DWD 221.04DWD 221.04 Preliminary review of complaints. DWD 221.04(1)(1) Review of complaint. The department shall review every complaint filed to ascertain all of the following: DWD 221.04(1)(c)(c) Whether the complaint states a claim for which relief can be granted under the act. DWD 221.04(2)(2) Preliminary determination dismissing complaint. The department shall issue a preliminary determination dismissing any complaint, or any portion of a complaint, that fails to meet the requirements in sub. (1). The department shall send the order of dismissal by first class mail to the last-known address of each party and to their attorneys of record. DWD 221.04(3)(3) Appeal of preliminary determination. A complainant may appeal from an order dismissing a complaint under sub. (2) by filing a written request with the department. The appeal shall be filed within 20 days of the date of the order and shall state specifically the grounds upon which it is based. If a timely appeal is filed, the department shall serve a copy of the appeal upon all other parties. The matter shall be referred to the hearing section of the division 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. 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 appealed to the labor and industry review commission if it is a final decision and order as defined in s. DWD 221.22 (1). DWD 221.04 HistoryHistory: Cr. Register, September, 1994, No. 465, eff. 10-1-94; CR 03-092: am. (2) and (3) Register March 2004 No. 579, eff. 4-1-04. DWD 221.05DWD 221.05 Notice to respondents. The department shall serve a copy of a complaint upon each respondent prior to the commencement of any investigation. The notice shall direct the respondent to respond in writing to the allegations of the complaint within 10 days after the date of the notice. The notice shall advise the respondent that if no response to the complaint is filed within the time provided, the division will make an initial determination based on the information provided by the complainant. DWD 221.05 HistoryHistory: Cr. Register, September, 1994, No. 465, eff. 10-1-94. DWD 221.06(1)(1) Conditions under which testing may be done by the department. The department may engage in testing for the purpose of verifying allegations of discrimination in public accommodations and amusements, or to determine whether sufficient evidence exists to initiate its own complaint. Testing may occur under circumstances including, but not limited to, the following: DWD 221.06(1)(a)(a) Where no other means exists for verifying or refuting the allegations contained in a complaint, or where the findings of the investigator would be significantly strengthened by the inclusion of test results. DWD 221.06(1)(b)(b) Where the number or content of complaints against a specific respondent is sufficient to indicate that a pattern of unlawful discrimination may exist. DWD 221.06(1)(c)(c) Where demographic statistics would lead a reasonable person to believe that a pattern of unlawful discrimination exists in a particular geographical area. DWD 221.06(2)(2) Testing procedures. Any person engaged in testing for the department shall do so only after having received specific authorization by the department. The results of each test for potential discrimination shall be submitted to the department in written form by those persons who conducted the test. No test which constitutes entrapment shall be utilized by the department. DWD 221.06(3)(3) Notice of testing. The department may not give notice of testing to the persons who will be tested. If the testing is undertaken as the result of a complaint naming a specific respondent, the department shall delay sending the notice of the complaint to the respondent until after the completion of the testing. DWD 221.06 HistoryHistory: Cr. Register, September, 1994, No. 465, eff. 10-1-94. DWD 221.07DWD 221.07 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 such correspondence was sent by certified mail, return receipt requested, to the last known address of the complainant. DWD 221.07 HistoryHistory: Cr. Register, September, 1994, No. 465, eff. 10-1-94. DWD 221.08(1)(1) Conduct of investigation. The department shall investigate all complaints which satisfy the review under s. DWD 221.04 (1). In conducting investigations under this chapter, the department shall seek the voluntary cooperation of all persons to provide requested materials to the department; to obtain access to premises, documents, individuals, and other possible sources of information; to examine, record, and copy necessary materials; and to take and record testimony or statements of persons reasonably necessary for the investigation. The department may subpoena persons or documents for the purpose of the investigation. Subpoenas may be enforced pursuant to s. 885.11, Stats. DWD 221.08(2)(2) Advising complainant to amend complaint. If, during an investigation, it appears that the respondent has engaged in discrimination against the complainant which is not alleged in the complaint, the department may advise the complainant that the complaint should be amended. If the complaint is amended, the department shall investigate the allegations of the amended complaint, as well as the allegations of the initial complaint. DWD 221.08(3)(3) Dismissal of complaint prior to completion of investigation. DWD 221.08(3)(a)(a) The department may dismiss a complaint prior to completion of an investigation under the following circumstances: DWD 221.08(3)(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. 