DWD 226.04 History
History: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22.
DWD 226.05
DWD 226.05
Time to commence administrative proceedings. If an employer is not in compliance with the notice posting requirements of s.
103.11 (14) (a), Stats., when a violation occurs
under
s.
103.11, Stats., an employee complaining of that violation shall be deemed not to “reasonably have known” that a violation occurred within the meaning of s.
103.11 (12) (a), Stats., at the time of the violation or
the
first
date
that
the
employee
obtains
actual
knowledge
of the information contained in the required notice, whichever date occurs earlier. If the employer is not in compliance with the notice posting requirements of s.
103.11 (14) (a), Stats., when a violation occurs under s.
103.11, Stats., the employer has the
burden of proving actual knowledge on the part of the employee
within the meaning of this section.
DWD 226.05 History
History: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22.
DWD 226.06(1)(1)
Who may file a complaint. A complaint may be filed by any person or by the person's duly authorized representative. A complaint filed by a representative shall state that the representative is authorized to file the complaint.
DWD 226.06(2)(a)
(a) A complaint may be filed on the department's website or filed in person or by mail, facsimile transmission, or email to the office of the department's equal rights division.
DWD 226.06 Note
Note: The offices of the department's equal rights division are at the following addresses:
DWD 226.06 Note
1. Equal Rights Division, 201 East Washington Avenue, Madison, WI 53703; PO Box 8928, Madison, WI 53708. Facsimile: 608-327-6001. Email address:
ERInfo@dwd.wisconsin.gov.
DWD 226.06 Note
2. Equal Rights Division, 819 North 6th Street, Milwaukee, WI 53203. Facsimile: 414-227-4084. Email address:
ERInfo@dwd.wisconsin.gov. Access to the division's Milwaukee office is on the 7th Street side of the building.
DWD 226.06(3)
(3)
Content of complaint. A
complaint
shall
be submitted on a form provided by the department and signed by the person filing the complaint or by the person's duly authorized representative. The signature constitutes an acknowledgment that the party or the representative has read the complaint; that
to
the
best
of
that
person's knowledge, information, and belief the complaint is true and correct; and that the complaint is not being used for any improper purpose, such as to harass the party
against
whom
the
complaint
is
filed.
Complaints filed on the department's website shall be acknowledged using the certification method required in the instructions on the website. The complaint
shall contain all of
the following information:
DWD 226.06(3)(c)
(c) A concise statement of the facts, including pertinent dates, constituting
the alleged prohibited action.
DWD 226.06(4)
(4)
Assistance by the department. The department shall, upon request, provide appropriate assistance in completing and filing
complaints.
DWD 226.06(5)
(5)
Amendment of complaint. A complaint may be amended, subject to the approval of the department, except that a complaint may not be amended less than 10 days before hearing or by a date established by the administrative law judge unless good cause is shown for the failure to amend the complaint before that time. If the complaint is amended before the issuance of an initial determination, the department shall investigate the allegations of the amended complaint. After an initial determination has been issued, amendments may be allowed by the administrative law judge only for claims which relate back to the original complaint for statute of limitation purposes. If an amendment is approved after the case has been certified to hearing, the case may be remanded to the bureau of investigations to conduct an investigation and issue an initial determination as to whether probable cause exists to believe that the respondent has violated s.
103.11, Stats., as alleged in the amended complaint or continue to hearing if both parties agree to proceed to hearing with the issues in the amended complaint. An amended complaint shall be dismissed if it does not meet the requirements of s.
DWD 226.09 (1).
DWD 226.06(6)
(6)
Withdrawal of complaint. A complaint may be withdrawn at any time. A request for a withdrawal shall be in writing and
shall
be
signed
by
the
complainant
or
by
the
complainant's duly authorized representative. Upon the filing of a request for a withdrawal, the
department shall dismiss the complaint by written order. Such dismissal shall be with prejudice unless otherwise expressly
stated in the order.
