Chapter DWD 223

DWD 223.16   Disqualification of the administrative law judge.

DWD 223.17   Hearings.

DWD 223.18   Record of hearing.

DWD 223.19   Decision and order.

DWD 223.20   Appeal rights.

DWD 223.21   Pay status and witness fees for state employee parties and state employee witnesses.

DWD 223.22   Filing of documents by facsimile transmission or electronic mail.

DWD 223.01 DWD 223.01 Purpose. The purpose of this chapter is to implement the law prohibiting employers from discharging or discriminating against public employees because they have exercised their rights under the public employee safety and health law, s. 101.055 (8), Stats.

DWD 223.01 History History: CR 06-062: cr. Register November 2006 No. 611, eff. 12-1-06.

DWD 223.02 DWD 223.02 Definitions. When used in this chapter:

DWD 223.02(1) (1) “Act” means the public employee safety and health provisions contained in s. 101.055 (8), Stats.

DWD 223.02(2) (2) “Administrative law judge” means the examiner appointed to conduct hearings under the act.

DWD 223.02(3) (3) “Complainant” means the person who files a complaint alleging that an action prohibited by the act has been committed.

DWD 223.02(4) (4) “Day,” when used in time computations in this chapter, means a calendar day, except that if the last day of the time period is a Saturday, Sunday, or legal holiday, the last day shall be the next business day.

DWD 223.02(5) (5) “Division” means the equal rights division of the department of workforce development.

DWD 223.02(6) (6) “Filing” means the physical receipt of a document.

DWD 223.02(7) (7) “Person” includes, but is not limited to, one or more individuals, partnerships, associations, corporations, joint stock companies, trusts, unincorporated organizations, trustees, or trustees or receivers in bankruptcy.

DWD 223.02(8) (8) “Probable cause” means a reasonable ground for belief, supported by facts and circumstances strong enough in themselves to warrant a prudent person to believe, that a violation of the act probably has been or is being committed.

DWD 223.02(9) (9) “Respondent” means the person or agency alleged to have committed an action prohibited by the act.

DWD 223.02 History History: CR 06-062: cr. Register November 2006 No. 611, eff. 12-1-06.

DWD 223.03 DWD 223.03 Complaints.

DWD 223.03(1) (1) Who may file complaints. A complaint may be filed by any person or by the person’s authorized representative. A complaint filed by a representative shall state that the representative is authorized to file the complaint.

DWD 223.03(2) (2) Where to file complaints.

DWD 223.03(2)(a) (a) A complaint may be filed in person with any division office, or it may be mailed or sent by facsimile transmission to one of the following division offices:

DWD 223.03(2)(a)1. 1. Equal Rights Division, 201 East Washington Avenue, Madison, WI 53702. Facsimile number: 608-267-4592.

DWD 223.03(2)(a)2. 2. Equal Rights Division, 819 North Sixth Street, Milwaukee, WI 53203. Facsimile number: 414-227-4084.

DWD 223.03(2)(b) (b) A complaint filed by facsimile transmission shall conform with the requirements of s. DWD 223.22 (1).

DWD 223.03(3) (3) Form and content of complaint. A complaint shall be written on a form that is available at any division office or on any form that contains all of the information set forth in this subsection. Each complaint shall be signed by the person filing the complaint or by the person’s authorized representative. The signature constitutes an acknowledgment that the person 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. Each complaint shall contain all of the following information:

DWD 223.03(3)(a) (a) The name and address of the complainant.

DWD 223.03(3)(b) (b) The name and address of the respondent.

DWD 223.03(3)(c) (c) A concise statement of the facts, including pertinent dates, constituting the alleged violation of the act.

DWD 223.03(4) (4) Assistance by the division. The division shall, upon request, provide appropriate assistance in completing and filing complaints.

DWD 223.03(5) (5) Date of filing of complaint deferred by another agency. A complaint which is deferred to the division by a federal or local agency with which the division has a work sharing agreement complies with the requirements of sub. (3) and is considered filed when received by the federal or local agency.

DWD 223.03(6) (6) Amendment of complaint.

