknowledge the request by letter to the appellant. If a timely retraction request is received by the hearing office after issuance of the withdrawal decision and the request establishes good cause for the retraction, the administrative law judge shall issue a decision setting aside the withdrawal decision and the hearing office shall schedule another hearing.
DWD 140.05(4)
(4) If the hearing office receives a retraction request before or after the issuance of a withdrawal decision and the request does not establish good cause for the retraction, the administrative law judge shall deny the request by letter to the appellant.
DWD 140.05 History
History: Cr.
Register, November, 1985, No. 359, eff. 12-1-85; am. (1) to (3), cr. (4),
Register, June, 1997, No. 498, eff. 7-1-97.
DWD 140.06
DWD 140.06
Notice of hearing; contents; to whom sent; issues not on notice of hearing; consolidation of issues. DWD 140.06(1)(1) The department shall schedule a hearing at the earliest feasible time after the appeal is received. The hearing office shall mail a notice of hearing to each party.
DWD 140.06(2)
(2) The notice of hearing shall state the time and place of the hearing, the department's statutory authority for convening the hearing and the issues to be heard. The hearing office shall mail the notice of hearing to the last-known address of each party not less than 6 days before the hearing, unless all parties waive the notice requirement.
DWD 140.06(3)
(3) The administrative law judge may receive evidence and render a decision on issues not listed on the notice of hearing if each party is so notified at the hearing and does not object.
DWD 140.06(4)
(4) The hearing office may consolidate, for hearing or decision, issues involving the same parties or issues involving more than one appellant or respondent and arising out of the same or similar circumstances.
DWD 140.06 History
History: Cr.
Register, November, 1985, No. 359, eff. 12-1-85; am. (1) to (3), r. and recr. (4),
Register, June, 1997, No. 498, eff. 7-1-97.
DWD 140.07(1)
(1) After an appeal is filed, an administrative law judge may direct the parties to appear before the administrative law judge for a prehearing conference. In determining whether a prehearing conference is necessary, the administrative law judge may consider the following criteria:
DWD 140.07(2)
(2) Prehearing conferences may be conducted in person or by telephone. The date and time for the prehearing conference shall be set by the hearing office. Parties shall have at least 10 days notice of the prehearing conference. The administrative law judge may adjourn the conference or order additional prehearing conferences.
DWD 140.07(3)
(3) Following the prehearing conference, the administrative law judge shall issue an order with respect to the course of the conference on any or all of the following matters:
DWD 140.07(3)(a)
(a) Definition and simplification of the issues of fact and law.
DWD 140.07(3)(b)
(b) Stipulations of fact and agreements concerning the identity of or authenticity of documents.
DWD 140.07(3)(c)
(c) Limitation of the number of witnesses and the exchange of the names of witnesses.
DWD 140.07(3)(d)
(d) Stipulations relating to alternative methods of evidence submission and acceptance.
DWD 140.07(3)(e)
(e) Such other matters as may aid in the disposition of the appeal.
DWD 140.07(4)
(4) If a party fails to appear or is unprepared to participate in a prehearing conference, the administrative law judge may conduct a conference and enter the prehearing order without participation by the party.
DWD 140.07 History
History: Cr.
Register, June, 1997, No. 498, eff. 7-1-97.
DWD 140.08(1)
(1) A party who requests a postponement of a hearing shall make the request known to the hearing office as soon as the party becomes aware that a postponement is necessary. Unreasonable delay in requesting a postponement may be the basis for denial of the request.
DWD 140.08(2)
(2) No postponements may be granted for the mere convenience of a party. All parties are expected to arrange time off from their everyday affairs, including management duties, work and school, to attend hearings. The hearing office or the administrative law judge scheduled to conduct the hearing may grant a postponement only for an exceptional reason. An exceptional reason may include circumstances such as the following:
DWD 140.08(2)(b)
(b) Death of an immediate family member of a party or necessary witness;
DWD 140.08(2)(c)
(c) Weather conditions on the day of the hearing which make it hazardous for a party or a necessary witness to travel to the hearing location;
DWD 140.08(2)(d)
(d) Transportation difficulties arising suddenly which prevent a party or necessary witness from traveling to the hearing location;
DWD 140.08(2)(e)
(e) A business meeting of a necessary witness which was scheduled prior to receipt of the hearing notice and which cannot be re-scheduled;
DWD 140.08(2)(f)
(f) Commitment of a representative which was scheduled prior to his or her being retained and which cannot be re-scheduled, if the party contacted the representative within a reasonable time after receipt of the hearing notice; or
DWD 140.08(2)(g)
(g) An unavoidable delay on the day of the hearing which prevents the administrative law judge from conducting the hearing as scheduled.
DWD 140.08 History
History: Cr.
Register, November, 1985, No. 359, eff. 12-1-85; renum. from ILHR 140.07 and am.,
Register, June, 1997, No. 498, eff. 7-1-97.
