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).
DWD 226.10(2)(b)2.
2. 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 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 by U.S. mail.
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 226.25 (1).
DWD 226.10 History
History: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22; correction in (1) made under s. 35.17, Stats., Register June 2022 No. 798.
DWD 226.11(1)
(1)
General. At the
conclusion
of
the
investigation,
the
department shall
issue
a written initial determination which states whether 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 226.11(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 be noticed and conducted in accordance with the provisions of ss.
DWD 226.15 to
226.24.
DWD 226.11(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 226.12.
DWD 226.11 History
History: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22.
DWD 226.12
DWD 226.12
Appeal of initial determination of no probable cause. DWD 226.12(1)(1) An appeal shall be filed within 10 days of the date of the initial determination.
DWD 226.12(2)
(2) If
no
written appeal
is
filed in a timely manner,
the
initial
determination's
order
of dismissal shall be the final determination of the department.
DWD 226.12(3)
(3) If
an appeal under sub.
(1) is filed, the department 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 226.15 and
DWD 226.17
to
226.24.
The parties
may stipulate before 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
consolidate
the hearing
on probable cause and the hearing on the merits with the consent of the parties.
DWD 226.12 History
History: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22.
DWD 226.13
DWD 226.13
Private settlement and conciliation. The parties may enter into an agreement to settle the complaint at any time
during
the
proceedings. If requested, the department may assist the parties to reach a settlement. The parties shall notify the department immediately
upon reaching a settlement if it resolves all matters so the department may dismiss the matter.
DWD 226.13 History
History: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22.
DWD 226.14
DWD 226.14 Dismissal of complaint for lack of jurisdiction or other procedural basis following certification to hearing. A complaint may be dismissed for not meeting the requirements of s.
DWD 226.09 (1) or for any other procedural basis after the case is certified to hearing under s.
DWD 226.11 (2) or
226.12 (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 U.S. mail to the last-known address of each party and to their attorneys of record.
DWD 226.14 History
History: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22.
DWD 226.15(1)
(1)
Content. In
any matter which has been certified to hearing following an initial determination
of probable cause under s.
DWD 226.11 (2) or an appeal
of
an
initial
determination
of
no
probable
cause
under
s.
DWD 226.11 (3), the department shall advise the parties and their representatives and
attorneys
in
writing
by
U.S. 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 226.15(2)(a)(a) The hearing shall be held in the county where
the prohibited act is alleged to have 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 226.15(2)(b)
(b) A hearing held using video conferencing technology is considered to be held in the county where the prohibited act is alleged to have occurred.
DWD 226.15 History
History: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22.
DWD 226.16(1)(1)
When required. Within 10 days after the date of a notice of hearing on the merits or by a date set by the administrative law judge holding the hearing, each respondent shall
file
with
the
department's bureau of hearings and mediation
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 sent to all other parties.
DWD 226.16(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 and shall address the substance of the allegation. Any affirmative defense relied upon by a respondent, including the statute of limitations, 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 answer
may, in
the absence of
good
cause,
be
held
to
constitute
a
waiver
of
that defense.
DWD 226.16 History
History: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22.
DWD 226.17
DWD 226.17
Prehearing conference. In any case which has
been
certified
to
hearing,
a
prehearing
conference
may be held in accordance with s.
227.44 (4), Stats.
DWD 226.17 History
History: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22.
DWD 226.18(1)
(1)
Timing. Discovery may not be used before the time that a
matter
is
certified
to
hearing,
except
that
the
taking
and
preservation of evidence shall be permitted before certification to hearing
under the circumstances set forth in s.
227.45 (7), Stats.
DWD 226.18(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 discovery shall,
not
less
than
10
days
before 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 director of the bureau of hearings and mediation
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, unless otherwise ordered by the administrative law judge. 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 who instituted those discovery requests as soon as practicable after the discovery has been taken.
DWD 226.18(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 226.18(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 226.18(5)
(5)
Filing with the department. Copies of discovery requests and responses to discovery requests need not be filed with the department, except as required under sub.
(2).
DWD 226.18 History
History: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22; correction in (3) made under s. 35.17, Stats., Register June 2022 No. 798.
DWD 226.19(1)
(1)
Subpoenas. Subpoenas, including subpoenas to compel the attendance of witnesses and subpoenas requiring the production of material, may be issued by the department or by an attorney of record. 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 under s.
885.12, Stats.
DWD 226.19(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 226.19 History
History: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22.
DWD 226.20
DWD 226.20
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 226.20 History
History: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22.
DWD 226.21
DWD 226.21
Exchange of names of witnesses and copies of exhibits. By the 10th day before the hearing, the parties shall file with the department 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.
The
administrative
law
judge
may
exclude witnesses and exhibits not identified in a timely fashion under this section. This section does not apply to witnesses and exhibits offered in rebuttal which the party could not reasonably have anticipated using before the hearing.
DWD 226.21 History
History: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22; correction made under s. 35.17, Stats., Register June 2022 No. 798.
DWD 226.22(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 or by the date set by the administrative law judge for filing motions, except where emergency circumstances arise before the hearing. The party requesting a postponement shall send a copy
of the request to all other parties when the request is filed with the department. Postponements and continuances may be granted only for good cause shown and may not be granted solely for the convenience
of the parties or their attorneys.