DWD 223.03(6)(a) (a) A complaint may be amended, subject to the approval of the division.

DWD 223.03(6)(b) (b) A complaint may be amended during the investigation if the proposed amendment alleges a basis that is covered under the act. If the complaint is amended prior to the issuance of an initial determination, the division shall investigate the allegations of the amended complaint.

DWD 223.03(6)(c) (c) If the complainant requests to amend the complaint after the case has been certified to hearing, the chief of the hearing section or the administrative law judge shall consider whether the proposed amendment meets the requirements of s. DWD 223.05 (1) and may remand the complaint to the investigation section to conduct an investigation and issue an initial determination as to whether probable cause exists to believe that the respondent has violated the act as alleged in the amended complaint.

DWD 223.03(7) (7) Withdrawal of complaint. A complaint may be withdrawn at any time. A request for withdrawal shall be in writing and shall be signed by the complainant or by the complainant’s authorized representative. Upon the filing of a request for withdrawal, the division shall dismiss the complaint by written order. Such dismissal shall be with prejudice unless otherwise expressly stated in the order.

DWD 223.03 History History: CR 06-062: cr. Register November 2006 No. 611, eff. 12-1-06.

DWD 223.04 DWD 223.04 Notification of respondent.

DWD 223.04(1) (1) When notice is to be sent. The division shall serve by first class mail a copy of a complaint that meets the requirements of s. DWD 223.03 upon each respondent prior to the commencement of any investigation.

DWD 223.04(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 specified by the division. The notice shall further state that, if the respondent fails to answer the complaint in writing, the division may make an initial determination as to whether a violation of s. 101.055 (8) (ar), Stats., has occurred based only on the division’s investigation and the information supplied by the complainant.

DWD 223.04 History History: CR 06-062: cr. Register November 2006 No. 611, eff. 12-1-06.

DWD 223.05 DWD 223.05 Preliminary review of complaints.

DWD 223.05(1) (1) Review of complaint. The division shall review every complaint filed to determine all of the following:

DWD 223.05(1)(a) (a) Whether the complainant is protected by the act.

DWD 223.05(1)(b) (b) Whether the respondent is subject to the act.

DWD 223.05(1)(c) (c) Whether the complaint states a claim for relief under the act.

DWD 223.05(1)(d) (d) Whether the complaint was filed within the time period set forth in the act.

DWD 223.05(2) (2) Preliminary determination dismissing complaint. The division shall issue a preliminary determination dismissing any complaint, or any portion of a complaint, that fails to meet the requirements of sub. (1). The division 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 223.05(3) (3) Appeal of preliminary determination. The complainant may appeal from an order dismissing a complaint under sub. (2) by filing a written appeal with the division. The appeal shall be filed within 10 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 division 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, or set aside the preliminary determination. The division shall serve the decision on 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 circuit court if it is a final decision and order as defined in s. DWD 223.20 (2).

DWD 223.05 History History: CR 06-062: cr. Register November 2006 No. 611, eff. 12-1-06.

DWD 223.06 DWD 223.06 Investigations.

DWD 223.06(1) (1) Conduct of investigation. The division shall investigate all complaints that satisfy the review under s. DWD 223.05 (1). In conducting investigations under this chapter, the division may seek the cooperation of all persons to provide requested materials to the division; 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. The division may subpoena persons or documents for the purpose of the investigation. Subpoenas may be enforced pursuant to s. 885.11, Stats.

DWD 223.06(2) (2) Advising complainant to amend complaint. If, during an investigation, it appears that the respondent has discharged or otherwise discriminated against the complainant in a manner that is not alleged in the complaint, the division may advise the complainant that the complaint should be amended.

DWD 223.06 History History: CR 06-062: cr. Register November 2006 No. 611, eff. 12-1-06.

DWD 223.07 DWD 223.07 Initial determination.

DWD 223.07(1) (1) General. At the conclusion of the investigation, the division shall issue a written initial determination which shall state whether or not there is probable cause to believe that the complainant has been discharged or otherwise discriminated against in violation of the act 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 223.07(2) (2) Initial determination of probable cause. If the division initially determines that there is probable cause, it shall certify the case to hearing. A hearing on the merits shall thereafter be noticed and conducted in accordance with the provisions in ss. DWD 223.11 to 223.19.

