Chapter DWD 140

DWD 140.19   Departmental assistance for persons with disabilities and hearing impairments.

DWD 140.20   Witness and interpreter fees; travel expenses.

DWD 140.21   Transcripts and recordings.

DWD 140.22   Standard affidavit form.

Ch. DWD 140 Note Note: Chapter Ind-UC 140 as it existed on November 30, 1985 was repealed and a new chapter ILHR 140 was created effective December 1, 1985. Chapter ILHR 140 was renumbered Chapter DWD 140 under s. 13.93 (2m) (b) 1., and corrections made under s. 13.93 (2m) (b) 6. and 7., Stats., Register, June, 1997, No. 498.

DWD 140.001 DWD 140.001 Definitions.

DWD 140.001(1) (1) In general. Except as provided in sub. (2), the definitions in ch. DWD 100 apply to this chapter.

DWD 140.001(2) (2) In this chapter. Notwithstanding ch. DWD 100, the following words and phrases have the designated meanings:

DWD 140.001(2)(a) (a) “Affiant” means a person who swears to an affidavit.

DWD 140.001(2)(bm) (bm) “Affidavit” means a written statement sworn under oath before a notary public or other person authorized by law to verify sworn statements and must be based upon personal knowledge or upon information and belief.

DWD 140.001(2)(c) (c) “Agent state” means any state other than Wisconsin in which a person files a claim for unemployment benefits from the state of Wisconsin.

DWD 140.001(2)(d) (d) “Appeal tribunal” means an individual designated under s. 108.09 (3), Stats., to conduct hearings arising under ch. 108, Stats., and s. 103.06 (6), Stats.

DWD 140.001(2)(e) (e) “Division” means the unemployment insurance division of the department of workforce development.

DWD 140.001(2)(f) (f) “Ease of access” means the physical characteristics of a building which allow a person with a temporary or permanent incapacity or disability to enter, circulate within and leave the building and to use the public toilet facilities and passenger elevators in the building without assistance.

DWD 140.001(2)(g) (g) “Hearing office” means an office of the division that is responsible for scheduling and conducting hearings arising under ch. 108, Stats., and s. 103.06 (6), Stats.

DWD 140.001(2)(h) (h) “Person with a disability” means any person who, by reason of an impairment of sight, hearing or speech, may be hindered or prevented from communicating at a hearing as effectively as a person who does not have such an impairment.

DWD 140.001(2)(i) (i) “Representative” means any attorney or agent who notifies the department they are authorized to represent any party.

DWD 140.001 History History: Cr. Register, November, 1985, No. 359, eff. 12-1-85; r. and recr. (7), r. (8), Register, May, 1993, No. 449, eff. 6-1-93, r. (intro.), (2), (3) and (6), renum. (1) and (5) to 100.02 (1) and (32) and am., renum. (4) and (7) to (2) (a) and (b) and am. (b), cr. (1), (2) (title) and (intro.), Register, September, 1995, No. 477, eff. 10-1-95; am. (2) (a), Register, June, 1997, No. 498, eff. 7-1-97; CR 13-106: am. (1), (2) (intro.), renum. (2) (a) to (ar), cr. (2) (ag), (am) Register July 2014 No. 703, eff. 8-1-14; CR 18-033: renum. (2) (ag) and (am) to (2) (a) and (bm), cr. (2) (d), renum. (2) (ar) to (2) (e), renum. (2) (b) to (2) (i) and am., (2) (c) renum. from DWD 100.02 (2) and am., (2) (f) renum. from DWD 100.02 (17), (2) (g) renum. from DWD 100.02 (32) and am., (2) (h) renum. from DWD 100.02 (44m) Register May 2019 No. 761, eff. 6-1-19.

DWD 140.01 DWD 140.01 Hearings and appeals.

DWD 140.01(1) (1) Appeal rights. Any party to a determination issued under s. 108.09, 108.095 or 108.10, Stats., has the right to an appeal. An appeal as to any matter in a determination is a request for hearing and shall be filed with an appeal tribunal by the appellant or its representative. An appeal is filed with an appeal tribunal when it is submitted to a hearing office or public employment office in an agent state under sub. (2) (b). Each determination issued under s. 108.09, 108.095 or 108.10, Stats., shall specify the time limit within which any appeal is required to be filed under ch. 108, Stats.

DWD 140.01(2) (2) Time limit and method for filing.