DWD 226.06 History
History: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22; correction in (2) (a) made under s. 35.17, Stats., Register June 2022 No. 798.
DWD 226.07
DWD 226.07
Complainant's duty to respond to correspondence from the department. The department may dismiss the complaint if the complainant fails to respond to the department within 20 days from the date of mailing of any correspondence from the department concerning the complaint, provided that correspondence was sent by certified mail, return receipt requested, to the last known address of the complainant. The department may send certified or regular mail to determine whether the complainant wishes to continue pursuing the case or for other reasons determined to be appropriate by the department. If regular mail is not returned to the department, there is a presumption that it was received by the complainant.
DWD 226.07 History
History: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22.
DWD 226.08(1)
(1)
When notice is to be sent. The department shall serve a copy of a complaint which meets the requirements
of
s.
DWD 226.06 upon
each respondent
before the commencement of any investigation.
DWD 226.08(2)
(2)
Content of notice. The notice shall include a copy of the complaint, which shall indicate on its face the date the complaint was filed.
The
notice
shall
direct
the
respondent
to
respond
in
writing to the allegations of the complaint within a time period designated by
the
department.
The
notice
shall
further
state
that,
if
the respondent fails
to
answer
the
complaint
in
writing,
the
department may
make
an
initial
determination
as
to
whether
a
there is probable cause to believe that a prohibited act has occurred based solely on the department's investigation and the information supplied by the complainant.
DWD 226.08 History
History: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22.
DWD 226.09
DWD 226.09
Preliminary review of complaints. DWD 226.09(1)(1)
Review of complaint. The department shall review every complaint filed to determine all of the following:
DWD 226.09(1)(d)
(d) Whether the complaint was filed within the time period set forth in s.
103.11, Stats., if that issue is raised in writing by the respondent.
DWD 226.09(2)
(2) Preliminary determination dismissing complaint. The department shall issue a preliminary determination dismissing
any complaint, or any portion of a complaint, which fails to meet the requirements
of sub.
(1).
The
department shall
send the order of dismissal by
U.S.
mail
to
the
last
known
address
of
each
party and to their attorneys of record.
DWD 226.09(3)(a)
(a) A complainant may appeal from an order dismissing a complaint under sub.
(2) by filing
a
written
appeal
with
the
department by mail, facsimile, email, or hand-delivery that satisfies all of the following:
DWD 226.09(3)(a)2.
2. The appeal states specifically the grounds upon which the appeal is based including evidence the complaint did, in fact, meet the requirements of sub.
(1).
DWD 226.09(3)(b)
(b) If a timely appeal is filed, the
department shall
serve
a
copy
of
the
appeal
upon
all
other parties by U.S. mail. The matter shall be referred to the bureau of hearings and mediation for review by an administrative law judge. The administrative law judge shall issue a decision to affirm, reverse, modify,
or
set
aside
the
preliminary
determination.
The department shall serve the decision of the administrative law judge
upon
all
parties.
If
the
decision
reverses
or
sets
aside
the preliminary
determination,
the
complaint
shall
be
remanded
for investigation.
If
the
decision
affirms
the
preliminary
determination, the decision
may
be
subject
to
review
in
court
if
it
is
a
final
decision
and order that may be appealed under s.
DWD 226.25 (1).
DWD 226.09 History
History: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22.
DWD 226.10(1)(1)
Conduct of investigation. The department shall investigate all complaints that satisfy
the
review
under
s.
DWD 226.09.
In
conducting
investigations under this chapter, the department may seek the cooperation of all persons
to
provide requested materials to the department; to obtain access
to
premises,
records,
documents,
individuals,
and other possible sources of information; to examine, record, and copy
necessary materials; and to take statements of persons reasonably necessary for the furtherance of the investigation.
DWD 226.10(2)
(2)
Dismissal of complaint before completion of investigation. DWD 226.10(2)(a)(a) The
department may
dismiss
a
complaint
before completion
of
an
investigation
under
the
any of the following
circumstances:
DWD 226.10(2)(a)1.
