Chapter DWD 225

DWD 225.01(1)(o) (o) The words “week” and “weeks”, as used in s. 103.10 (2) (c), Stats., mean 7 consecutive calendar days.

DWD 225.01(2) (2) A person engaging in any activity, enterprise or business in this state shall be deemed to be “employing at least 50 individuals on a permanent basis” within the meaning of s. 103.10 (1) (c), Stats., if, during at least 6 of the preceding 12 calendar months, with partial months to count as full months, the employer, according to its usual personnel recordkeeping practices as required by ss. DWD 272.11 and 274.06, actually treated at least 50 individuals as being permanent employees as to the activities, enterprises or businesses of that employer.

DWD 225.01(3) (3) A person shall be deemed to have “been employed by the same employer for more than 52 consecutive weeks” within the meaning of s. 103.10 (2) (c), Stats., if the person has actually been treated by the employer, according to the usual personnel recordkeeping practices of the employer as required by ss. DWD 272.11 and 274.06, as an employee during each of those 52 weeks, irrespective of the number of hours worked in those weeks and notwithstanding that the employee may have, in that 52-week period, been off work for one or more weeks on vacation leave, sick leave or other leave, or on layoff, if such vacation leave, sick leave or other leave was granted to the employee by the employer according to a regular practice of granting such leaves, or the layoff was initiated by the employer, and if the employer allowed the employee to return to work at the end of the leave or layoff without having to reapply for employment.

DWD 225.01(4) (4) A person shall be deemed to have “worked for the employer for at least 1,000 hours during the preceding 52-week period”within the meaning of s. 103.10 (2) (c), Stats., if the number of hours actually worked in that period plus the number of hours for which the employee was paid pursuant to a regular policy of paid vacation leave, sick leave or other paid leave equals at least 1,000 hours.

DWD 225.01(5) (5) Where a person’s policy with respect to leave for the reasons described in s. 103.10 (3) (b) and (4) (a), Stats., is to provide the same leave as granted in s. 103.10 (3) (b) and (4) (a), Stats., the posting of a statement to that effect together with a copy of the act, in the manner prescribed by s. 103.10 (14) (b), Stats., shall satisfy the requirements of s. 103.10 (14) (b), Stats.

DWD 225.01(6) (6) To the extent that an employer grants leave to an employee for the birth of the employee’s natural child in a manner which is no more restrictive than the leave available to that employee under s. 103.10 (3) (b) 1., Stats., the leave granted by the employer shall be deemed to be leave available to that employee under s. 103.10 (3) (b) 1., Stats.

DWD 225.01(7) (7) To the extent that an employer grants leave to an employee for the placement of a child with the employee for adoption or as a precondition for adoption under s. 48.90 (2), Stats., in a manner which is no more restrictive than the leave available to that employee under s. 103.10 (3) (b) 2., Stats., the leave granted by the employer shall be deemed to be leave available to that employee under s. 103.10 (3) (b) 2., Stats.

DWD 225.01(8) (8) To the extent that an employer grants leave to an employee to care for the employee’s child, spouse or parent in a manner which is no more restrictive than the leave available to that employee under s. 103.10 (3) (b) 3., Stats., the leave granted by the employer shall be deemed to be leave available to that employee under s. 103.10 (3) (b) 3., Stats.

DWD 225.01(9) (9) To the extent that an employer grants leave to an employee relating to the employee’s own health in a manner which is no more restrictive than the leave available to that employee under s. 103.10 (4), Stats., the leave granted by the employer shall be deemed to be leave available to that employee under s. 103.10 (4), Stats.

DWD 225.01(10) (10) To the extent that leave granted by an employer to an employee is deemed by this subsection to be leave available to that employee under the act, the use of that leave granted by the employer shall be use of that leave available under the act.

DWD 225.01 History History: Cr. Register, November, 1989, No. 407, eff. 12-1-89; correction in (2) and (3) made under s. 13.93 (2m) (b) 7., Stats., Register, April, 1996, No. 484; emerg. am. (1) (L) eff. 8-5-03; CR 03-092: cr. (1) (bm), am. (1) (f), (h) and (L) Register March 2004 No. 579, eff. 4-1-04; CR 06-062: am. (1) (m) Register November 2006 No. 611, eff. 12-1-06.

DWD 225.02 DWD 225.02 When and how leave taken.

DWD 225.02(1) (1) The leave allowed under the act may be taken in non-continuous increments. An employee may schedule and take partial absence leave, as provided in s. 103.10 (3) (d), Stats., or medical leave as provided in s. 103.10 (4) (c), Stats., in actual increments of less than a full workday if the employer allows any other leave to be taken in increments of less than a full workday. The duration of the shortest increment available to the employee under the act shall be equal to the shortest increment the employer allows to be taken by that employee for any other non-emergency leave.