DWD 223.07(3) (3) Initial determination of no probable cause. If the division initially determines that there is no probable cause, it shall dismiss those allegations. The division 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 223.08.

DWD 223.07 History History: CR 06-062: cr. Register November 2006 No. 611, eff. 12-1-06.

DWD 223.08 DWD 223.08 Appeal of initial determination of no probable cause.

DWD 223.08(1) (1) When filed. Within 10 days after the date of an initial determination finding that there is no probable cause, a complainant may file a written request for a hearing on the issue of probable cause. The request for hearing shall state specifically the grounds upon which the appeal is based. The division shall notify the respondent that an appeal has been filed within 10 days of receiving the appeal.

DWD 223.08(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 division.

DWD 223.08(3) (3) Certification to hearing on issue of probable cause; right to stipulate that case be decided on merits. If a timely appeal 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 223.11 and 223.13 to 223.19, except that the parties may stipulate prior to 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 division may, with the consent of the parties, consolidate the hearing on probable cause and the hearing on the merits.

DWD 223.08 History History: CR 06-062: cr. Register November 2006 No. 611, eff. 12-1-06.

DWD 223.09 DWD 223.09 Private settlement and conciliation. The parties may enter into an agreement to settle the complaint at any time during the proceedings, with or without assistance by the division. The division may assist the parties to reach a settlement agreement. The parties shall notify the division immediately upon reaching a settlement. Upon receiving notification that the parties have reached a settlement, the division shall issue an order dismissing the complaint.

DWD 223.09 History History: CR 06-062: cr. Register November 2006 No. 611, eff. 12-1-06.

DWD 223.10 DWD 223.10 Dismissal of complaint for lack of jurisdiction or other procedural basis following certification to hearing. A complaint may be dismissed based upon the conditions set forth in s. DWD 223.05 (1) or for any other procedural basis after the case is certified to hearing under either s. DWD 223.07 (2) or 223.08 (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 first class mail to the last known address of each party and to their attorneys of record.

DWD 223.10 History History: CR 06-062: cr. Register November 2006 No. 611, eff. 12-1-06.

DWD 223.11 DWD 223.11 Notice of hearing.

DWD 223.11(1) (1) Content. In any matter that has been certified to hearing following an initial determination of probable cause under s. DWD 223.07 (2) or an appeal of an initial determination of no probable cause under s. DWD 223.08 (3), the division shall advise the parties and their representatives and attorneys of record in writing by first-class 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 20 days after the date of mailing of the notice of hearing. The notice of hearing shall specify the nature of the violation of s. 101.055 (8) (ar), Stats., 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 223.11(2) (2) Place of hearing. The hearing shall be held in either the county where the alleged violation of the law occurred or the county where the respondent resides, or at another location with the consent of the parties.

DWD 223.11 History History: CR 06-062: cr. Register November 2006 No. 611, eff. 12-1-06.

DWD 223.12 DWD 223.12 Answer.

DWD 223.12(1) (1) When required. Within 14 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 upon which there is a finding of probable cause, along with a signed document indicating that a copy of the answer has been mailed to all other parties.

DWD 223.12(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 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 223.12 History History: CR 06-062: cr. Register November 2006 No. 611, eff. 12-1-06.

DWD 223.13 DWD 223.13 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 223.13 History History: CR 06-062: cr. Register November 2006 No. 611, eff. 12-1-06.

DWD 223.14 DWD 223.14 Pre-hearing discovery.

DWD 223.14(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 223.14(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 the 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 to 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 division at the time they are served upon the unrepresented 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 division by the party which instituted those discovery requests as soon as practicable after the discovery has been taken.

DWD 223.14(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 223.14(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 223.14(5) (5) Filing with division. Copies of discovery requests and responses to discovery requests need not be filed with the division, except as required under sub. (2).

DWD 223.14 History History: CR 06-062: cr. Register November 2006 No. 611, eff. 12-1-06.

DWD 223.15 DWD 223.15 Subpoenas and motions.