DWD 140.01(2)(a) (a) An appeal shall be filed after a copy of the determination is electronically delivered, mailed or given to a party, whichever first occurs, as specified under s. 108.09, 108.095 or 108.10, Stats. If a party first receives a determination after the statutory appeal period has expired and through no fault of that party, the statutory appeal period as specified under s. 108.09, 108.095 or 108.10, Stats., shall extend from the date the party receives the determination. An appeal received within these time limits is timely filed. If the deadline for filing an appeal falls on a Saturday, Sunday, any of the holidays enumerated under ss. 230.35 (4) (a) and 995.20, Stats., or any other day on which mail is not delivered by the United States postal service, then the deadline shall be extended to include the next business day.

DWD 140.01(2)(b) (b) An appeal shall be filed with any of the following:

DWD 140.01(2)(b)2. 2. A hearing office.

DWD 140.01(2)(b)4. 4. An appeal by an interstate claimant may be filed at a public employment office in the agent state under s. 108.14 (8), Stats., in the manner prescribed for timely filing with the department under this section.

DWD 140.01(2)(c) (c) An appeal shall be considered filed on the earliest of the following dates:

DWD 140.01(2)(c)1. 1. The date a hearing office actually receives the written appeal.

DWD 140.01(2)(c)2. 2. If the appeal was mailed and bears only a United States postal service postmark, on the date of that postmark.

DWD 140.01(2)(c)3. 3. If the appeal was mailed and bears both a United States postal service postmark and a private meter mark, on the date of the United States postal service postmark.

DWD 140.01(2)(c)4. 4. If the appeal was mailed and bears only a private meter mark, on the date of the of the private meter mark.

DWD 140.01(2)(c)5. 5. If the appeal was mailed and bears no United States postal service postmark, no private meter mark, or an illegible mark, 2 business days before the date the appeal was actually received by a hearing office.

DWD 140.01(2)(c)6. 6. If the appeal was sent using a delivery service other than the United States postal service, on the date a hearing office actually receives the appeal.

DWD 140.01(2)(c)7. 7. If the appeal was filed by facsimile transmission, the date the facsimile is actually received by a hearing office is presumed to be the date of transmission.

DWD 140.01(2)(c)8. 8. The date the department receives an electronically-filed appeal.

DWD 140.01 History History: Cr. Register, November, 1985, No. 359, eff. 12-1-85; r. and recr., Register, June, 1997, No. 498, eff. 7-1-97; correction in (2) (a) made under s. 13.93 (2m) (b) 7., Stats., Register, September, 2000, No. 537; correction in (2) (a) made under s. 13.93 (2m) (b) 7., Stats., Register June 2007 No. 618; CR 18-033: am. (1), (2) (title), (a), r. (2) (b) 1., 3., am. (2) (b) 4., (c) 1., 5. to 7., cr. (2) (c) 8. Register May 2019 No. 761, eff. 6-1-19.

DWD 140.02 DWD 140.02 Representation of parties. Any party may appear on the party’s own behalf at any hearing under this chapter or appear with or by a representative. The representative shall be presumed to have full authority to act on behalf of the party, including the authority to file or withdraw an appeal. The representative shall have authority to act on behalf of the party until the party or the representative terminates the representative’s authorization and notifies the department that such representation has ended. No attorney whose license is suspended or who has been otherwise disbarred and prohibited from practicing law by the courts or bar association of any state may be allowed to act as a representative at any hearing under this chapter.

DWD 140.02 History History: Cr. Register, November, 1985, No. 359, eff. 12-1-85; am. (3) (intro.), (b) and (n), Register, November, 1988, No. 395, eff. 12-1-88; r. and recr., Register, June, 1997, No. 498, eff. 7-1-97.

DWD 140.03 DWD 140.03 Notice of pending appeal. The department shall promptly notify the parties in writing of the appeal after an appeal is received. The notice may also contain any information concerning the hearing which the department considers relevant.

DWD 140.03 History History: Cr. Register, November, 1985, No. 359, eff. 12-1-85; am. Register, June, 1997, No. 498, eff. 7-1-97.

DWD 140.04 DWD 140.04 Failure to file a timely appeal.

DWD 140.04(1) (1) The hearing office may schedule a hearing on the question of whether a late appeal was for a reason beyond the appellant’s control. The hearing office may also schedule a provisional hearing on any matter in the determination at the same time as the hearing on the appellant’s late appeal.

DWD 140.04(2) (2) The appeal tribunal shall issue a decision which makes ultimate findings of fact and conclusions of law as to whether or not the appellant’s late appeal was for a reason beyond the appellant’s control. If the appeal tribunal decides this question in favor of the appellant, the same or another appeal tribunal shall then make ultimate findings of fact and conclusions of law on the merits of the case. If the appeal tribunal decides that the late appeal was late for a reason within the appellant’s control, the appeal tribunal shall dismiss the appeal.

