Chapter ERC 92
FILING APPEALS
ERC 92.01 Time limits and address for filing appeals. ERC 92.02 Fees for filing appeals. ERC 92.04 Notice to respondents. ERC 92.01ERC 92.01 Time limits and address for filing appeals. All appeals shall be filed according to the appropriate time limits established by statute or rule and shall be filed at the office of the commission. The time limit for filing any appeals with the commission pursuant to s. 230.45 (1) (d), Stats., shall be 30 days after the effective date of the action, or 30 days after the appellant is notified of the action, whichever is later. ERC 92.01 NoteNote: The mailing address of the commission is:
ERC 92.01 Note Wisconsin Employment Relations Commission
2418 Crossroads Dr., Suite 1000
Madison, WI 53718-7896
ERC 92.01 NoteAccording to s. 230.44 (3), Stats., appeals filed under s. 230.45 (1) (a), Stats., “may not be heard unless the appeal is filed within 30 days after the effective date of the action, or within 30 days after the appellant is notified of the action, whichever is later...” ERC 92.01 NoteDecisions grieved to the commission as the final step arbiter under s. 230.45 (1) (c), Stats., must, according to s. ER 46.07 (2), “be filed within 30 calendar days after service of a decision issued at the third step of the grievance procedure... or within 30 calendar days after the last day on which the employer could have served a timely decision, whichever is sooner.” ERC 92.01 NoteAppeals filed under s. 230.45 (1) (d), Stats., of denials of claims for leave with pay due to hazardous duty injury must, according to s. ER 28.06, be filed “within 30 calendar days after being notified of such decision or within 30 calendar days from the effective date of the decision, whichever is later.” ERC 92.01 HistoryHistory: Cr. Register, August, 1987, No. 380, eff. 9-1-87; am. Register, May, 1996, No. 485, eff. 6-1-96; correction made under s. 13.92 (4) (b) 7., Stats., Register January 2011 No. 661. ERC 92.02(1)(1) Notwithstanding s. 230.44 (3), Stats., and s. ERC 92.01, payment of a fee or filing of a hardship affidavit in lieu of fee payment is required for appeals subject to the fee payment of s. 230.45 (3), Stats. ERC 92.02 NoteNote: Appeals subject to the fee payment of s. 230.45 (3), Stats., include appeals filed under: ERC 92.02 Note1) s. 230.44 (1) (a), Stats. (relating to personnel decisions made or delegated by the administrator of the Division of Merit Recruitment and Selection), ERC 92.02 Note2) s. 230.44 (1) (b), Stats. (relating to personnel decisions made or delegated by the Director of the Office of State Employment Relations — including classification decisions), ERC 92.02(2)(2) Except as provided under sub. (6), the commission may take no action to resolve an appeal for which the payment of a fee is required until the commission receives the fee or hardship affidavit as required under this section. ERC 92.02(3)(a)(a) Fee amount. Except as provided for hardship cases in subs. (4) and (5), the fee for filing an appeal with the commission is $50.00. ERC 92.02(3)(b)(b) How fees are paid. Fees shall be paid by money order, certified check, cashier’s check or bank check made payable to the “State Treasurer of Wisconsin” and must be received, whether in person or by mail, at the commission’s offices. Fees may not be paid in cash, by personal check or in installments. ERC 92.02 NoteNote: The fee requirements of this section apply to each appellant who submits an appeal, whether such submission is alone or in conjunction with other appellants.
ERC 92.02(4)(a)(a) Income definition. “Income” means total annual cash receipts before taxes from all sources, including but not limited to: money wages before any deductions; net receipts from self-employment; regular payments from social security, retirement, unemployment compensation, workers’ compensation, veterans’ payments, and public assistance; alimony; child support; college or university scholarships, grants, fellowships and assistantships; and net rental income. Excluded are noncash benefits such as the employer-paid portion of health insurance or other employee fringe benefits, food or housing received in lieu of wages, and such noncash federal benefit programs as food stamps, school lunches and housing assistance. ERC 92.02(4)(b)(b) The hardship exception. An appellant may qualify for a hardship exception if either of the following conditions are met: ERC 92.02(4)(b)1.1. The appellant’s income is at or lower than the federal poverty level as defined by the federal department of labor under 42 USC 9902 (2), and where the appellant has cash resources totalling exactly or less than one month’s rent and food for appellant’s family. ERC 92.02(4)(b)2.2. Similar circumstances exist which demonstrate that appellant is unable to pay the filing fee without suffering severe financial hardship. ERC 92.02 NoteNote: The 2014 poverty level for a family unit of one was set at $11,670, with an additional $4,060 added for each additional family member.
