LIRC 5 will be created to explain the process for requesting review of an appeal tribunal decision regarding worker classification compliance by the commission pursuant to Wis. Stat. §103.06(6)(c). This statutory provision was created by 2009 Wisconsin Act 292. No cases have yet been petitioned to the commission under this law. The commission must adopt rules to facilitate and explain the process for handling petitions for review under this new law. The proposed rules establish a process for appealing to the commission that is organized similarly to the appeal process for other program areas, but with specificity for worker classification compliance issues. Summary of, and comparison with, existing or proposed federal statutes and regulations.
There are no existing or proposed federal regulations that address the procedures to be regulated by these procedural rules of the commission.
Comparison with rules in adjacent states.
Illinois. The State of Illinois has a Board of Review of 5 members appointed by the Governor (2 employee representatives; 2 employer representatives; 1 unaffiliated) to hear appeals of unemployment insurance cases and various federal programs related to unemployment insurance administered by the Department of Employment Security, except claims involving labor disputes. Parties appeal a decision of an appeal hearing referee to the Board of Review within 30 days of the date of mailing the referee’s decision. Appeals are filed in person, by mail, online or by facsimile transmission. Parties may request a transcript of the hearing, to submit written argument, and present oral argument within certain deadlines. The Board of Review’s decision is based on the existing record obtained before the referee, with further hearings and oral argument seldom required, although parties may request to provide additional evidence if they meet certain conditions. The Board of Review must issue its decisions within 120 days of the date of appeal; if a decision is not issued within 120 days, an appellant may request a Notice of Right to Sue. If the Board of Review does not issue its decision within 14 days of the Notice of Right to Sue, the appellant may bring an action in circuit court. The Board of Review may issue decisions or remand a case to the referee; it does not have authority to reconsider its decisions.
Worker’s compensation cases are handled in Illinois by the independent Illinois Worker’s Compensation Commission (WCC). The first level decision is made by an arbitrator of the WCC. If a party disagrees with the decision of the arbitrator, they can appeal to the commission, a panel of three commissioners from the ten-member WCC. The panel reviews the decision of the arbitrator and reviews briefs and oral argument. Appeals of the commission’s decision are to the circuit court.
Fair employment laws in Illinois are handled by the Illinois Department of Human Rights (IDHR). A hearing is set before an ALJ of the Illinois Human Rights Commission within 30 to 90 days after a complaint has been filed with the IDHR. The ALJ issues a Recommended Order and Decision. If either party objects, the case will be reviewed by a three-member panel of commissioners. The commissioners are appointed by the governor and approved by the senate, and no more than seven commissioners may be appointed from the same political party. The commission consists of 13 commissioners. The panel may adopt, reverse or modify the proposed decision, or remand the case back to the ALJ. A party may appeal an unfavorable decision of the IHRC to the appellate court.
Iowa. The State of Iowa has a three-member Employment Appeal Board (EAB) that is appointed by the Governor and serves as the final administrative review for unemployment benefit appeals, peace officer issues, contractor registration requirements, rulings of the Occupational Safety and Health Administration (OSHA), and rulings of the Iowa Public Employees Retirement System. Slightly different procedures apply to appeals of different kinds of cases. Parties appeal a decision to the EAB within 15 days of the date of mailing an unemployment decision, or within 30 days for a personnel decision. In general, appeals are filed in person, by mail, or by facsimile transmission. The EAB may join additional parties and consolidate proceedings as necessary to resolve issues. The EAB’s review is based on the record before the administrative law judge. A copy of the testimony and evidence at the hearing is mailed to each party. Parties may request to present new or additional evidence before the EAB; the EAB may remand to take additional evidence or hold a hearing to allow parties to present evidence and take testimony. Parties may present briefs and the EAB may allow oral arguments in its discretion. The EAB must render a decision within a reasonable time. Any party may file an application for rehearing with the EAB within 20 days of the date of the EAB’s decision; an application shall be deemed denied unless the EAB acts within 20 days of the date of filing the application with the EAB. When the EAB issues its final decision, all administrative remedies have been exhausted and parties may petition to the district court for review.