DWD 225.02(2) (2) For purposes of the partial absence leave authorized by s. 103.10 (3) (d), Stats., the word “week” as used in s. 103.10 (3) (a), Stats., means 5 days of leave which would otherwise be workdays for the requesting employee.

DWD 225.02(3) (3) 

DWD 225.02(3)(a) (a) An employee shall be deemed to have scheduled partial absence, for the reasons described in s. 103.10 (3) (b) 1. and 2., Stats., in a fashion that “does not unduly disrupt the employer’s operations” within the meaning of s. 103.10 (3) (d), Stats.,

DWD 225.02(3)(a)1. 1. If the employee provides the employer with notice of the employee’s proposed schedule of partial absence which is at least as much notice as the shortest notice that employee is required to give the employer for the taking of any other non-emergency or non-medical leave, and

DWD 225.02(3)(a)2. 2. If the schedule is sufficiently definite for the employer to be able to schedule replacement employees, to the extent replacement employees are required, to cover for the absences.

DWD 225.02(3)(b) (b) An employee shall be deemed to have scheduled partial absence, for the reasons described in s. 103.10 (3) (b) 3., Stats., in a fashion that “does not unduly disrupt the employer’s operations”within the meaning of s. 103.10 (3) (d), Stats.,

DWD 225.02(3)(b)1. 1. If the employee provides the employer with a proposed schedule for the leave with reasonable promptness after the employee learns of the probable necessity for the leave, and

DWD 225.02(3)(b)2. 2. Except where precluded by the need for health care consultation or treatment, if that proposed schedule is sufficiently definite that the employer is able to schedule replacement employees, to the extent replacement employees need to be scheduled, to cover the absence of the employee taking the leave.

DWD 225.02(3)(c) (c) If an employer has a written policy which requires notice of scheduled absences under s. 103.10 (3) (d), Stats., to be in writing, if this policy governs all employees of the employer within this state, and if the employee has been made aware of this policy, the employee shall advise the employer under this subsection in writing.

DWD 225.02(4) (4) 

DWD 225.02(4)(a) (a) An employee shall be deemed to have given the employer “advance notice of the medical treatment or supervision in a reasonable and practicable manner” within the meaning of s. 103.10 (6) (b) 2., Stats., if the notice identifies the planned dates of the leave and is given to the employer by the employee with reasonable promptness after the employee learns of the probable necessity of the leave.

DWD 225.02(4)(b) (b) If the employer has a written policy which requires notice of leave pursuant to s. 103.10 (6) (b) 2., Stats., to be in writing, if this policy governs all employees of the employer within this state, and if the employee has been made aware of this policy, the notice required by s. 103.10 (6) (b) 2., Stats., shall be in writing except where precluded by the need for health care consultation or treatment.

DWD 225.02(5) (5) An employee shall be deemed to have made “a reasonable effort” to schedule a leave so that it does not “unduly disrupt the employer’s operations” within the meaning of s. 103.10 (6) (b) 1., Stats.,

DWD 225.02(5)(a) (a) If the employee provides the employer with a proposed schedule for the leave with reasonable promptness after the employee learns of the probable necessity of the leave, and

DWD 225.02(5)(b) (b) Except where precluded by the need for health care consultation or treatment, if that proposed schedule is sufficiently definite that the employer is able to schedule replacement employees, to the extent replacement employees need to be scheduled, to cover the absence of the employee taking the leave.

DWD 225.02(6) (6) 

DWD 225.02(6)(a) (a) An employee may commence family leave pursuant to s. 103.10 (3) (b) 1., Stats., no earlier than 16 weeks before the estimated date of birth and no later than 16 weeks after the actual date of birth.

DWD 225.02(6)(b) (b) An employee may commence family leave pursuant to s. 103.10 (3) (b) 2., Stats., no earlier than 16 weeks before the expected date of placement either for adoption or as a precondition for adoption under s. 48.90 (2), Stats., and no later than 16 weeks after the actual date of placement either for adoption or as a precondition for adoption under s. 48.90 (2), Stats.

DWD 225.02(7) (7) Leave available during “a 12-month period”, within the meaning of s. 103.10 (3) (a) and (4) (b), Stats., and s. DWD 225.01 (1) (m), must be used within that 12-month period. No more than one 6 week period of leave may be used by an employee, either as continuous or partial absence leave, as to the birth or adoption of any one child.

DWD 225.02(8) (8) Family leave requested by an employee may be denied by an employer if the employee substantially fails to provide that employer with proper notice of that leave pursuant to s. 103.10 (6), Stats., as interpreted by this section.