ERC 92.02(4)(c)(c) Entitlement to the hardship exception. An appellant may demonstrate entitlement to the hardship exception by completing and timely filing a notarized affidavit stating that the appellant meets one of the conditions set forth in par. (b). ERC 92.02(4)(d)(d) Penalty for affidavit made in bad faith. The commission may dismiss an appeal on the merits if it determines that the appellant falsified a hardship affidavit to avoid payment of the filing fee. ERC 92.02 NoteNote: Falsification of a hardship affidavit also might be considered as a Class D felony, under s. 946.31 (1) (e), Stats. ERC 92.02(5)(a)(a) Requirements at time of filing. Except as provided under par. (b), the fee or the hardship affidavit for filing an appeal shall be received by the commission at the time the appeal is filed. ERC 92.02(5)(b)1.1. If an appeal is filed without each appellant enclosing either the fee payment or hardship affidavit, the commission shall send each remiss appellant a letter advising of the requirement to either pay the fee or to submit a hardship affidavit. ERC 92.02(5)(b)2.2. A fee payment meeting the requirements of sub. (3) (a) and (b), received by the commission within 30 days of the date appearing on the commission’s letter mailed under subd. 1., will be considered a timely paid fee. Alternatively, a hardship affidavit meeting the requirements of sub. (4) (b) and (c) received by the commission within 30 days of the date appearing on the commission’s letter will be considered to meet the requirements of this section. ERC 92.02(5)(c)1.1. An appellant whose initial hardship affidavit does not meet the requirements of this section shall be sent a letter from the commission which provides an opportunity to resubmit. ERC 92.02(5)(c)2.2. A hardship affidavit meeting the requirements of sub. (4) (b) and (c) received by the commission within 30 days of the date appearing on the commission’s letter mailed under subd. 1., shall be considered to meet the requirements of this section. Alternatively, a fee payment meeting the requirements of sub. (3) (a) and (b), which is received by the commission within 30 days of the date appearing on the commission’s letter shall be considered to meet the requirements of this section. ERC 92.02(6)(6) Effect of failing to timely file fee payment or hardship affidavit. The commission shall dismiss without prejudice the appeal of any appellant who has failed to submit the required fee payment or hardship affidavit within the time limits under sub. (5). ERC 92.02(7)(7) Refiled appeals. The filing date for an appeal which is refiled after dismissal under sub. (6), shall be determined by the date upon which the commission receives the refiled action rather than the filing date of the initial appeal. ERC 92.02 NoteNote: For example, where an initial appeal was filed on January 7, 1995, and was later dismissed by the commission for nonpayment of fees, the filing date for the refiled appeal would be the date the commission receives the refiled appeal, rather than January 7, 1995.
ERC 92.02 HistoryHistory: Cr. Register, May, 1996, No. 485, eff. 6-1-96; correction in (1) made under s. 13.92 (4) (b) 7., Stats., Register December 2014 No. 708. ERC 92.03(1)(1) Form and content. All appeals shall be in writing. Otherwise, there is no form that is to be used for filing an appeal. Appeals are not required to conform to any technical requirements except they shall identify the appellant. However, appeals should also contain the following: ERC 92.03(1)(a)(a) The appellant’s address and telephone numbers at work and at home. ERC 92.03(1)(b)(b) The name of the state agency that took the personnel action being appealed. ERC 92.03(1)(d)(d) The reason the appellant believes the action to be improper. ERC 92.03(2)(2) Amendment. An appeal may be amended, subject to approval by the commission, to clarify or amplify allegations or to set forth additional facts or allegations related to the subject matter of the original charge, and those amendments shall relate back to the original filing date of the appeal. ERC 92.03 HistoryHistory: Cr. Register, March, 1980, No. 291, eff. 4-1-80; r. and recr. Register, August, 1987, No. 380, eff. 9-1-87; renum. from PC 3.02, Register, May, 1996, No. 485, eff. 6-1-96. ERC 92.04ERC 92.04 Notice to respondents. The commission shall serve a copy of the appeal upon each respondent. ERC 92.04 HistoryHistory: Cr. Register, August, 1987, No. 380, eff. 9-1-87; renum. from PC 3.03, Register, May, 1996, No. 485, eff. 6-1-96. ERC 92.05ERC 92.05 Answers. Respondents may file written answers within 20 days after service of the appeal. If no answer is filed, every material allegation of the appeal is in issue. ERC 92.05 HistoryHistory: Cr. Register, March, 1980, No. 291, eff. 4-1-80; r. and recr. Register, August, 1987, No. 380, eff. 9-1-87; renum. from PC 3.04, Register, May, 1996, No. 485, eff. 6-1-96.