106.50 (6) (a) 6., Stats. DWD 221.08(3)(a)2.2. The allegations in the complaint have been previously dismissed by the department or by a state or federal court. DWD 221.08(3)(b)(b) A complainant may appeal from an order dismissing a complaint under this subsection by filing a written appeal with the department. The appeal shall be filed within 20 days of the date of the order and shall state specifically the grounds upon which it is based. If a timely appeal is filed, the department shall serve a copy of the appeal upon all other parties. The matter shall be referred to the hearing section of the division 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 dismissal of the complaint. The decision of the administrative law judge shall be served upon the parties. If the decision reverses or sets aside the dismissal, the complaint shall be remanded for further investigation. If the decision affirms the dismissal of the complaint, it may be appealed to the labor and industry review commission if it is a final decision and order as defined in s. DWD 221.22 (1). DWD 221.08 HistoryHistory: Cr. Register, September, 1994, No. 465, eff. 10-1-94; CR 03-092: cr. (3) Register March 2004 No. 579, eff. 4-1-04. DWD 221.09(1)(1) General. At the conclusion of the investigation, the department shall issue a written initial determination which shall state whether or not there is probable cause to believe that discrimination occurred as alleged in the complaint. The initial determination shall state the facts upon which its conclusion is based and shall be served upon the parties and their attorneys of record by first class mail. DWD 221.09(2)(2) Initial determination of probable cause. If the department initially determines that there is probable cause to believe that a violation of the act occurred as alleged in the complaint, those allegations shall be certified to hearing. DWD 221.09(3)(3) Initial determination of no probable cause. If the department initially determines that there is no probable cause to believe that the act was violated as alleged in the complaint, it shall dismiss those allegations in the complaint. The department shall, by a notice to be incorporated in the initial determination, notify the parties of the complainant’s right to appeal as provided in s. DWD 221.10. DWD 221.09 HistoryHistory: Cr. Register, September, 1994, No. 465, eff. 10-1-94. DWD 221.10DWD 221.10 Appeal of initial determination of no probable cause. DWD 221.10(1)(1) When filed. Within 20 days after the date of an initial determination finding that there is no probable cause, a complainant may file with the division a written request for a hearing on the issue of probable cause. The department shall notify the respondent that an appeal has been filed within 10 days of receiving the appeal. DWD 221.10(2)(2) Dismissal final if no appeal filed. If no timely written request for a hearing is filed, the initial determination’s order of dismissal shall be the final determination of the department. DWD 221.10(3)(3) Certification to hearing on issue of probable cause; right to stipulate that case be decided on merits. If a timely written request for a hearing is filed, the division 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 221.13 and 221.15 to 221.21, except that the parties may stipulate prior to the hearing that the administrative law judge may decide the case on the merits. DWD 221.10 HistoryHistory: Cr. Register, September, 1994, No. 465, eff. 10-1-94. DWD 221.11DWD 221.11 Conciliation; private settlement. DWD 221.11(1)(1) Conciliation. With the consent of all parties, the department may assist the parties to reach a mutually agreeable and just resolution of the complaint at any time during the proceedings. If conciliation resolves the dispute, the terms of the agreement shall be reduced to a written conciliation agreement. The conciliation agreement must be signed by the respondent and the complainant, or by their representatives. DWD 221.11(2)(2) Private settlement. The parties may enter into an agreement to settle the complaint at any time, with or without resort to conciliation. No complaint will be dismissed based on a settlement agreement unless the department receives a written request from the complainant withdrawing the complaint. A settlement agreement signed by the complainant which specifically authorizes the department to dismiss the complaint may be submitted by either party in place of a written request from the complainant withdrawing the complaint. DWD 221.11 HistoryHistory: Cr. Register, September, 1994, No. 465, eff. 10-1-94. DWD 221.12DWD 221.12 Dismissal of complaint for lack of jurisdiction or other procedural basis following certification to hearing. A complaint may be dismissed for the reasons set forth in s. DWD 221.04 (1) after the case is certified to hearing under either s. DWD 221.09 (2) or 221.10 (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 which 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 first class mail to the last known address of each party and to their attorneys of record. DWD 221.12 HistoryHistory: Cr. Register, September, 1994, No. 465, eff. 10-1-94. DWD 221.13(1)(1) Content. In any matter which has been certified to hearing, the department shall send a notice of hearing to the parties and their attorneys of record, by first-class mail, advising them 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 of hearing not less than 30 days after the date of mailing of the notice of hearing. The notice of hearing shall specify the nature of the discrimination which 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 221.13(2)(2) Place of hearing. The hearing shall be held in the county where the alleged act of discrimination occurred, or at another location with the consent of the parties. For purposes of this subsection, the county where the alleged act of discrimination occurred is the county where the place of public accommodations or amusements which is the subject of the complaint is located. If no specific place of public accommodation or amusement is involved, the place of hearing shall be the county where the respondent resides. DWD 221.13 HistoryHistory: Cr. Register, September, 1994, No. 465, eff. 10-1-94. DWD 221.14(1)(1) When required. Within 10 days after the date of a notice of