DWD 140.09
DWD 140.09
Access to hearing files; limited discovery; inspection of records. DWD 140.09(1)(a)(a) The hearing office shall compile a hearing file for every case in which a request for hearing has been received which shall contain the papers, documents and departmental records relating to the issue of the hearing. Prior to the scheduled date of the hearing, a party to a hearing may inspect the hearing file and procure copies of file contents during regular hearing office hours at the hearing office or other convenient location as determined by the hearing office. If requested, the hearing office may mail copies of file contents to a party. The department may allow such inspection or release of file contents to a party's representative, union agent or legislator only if that individual indicates by a written or verbal statement that the individual has authorization from the party.
DWD 140.09(1)(b)
(b) Unless the administrative law judge orders otherwise, the sole means of discovery available to a party or representative prior to a hearing is inspection of the hearing file and procurement of copies of file contents. The administrative law judge may also order a prehearing conference under
s. DWD 140.07. The provisions of
ch. 804, Stats., do not apply to hearings under ss.
108.09 and
108.10, Stats.
DWD 140.09(1)(c)
(c) The administrative law judge may deny a request to inspect the hearing file or procure copies of file contents on the day of the hearing if such inspection or procurement would delay or otherwise interfere with the hearing.
DWD 140.09(2)
(2) Hearing stage. At the hearing, evidence and exhibits are open to inspection by any party or representative except that the administrative law judge may conduct a closed inspection of evidence and exhibits if the interests of justice so require. The judge may sequester from the hearing room any person, party or representative as part of the closed inspection. The judge may also issue a protective order to prohibit the parties and their representatives from disclosing any evidence and exhibits listed as confidential in the protective order if the interests of justice so require.
DWD 140.09(3)
(3) Post hearing stage. After the hearing is concluded, a party or representative may inspect any hearing file contents that the party or representative may inspect under
subs. (1) and
(2), and also the hearing recording, written synopsis of testimony, and any transcript that is prepared at the department's direction. Any person who is not a party or representative at the hearing may inspect only the following and only if social security numbers have been redacted from the documents:
DWD 140.09(3)(b)
(b) The exhibits submitted and marked as exhibits at the hearing, whether or not received by the administrative law judge.
DWD 140.09(3)(f)
(f) The transcript of the testimony, if one is prepared at the department's direction.
DWD 140.09(4)
(4) Confidentiality of certain records at all stages of hearing. DWD 140.09(4)(a)(a) Notwithstanding
subs. (1) to
(3), neither an employing unit which is a party to a hearing nor its representative may inspect:
DWD 140.09(4)(a)1.
1. The worker's unemployment insurance record as that record relates to work for another employing unit unless an administrative law judge approves a request.
DWD 140.09(4)(a)2.
2. Department memoranda concerning unemployment tax litigation strategy.
DWD 140.09(4)(a)3.
3. The investigation reports of department auditors concerning the status and liability of employing units under
ch. 108, Stats.
DWD 140.09(4)(b)
(b) Notwithstanding
subs. (1) to
(3), the administrative law judge may declare all or parts of documents or other material which contains records or preserves information and which the administrative law judge examined in a closed inspection under
sub. (2) to be, in whole or in part, confidential and closed to inspection by one or more parties, representatives or other persons.
DWD 140.09(4)(c)
(c) Notwithstanding
subs. (1) to
(3), evidence and exhibits declared to be confidential under a protective order issued by the administrative law judge under
sub. (2) are closed to inspection as stated in the order.
DWD 140.09(4)(d)
(d) Notwithstanding
subs. (1) to
(3), no party, representative or other person, except a statutory reviewing body, as specified under ss.
108.09 and
108.10, Stats. may inspect the handwritten notes made by the administrative law judge at the hearing.
DWD 140.09 History
History: Cr.
Register, November, 1985, No. 359, eff. 12-1-85; r. and recr.
Register, May, 1993, No. 449, eff. 6-1-93; renum. from ILHR 140.08 and am.,
Register, June, 1997, No. 498, eff. 7-1-97;
CR 08-019: am. (3) (intro.) and (d)
Register July 2008 No. 631, eff. 8-1-08.
DWD 140.10
DWD 140.10
Subpoenas; issuance and service; modification. DWD 140.10(1)(1) Only the department, an administrative law judge or a party's attorney of record may issue a subpoena to compel the attendance of any witness or the production of any books, papers, documents or other tangible things. A party who desires that the department issue a subpoena shall make the request known to the hearing office as soon as possible. Subpoenas issued by the department or an administrative law judge shall be issued on department forms and may not be issued blank.
DWD 140.10(2)
(2) Subpoenas shall only be issued when necessary to ensure fair adjudication of the issue or issues of the hearing. The department or administrative law judge may refuse to issue any subpoena if any of the following occur:
DWD 140.10(2)(c)
(c) The evidence sought is unduly cumulative or repetitive of other evidence to be presented by the party.
DWD 140.10(3)
(3) A party whose request for a subpoena has been denied may at the hearing request the administrative law judge who conducts the hearing to issue the subpoena. If the administrative law judge grants the request for a subpoena, the judge may adjourn the hearing to allow sufficient time for service of and compliance with the subpoena.
DWD 140.10(4)
(4) The administrative law judge scheduled to conduct a hearing for which a subpoena has been issued may quash or modify the subpoena if the administrative law judge determines that the witness or tangible things subpoenaed are not necessary to a fair adjudication of the issues of the hearing or that the subpoena has not been served in the proper manner.
