• Appeal of initial determination of no probable cause. Under the PC rule and ERD's fair employment and whistleblower rules, the deadline for appealing an initial determination of no probable cause is 30 days. Under ERD's family and medical leave rule, the deadline is 10 days.
• Discovery. Under ERD's fair employment and whistleblower rules, a party seeking discovery directed at a party not represented by legal counsel must notify the party who is not represented and the chief of the hearing section or ALJ at least 10 days before conducting the discovery. All copies of demands for discovery must be filed with the department at the time they are served, and copies of responses and the original transcript of a deposition must be filed with the department. Under ERD's family and medical leave rule, a party must obtain written consent from the ALJ to conduct discovery directed to a complainant not represented by legal counsel. The PC had no special provisions affecting discovery directed to a party not represented by legal counsel.
• State employee witnesses. The PC rules allowed an ALJ to issue a letter to compel the attendance of a state employee witness or the production of documents from a state employee. Under the ERD rules, a subpoena is required.
• Exchange of exhibits and witness lists. Under the PC rules, witness lists and copies of exhibits had to be exchanged at least 3 days before the hearing. Under the ERD rules, they must be exchanged at least 10 days before the hearing.
• Place of hearing. The PC had discretion on the location of the hearing. In fair employment and whistleblower cases, the ERD must hold the hearing in the county where the alleged act of discrimination occurred or another location with the consent of the parties. In family and medical leave cases, the ERD hearing is either in the county of the respondent's principal place of business or the county in which the action prohibited by the law appears to have occurred.
• Proposed decisions. The PC hearing examiners issued proposed decisions with the opportunity for parties to file written objections. The final decision was issued by the Personnel Commissioners. The ERD hearing examiners do not issue proposed decisions.
• Appeal. Orders of the Personnel Commission were subject to judicial review under ch.
227, Stats. Orders of the ERD may be appealed to the Labor and Industrial Review Commission (LIRC) and then circuit court, except family and medical leave cases and whistleblower cases, which are appealable directly to circuit court and not LIRC.
The above changes related to the transfer of Personnel Commission responsibilities to the Equal Rights Division were ordered by emergency rule. In addition, the department proposes the following revisions to the civil rights rules:
• The deadline to amend a complaint absent a finding of good cause is changed from 20 to 45 days before the hearing in the fair employment, fair housing, and public accommodations rules.
• The department may dismiss a portion of a complaint if that portion fails to meet the department's preliminary review that the parties are covered by the relevant law and the complaint states a claim for relief under the fair employment, fair housing, public accommodations, or family and medical leave law. Authority to dismiss the entire complaint already exists.
• The department may dismiss a complaint prior to the investigation if the complainant fails to respond to certified mail from the department within 20 days, the complainant signed a valid release of the claim, or the allegations in the complaint have been previously dismissed by the department or a state or federal court. This dismissal is subject to appeal to an ALJ in the Equal Rights hearing section and further appeal to LIRC. This revision is proposed for the fair employment and fair housing rules.
• The respondent shall mail a copy of the answer to other parties and file a certification of mailing with the department, rather than the department serving the answer on the other parties. This revision is proposed for the fair employment, fair housing, and public accommodations rules.
• Names of witnesses and copies of exhibits must be exchanged with other parties and filed with the division at least 10 days before the hearing. The proposed rule makes service complete upon mailing rather than receipt. It also provides for mandatory, rather than discretionary, exclusion of witnesses and exhibits not identified in a timely fashion, unless good cause is shown. These proposed changes affect the fair employment and fair housing rules.
• An appeal of a preliminary determination dismissing a complaint in a family and medical leave case will heard by an ALJ in the division hearing section. Under the current rule, the division administrator of the Equal Rights Division, or a person assigned by the administrator, receives these appeals.
• The proposed rule makes conciliation discretionary, rather than mandatory, in family and medical leave cases.
Initial Regulatory Flexibility Analysis
The rule changes primarily affect state respondents and individuals filing complaints against state respondents. There are some minor changes that may affect small business but these changes will not have a significant economic impact on these businesses.
Fiscal Impact
The proposed rule changes do not have a fiscal effect on state or local government.
Contact Information
A paper copy may be obtained at no charge by contacting:
Elaine Pridgen
Office of Legal Counsel
Dept. of Workforce Development
201 E. Washington Avenue
P.O. Box 7946
Madison, WI 53707-7946
(608) 267-9403
Written Comments
Written comments on the proposed rules received at the above address no later than October 31, 2003, will be given the same consideration as testimony presented at the hearing.