hearing on the merits, each respondent shall file with the hearing section of the division an answer to the allegations of the complaint, along with a certification that a copy of the answer has been mailed to all other parties. DWD 221.14(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, 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, but shall fairly meet the substance of the allegation. Any affirmative defense relied upon, including the statute of limitations, shall be raised in the answer unless it has previously been raised by a motion in writing. Failure to raise an affirmative defense in the answer may, in the absence of good cause, be held to constitute a waiver of such a defense. DWD 221.15DWD 221.15 Pre-hearing conference. In any case which has been certified to hearing, a pre-hearing conference may be held in accordance with the provisions of s. 227.44 (4), Stats. DWD 221.15 HistoryHistory: Cr. Register, September, 1994, No. 465, eff. 10-1-94. DWD 221.16(1)(1) Subpoenas. Witnesses summoned by a subpoena shall be entitled to the witness and mileage fees set forth in s. 814.67 (1) (a) and (c), Stats. Subpoenas may be enforced pursuant to s. 885.11, Stats. DWD 221.16(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 221.16 HistoryHistory: Cr. Register, September, 1994, No. 465, eff. 10-1-94. DWD 221.17(1)(1) When discovery may begin. Discovery may not be used prior to the time that a matter is certified to hearing, except that the taking and preservation of evidence shall be permitted prior to certification to hearing under the circumstances set forth in s. 227.45 (7), Stats. DWD 221.17(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 that discovery shall, not less than 10 days prior to 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 either the chief of the hearing section 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. 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 which instituted those discovery requests as soon as practicable after the discovery has been taken. DWD 221.17(3)(3) Scope, method 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 221.17(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 221.17(5)(5) Filing with department. Copies of discovery requests and responses to discovery requests need not be filed with the division, except as required under sub. (2). DWD 221.17 HistoryHistory: Cr. Register, September, 1994, No. 465, eff. 10-1-94; CR 03-092: am. (2) and (4) Register March 2004 No. 579, eff. 4-1-04. DWD 221.18DWD 221.18 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 221.18 HistoryHistory: Cr. Register, September, 1994, No. 465, eff. 10-1-94. DWD 221.19(1)(1) Procedure. Hearings shall be conducted in conformity with the act and the provisions of ch. 227, Stats. DWD 221.19(2)(2) Postponements and continuances. All requests for postponements shall be filed with the administrative law judge or with the chief of the hearing section within 10 days after the date of 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 221.19(3)(3) Appearance of parties. Parties may appear at the hearing in person and by counsel or other representative. DWD 221.19(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 the 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 221.19 HistoryHistory: Cr. Register, September, 1994, No. 465, eff. 10-1-94. DWD 221.20(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 will be discarded. DWD 221.20(2)(2) Filing transcripts with the division. Transcription of the record shall be at the expense of any party who requests the transcription. The transcript shall be prepared by an independent, reputable, court reporter or transcriptionist. If a transcript is filed with the division, it shall include a certification by the transcriptionist that the transcript is an original, verbatim, transcript of the proceedings. DWD 221.20(3)(3) Transcription of record at department expense. The department shall provide, without cost, a copy of the transcript for the purpose of judicial review if a party submits a sworn affidavit of indigency and the inability to obtain funds to pay the cost of a transcript. DWD 221.21(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 221.21(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 written decision and order which dismisses the allegations of the complaint or which orders the matter scheduled for a hearing on the merits, depending upon the administrative law judge’s findings and conclusions on the issue of probable cause. If the decision of the administrative law judge concludes that there is probable cause, the matter shall be certified for a hearing on the merits. 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 221.22 (1). DWD 221.21(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 will either dismiss the allegations of the complaint or shall order such action by the respondent as will 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 shall be sent by first class mail to the last known address of each party and to their attorneys of record. DWD 221.21 HistoryHistory: Cr. Register, September, 1994, No. 465, eff. 10-1-94. DWD 221.22DWD 221.22 Petition for review by the labor and industry review commission. DWD 221.22(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 and order is one that finally disposes of the entire complaint and leaves no further proceedings on that complaint pending before the division. DWD 221.22(2)(2) Requirements for filing petition for review. A petition for review shall be filed within 21 days after the date a copy of the administrative law judge’s decision and order is mailed to the last known address of each party and their representative or attorney of record. The petition shall be filed with the division’s Madison or Milwaukee office.
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Chs. DWD 218-226; Civil Rights
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