Worker’s compensation cases are decided at the first level by a deputy worker’s compensation commissioner who issues an arbitration decision. If any party is dissatisfied with the decision, they can request rehearing or appeal to the Worker’s Compensation Commissioner. No new evidence is allowed and the parties brief the issues on appeal. If any party is dissatisfied with the decision of the Worker’s Compensation Commissioner, they can appeal to the district court.
Employment discrimination cases are handled in Iowa by the Iowa Civil Rights Commission. The commission consists of seven members appointed by the governor to serve four-year staggered terms and subject to confirmation by the senate. No more than four members of the commission may belong to the same political party. If an administrative law judge finds probable cause to believe the improper action occurred, a conciliator tries to negotiate a settlement on behalf of the commission and the complainant. If negotiation fails, a decision is made whether to proceed to a public hearing. If the commission determines the respondent violated the Iowa Civil Rights Act, the commission will order “make whole” relief. Appeals of the commission’s decision are to a district court.
Michigan. The State of Michigan has a three-member panel of commissioners, with representatives from three different sectors (employee, employer, general public). The panel member that is a representative of the general public serves as the chairperson. Michigan law provides that a party that loses a case before an administrative law judge has a right to appeal the decision to the Michigan Compensation Appellate Commission (MCAC). The MCAC handles appeals of worker’s compensation and unemployment insurance cases. An appeal to MCAC must be in writing and signed or verified and must be received within 30 days of the date of the administrative law judge’s decision. Parties before an ALJ may agree to bypass the ALJ and transfer the proceeding to the MCAC. If both parties agree, they can stipulate to bypass the MCAC and proceed directly to circuit court. The MCAC review is of the hearing and exhibits in the record before the ALJ. Transcripts of hearings are available only on request and are subject to printing and processing fees. A party may request an opportunity to present oral argument to the MCAC, but that is granted in only rare cases. A party may request to provide written argument or briefs, but the request will only be granted if a request for oral argument was not approved and 2 or more members of the MCAC and all parties agree that written argument should be considered. The MCAC issues written decisions or orders, but may omit giving any reasons for its decision if it affirms an ALJ decision without alteration or modification. A party may request a rehearing of a final decision of the MCAC within 30 days of the date of the decision. A final decision of the MCAC may be appealed to circuit court within 30 days from the date of mailing of the MCAC decision. A decision of the MCAC may be reopened within one year for good cause.
Fair employment and employment discrimination complaints in Michigan are filed with the Michigan Department of Civil Rights. Appeals of hearing referee decisions are handled by the Michigan Civil Rights Commission. The Commission is an 8-member body. Commissioners are appointed by the governor to four-year terms and the appointment must be approved by the senate. No more than four members may be from the same political party.
Minnesota. The State of Minnesota does not have a higher authority administrative review of administrative law judge unemployment insurance decisions. A party may request reconsideration of an administrative law judge’s decision within 20 calendar days after the date of mailing the decision. If a party disagrees with the lower level review reconsideration decision, they must appeal to the Minnesota Court of Appeals within 30 days after the decision was sent by electronic transmission or within 33 days after the decision was mailed, and serve the other parties. An employer that appeals must pay a $550 fee.
The State of Minnesota has an independent agency to review worker’s compensation decisions of compensation judges called the Minnesota Worker’s Compensation Court of Appeals. The agency consists of five review judges appointed to six-year terms by the governor and confirmed by the senate. A panel of three or five judges decides each appeal. The judges review the evidentiary record created at the initial hearing, preside over oral argument if necessary, and decide the legal and factual issues in the case, and issue written decisions and orders. Decisions are appealable directly to the Minnesota Supreme Court.
Fair employment cases in Minnesota are handled by the Minnesota Department of Human Rights. If complaints are not resolved there, they are referred to the attorney general for prosecution.
Summary of factual data and analytical methodologies.