1. The complainant has failed to respond to correspondence from the department concerning the complaint within 20 days after the correspondence was sent by certified mail
to
the
last-known
address of the person filing the complaint, in
accordance with the provisions of s.
DWD 226.07.
DWD 226.10(2)(a)2.
2. The complainant signed a waiver and release of claims arising out of the complainant's employment with the respondent that would preclude the department from finding that the respondent has violated s.
103.11, Stats.
DWD 226.10(2)(a)3.
3. The allegations in the complaint have been previously dismissed with prejudice by the department or by a state or federal court.
DWD 226.10(2)(b)1.1. A complainant may appeal from an order dismissing a complaint under
this
subsection
by
filing
a
written
appeal with
the department that satisfies all of the following:
DWD 226.10(2)(b)1.b.
b. The appeal states specifically the grounds upon which the appeal is based including evidence the complaint did, in fact, meet the requirements of s.
DWD 226.09 (1).
DWD 226.10(2)(b)2.
2. If a timely appeal is filed, the
department shall
serve
a
copy
of
the
appeal
upon
all
other parties by U.S. mail. The matter shall be referred to the bureau of hearings and mediation for review by an administrative law judge. The administrative law judge shall issue a decision which shall either affirm, reverse, modify,
or
set
aside
the
preliminary
determination.
The department shall serve the decision of the administrative law judge
upon
the
parties by U.S. mail.
If
the
decision
reverses
or
sets
aside
the preliminary
determination,
the
complaint
shall
be
remanded
for investigation. If
the
decision
affirms
the
preliminary
determination, it
may
be
subject
to
review
in
court
if
it
is
a
final
decision
and order as defined in s.
DWD 226.25 (1).
DWD 226.10 History
History: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22; correction in (1) made under s. 35.17, Stats., Register June 2022 No. 798.
DWD 226.11(1)
(1)
General. At the
conclusion
of
the
investigation,
the
department shall
issue
a written initial determination which states whether there is probable cause to believe that a prohibited act occurred as alleged in the complaint. This initial determination shall set forth the
facts
upon
which
its
conclusion
is
based
and
shall
be
served upon the parties.
DWD 226.11(2)
(2)
Initial determination of probable cause. If
the
department initially
determines
that
there
is
probable
cause
to
believe that any prohibited act occurred as alleged in the complaint, it shall certify the case to hearing. A hearing on the merits shall be noticed and conducted in accordance with the provisions of ss.
DWD 226.15 to
226.24.
DWD 226.11(3)
(3)
Initial determination of no probable cause. If the department initially determines that there is no probable cause to believe that a prohibited act occurred as alleged in the complaint, it may
dismiss
those
allegations.
The
department shall,
by
a
notice to
be
incorporated
in
the
initial
determination,
notify
the
parties and their attorneys of record of the complainant's right to appeal as provided in s.
DWD 226.12.
DWD 226.11 History
History: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22.
DWD 226.12
DWD 226.12
Appeal of initial determination of no probable cause. DWD 226.12(1)(1) An appeal shall be filed within 10 days of the date of the initial determination.
DWD 226.12(2)
(2) If
no
written appeal
is
filed in a timely manner,
the
initial
determination's
order
of dismissal shall be the final determination of the department.
DWD 226.12(3)
(3) If
an appeal under sub.
(1) is filed, the department shall issue a notice certifying the matter
to
hearing.
A
hearing
on
the
issue
of
probable
cause
shall
be noticed and conducted in accordance
with
the
provisions
of
ss.
DWD 226.15 and
DWD 226.17
to
226.24.
The parties
may stipulate before the
hearing
that
the
administrative
law
judge
may decide the case on the merits. If a hearing on the issue of probable cause is requested in a case in which the initial determination also found probable cause with respect to one or more issues, the department may
consolidate
the hearing
on probable cause and the hearing on the merits with the consent of the parties.