DWD 225.02(9) (9) Except where emergency health care consultation or treatment is required, an employer may deny a requested leave where the employer has made a proper request for certification pursuant to s. 103.10 (7), Stats., as to that leave, and the employee requesting the leave fails or refuses, after that proper request, to substantially comply with the provisions of s. 103.10 (7), Stats., as to certification.

DWD 225.02 History History: Cr. Register, November, 1989, No. 407, eff. 12-1-89; correction in (7) and (8) made under s. 13.93 (2m) (b) 7., Stats., Register, April, 1996, No. 484.

DWD 225.03 DWD 225.03 Substituting leave.

DWD 225.03(1) (1) At the option of the employee, an employee entitled to family or medical leave under the act may substitute, for any leave requested under the act, any other paid or unpaid leave which has accrued to the employee.

DWD 225.03(2) (2) Leave substituted for leave available under the act will be credited, for purposes of using up the leave available under the act, to the extent the substituted leave is actually used by the employee calculated in no less than the increments available pursuant to s. DWD 225.02 (1).

DWD 225.03(3) (3) The employer may not require an employee to substitute any other paid or unpaid leave available to the employee for either family or medical leave under the act.

DWD 225.03(4) (4) If any other type of leave is substituted for family or medical leave, and any seniority or employment benefit would normally accrue during the taking of that other type of leave, that seniority or employment benefit shall accrue during the taking of that substituted leave.

DWD 225.03 History History: Cr. Register, November, 1989, No. 407, eff. 12-1-89; correction in (2) made under s. 13.93 (2m) (b) 7., Stats., Register, April, 1996, No. 484.

DWD 225.031 DWD 225.031 Consecutive leave. If any employee chooses to utilize leave provided under s. 103.10 (3) or (4), Stats., the employee may not extend leave taken by adding leave of any other type provided by the employer, unless:

DWD 225.031(1) (1) The employee meets the employer’s requirements for taking the other leave which are in effect for all employees; or

DWD 225.031(2) (2) The employer consents to the extension.

DWD 225.031 History History: Cr. Register, November, 1989, No. 407, eff. 12-1-89.

DWD 225.04 DWD 225.04 Continuation of insurance.

DWD 225.04(1) (1) The employee shall be deemed to be continuing to make the contributions required of the employee under group health insurance coverage within the meaning of s. 103.10 (9) (b), Stats., if the employee pays the contribution required by the employer within the time required by the employer.

DWD 225.04(2) (2) The employer may not require the employee to pay the employee’s contribution, except into escrow as provided by s. 103.10 (9) (c), Stats., more frequently, or in greater amounts, than was required of the employee prior to the leave being taken.

DWD 225.04(3) (3) The employer may not deny leave under this act based upon nonpayment by the employee into the escrow account.

DWD 225.04(4) (4) In the event an employer requires an employee to fund an escrow account under s. 103.10 (9) (c), Stats., the employer may pay from the escrow account the amount of the employee’s contribution which either is or becomes due during any leave taken under the act.

DWD 225.04 History History: Cr. Register, November, 1989, No. 407, eff. 12-1-89.

DWD 225.05 DWD 225.05 Time to commence administrative proceedings. If an employer is not in compliance with the notice posting requirements of s. 103.10 (14) (a), Stats., at the time a violation occurs under s. 103.10, Stats., an employee complaining of that violation shall be deemed not to “reasonably have known” that a violation occurred within the meaning of s. 103.10 (12) (b), Stats., until either the first date that the employer comes into compliance with s. 103.10 (14) (a), Stats., by posting the required notice, or the first date that the employee obtains actual knowledge of the information contained in the required notice, whichever date occurs earlier. If the employer is not in compliance with the notice posting requirements of s. 103.10 (14) (a), Stats., at the time a violation occurs under s. 103.10, Stats., the employer has the burden of proving actual knowledge on the part of the employee within the meaning of this section.

DWD 225.05 History History: Cr. Register, November, 1989, No. 407, eff. 12-1-89.

DWD 225.06 DWD 225.06 Complaints.

DWD 225.06(1) (1) Who may file complaint. A complaint may be filed by any person or by the person’s duly authorized representative. A complaint filed by a representative shall state that the representative is authorized to file the complaint.

DWD 225.06(2) (2) Where to file complaints.

DWD 225.06(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 225.06(2)(a)1. 1. Equal Rights Division, 201 East Washington Avenue, Madison, WI 53702. Facsimile number: 608-267-4592.

DWD 225.06(2)(a)2. 2. Equal Rights Division, 819 North 6th Street, Milwaukee, WI 53203. Facsimile number: 414-227-4084.

DWD 225.06(2)(b) (b) A complaint filed by facsimile transmission shall conform with the requirements of s. DWD 225.27 (1).

DWD 225.06(3) (3) Form and content of complaint. A complaint shall be written on a form which is available at any division office or on any form acceptable to the department. Each complaint shall be signed by the person filing the complaint or by the person’s duly authorized representative. The signature constitutes an acknowledgment that the party 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 225.06(3)(a) (a) The name and address of the complainant.

