Chapter DWD 140

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 appeal tribunal 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; CR 18-033: am. (1) (intro.), (2), (3) (intro.), (4) Register May 2019 No. 761, eff. 6-1-19.

DWD 140.08 DWD 140.08 Postponement of hearings.

DWD 140.08(1) (1) A party who requests a postponement of a hearing shall notify 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 appeal tribunal scheduled to conduct the hearing may grant a postponement only for an exceptional reason. An exceptional reason may include any of the following circumstances:

DWD 140.08(2)(a) (a) Serious illness of a party or a necessary witness.

DWD 140.08(2)(b) (b) Death of an immediate family member of a party or a 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 a necessary witness from traveling to the hearing location.

DWD 140.08(2)(e) (e) A business meeting of a necessary witness which was scheduled before receipt of the hearing notice and cannot be rescheduled.

DWD 140.08(2)(f) (f) Commitment of a representative which was scheduled before being retained and which cannot be rescheduled, if the party contacted the representative within a reasonable time after receipt of the hearing notice.

DWD 140.08(2)(g) (g) An unavoidable delay on the day of the hearing which prevents the appeal tribunal 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; CR 18-033: am. Register May 2019 No. 761, eff. 6-1-19.

DWD 140.09 DWD 140.09 Access to hearing files; limited discovery; inspection of records.

DWD 140.09(1) (1) Pre-hearing stage.

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. Before 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 approved by the hearing office. If requested, the hearing office may electronically deliver or 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, as prescribed under s. DWD 149.03 (2).

DWD 140.09(1)(b) (b) Unless the appeal tribunal orders otherwise, the sole means of discovery available to a party or party’s representative before a hearing is inspection of the hearing file and procurement of copies of file contents. The appeal tribunal 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, 108.095 and 108.10, Stats.

DWD 140.09(1)(c) (c) The appeal tribunal may deny a request to inspect the hearing file or procure copies of file contents on the day of the hearing if the inspection or procurement would delay or 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 party’s representative except that the appeal tribunal may conduct a closed inspection of evidence and exhibits if the interests of justice so require. The appeal tribunal may sequester from the hearing any person, party or representative as part of the closed inspection. The appeal tribunal may also issue a protective order to prohibit the parties or the parties’ 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 a party’s representative may inspect any hearing file contents that the party or party’s 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 party’s representative at the hearing may inspect only the following and only if personally identifiable information, as defined in s. 19.62 (5), Stats., has been redacted from the documents:

DWD 140.09(3)(a) (a) The initial determination.

DWD 140.09(3)(b) (b) The exhibits submitted and marked as exhibits at the hearing, whether or not received by the appeal tribunal.

DWD 140.09(3)(c) (c) The appeal tribunal decision issued for the hearing.

DWD 140.09(3)(d) (d) The hearing recording.

DWD 140.09(3)(e) (e) The written synopsis of testimony.

DWD 140.09(3)(f) (f) The transcript of the testimony, if one is prepared at the department’s direction.

DWD 140.09 Note Note: Under s. 19.62 (5), Stats., “Personally identifiable information” means information that can be associated with a particular individual through one or more identifiers or other information or circumstances.

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 individual’s unemployment insurance record as that record relates to work for another employing unit unless the appeal tribunal 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 appeal tribunal may declare all or parts of documents or other material that contains records or preserves information that the appeal tribunal 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 appeal tribunal 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, party’s representative or other person, except a statutory reviewing body, as specified under ss. 108.09, 108.095 and 108.10, Stats., may inspect the notes made by the appeal tribunal 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; CR 18-033: am. (1) (a) to (c), (2), (3) (intro.), (b), (4) (a) 1., (b) to (d) Register May 2019 No. 761, eff. 6-1-19.

DWD 140.10 DWD 140.10 Subpoenas; issuance and service; modification.

DWD 140.10(1) (1) Only the department, an appeal tribunal 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 may request, as soon as possible after receipt of the hearing notice, that the appeal tribunal issue a subpoena. Subpoenas issued by the department or an appeal tribunal shall be issued on completed department forms.