DWD 140.10(5)
(5) The party at whose request a subpoena is issued shall serve the subpoena as provided under ch.
885 and
s. 805.07 (5), Stats., and pay the witness fees and travel expenses specified under
s. DWD 140.20 to the subpoenaed witness at or before the time of service. An attorney issuing a subpoena shall comply with the requirements of s.
108.14 (2m), Stats.
DWD 140.10(6)
(6) The department may subpoena a witness for a party if the party is unable to prepay the witness fees and travel expenses. The department shall pay a witness as provided under
s. DWD 140.20.
DWD 140.10(7)
(7) If any witness fails to comply with a subpoena issued under this section, the department may petition a judge or court commissioner for a writ of attachment under s.
885.12, Stats.
DWD 140.10 History
History: Cr.
Register, November, 1985, No. 359, eff. 12-1-85; am. (1), renum. (6) to be (7), cr. (6),
Register, November, 1988, No. 395, eff. 12-1-88; renum. from ILHR 140.09 and am.,
Register, June, 1997, No. 498, eff. 7-1-97.
DWD 140.11(1)(1) The department may conduct hearings in whole or in part by telephone when it is impractical for the department to conduct an in-person hearing, when necessary to ensure a prompt hearing or when one or more of the parties would be required to travel an unreasonable distance to the hearing location. When 2 or more parties are involved, the evidence shall be presented during the same hearing unless the department determines that it is impractical to do so. A party scheduled to appear by telephone may appear in person at the administrative law judge's location. The department may postpone or adjourn a hearing initially scheduled as a telephone hearing and reschedule the hearing for an in-person appearance if circumstances make it impractical to conduct a telephone hearing.
DWD 140.11(2)
(2) If the appellant is scheduled to testify by telephone and fails to provide the hearing office with the appellant's telephone number or the name and telephone number of the appellant's authorized representative within a reasonable time prior to the hearing and if the administrative law judge has made reasonable attempts to contact the appellant, the administrative law judge may dismiss the appeal. If the respondent fails to provide the hearing office with the telephone number or the name and telephone number of the respondent's authorized representative prior to the hearing and if the administrative law judge has made reasonable attempts to contact the respondent, the administrative law judge may proceed with the hearing.
DWD 140.11(3)
(3) If the appellant is scheduled to appear by telephone, the administrative law judge shall, within 15 minutes after the starting time for the hearing, attempt to place at least two calls to the appellant's telephone number of record or the telephone number furnished to the hearing office. One of the calls shall be attempted at or near the end of the 15 minute period unless the administrative law judge determines after reasonable efforts that the appellant cannot be reached at that number. If, within 15 minutes after the starting time for the hearing, neither the appellant nor the appellant's authorized representative can be reached at the telephone number of record or the telephone number furnished to the hearing office, then the administrative law judge may dismiss the appeal.
DWD 140.11(4)
(4) If the respondent is scheduled to appear by telephone, the administrative law judge may proceed with the hearing if, within 5 minutes after the starting time for the hearing, neither the respondent nor the respondent's authorized representative can be reached at the respondent's telephone number of record or the telephone number furnished to the hearing office. The administrative law judge may refuse to allow a respondent to testify if the administrative law judge is unable to reach the respondent or the respondent's authorized representative and neither the respondent nor the respondent's authorized representative have contacted the hearing office within 15 minutes after the starting time for the hearing. The respondent shall be considered to have failed to appear for the hearing if the administrative law judge so refuses. The respondent may appeal such a finding under this chapter.
DWD 140.11(5)
(5) All parties shall remain available for the hearing up to one hour after the scheduled starting time in the event the administrative law judge is unable to timely place a telephone call due to a delay in the prior hearings or other unforeseen circumstances. If the respondent cannot be contacted by telephone within one hour of the scheduled starting time of the hearing, the administrative law judge may proceed with the hearing if the appellant has appeared. If the appellant cannot be contacted within one hour of the scheduled starting time of the hearing, the administrative law judge may dismiss the appeal.
DWD 140.11(6)
(6) The hearing office shall mark and mail the potential exhibits for a telephone hearing from the hearing file to both parties as soon as possible prior to the date of the telephone hearing. A party may submit additional documents as potential exhibits by simultaneously mailing those documents to the hearing office and copies to the other party. A party may submit potential exhibits which are not documents in the manner designated by the hearing office to which the case is assigned. The administrative law judge conducting the hearing may refuse to consider any documents not received by the hearing office or the other party within at least 3 days prior to the hearing.
DWD 140.11 History
History: Cr.
Register, November, 1985, No. 359, eff. 12-1-85; r. and recr.,
Register, June, 1997, No. 498, eff. 7-1-97.
DWD 140.12(1)(1) After an appeal is filed, the parties may stipulate to relevant facts and request that the stipulation be used in lieu of a hearing. The administrative law judge may accept the stipulation in lieu of a hearing only if all of the following occur:
DWD 140.12(1)(b)
(b) The stipulation contains all the relevant and necessary facts as determined by the administrative law judge.
