Hearing Information
Monday, June 26, 2006 at 1:30 p.m.
G.E.F. 1 Building, B103
201 E. Washington Avenue
Madison
Interested persons are invited to appear at the hearing and will be afforded the opportunity to make an oral presentation of their positions. Persons making oral presentations are requested to submit their facts, views, and suggested rewording in writing.
Visitors to the GEF 1 building are requested to enter through the left East Washington Avenue door and register with the customer service desk. The entrance is accessible via a ramp from the corner of Webster Street and East Washington Avenue. If you have special needs or circumstances regarding communication or accessibility at the hearing, please call (608) 267-9403 at least 10 days prior to the hearing date. Accommodations such as ASL interpreters, English translators, or materials in audiotape format will be made available on request to the fullest extent possible.
Analysis Prepared by the Department of Workforce Development
Explanation of agency authority. The Wisconsin Fair Employment Act is located at Subchapter
II of Chapter 111, Stats. Section
111.375 (1), Stats., provides that the department may make, amend, and rescind such rules as are necessary to carry out the subchapter.
The Wisconsin Open Housing Law is found at s.
106.50, Stats. Section
106.50 (1s), Stats., provides that the department may promulgate such rules as are necessary to carry out the section.
Section
106.52 (2), Stats., provides that the department may promulgate such rules as are necessary to carry out protections under s.
106.52, Stats., relating to public places of accommodation or amusement.
Section
230.89 (1), Stats., requires the division to promulgate rules to carry out its responsibilities for enforcement of provisions commonly referred to as the “whistleblower law." The “whistleblower law" protects state employees from retaliation for disclosure of information under certain circumstances.
Under s.
103.10 (12), Stats., the department has responsibility for administrative enforcement of the family or medical law.
Section
106.54 (5),
(6) and
(7), Stats., provides that the Equal Rights Division shall receive certain types of complaints and process them in the same manner as fair employment complaints under s.
111.39, Stats. These types of complaints are:
Retaliation for reports to the Board on Aging and Long-Term Care under s.
16.009 (5) (d), Stats.
Retaliation for reporting the abuse of an elderly person to a state or county agency under s.
46.90 (4) (b), Stats.
Retaliation for reporting abuse in care and service residential facilities under s.
50.07 (3) (b), Stats.
Retaliation against a health care worker who reports that the quality of health care provided by a health care facility or provider violates any law, rule, or standard established by a professionally recognized accrediting or standard-setting body and poses a potential risk to public health or safety under s.
146.997, Stats.
Failure to comply with re-employment rights after National Guard, state defense force, or public health emergency service under s.
21.80 (7) (b), Stats.
Section
106.56 (4) (a), Stats., relating to discrimination because of a physical condition or developmental disability in post-secondary education, provides that the department shall review and investigate complaints with all the powers provided under s.
111.39, Stats., which relates to the department's powers and duties under the Wisconsin Fair Employment Act.
Section
101.055 (8), Stats., provides protection for public employees exercising their rights under the Public Employee Safety and Health Law, which is otherwise administered by the Department of Commerce. Employees who believe they have been discharged or discriminated against because they have exercised rights under the law may file a complaint with the Equal Rights Division. If the Equal Rights Division determines that there is probable cause, it shall conduct a hearing, issue a decision, and order appropriate relief. Section
106.54 (4), Stats., also directs the Equal Rights Division to review complaints of discrimination against public employees exercising their rights with respect to occupational safety and health matters under s.
101.055 (8), Stats.
Section
103.005 (1), Stats., provides that the department shall adopt reasonable and proper rules and regulations relative to the exercise of its powers and authorities and proper rules to govern its proceedings and to regulate the mode and manner of all investigations and hearings.
Summary of the proposed rules. The proposed rules will amend the fair employment rules in Chapter
DWD 218 to specify the types of complaints that ss.
106.54 (5),
(6), and
(7) and
106.56, Stats., direct the Equal Rights Division to receive and process in the same manner as fair employment complaints under s.
111.39, Stats.
2005 Wisconsin Act 25 amends the Wisconsin Open Housing Law at s.
106.50 (6) (c) 2., Stats., to provide that the Attorney General shall represent complainants in cases in which the Equal Rights Division has made an initial determination of probable cause. The proposed rules will amend the open housing rules in Chapter
DWD 220 to reflect this new requirement.
The Division proposes to create a new rule chapter at Chapter
DWD 223 to provide procedures for processing discrimination or retaliation complaints by public employees exercising their rights under the Public Employee Safety and Health Law under s.
101.055 (8), Stats. The proposed rule chapter is based on the fair employment rules in Chapter
DWD 218, except time frames for certain actions are shorter because s.
101.055 (8), Stats., provides that the Equal Rights Division shall process cases in shorter time frames. For this reason, the proposed rules provide that appeals of preliminary determinations or findings of no probable cause must be filed within 10 days, rather than 20 days. The proposed rules provide that the notice of hearing shall be sent no less than 20 days before the hearing, rather than 30 days. The requirement that parties submit witness and exhibit lists 10 days before hearing is eliminated. Also, unlike the fair employment statute, s.