DWD 140.10(2) (2) Subpoenas shall only be issued when necessary to ensure fair adjudication of the issues of the hearing. The department or an appeal tribunal may refuse to issue any subpoena if any of the following occur:

DWD 140.10(2)(a) (a) The evidence sought is not relevant or material.

DWD 140.10(2)(b) (b) The evidence sought is hearsay.

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(2)(d) (d) The evidence requested discloses business secrets.

DWD 140.10(3) (3) A party whose request for a subpoena has been denied may, at the hearing, request the presiding appeal tribunal to issue the subpoena. If the appeal tribunal grants the request for a subpoena, the appeal tribunal may adjourn the hearing to allow sufficient time for service of and compliance with the subpoena.

DWD 140.10(4) (4) The appeal tribunal scheduled to conduct a hearing for which a subpoena has been issued may quash or modify the subpoena if the appeal tribunal 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 as required under sub. (5).

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; CR 18-033: am. (1), (2) (intro.), (3), (4) Register May 2019 No. 761, eff. 6-1-19.

DWD 140.11 DWD 140.11 Telephone and videoconference hearings.

DWD 140.11(1) (1) The appeal tribunal may conduct hearings in whole or in part by telephone or videoconference when it is impractical for the appeal tribunal 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 appeal tribunal determines that it is impractical to do so. A party scheduled to appear by telephone or videoconference may appear in person at the appeal tribunal’s location. The appeal tribunal may postpone or adjourn a hearing initially scheduled as a telephone or videoconference hearing and reschedule the hearing for an in-person appearance if circumstances make it impractical to conduct a telephone or videoconference hearing.

DWD 140.11(2) (2) If the appellant is scheduled to testify by telephone or videoconference and fails to provide the hearing office with the appellant’s telephone number or the name and telephone number of the appellant’s representative or fails to connect to the videoconference within a reasonable time before the hearing and if the appeal tribunal has made reasonable attempts to contact the appellant, the appeal tribunal shall 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 representative, or the representative fails to connect to the videoconference before the hearing, and if the appeal tribunal has made reasonable attempts to contact the respondent, the appeal tribunal shall proceed with the hearing.

DWD 140.11(3) (3) If the appellant is scheduled to appear by telephone or videoconference, the appeal tribunal shall, within 10 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 10 minute period unless the appeal tribunal determines after reasonable efforts that the appellant cannot be reached at that number. If, within 10 minutes after the starting time for the hearing, neither the appellant nor the appellant’s representative can be reached at the telephone number of record or the telephone number furnished to the hearing office, then the appeal tribunal shall dismiss the appeal.

DWD 140.11(4) (4) If the respondent is scheduled to appear by telephone or videoconference, the appeal tribunal shall proceed with the hearing if, within 10 minutes after the starting time for the hearing, neither the respondent nor the respondent’s representative can be reached at the respondent’s telephone number of record or the telephone number furnished to the hearing office. The appeal tribunal may refuse to allow a respondent to testify if the appeal tribunal is unable to reach the respondent or the respondent’s representative and neither the respondent nor the respondent’s representative have contacted the hearing office within 10 minutes after the starting time for the hearing. The respondent is considered to have failed to appear for the hearing if the appeal tribunal so refuses. The respondent may petition such a finding under s. 108.09 (6), Stats.

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 of a delay in the prior hearings or other unforeseen circumstances. If the respondent cannot be contacted by telephone or connect by videoconference within one hour of the scheduled starting time of the hearing, the appeal tribunal shall 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 appeal tribunal shall dismiss the appeal.

DWD 140.11(6) (6) The hearing office shall mark and electronically deliver or mail the potential exhibits for a telephone or videoconference hearing from the hearing file to all parties as soon as possible before the date of the telephone or videoconference hearing. A party may submit additional documents as potential exhibits by simultaneously electronically delivering or mailing those documents to the hearing office and copies to each 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 appeal tribunal may refuse to consider any documents not received by the hearing office or each party at least 3 days before 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; CR 18-033: am. Register May 2019 No. 761, eff. 6-1-19.

