Chapter DWD 140

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.

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.