DWD 226.01 History
History: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22; correction in (1) (L) made under s. 35.17, Stats., Register June 2022 No. 798.
DWD 226.02(1)
(1) The leave allowed under s.
103.11, Stats., may be taken in noncontinuous increments. An employee may schedule and take partial absence leave 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
s.
103.11, Stats., shall be equal to the shortest increment the employer allows to be taken by that employee for any other nonemergency
leave. Such partial leave must be necessary for the employee to undergo the bone marrow or organ donation procedure and to recover from it.
DWD 226.02(2)
(2) For partial leave purposes, a “week" means 5 days of leave which would otherwise be workdays for the requesting employee.
DWD 226.02(3)(a)
(a) An employee shall be deemed to have scheduled partial absence that does
not
“unduly
disrupt
the
employer's operations”
within the meaning of s.
103.11 (6) (a), Stats., if all of the following apply:
DWD 226.02(3)(a)1.
1. 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 nonemergency or nonmedical leave.
DWD 226.02(3)(a)2.
2. The schedule under subd.
1. 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 226.02(3)(b)
(b) If an employer has a written policy which requires notice of scheduled partial absences
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 226.02(4)(a)
(a) An employee shall be deemed to have given the employer “advance
notice
of
the
bone marrow or organ donation in a reasonable and practicable manner” within the meaning of s.
103.11 (6) (b), 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 226.02(4)(b)
(b) If the employer has a written policy which requires notice of leave under s.
103.11 (6) (b), 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.
103.11 (6) (b), Stats., shall be in writing, except
where
precluded
by
the
need
for
health
care
consultation or treatment.
DWD 226.02(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.
103.11 (6) (a), Stats., if all of the following apply:
DWD 226.02(5)(a)
(a) 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.
DWD 226.02(5)(b)
(b) Except
where
precluded
by
the
need
for
health
care
consultation or
treatment,
the
proposed
schedule
under par. (a) 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 226.02(6)
(6) Leave requested by an employee may be denied by an employer if the employee substantially fails to provide the employer with
notice
of
the
leave as required
under s.
103.11 (6), Stats., as interpreted by this section. For purposes of this subsection, an employee is considered to have substantially failed to provide proper notice if the employee fails to do at least 2 of the following:
DWD 226.02(6)(c)
(c) Provide a proposed schedule for leave with reasonable promptness.
DWD 226.02(6)(d)
(d) Provide a proposed schedule that is sufficiently definite to allow the employer to schedule replacements, if needed.
DWD 226.02(7)
(7) Except where
emergency health care consultation or treatment is required, an employer may deny a requested leave where the employer has made a request for certification that complies with s.
103.11 (7), Stats., as to that leave, and the employee requesting the leave fails or refuses, after that proper request, to substantially comply
with
s.
103.11 (7),
Stats.,
as
to
certification.
DWD 226.02(8)
(8) Leave under this section is available for only the period necessary for the employee to undergo the bone marrow or organ donor procedure or to recover from that procedure. Family or medical leave under s.
103.10, Stats., may also be available to qualified employees. An employer may not designate leave under this section to run concurrently with family or medical leave under s.
103.10, Stats.
DWD 226.02 Note
Note: Leave under this section may run concurrently with family or medical leave for which an employee is eligible under the federal family and medical leave act,
29 USC 2601 et seq.
DWD 226.02(9)
(9) No more than 6 weeks of bone marrow and organ donation leave may be taken in a 12-month period. Bone marrow and organ donation leave that begins in one 12-month period and ends in the subsequent 12-month period may not exceed 6 weeks. In this subsection, “12-month period" has the meaning given in s.
DWD 226.01 (1) (a).
DWD 226.02 History
History: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22.
DWD 226.03(1)
(1) An employee entitled to bone marrow or organ donor leave under s.
103.11, Stats., may
substitute,
for
any
leave
requested
under
s.
DWD 226.02, any
other
paid
or
unpaid
leave
which
has
accrued
to
the
employee.
DWD 226.03(3)
(3) The
employer
may
not
require
an
employee
to
substitute any other
paid
or
unpaid
leave
available
to
the
employee
for
either bone marrow or organ donation leave under s.
103.11, Stats.
DWD 226.03(4)
(4) If any other type of leave is substituted for bone marrow and organ donor 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 226.03 History
History: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22.
DWD 226.031
DWD 226.031
Consecutive leave. If an employee chooses to use leave provided under s.
103.11 (4), Stats., the employee may not extend leave taken by adding leave of any other type provided by the employer, unless any of the following applies:
DWD 226.031(1)
(1) The employee meets the employer's requirements for taking the other leave which are in effect for all employees.
DWD 226.031 History
History: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22; correction in (intro.) made under s. 35.17, Stats., Register June 2022 No. 798.
DWD 226.04(1)
(1) An 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.
103.11 (9) (b), Stats., if the employee
pays the contribution required by the employer within the time required by the employer.
DWD 226.04(2)
(2) The employer may not require the employee to pay the employee's contribution, except into escrow as provided by s.
103.11 (9) (c), Stats., more frequently, or in greater amounts, than was required of the employee before the leave being taken.
DWD 226.04(3)
(3) The employer may not deny leave under s.
103.11, Stats., based upon
nonpayment by the employee into the escrow account.
DWD 226.04(4)
(4) In the event an employer requires an employee to fund an escrow account under s.
103.11 (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 s.
103.11, Stats.
DWD 226.04 History
History: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22.
DWD 226.05
DWD 226.05
Time to commence administrative proceedings. If an employer is not in compliance with the notice posting requirements of s.