DWD 140.04 History History: Cr. Register, November, 1985, No. 359, eff. 12-1-85; am. (3), Register, November, 1988, No. 395, eff. 12-1-88; r. and recr. Register, June, 1997, No. 498, eff. 7-1-97; CR 18-033: am. (2) Register May 2019 No. 761, eff. 6-1-19.

DWD 140.05 DWD 140.05 Withdrawal of appeal and retraction.

DWD 140.05(1) (1) An appellant may withdraw an appeal at any time before the issuance of a decision on the merits by notifying the hearing office or by choosing not to continue to participate in a hearing. The appeal tribunal shall issue a withdrawal decision after determining that an appeal has been withdrawn.

DWD 140.05(2) (2) An appellant may submit a request to retract its withdrawal and reinstate an appeal. The retraction request shall be in writing and state the reason for the request. The appeal tribunal may not grant a request to retract a withdrawal unless the request establishes good cause for the retraction and is received within 21 days after the withdrawal decision was electronically delivered or mailed to the appellant.

DWD 140.05(3) (3) If the hearing office receives a retraction request before the issuance of a withdrawal decision and the request establishes good cause for the retraction, the appeal tribunal shall acknowledge the request in writing to the appellant. If a timely retraction request is received by the hearing office after issuance of the withdrawal decision and the request establishes good cause for the retraction, the appeal tribunal shall issue a decision setting aside the withdrawal decision and the hearing office shall schedule another hearing.

DWD 140.05(4) (4) If the hearing office receives a retraction request before or after the issuance of a withdrawal decision and the request does not establish good cause for the retraction, the appeal tribunal shall deny the request in writing to the appellant.

DWD 140.05 History History: Cr. Register, November, 1985, No. 359, eff. 12-1-85; am. (1) to (3), cr. (4), Register, June, 1997, No. 498, eff. 7-1-97; CR 18-033: am. (1) to (4) Register May 2019 No. 761, eff. 6-1-19.

DWD 140.06 DWD 140.06 Notice of hearing; contents; to whom sent; issues not on notice of hearing; consolidation of issues.

DWD 140.06(1) (1) The hearing office shall schedule a hearing at the earliest feasible time after the appeal is received.

DWD 140.06(2) (2) The notice of hearing shall state the time and place of the hearing, the department’s statutory authority for convening the hearing and the issues to be heard. The hearing office shall electronically deliver or mail the notice of hearing to the last-known address of each party not less than 6 calendar days before the hearing, unless all parties waive the notice requirement.

DWD 140.06(3) (3) The appeal tribunal may receive evidence and render a decision on issues not listed on the notice of hearing if all parties are notified at the hearing and do not object.

DWD 140.06(4) (4) The hearing office may consolidate, for hearing or decision, issues involving the same parties or issues involving more than one appellant or respondent and arising out of the same or similar circumstances.

DWD 140.06 History History: Cr. Register, November, 1985, No. 359, eff. 12-1-85; am. (1) to (3), r. and recr. (4), Register, June, 1997, No. 498, eff. 7-1-97; CR 18-033: am. (1) to (3) Register May 2019 No. 761, eff. 6-1-19.

DWD 140.07 DWD 140.07 Prehearing conference.

DWD 140.07(1) (1) After an appeal is filed, the appeal tribunal may direct the parties to appear before the appeal tribunal for a prehearing conference. In determining whether a prehearing conference is necessary, the appeal tribunal may consider any of the following criteria:

DWD 140.07(1)(a) (a) The complexity of issues.

DWD 140.07(1)(b) (b) The number of possible witnesses.

DWD 140.07(1)(c) (c) Documentary evidence.

DWD 140.07(1)(d) (d) The number of parties involved.

DWD 140.07(1)(e) (e) Other facts which would tend to prolong the hearing.

DWD 140.07(2) (2) Prehearing conferences may be conducted in person, by telephone or by videoconference. The date and time for the prehearing conference shall be set by the hearing office. Parties shall have at least 10 calendar days’ notice of the prehearing conference. The appeal tribunal may adjourn the conference or order additional prehearing conferences.

DWD 140.07(3) (3) Following the prehearing conference, the appeal tribunal shall issue an order with respect to the course of the conference on any of the following matters:

DWD 140.07(3)(a) (a) Definition and simplification of the issues of fact and law.

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.