DWD 225.06(3)(b) (b) The name and address of the respondent.

DWD 225.06(3)(c) (c) A concise statement of the facts, including pertinent dates, constituting the alleged prohibited action.

DWD 225.06(4) (4) Assistance by the department. The department shall, upon request, provide appropriate assistance in completing and filing complaints.

DWD 225.06(5) (5) Amendment of complaint. A complaint may be amended, subject to the approval of the department, except that a complaint may not be amended less than 10 days before hearing unless good cause is shown for the failure to amend the complaint prior to that time. If the complaint is amended prior to the issuance of an initial determination, the department shall investigate the allegations of the amended complaint. After an initial determination has been issued, amendments may be allowed by the administrative law judge only for claims which relate back to the original complaint for statute of limitation purposes. If an amendment is approved after the case has been certified to hearing, the case may be remanded 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. An amended complaint shall be dismissed if it does not meet the requirements of s. DWD 225.09 (1).

DWD 225.06(6) (6) Withdrawal of complaint. A complaint may be withdrawn at any time. A request for a withdrawal shall be in writing and shall be signed by the complainant or by the complainant’s duly authorized representative. Upon the filing of a request for a withdrawal, the department shall dismiss the complaint by written order. Such dismissal shall be with prejudice unless otherwise expressly stated in the order.

DWD 225.06 History History: Cr. Register, November, 1989, No. 407, eff. 12-1-89; CR 03-092: r. and recr. Register March 2004 No. 579, eff. 4-1-04; CR 06-062: am. (2) Register November 2006 No. 611, eff. 12-1-06.

DWD 225.07 DWD 225.07 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 correspondence was sent by certified mail, return receipt requested, to the last known address of the complainant.

DWD 225.07 History History: Cr. Register, November, 1989, No. 407, eff. 12-1-89; CR 03-092: r. and recr. Register March 2004 No. 579, eff. 4-1-04.

DWD 225.08 DWD 225.08 Notification of respondent.

DWD 225.08(1) (1) When notice is to be sent. The department shall serve a copy of a complaint which meets the requirements of s. DWD 225.06 upon each respondent prior to the commencement of any investigation.

DWD 225.08(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 department. The notice shall further state that, if the respondent fails to answer the complaint in writing, the department may make an initial determination as to whether a prohibited act has occurred based only on the department’s investigation and the information supplied by the complainant.

DWD 225.08 History History: Cr. Register, November, 1989, No. 407, eff. 12-1-89; CR 03-092: r. and recr. Register March 2004 No. 579, eff. 4-1-04.

DWD 225.09 DWD 225.09 Preliminary review of complaints.

DWD 225.09(1) (1) Review of complaint. The department shall review every complaint filed to determine all of the following:

DWD 225.09(1)(a) (a) Whether the complainant is protected by the act.

DWD 225.09(1)(b) (b) Whether the respondent is subject to the act.

DWD 225.09(1)(c) (c) Whether the complaint states a claim for relief under the act.

DWD 225.09(1)(d) (d) Whether the complaint was filed within the time period set forth in the act, if that issue is raised in writing by the respondent.

DWD 225.09(2) (2) Preliminary determination dismissing complaint. The division shall issue a preliminary determination dismissing any complaint, or any portion of a complaint, which fails to meet the requirements of 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 225.09(3) (3) Appeal of preliminary determination. A complainant may appeal from an order dismissing a complaint under sub. (2) by filing a written appeal with the department. The appeal shall be filed within 10 days after 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 subject to review in court if it is a final decision and order as defined in s. DWD 225.25 (1).

DWD 225.09 History History: Cr. Register, November, 1989, No. 407, eff. 12-1-89; CR 03-092: r. and recr. Register March 2004 No. 579, eff. 4-1-04.

DWD 225.10 DWD 225.10 Investigations.

DWD 225.10(1) (1) Conduct of investigation. The department shall investigate all complaints that satisfy the review under s. DWD 225.09. In conducting investigations under this chapter, the department may seek the cooperation of all persons to provide requested materials to the department; 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 department may subpoena persons or documents for the purpose of the investigation. Subpoenas may be enforced pursuant to s. 885.11, Stats.

DWD 225.10(2) (2) Advising complainant to amend complaint. If, during an investigation, it appears that the respondent may have committed a prohibited act which is not alleged in the complaint, the department may advise the complainant that the complaint should be amended.

DWD 225.10(3) (3) Dismissal of complaint prior to completion of investigation.

DWD 225.10(3)(a) (a) The department may dismiss a complaint prior to completion of an investigation under the following circumstances:

DWD 225.10(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. DWD 225.07.