Chapter DWD 218

DWD 218.15 DWD 218.15 Subpoenas and motions.

DWD 218.15(1) (1) Subpoenas. 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 pursuant to s. 885.11, Stats.

DWD 218.15(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 218.15 History History: Cr. Register, June, 1995, No. 474, eff. 7-1-95; emerg. am. (1) eff. 8-5-03; CR 03-092: am. (1) Register March 2004 No. 579, eff. 4-1-04.

DWD 218.16 DWD 218.16 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.

DWD 218.16 History History: Cr. Register, June, 1995, No. 474, eff. 7-1-95.

DWD 218.17 DWD 218.17 Exchange of names of witnesses and copies of exhibits. By no later than the tenth day prior to the day of hearing, the parties shall file with the division and serve upon all other parties a written list of the names of witnesses and copies of the exhibits that the parties intend to use at the hearing. For the purpose of this section, service is complete on mailing rather than on receipt. The administrative law judge may exclude witnesses and exhibits not identified in a timely fashion pursuant to this section. This section does not apply to witnesses and exhibits offered in rebuttal which the party could not reasonably have anticipated using prior to the hearing.

DWD 218.17 History History: Cr. Register, June, 1995, No. 474, eff. 7-1-95; CR 03-092: am. Register March 2004 No. 579, eff. 4-1-04.

DWD 218.18 DWD 218.18 Hearings.

DWD 218.18(1) (1) Procedure. Hearings shall be conducted in conformity with the act and the provisions of ch. 227, Stats.

DWD 218.18(2) (2) Postponements and continuances. All requests for postponements shall be filed with the administrative law judge within 10 days after the notice of hearing, except where emergency circumstances arise after the notice is issued but prior to the hearing. The party requesting a postponement shall mail a copy of the request to all other parties at the time the request is filed with the division. Postponements and continuances may be granted only for good cause shown and shall not be granted solely for the convenience of the parties or their attorneys.

DWD 218.18(3) (3) Appearance of parties. Parties may appear at the hearing in person and by counsel or other representative.

DWD 218.18(4) (4) Failure to appear at hearing. If the complainant fails to appear at the hearing, either in person or by a representative authorized to proceed on behalf of the complainant, the administrative law judge shall dismiss the complaint. If the respondent fails to appear at the hearing, the hearing shall proceed as scheduled. If, within 10 days after the date of hearing, any party who failed to appear shows good cause in writing for the failure to appear, the administrative law judge may reopen the hearing.

DWD 218.18 History History: Cr. Register, June, 1995, No. 474, eff. 7-1-95.

DWD 218.19 DWD 218.19 Record of hearing.

DWD 218.19(1) (1) Method of recording hearing. A stenographic, electronic, or other record of oral proceedings shall be made at all hearings conducted under this chapter. Any party wishing to have a court reporter present to transcribe the proceedings shall be permitted to do so at their own expense. If the hearing is recorded on tape or digitally, the original recording shall remain in the division for 5 years following the hearing, after which it may be discarded.

DWD 218.19(2) (2) Requirements for preparation of transcripts. Any party may file a transcript of the hearing with the division. The transcript shall be prepared by an independent, reputable court reporter or transcriptionist. The transcript shall include a certification by the transcriptionist that it is an original, verbatim, transcript of the proceedings.

DWD 218.19(3) (3) Cost for transcription of record. Transcription of the record for purposes other than judicial review shall be at the expense of any party who requests the transcription. For the purpose of judicial review, the department shall prepare at its own expense and provide to the court a transcript of the record, unless a transcript has already been prepared at the expense of the parties. If a transcript has been provided to the court for the purpose of judicial review, the department shall provide a copy of the transcript at no cost to any party that submits a sworn affidavit of indigency and the inability to obtain funds to pay for a transcript.

DWD 218.19 History History: Cr. Register, June, 1995, No. 474, eff. 7-1-95; CR 03-092: am. (3) Register March 2004 No. 579, eff. 4-1-04; CR 06-062: am. (1) Register November 2006 No. 611, eff. 12-1-06.

DWD 218.20 DWD 218.20 Decision and order.

DWD 218.20(1) (1) General. After the close of the hearing, including any briefs which may be allowed by the administrative law judge, the administrative law judge shall prepare a formal written decision which shall include findings of fact, conclusions of law and an order, and which may be accompanied by an opinion.

DWD 218.20(2) (2) Decision and order after hearing on the issue of probable cause. After a hearing on the issue of probable cause, the administrative law judge shall issue a decision and order which dismisses the allegations of the complaint or which orders that the case be certified for a hearing on the merits of the complaint, depending upon the administrative law judge’s findings and conclusions on the issue of probable cause. If the decision of the administrative law judge determines that no probable cause exists, a certified copy of the decision and order and a notice of appeal rights shall be sent by first class mail to the last known address of each party and to their attorneys of record. A decision and order finding no probable cause may be appealed to the labor and industry review commission if it is a final decision and order as defined in s. DWD 218.21 (1).