101.055 (8) provides that decisions and orders of the Equal Rights Division are subject to judicial review under Chapter
227, Stats., rather than review by the Labor and Industry Review Commission.
All rules administered by the Civil Rights Bureau in the Equal Rights Division will be amended to provide that complaints and other documents may be filed by facsimile transmission. A faxed document will be considered to be filed on the date of transmission as recorded by the division's facsimile machine, except documents filed by fax after regular business hours or a day the offices of the division are closed shall be considered to be filed on the next business day of the division. Documents may not be filed by electronic mail unless expressly authorized by the equal rights officer or the administrative law judge assigned to the case. All rules will also be amended to provide that hearings may be recorded with either digital equipment or tape recording equipment. The rules administered by the Civil Rights Bureau are:
Chapter
DWD 220, relating to fair housing.
Chapter
DWD 221, relating to public accommodations.
Chapter
DWD 224, relating to whistleblower protection.
Chapter
DWD 225, relating to family and medical leave.
The proposed Chapter
DWD 223, relating to public employee safety and health, also contains the same provisions on fax and email communications and recording with digital equipment.
Chapters
DWD 218,
224, and
225 are amended to clarify that the respondent does not need to file an answer for an appeal of an initial determination of no probable cause.
Summary of factual data and analytical methodologies. Sections
16.009 (5) (d),
46.90 (4) (b),
50.07 (3) (b),
146.997,
21.80 (7) (b), and
106.56, Stats., provide that complaints under these provisions shall be processed in the same manner as fair employment complaints. Chapter
DWD 218, relating to fair employment, is amended for clarity to include these references.
Section
101.055 (8), directs the Equal Rights Division to process complaints of retaliation under the public employee health and safety law. There is no statutory directive on how these complaints are to be processed, and the Equal Rights Division does not currently have a rule that covers these complaints. A new rule chapter is created to provide clear authority for the division's procedures on processing the complaints.
All rules administered by the Equal Rights Division are amended to provide procedures on filing documents by fax and email and to allow digital recordings of hearings. These changes reflect technological advances.
Comparison with federal law. Employment discrimination complaints may be filed by mail or in person at the nearest Equal Employment Opportunity Commission office. Fair housing complaints may be filed by online form, telephone, or mail with the Department of Housing and Urban Development. Complaints regarding disability discrimination against students in a post-secondary institution may be filed with the Office of Civil Rights in the Department of Education by online form, mail, fax, or in person. The Office of Civil Rights encourages customers to use e-mail or fax to communicate with staff when possible. Complaints regarding reemployment rights under the Uniformed Services Employment and Reemployment Rights Act of 1994 may be filed with the Department of Labor Veterans Employment and Training Service in writing using a prescribed paper form or an electronic form.
Comparison with rules in adjacent states. Michigan. A complaint may be filed by personal delivery or by mail. The case in support of a discrimination charge is presented at the hearing by a department attorney or a member of the department's staff, or upon notice from the claimant, by the claimant or his or her counsel subject to the right of the department to present other or additional evidence or argument. Verbatim stenographic notes of the hearing are made and kept by a competent reporter.
Iowa. Any document, including a complaint of discrimination, may be filed in person or by mail, fax, or courier service. The case in support of a discrimination complaint is presented at the hearing by a commission attorney.
Illinois. The Department of Human Rights receives complaints and conducts an investigation to determine whether there is probable cause. The department accepts documents served personally or by telefax, U.S. mail, or private delivery service. Hearings on discrimination complaints are conducted by the Human Rights Commission. The commission rule on filing discusses the requirements of filing documents by mail. It is not clear if other types of filing are allowed. The commission arranges for a record of the proceedings to be made, transcribed and filed in the commission's office.
Minnesota. Filing is accomplished by delivery of the charge to the department's office. The Attorney General represents a charging party after the department determines that there is probable cause that discrimination occurred.
Effect on small business. The proposed rules may affect small businesses as defined in s.
227.114 (1), Stats., in the manner that documents may be filed in a discrimination case. No reporting, bookkeeping, or other professional skills are required for compliance with the proposed rules. The Department's Small Business Regulatory Coordinator is Jennifer Jirschele, (608) 266-1023,
jennifer.jirschele@dwd.state.wi.us.
Fiscal Effect
The proposed rules have no fiscal effect.
Agency contact person. LeAnna Ware, Civil Rights Bureau Director, Equal Rights Division, Dept. of Workforce Development,
leanna.ware@dwd.state.wi.us, (608) 266-1997
Written comments. The proposed rules are available at the web site
http://adminrules.wisconsin.gov. This site allows you to view documents associated with this rule's promulgation, register to receive email notification whenever the Department posts new information about this rulemaking order, and submit comments and view comments by others during the public comment period. You may receive a paper copy of the rule or fiscal estimate by contacting:
Elaine Pridgen
Office of Legal Counsel
Dept. of Workforce Development
P.O. Box 7946
Madison, WI 53707-7946
(608) 267-9403
Written comments on the proposed rules received at the above address, email, or through the
http://adminrules.wisconsin.gov web site no later than June 28, 2006, will be given the same consideration as testimony presented at the hearing.