DWD 226.12 History
History: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22.
DWD 226.13
DWD 226.13
Private settlement and conciliation. The parties may enter into an agreement to settle the complaint at any time
during
the
proceedings. If requested, the department may assist the parties to reach a settlement. The parties shall notify the department immediately
upon reaching a settlement if it resolves all matters so the department may dismiss the matter.
DWD 226.13 History
History: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22.
DWD 226.14
DWD 226.14 Dismissal of complaint for lack of jurisdiction or other procedural basis following certification to hearing. A complaint may be dismissed for not meeting the requirements of s.
DWD 226.09 (1) or for any other procedural basis after the case is certified to hearing under s.
DWD 226.11 (2) or
226.12 (3). In determining whether to dismiss the complaint, the administrative law judge may consider documents and affidavits presented by any party and may hold a hearing to allow the parties to establish facts that may have a bearing on whether the complaint should be dismissed. If the administrative law judge issues an order dismissing the complaint under this section, a certified copy of the order and a notice of appeal rights shall be sent by U.S. mail to the last-known address of each party and to their attorneys of record.
DWD 226.14 History
History: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22.
DWD 226.15(1)
(1)
Content. In
any matter which has been certified to hearing following an initial determination
of probable cause under s.
DWD 226.11 (2) or an appeal
of
an
initial
determination
of
no
probable
cause
under
s.
DWD 226.11 (3), the department shall advise the parties and their representatives and
attorneys
in
writing
by
U.S. mail, of the specific time, date, and place established for the hearing.
The notice of hearing shall fully identify the parties and the case
number. It shall specify a time and date for hearing not less than 10
days
after
the
date
of
mailing
of
the
notice
of
hearing.
The notice of hearing shall specify the nature of the prohibited act that is
alleged
to
have
occurred
and
shall
state
the
legal
authority
on which the hearing is based. A copy of the complaint shall be attached
to the notice of hearing.
DWD 226.15(2)(a)(a) The hearing shall be held in the county where
the prohibited act is alleged to have occurred, or at another location with the
consent
of
the
parties.
For
purposes
of
this
subsection,
the county where the alleged prohibited act occurred is the county where the respondent resides or where the alleged violation occurred.
DWD 226.15(2)(b)
(b) A hearing held using video conferencing technology is considered to be held in the county where the prohibited act is alleged to have occurred.
DWD 226.15 History
History: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22.
DWD 226.16(1)(1)
When required. Within 10 days after the date of a notice of hearing on the merits or by a date set by the administrative law judge holding the hearing, each respondent shall
file
with
the
department's bureau of hearings and mediation
an answer
to the allegations of the complaint upon which there is a finding of probable cause, along with a certification that a copy of the answer has been sent to all other parties.
DWD 226.16(2)
(2)
Content of answer. The answer shall contain the respondent's current address. It shall also contain a specific admission, denial,
or
explanation
of
each
allegation
of
the
complaint.
If
the respondent is
without
knowledge
or
information
sufficient to
form a belief
as
to
the
truth
of
an
allegation
in
the
complaint,
the
respondent shall
so
state
and
this
shall
have
the
effect
of
a
denial.
Admissions
or
denials
may
be
to
all
or
part
of
an
allegation and shall address the substance of the allegation. Any affirmative defense relied upon by a respondent, including the statute of limitations, shall be raised in the answer unless it has previously been raised by motion in writing. Failure to raise
an
affirmative defense in a timely answer
may, in
the absence of
good
cause,
be
held
to
constitute
a
waiver
of
that defense.
DWD 226.16 History
History: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22.
DWD 226.17
DWD 226.17
Prehearing conference. In any case which has
been
certified
to
hearing,
a
prehearing
conference
may be held in accordance with s.
227.44 (4), Stats.
DWD 226.17 History
History: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22.
DWD 226.18(1)
(1)
Timing. Discovery may not be used before the time that a
matter
is
certified
to
hearing,
except
that
the
taking
and
preservation of evidence shall be permitted before certification to hearing
under the circumstances set forth in s.