DWD 218.20(3) (3) Decision and order after hearing on the merits. After a hearing on the merits, the administrative law judge shall issue a decision and an order which shall either dismiss the allegations of the complaint or shall order such action by the respondent as shall effectuate the purposes of the act, depending upon the administrative law judge’s findings and conclusions on the merits of the complaint. A certified copy of the decision and order and a notice of appeal rights shall be sent by first class mail to the last known address of each party and to their attorneys of record.

DWD 218.20(4) (4) Computation of interest. Interest on any award made pursuant to this subchapter shall be added to that award and computed at an annual rate of 12% simple interest. Interest shall be computed by calendar quarter.

DWD 218.20 History History: Cr. Register, June, 1995, No. 474, eff. 7-1-95.

DWD 218.21 DWD 218.21 Petition for review by the labor and industry review commission.

DWD 218.21(1) (1) Appeals limited to final decisions and orders. Any party may file a written petition for review of a final decision and order of the administrative law judge by the labor and industry review commission. Only final decisions and orders of the administrative law judge may be appealed. A final decision is one that disposes of the entire complaint and leaves no further proceedings on that complaint pending before the division.

DWD 218.21(2) (2) Requirements for filing petition for review. The petition for review shall be filed within 21 days after the date that a copy of the administrative law judge’s decision and order is mailed to the last known addresses of the parties. The petition shall be filed with the division’s Madison or Milwaukee office.

DWD 218.21 History History: Cr. Register, June, 1995, No. 474, eff. 7-1-95; CR 03-092: am. (1) Register March 2004 No. 579, eff. 4-1-04.

DWD 218.22 DWD 218.22 Pre-employment inquiries and employment records. An employer subject to the act may make such pre-employment inquiries and keep such employment records as will enable the employer to determine statistically the age, race, color, creed, sex, national origin, ancestry or marital status of applicants and employees. Pre-employment inquiries and employment records which tend directly or indirectly to disclose such information do not constitute unlawful discrimination per se.

DWD 218.22 History History: Cr. Register, June, 1995, No. 474, eff. 7-1-95.

DWD 218.23 DWD 218.23 Posting requirement. Every employer, employment agency, labor organization and licensing agency subject to the act shall post in conspicuous places upon its premises a poster prepared and made available by the department relating to the provisions of the act and this chapter.

DWD 218.23 History History: Cr. Register, June, 1995, No. 474, eff. 7-1-95.

DWD 218.24 DWD 218.24 Pay status and witness fees for state employee parties and state employee witnesses.

DWD 218.24(1) (1) Pay status of state employee parties. State civil service employees who, as parties, are interviewed as part of investigations or who appear at pre-hearing conferences, conciliation sessions, or hearings, whether held in person or via telephone, shall do so without loss of state salary and with reimbursement by the employing agency for travel expenses in accordance with the uniform travel schedule amounts established under s. 20.916 (8), Stats.

DWD 218.24(2) (2) Pay status of state employee witnesses. State civil service employees who are interviewed as part of investigations or who attend hearings as witnesses, whether held in person or via telephone, shall do so without loss of state salary and with reimbursement by the employing agency for travel expenses in accordance with the uniform travel schedule amounts established under s. 20.916 (8), Stats.

DWD 218.24(3) (3) Witness fees for state civil service employees. State civil service employees who attend hearings as witnesses shall be entitled only to that compensation specified in sub. (2).

DWD 218.24 History History: Emerg cr. eff. 8-5-03; CR 03-092: cr. Register March 2004 No. 579, eff. 4-1-04; CR 06-062: am. (2) Register November 2006 No. 611, eff. 12-1-06.

DWD 218.25 DWD 218.25 Filing of documents by facsimile transmission or electronic mail.

DWD 218.25(1) (1) Filing of documents by facsimile transmission.

DWD 218.25(1)(a) (a) Except where otherwise directed by the division, documents may be filed by facsimile transmission. Documents filed by facsimile transmission shall include a cover sheet setting forth all of the following information:

DWD 218.25(1)(a)1. 1. The name of the sender.

DWD 218.25(1)(a)2. 2. The individual to whom the transmission is directed, if that individual is known.

DWD 218.25(1)(a)3. 3. The number of pages being transmitted, including the cover sheet.

DWD 218.25(1)(b) (b) The date of transmission recorded by the division’s facsimile machine shall constitute the date of filing of a document under this section, except that documents filed by facsimile after the regular business hours of the division as established by s. 230.35 (4) (f), Stats., or on a day when the offices of the division are closed pursuant to s. 230.35 (4) (a), Stats., shall be considered filed on the next business day of the division.

DWD 218.25(2) (2) Filing of documents by electronic mail. Documents may be filed by electronic mail only if expressly authorized by the equal rights officer or the administrative law judge assigned to the case.

DWD 218.25 History History: CR 06-062: cr. Register November 2006 No. 611, eff. 12-1-06.