DWD 140.12 DWD 140.12 Stipulations.

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 appeal tribunal may accept the stipulation in lieu of a hearing only if all of the following occur:

DWD 140.12(1)(a) (a) The parties entered into the stipulation voluntarily.

DWD 140.12(1)(b) (b) The stipulation contains all the relevant and necessary facts to resolve the issues as determined by the appeal tribunal.

DWD 140.12(1)(c) (c) The stipulation is in writing and signed, or electronically executed, by the parties.

DWD 140.12(2) (2) If the appeal tribunal does not accept the stipulation of the parties, a hearing shall be held unless the appeal tribunal provides the parties with additional opportunities to submit an acceptable stipulation.

DWD 140.12(3) (3) At the hearing, the appeal tribunal may accept a partial stipulation of relevant facts not in dispute if the stipulation is entered into the hearing record and is agreed to on the record by the parties.

DWD 140.12 History History: Cr. Register, November, 1988, No. 395, eff. 12-1-88; renum. from ILHR 140.125 and am., Register, June, 1997, No. 498, eff. 7-1-97; CR 18-033: am. Register May 2019 No. 761, eff. 6-1-19.

DWD 140.13 DWD 140.13 Parties who fail to appear; general provisions. All parties who are required to appear in person shall appear at the hearing location no later than the starting time listed on the notice of hearing. If the appellant does not appear within 10 minutes after the scheduled starting time of the hearing, the appeal tribunal shall dismiss the appeal. If the respondent does not appear within 10 minutes after the scheduled starting time of the hearing and the appellant is present, the appeal tribunal shall commence the hearing. The provisions of s. 108.09 (4), Stats., apply when a party fails to appear at a hearing under this chapter.

DWD 140.13 History History: Cr. Register, November, 1985, No. 359, eff. 12-1-85; renum. from ILHR 140.14 and am., Register, June, 1997, No. 498, eff. 7-1-97; CR 18-033: am. Register May 2019 No. 761, eff. 6-1-19.

DWD 140.15 DWD 140.15 Hearing procedure; order of witnesses; public hearing and exclusion of certain persons; oral decisions.

DWD 140.15(1) (1) All testimony shall be given under oath or affirmation. The appeal tribunal shall administer the oath or affirmation to each witness. No person who refuses to swear or affirm the veracity of their testimony may testify. Each party shall be given an opportunity to examine and cross-examine witnesses. The appeal tribunal may limit testimony to only those matters that are disputed. The appeal tribunal may not allow into the record, either on direct or cross-examination, redundant, irrelevant or repetitive testimony.

DWD 140.15(2) (2) The appeal tribunal has the responsibility to develop the facts and may call and examine any witness that the appeal tribunal deems necessary, determine the order that witnesses are called and the order of examination of each witness. The appeal tribunal may deny the request of any party to examine a witness adversely. The appeal tribunal may hear closing arguments from the parties and may limit the time of such arguments. The appeal tribunal may adjourn and continue a hearing to a future date when the hearing cannot be completed in the time scheduled.

DWD 140.15(3) (3) The appeal tribunal may, upon motion of a party or upon the appeal tribunal’s own motion, exclude witnesses from the hearing until called to testify and may instruct the excluded witnesses not to discuss the matter being heard until the hearing has been concluded. The appeal tribunal may close the hearing to any person to the extent necessary to protect the interests and rights of either party to a fair hearing. This subsection does not authorize exclusion of a party who is a natural person; one officer or employee of a party which is not a natural person; or a person whose presence is shown by a party to be essential to the presentation of the party’s case.

