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 HistoryHistory: Cr. Register, November, 1989, No. 407, eff. 12-1-89. DWD 225.05DWD 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 HistoryHistory: Cr. Register, November, 1989, No. 407, eff. 12-1-89. 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)(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(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)(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 225.07DWD 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 HistoryHistory: 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(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 HistoryHistory: 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 225.09DWD 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)(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 HistoryHistory: 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(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 HistoryHistory: 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(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 HistoryHistory: 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 225.12DWD 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 HistoryHistory: 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 225.13DWD 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 HistoryHistory: 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 225.14DWD 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 HistoryHistory: 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(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 HistoryHistory: 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(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. DWD 225.16 HistoryHistory: 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 225.17DWD 225.17 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 225.17 HistoryHistory: 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 225.18(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 225.18(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 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 225.18(3)(3) Scope, methods 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 225.18(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 225.18(5)(5) Filing with the department. Copies of discovery requests and responses to discovery requests need not be filed with the division, except as required under sub. (2). DWD 225.18 HistoryHistory: 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 225.19(1)(1) Subpoenas. The department or a party’s attorney of record may issue a subpoena to compel the attendance of a witness or the production of documents. A subpoena issued by an attorney shall be in substantially the same form as provided in s. 805.07 (4), Stats., and shall be served in the manner provided in s. 805.07 (5), Stats. Witnesses summoned by a subpoena who are not employees of the civil service as defined in s. 230.03 (6), Stats., shall be entitled to the witness and mileage fees set forth in s. 814.67 (1) (a) and (c), Stats. The cost of service, witness and mileage fees shall be paid by the person issuing the subpoena. Subpoenas may be enforced pursuant to s. 885.12, Stats. DWD 225.19(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 225.19 HistoryHistory: 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 225.20DWD 225.20 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 225.20 HistoryHistory: 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 225.21DWD 225.21 Exchange of names of witnesses and copies of exhibits. By no later than the tenth day prior to the hearing, the parties shall file with the division and serve upon the other party a written list of the names of witnesses and copies of the exhibits that the parties intend to use at the hearing. For the purpose of this section, service is complete on mailing rather than on receipt. The administrative law judge may exclude witnesses and exhibits not identified in a timely fashion pursuant to this section. This section does not apply to witnesses and exhibits offered in rebuttal which the party could not reasonably have anticipated using prior to the hearing. DWD 225.21 HistoryHistory: 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 225.22(1)(1) Procedure. Hearings shall be conducted in conformity with the act and with the provisions of ch. 227, Stats. DWD 225.22(2)(2) Postponements and continuances. All requests for postponements shall be filed with the administrative law judge within 10 days after the notice of hearing, except where emergency circumstances arise after the notice is issued but prior to the hearing. The party requesting a postponement shall mail a copy of the request to all other parties at the time the request is filed with the division. Postponements and continuances may be granted only for good cause shown and shall not be granted solely for the convenience of the parties or their attorneys. DWD 225.22(3)(3) Appearance of parties. Parties may appear at the hearing in person and by counsel or other representative. DWD 225.22(4)(4) Failure to appear at hearing. If the complainant fails to appear at the hearing, either in person or by a representative authorized to proceed on behalf of the complainant, the administrative law judge shall dismiss the complaint. If the respondent fails to appear at the hearing, the hearing shall proceed as scheduled. If within 10 days after the date of hearing, any party who fails to appear shows good cause in writing for the failure to appear, the administrative law judge may reopen the hearing. DWD 225.22 HistoryHistory: 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.
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