(a) The name and address of the complainant.
(b) The name and address of the respondent.
(c) A concise statement of the facts, including pertinent dates, constituting the alleged prohibited action.
(4) assistance by the department. The department shall, upon request, provide appropriate assistance in completing and filing complaints.
(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). (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 A complaint may be withdrawn at any time.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 226.07 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 226.08 Notification of respondent. (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. (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 226.09 Preliminary review of complaints. (1) Review of complaint. The department shall review every complaint filed to determine all of the following:
(a) Whether the complainant is protected by s. 103.11, Stats. (b) Whether the respondent is subject to s. 103.11, Stats. (c) Whether the complaint states a claim for relief under s. 103.11, Stats. (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. (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 US mail to the last known address of each party and to their attorneys of record. (3) Appeal of preliminary determination. (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: 1. The appeal is filed within 10 days after the date of the order.
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).
(b) If a timely appeal is filed, the department shall serve a copy of the appeal upon all other parties by US 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 226.10 Investigations. (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. (2) Dismissal of complaint before completion of investigation. (a) The department may dismiss a complaint before completion of an investigation under the any of the following circumstances:
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. 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. 3. The allegations in the complaint have been previously dismissed with prejudice by the department or by a state or federal court.
(b) 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:
a. The appeal is filed within 20 days after the date of the order.
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). 2. If a timely appeal is filed, the department shall serve a copy of the appeal upon all other parties by US 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 US 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 226.11 Initial determination. (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.
(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. (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 226.12 Appeal of initial determination of no probable cause. (1) An appeal shall be filed within 10 days of the date of the initial determination.
(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.
(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 226.13 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 226.14 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 US mail to the last known address of each party and to their attorneys of record. DWD 226.15 Notice of hearing. (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 US 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. (2) Place of hearing. (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.
(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 226.16 Answer. (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 bureau of hearings and mediation of the department 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.
(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 226.17 Pre−hearing conference. In any case which has been certified to hearing, a pre−hearing conference may be held in accordance with s. 227.44 (4), Stats. DWD 226.18 Prehearing discovery. (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. (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.
(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. (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. (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 226.19 Subpoenas and motions. (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. (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 226.20 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 226.21 Exchange of names of witnesses and copies of exhibits. By the tenth 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 226.22 Hearings. (1) Procedure. Hearings shall be conducted in conformity with
s. 103.11 and ch. 227, Stats. (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 shall not be granted solely for the convenience of the parties or their attorneys.
(3) Appearance of parties. Parties may appear at the hearing in person and by counsel or other representative.
(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 226.23 Record of hearing. (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. (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.
(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 226.24 Decision and order. (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.
(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 US 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). (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 US mail to the last known address of each party and to their attorneys of record. (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 226.25 Appeals. (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.
(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, Stats. DWD 226.26 Filing of documents. (1) Filing of documents by facsimile transmission. (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:
1. The name of the sender.
2. The individual to whom the transmission is directed, if that individual is known.
3. The number of pages being transmitted, including the cover sheet.
(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. (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. (3) Filing of documents by US mail. Unless otherwise directed by the department or ordered by the administrative law judge, documents may be filed by US mail.
Section 2. Effective date. This rule shall take effect upon publication in the official state newspaper as provided in s. 227.24 (1) (c).