227.45 (7), Stats.
DWD 226.18(2)
(2)
Discovery directed to a party not represented by legal counsel. In the case of discovery directed to a party who is not represented by legal counsel, the party seeking discovery shall,
not
less
than
10
days
before conducting
such
discovery, state in
writing
that
it
intends
to
seek
discovery. The party seeking discovery shall
send
this
notice
to
the
party
who
is
not
represented by
legal
counsel,
and
the director of the bureau of hearings and mediation
or
the
administrative
law
judge,
if
one
has
been
assigned
to
the
case.
All copies of demands for discovery and notices of depositions shall be filed with the department
at the time they are served upon the party from whom the discovery is sought, unless otherwise ordered by the administrative law judge. Copies of responses to discovery by an unrepresented party and the original transcript of any deposition of an unrepresented party shall be filed with the department
by the party who instituted those discovery requests as soon as practicable after the discovery has been taken.
DWD 226.18(3)
(3)
Scope, methods and use of discovery. The scope of discovery, the methods of discovery, and the use of discovery at hearing shall be the same as set forth in ch.
804, Stats.
DWD 226.18(4)
(4)
Failure to comply with discovery requests; duty to consult with opposing party. The administrative law judge may compel
discovery,
issue
protective
orders,
and
impose
sanctions in the manner provided under ch.
804, Stats. All motions to compel discovery or motions for protective orders shall be accompanied by a statement in writing by the party making the motion that, after consultation in person or by telephone with the opposing party and sincere attempts to resolve their differences, the parties are unable to reach agreement. The statement shall state the date and place of such consultation and the names of all parties participating in the consultation.
DWD 226.18(5)
(5)
Filing with the department. Copies of discovery requests and responses to discovery requests need not be filed with the department, except as required under sub.
(2).
DWD 226.18 History
History: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22; correction in (3) made under s. 35.17, Stats., Register June 2022 No. 798.
DWD 226.19(1)
(1)
Subpoenas. Subpoenas, including subpoenas to compel the attendance of witnesses and subpoenas requiring the production of material, may be issued by the department or by an attorney of record. The department or a party's attorney of record may issue a subpoena to compel the attendance of a witness or the production of documents. A subpoena issued by an attorney shall be in substantially
the same form as provided in s.
805.07 (4), Stats., and shall be
served
in
the
manner
provided
in
s.
805.07 (5),
Stats.
Witnesses
summoned
by
a
subpoena
who
are
not
employees
of
the civil service, as defined in
s.
230.03 (6), Stats., shall be entitled to the witness and mileage fees set forth in s.
814.67 (1) (a) and
(c), Stats. The cost of service, witness and mileage fees shall be paid by the person issuing the subpoena. Subpoenas may be enforced under s.
885.12, Stats.
DWD 226.19(2)
(2)
Motions. Motions
made
during
a
hearing
may
be
stated orally
and
shall,
with
the
ruling
of
the
administrative
law
judge, be
included
in
the
record
of
the
hearing.
All
other
motions
shall be in
writing
and
shall
state
briefly
the
relief
requested
and
the grounds upon
which
the
moving
party
is
entitled
to
relief.
All
written motions shall be filed with the administrative law judge assigned to
the
case.
Any
briefs
or
other
papers
in
support
of
a motion,
including affidavits
and
documentary evidence, shall be filed with the motion. Any party opposing the motion may file a written response. All written motions shall be decided without further argument unless requested by the administrative law judge.
DWD 226.19 History
History: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22.
DWD 226.20
DWD 226.20
Disqualification of the administrative law judge. Upon the administrative law judge's own motion, or upon a timely and sufficient affidavit filed by any party, the administrative law judge shall determine whether to disqualify himself
or
herself
because
of
personal
bias
or
other
reason.
The administrative
law judge's determination shall be made a part of the record and decision in the case.
