Chapter DWD 225

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.

DWD 225.10(3)(a)2. 2. The complainant signed a valid waiver and release of claims arising out of the complainant’s employment with the respondent that would preclude the department from finding that the respondent has violated the act.

DWD 225.10(3)(a)3. 3. The allegations in the complaint have been previously dismissed by the department or by a state or federal court.

DWD 225.10(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 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 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 department shall serve the decision of the administrative law judge 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 subject to review in court if it is a final decision and order as defined in s. DWD 225.25 (1).

DWD 225.10 History History: Cr. Register, November, 1989, No. 407, eff. 12-1-89; correction in (1) made under s. 13.93 (2m) (b) 7., Stats., Register, April, 1996, No. 484; emerg. am. eff. 8-5-03; CR 03-092: r. and recr. Register March 2004 No. 579, eff. 4-1-04.

DWD 225.11 DWD 225.11 Initial determination.

DWD 225.11(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 a prohibited act occurred 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 225.11(2) (2) Initial determination of probable cause. If the department initially determines that there is probable cause to believe that any prohibited act occurred as alleged in the complaint, it shall certify the case to hearing. A hearing on the merits shall thereafter be noticed and conducted in accordance with the provisions of ss. DWD 225.15 to 225.24.

DWD 225.11(3) (3) Initial determination of no probable cause. If the department initially determines that there is no probable cause to believe that a prohibited act occurred as alleged in the complaint, it may dismiss those allegations. The department 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 225.12.

DWD 225.11 History History: Cr. Register, November, 1989, No. 407, eff. 12-1-89; correction in (3) made under s. 13.93 (2m) (b) 7., Stats., Register, April, 1996, No. 484; emerg. am. eff. 8-5-03; CR 03-092: r. and recr. Register March 2004 No. 579, eff. 4-1-04.

DWD 225.12 DWD 225.12 Appeal of initial determination of no probable cause.

DWD 225.12(1) (1) When filed. Within 10 days after the appeal 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 department shall notify the respondent that an appeal has been filed within 10 days of receiving the appeal.

DWD 225.12(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 225.12(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 225.15 and 225.17 to 225.24, 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 department may, with the consent of the parties, consolidate the hearing on probable cause and the hearing on the merits.

DWD 225.12 History History: Cr. Register, November, 1989, No. 407, eff. 12-1-89; corrections in (1) and (2) made under s. 13.93 (2m) (b) 7., Stats., Register, April, 1996, No. 484; CR 03-092: r. and recr. Register March 2004 No. 579, eff. 4-1-04; CR 06-062: am. (3) Register November 2006 No. 611, eff. 12-1-06.

DWD 225.13 DWD 225.13 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 department. The department may assist the parties to reach a settlement agreement. The parties shall notify the department immediately upon reaching a settlement.

DWD 225.13 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 225.14 DWD 225.14 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 225.09 (1) or for any other procedural basis after the case is certified to hearing under either s. DWD 225.11 (2) or 225.12 (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 225.14 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 225.15 DWD 225.15 Notice of hearing.

DWD 225.15(1) (1) Content. In any matter which has been certified to hearing following an initial determination of probable cause under s. DWD 225.09 (1) or an appeal of an initial determination of no probable cause under s. DWD 225.11 (2), the department 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 10 days after the date of mailing of the notice of hearing. The notice of hearing shall specify the nature of the prohibited act 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 225.15(2) (2) Place of hearing. The hearing shall be held in the county where the alleged prohibited act occurred, or at another location with the consent of the parties. For purposes of this subsection, the county where the alleged prohibited act occurred is the county where the respondent resides or where the alleged violation occurred.

DWD 225.15 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 225.16 DWD 225.16 Answer.

DWD 225.16(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 upon which there is a finding of probable cause, along with a certification that a copy of the answer has been mailed to all other parties.

DWD 225.16(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 in the complaint, 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 by a respondent shall be raised in the answer unless it has previously been raised by motion in writing. Failure to raise an affirmative defense in a timely filed answer may, in the absence of good cause, be held to constitute a waiver of such a defense.