DWD 140.15(4) (4) The appeal tribunal may exclude any person who disrupts the hearing. The appeal tribunal may recess or adjourn the hearing if any person disrupts the hearing. The appeal tribunal may prohibit any excluded representative from representing a party at that hearing or any continuance. The appeal tribunal shall offer a party whose representative has been excluded or refused admittance an opportunity to secure another representative.

DWD 140.15 History History: Cr. Register, November, 1985, No. 359, eff. 12-1-85; renum. from ILHR 140.10 and am. (1) and (4), Register, June, 1997, No. 498, eff. 7-1-97; CR 18-033: am. Register May 2019 No. 761, eff. 6-1-19.

DWD 140.16 DWD 140.16 Admissibility of evidence; administrative notice.

DWD 140.16(1) (1) Statutory and common law rules of evidence and rules of procedure applicable to courts of record are not controlling with respect to hearings. The appeal tribunal shall secure the facts in as direct and simple a manner as possible. Evidence having reasonable probative value is admissible. Irrelevant, immaterial and repetitive evidence is not admissible. Hearsay evidence is admissible if it has reasonable probative value but no issue may be decided solely on hearsay evidence unless the hearsay evidence is admissible under ch. 908, Stats.

DWD 140.16(2) (2) The appeal tribunal may take administrative notice of any department records, generally recognized fact or established technical or scientific fact having reasonable probative value but the parties shall be given an opportunity to object and to present evidence to the contrary before the appeal tribunal issues a decision.

DWD 140.16 History History: Cr. Register, November, 1985, No. 359, eff. 12-1-85; renum. from ILHR 140.12 and am., Register, June, 1997, No. 498, eff. 7-1-97; CR 18-033: am. Register May 2019 No. 761, eff. 6-1-19.

DWD 140.17 DWD 140.17 Form of decision.

DWD 140.17(1) (1) The appeal tribunal may issue an oral decision at the hearing on the matters at issue but the appeal tribunal shall confirm the oral decision with a written decision. Only the written decision is appealable.

DWD 140.17(2) (2) The written decision of the appeal tribunal shall contain ultimate findings of fact and conclusions of law. The findings of fact shall consist of concise and separate findings necessary to support the conclusions of law. The decision shall contain the reasons and rationale which follow from the findings of fact to the conclusions of law.

DWD 140.17(3) (3) The decision of the appeal tribunal shall specify the time limit to file a petition for commission review with the commission under s. 108.09 (6), 108.095 (6) or 108.10 (2), Stats.

DWD 140.17 History History: Cr. Register, November, 1985, No. 359, eff. 12-1-85; renum. from ILHR 140.13, am. (2) and cr. (3), Register, June, 1997, No. 498, eff. 7-1-97; CR 18-033: am. Register May 2019 No. 761, eff. 6-1-19.

DWD 140.18 DWD 140.18 Fees for representation of parties. No representative may charge or receive from a claimant for representation in a dispute concerning benefit eligibility or liability for overpayment of benefits, or in any administrative proceeding under ch. 108, Stats., concerning such a dispute, a fee which, in the aggregate, is more than 10% of the maximum benefits at issue unless the department has approved a specified higher fee before the claimant is charged. When a request for waiver of the 10% limitation is received, the department shall consider whether extended benefits or any other state or federal unemployment benefits are at issue. Any request for waiver of the 10% limitation on fees shall be submitted in writing to the central administrative office of the bureau of legal affairs in the division. Under s. 108.13, Stats., the department may not assign any past or future benefits for the collection of representative fees.

DWD 140.18 Note Note: Any request for a waiver under this section shall be submitted in writing to: Department of Workforce Development, Division of Unemployment Insurance, Central Administrative Office of the Bureau of Legal Affairs, 201 E. Washington Avenue, P.O. Box 8942, Madison, Wisconsin 53708-8942.

DWD 140.18 History History: Cr. Register, November, 1985, No. 359, eff. 12-1-85; renum. and am. from ILHR 140.17, Register, June, 1997, No. 498, eff. 7-1-97; CR 18-033: am. 140.18 Register May 2019 No. 761, eff. 6-1-19.