The commission established a team to conduct a Value Stream Mapping (VSM) event to identify potential problems and provide suggestions to improve the commission’s workflow. The team included the commission chairperson, the general counsel, the office manager, and several attorneys and support staff. The VSM identified areas for improvement in the efficient processing of petitions to the commission and the commission case review process. Process improvements and technological changes were subsequently made that improved the speed and efficiency of processing cases before the commission. The VSM also identified several procedural rule changes that would improve processing cases and establish consistencies in processing cases in the various program areas with which the commission works. A workgroup was established to review all commission procedural rules and make recommendations for changes. The workgroup consisted of one commissioner, the general counsel, the office manager, and several attorneys with special expertise in each program area. The rules workgroup created draft proposed rules, which the commission approved.
Analysis and supporting documents used to determine effect on small business or in preparation of an economic impact analysis.
The commission’s procedural rules apply uniformly to all parties with cases before the commission, and do not establish regulatory standards, or compliance or reporting requirements for businesses. The rules do not have any direct economic effect on small businesses, and no discernible indirect economic effects on small businesses.
Effect on small business.
The procedural rule changes are not anticipated to have an economic effect on small businesses.
Fiscal estimate and economic impact analysis.
The proposed rules are procedural and modify and clarify where and how petitions for commission review may be filed and how the commission conducts its review. There are no anticipated fiscal impacts on state funds, or the liability and revenues of any county, city, village, town, school district, technical college district, or sewer district. The commission’s rules apply uniformly to all parties with cases being reviewed by the commission and do not establish regulatory standards, or compliance or reporting requirements for businesses. The proposed rules will have no economic impact locally or statewide. See attached form DOA-2049.
Agency contact person. Comments may be submitted to:
Maria Gonzalez Knavel, General Counsel, Labor and Industry Review Commission, 3319 West Beltline Highway, P.O. Box 8126, Madison, WI 53708, (608) 266-3188, maria.gonzalezknavel@wisconsin.gov. TEXT OF RULE
SECTION 1. LIRC 1.01 is amended to read:
LIRC 1.01 General. The labor and industry review commission has jurisdiction for to review of cases arising under ss. 40.65 (2), 66.191, 1981 Stats., ss. 102.18 (3) and (4), 103.06 (6), 106.52 (4), 106.56 (4), 108.09 (6), 108.10 (2) and (3), 111.39 (5) (a), 303.07 (7) and 303.21, Stats. SECTION 2. LIRC 1.015 is repealed and recreated to read:
LIRC 1.015 Definitions. As used in chs. LIRC 1 to 5: (1) “Commission” means the Wisconsin labor and industry review commission.
(2) “Commissioner” means a member of the commission.
(3) “Department” means the Wisconsin department of workforce development unless otherwise indicated.
(5) “Equal rights division” means the division of equal rights of the department created by s. 15.223, Stats. (6) “Hearings and appeals division” means the Wisconsin department of administration division of hearings and appeals created by s. 15.103(1), Stats. (7) “Petition” means a written appeal to the commission to review a decision of an appeal tribunal of the department for unemployment insurance and worker classification compliance cases, a decision of an administrative law judge of the department or hearings and appeals division for worker’s compensation cases, or a decision of an administrative law judge or hearing examiner of the department for equal rights cases.
(8) “Unemployment insurance case” means a case in which the commission has jurisdiction under s. 108.09 (6), or 108.10 (2) or (3), Stats. (9) “Unemployment insurance division” means the division of unemployment insurance of the department.
(10) “Worker classification compliance case” means a case in which the commission has jurisdiction under s. 103.06 (6), Stats. (12) “Worker’s compensation division” means the division of worker’s compensation of the department.
SECTION 3. LIRC 1.02 (intro.) is amended to read:
LIRC 1.02 Petitions for review; appeal period. All petitions A petition for commission review shall be filed within 21 days from the date of the mailing or electronic delivery of the findings and decision or order, except that the petition may be filed on the next business day if the 21st day falls on any of the following:
SECTION 4. LIRC 1.02 (10) is created to read:
LIRC 1.02
(10)
Any other day the state office where the petition for review may be filed is officially closed.SECTION 5. LIRC 1.025 is repealed and recreated to read:
LIRC 1.025 Petitions for review; where and how filed.
(1) A petition for review shall be filed as follows:
(a) In unemployment insurance and worker classification compliance cases, with the commission as provided in sub. (2).