103.11 (14) (a), Stats., when a violation occurs
under
s.
103.11, Stats., an employee complaining of that violation shall be deemed not to “reasonably have known” that a violation occurred within the meaning of s.
103.11 (12) (a), Stats., at the time of the violation 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.
103.11 (14) (a), Stats., when a violation occurs under s.
103.11, Stats., the employer has the
burden of proving actual knowledge on the part of the employee
within the meaning of this section.
DWD 226.05 History
History: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22.
DWD 226.06(1)(1)
Who may file a 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 226.06(2)(a)
(a) A complaint may be filed on the department's website or filed in person or by mail, facsimile transmission, or email to the office of the department's equal rights division.
DWD 226.06 Note
Note: The offices of the department's equal rights division are at the following addresses:
DWD 226.06 Note
1. Equal Rights Division, 201 East Washington Avenue, Madison, WI 53703; PO Box 8928, Madison, WI 53708. Facsimile: 608-327-6001. Email address:
ERInfo@dwd.wisconsin.gov.
DWD 226.06 Note
2. Equal Rights Division, 819 North 6th Street, Milwaukee, WI 53203. Facsimile: 414-227-4084. Email address:
ERInfo@dwd.wisconsin.gov. Access to the division's Milwaukee office is on the 7th Street side of the building.
DWD 226.06(3)
(3)
Content of complaint. A
complaint
shall
be submitted on a form provided by the department and 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.
Complaints filed on the department's website shall be acknowledged using the certification method required in the instructions on the website. The complaint
shall contain all of
the following information:
DWD 226.06(3)(c)
(c) A concise statement of the facts, including pertinent dates, constituting
the alleged prohibited action.
DWD 226.06(4)
(4)
Assistance by the department. The department shall, upon request, provide appropriate assistance in completing and filing
complaints.
DWD 226.06(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 or by a date established by the administrative law judge unless good cause is shown for the failure to amend the complaint before that time. If the complaint is amended before 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 bureau of investigations to conduct an investigation and issue an initial determination as to whether probable cause exists to believe that the respondent has violated s.
103.11, Stats., as alleged in the amended complaint or continue to hearing if both parties agree to proceed to hearing with the issues in the amended complaint. An amended complaint shall be dismissed if it does not meet the requirements of s.
DWD 226.09 (1).
DWD 226.06(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 226.06 History
History: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22; correction in (2) (a) made under s. 35.17, Stats., Register June 2022 No. 798.
DWD 226.07
DWD 226.07
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. The department may send certified or regular mail to determine whether the complainant wishes to continue pursuing the case or for other reasons determined to be appropriate by the department. If regular mail is not returned to the department, there is a presumption that it was received by the complainant.
DWD 226.07 History
History: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22.
DWD 226.08(1)
(1)
When notice is to be sent. The department shall serve a copy of a complaint which meets the requirements
of
s.
DWD 226.06 upon
each respondent
before the commencement of any investigation.
DWD 226.08(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 designated 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
there is probable cause to believe that a prohibited act has occurred based solely on the department's investigation and the information supplied by the complainant.
DWD 226.08 History
History: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22.
DWD 226.09
DWD 226.09
Preliminary review of complaints. DWD 226.09(1)(1)
Review of complaint. The department shall review every complaint filed to determine all of the following:
DWD 226.09(1)(d)
(d) Whether the complaint was filed within the time period set forth in s.
103.11, Stats., if that issue is raised in writing by the respondent.
DWD 226.09(2)
(2) Preliminary determination dismissing complaint. The department 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
U.S.
mail
to
the
last
known
address
of
each
party and to their attorneys of record.
DWD 226.09(3)(a)
(a) A complainant may appeal from an order dismissing a complaint under sub.
(2) by filing
a
written
appeal
with
the
department by mail, facsimile, email, or hand-delivery that satisfies all of the following:
DWD 226.09(3)(a)2.
2. The appeal states specifically the grounds upon which the appeal is based including evidence the complaint did, in fact, meet the requirements of sub.
(1).
DWD 226.09(3)(b)
(b) If a timely appeal is filed, the
department shall
serve
a
copy
of
the
appeal
upon
all
other parties by U.S. mail. The matter shall be referred to the bureau of hearings and mediation for review by an administrative law judge. The administrative law judge shall issue a decision to affirm, reverse, modify,
or
set
aside
the
preliminary
determination.
The department shall serve the decision of the administrative law judge
upon
all
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, the decision
may
be
subject
to
review
in
court
if
it
is
a
final
decision
and order that may be appealed under s.
DWD 226.25 (1).
DWD 226.09 History
History: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22.
DWD 226.10(1)(1)
Conduct of investigation. The department shall investigate all complaints that satisfy
the
review
under
s.
DWD 226.09.
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.
DWD 226.10(2)
(2)
Dismissal of complaint before completion of investigation. DWD 226.10(2)(a)(a) The
department may
dismiss
a
complaint
before completion
of
an
investigation
under
the
any of the following
circumstances:
DWD 226.10(2)(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 226.07.
DWD 226.10(2)(a)2.
2. The complainant signed a 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 s.
103.11, Stats.
DWD 226.10(2)(a)3.
3. The allegations in the complaint have been previously dismissed with prejudice by the department or by a state or federal court.
DWD 226.10(2)(b)1.1. A complainant may appeal from an order dismissing a complaint under
this
subsection
by
filing
a
written
appeal with
the department that satisfies all of the following:
DWD 226.10(2)(b)1.b.
b. The appeal states specifically the grounds upon which the appeal is based including evidence the complaint did, in fact, meet the requirements of s.
DWD 226.09 (1).