DWD 226.22(3)
(3)
Appearance of parties. Parties may appear at the hearing in person and by counsel or other representative.
DWD 226.22(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 226.22 History
History: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22.
DWD 226.23(1)
(1)
Method of recording hearing. A
stenographic,
electronic,
or
other
record of oral proceedings shall be made at all hearings conducted under s.
103.11, Stats. Any party wishing to have a court reporter present to transcribe the proceedings shall be permitted to do so at their own expense. If
the
hearing
is
recorded, the original recording shall
remain
in
the
department
for
5
years
following
the hearing,
after which it may be discarded.
DWD 226.23(2)
(2)
Requirements for preparation of transcripts. Any party
may
file
a
transcript
of
the
hearing
with
the department.
The transcript shall be prepared by an independent, reputable court reporter or
transcriptionist. The transcript shall include a certification
by
the
transcriptionist
that
it
is
an
original,
verbatim
transcript of the proceedings.
DWD 226.23(3)
(3)
Cost for transcription of record. Transcription
of
the record for purposes other than judicial review shall be at the expense of any party who requests the transcription. If a party arranges for a transcript, the transcript will be filed with the department and the department shall provide a copy to any other party or parties at no additional cost. For the purpose of
judicial
review,
the
department
shall
prepare
at
its
own expense and provide to the court a transcript of the record, unless a transcript
has
already
been
prepared
at
the
request
of
a party.
DWD 226.23 History
History: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22.
DWD 226.24(1)
(1)
General. After the close of the hearing, including any briefs that may be allowed by the administrative
law
judge,
the
administrative
law
judge
shall prepare a formal written decision which shall include findings of fact, conclusions
of
law,
and
an
order,
and
which
may
be
accompanied by an opinion.
DWD 226.24(2)
(2)
Decision and order after hearing on the issue of probable cause. After a hearing on the issue of probable cause, the administrative law judge shall issue a decision and order which dismisses the allegations of the complaint or which orders that
the
case
be
certified
for
a
hearing
on
the
merits
of
the
complaint, depending upon the administrative law judge's findings and conclusions on the issue of probable cause. If the decision of the administrative
law
judge
determines
that
no
probable
cause exists,
a
certified
copy
of
the
decision
and
order
and
a
notice
of appeal rights shall be sent by U.S. mail to the last-known address of each party and to their attorneys of record. A decision and
order finding no probable cause may be appealed to court if it is a final decision and order as defined in s.
DWD 226.25 (1).
DWD 226.24(3)
(3)
Decision and order after hearing on the merits.
After a
hearing
on
the
merits,
the
administrative
law
judge
shall
issue a decision and an order that shall either dismiss the allegations of the complaint or shall order such action by the respondent as shall effectuate the purposes of s.
103.11, Stats., depending upon the administrative law
judge's findings
and
conclusions
on
the
merits of
the
complaint. The order may award reasonable attorney fees to a complainant who prevails in a case. A certified copy of the decision and order and a notice of appeal rights shall be sent by U.S. mail to the last-known address
of each party and to their attorneys of record.
DWD 226.24(4)
(4)
Computation of interest. Interest on any award made under this chapter shall be added to that award and computed
at
an
annual
rate
as set forth in s.
815.05 (8), Stats.
Interest
shall
be computed
by calendar quarter.
DWD 226.24 History
History: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22; correction in (2) made under s. 35.17, Stats., Register June 2022 No. 798.
DWD 226.25(1)(1)
Appeals limited to final decisions and orders. Any party may seek judicial review of a final decision and order of the administrative law judge. Only final decisions and orders of the administrative law judge may be appealed. A final decision is one that disposes of the entire complaint and leaves no further proceedings on that complaint pending before the department.
DWD 226.25(2)
(2)
Notice of appeal rights. Every decision and order of an administrative law
judge
under
s.
DWD 226.24 shall
be
accompanied
by
a
separate
notice
advising
the
parties
of
their
rights
to
seek judicial review of the decision under s.
103.11 (13), Stats.
DWD 226.25 History
History: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22.
DWD 226.26(1)(a)
(a)
Unless otherwise directed by the
department or ordered by the administrative law judge,
documents
may
be
filed
by
facsimile
transmission. Documents
filed by facsimile transmission shall include a cover sheet setting forth all of the following information:
DWD 226.26(1)(a)2.
2. The
individual
to
whom
the
transmission
is
directed,
if
that individual
is known.
DWD 226.26(1)(b)
(b) The
date
of
transmission
recorded
by
the
department's facsimile equipment shall constitute the date of filing of a document under this section, except that documents filed
by
facsimile
after
the
regular business hours of the department as established by s.
230.35 (4) (f), Stats., or on a day when the offices of the department are closed under s.
230.35 (4) (a), Stats., shall be considered
filed
on
the next business day of the department.
DWD 226.26(2)
(2)
Filing of documents by email. Unless otherwise directed by the department
or ordered by the administrative law judge, documents may be
filed
by
email. If a party does not have the email address of the assigned equal rights officer or administrative law judge, the party may use
ERInfo@dwd.wisconsin.gov.
