STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
IN THE MATTER OF RULEMAKING PROCEEDINGS BEFORE THE LABOR AND INDUSTRY REVIEW COMMISISON | PROPOSED ORDER OF LABOR AND INDUSTRY REVIEW COMMISSION ADOPTING RULES (CLEARINGHOUSE RULE ) |
PROPOSED ORDER
The Labor and Industry Review Commission proposes an order to: repeal LIRC 2 (title), 2.01 (title), (1), and (3), 3 (title), 3.01, 3.03, 3.05, 4 (title), and 4.04; renumber LIRC 1.026, 1.03, 1.04 (4) to (7). 1.045, 1.05 NOTE, 1.06, 1.07, 2.015 (2) to (4) and (6), and 4.03; renumber and amend LIRC 1.015, 1.027, 1.04 (intro.) and (1) to (3), 1.05, 2.01 (2), 2.015 (title), (1), (5), and (7), 2.05, 3.04, 4.01, and 4.03 (title); amend LIRC 1.01, 1.015 (1) and (2), and 1.025 (1), (3), (4); repeal and recreate LIRC 1 (title); and create 1.015 (3) to (8), and 1.025 (1e), (1m), (2) (title), (3) (b) 1., and (5) (title), relating to the rules of procedure of the labor and industry review commission.
The scope statement for this rule, SS 066-21, was approved by the Governor on July 29, 2021, published in Register No. 788A2 on August 9, 2021, and approved by the Chairman of the Labor and Industry Review Commission on September 13, 2021. Analysis by the Labor and Industry Review Commission
Statutes interpreted: None
Explanation of agency authority:
“103.04 Labor and industry review commission.
…
“(2) Notwithstanding s. 227.11, the commission may not promulgate rules except that it may promulgate its rules of procedure.”
Related statutes or rule: Wis. Stat. §§ 40.65 (2), 59.88, 62.624, 102.18 (3) and (4), 106.52 (4), 106.56 (4), 108.09 (6), 108.10 (2) and (3), 111.39 (5) (a), 303.07 (7) and 303.21, 1981 Wis. Stat.
§ 66.191. Plain language analysis:
The Labor and Industry Review Commission's (commission) proposed rule order addresses rules identified as unnecessary or conflicting with statutory provisions, pursuant to the process contained in Wis. Stat. § 227.29. The commission also generally reviewed its rules for accuracy and completeness. The commission also seeks to simplify its rules by combining them into a single chapter. Generally, the proposed rule updates addresses, phone numbers, and web addresses that have changed since the rule was last modified in 2006, and makes other minor changes to reflect statutory changes occurring since then.
In LIRC 1, the general operating rules for the commission, the proposed rule order is revised to reflect statutory changes giving the commission jurisdiction for review in worker classification compliance cases under Wis. Stat. § 103.06(6)(c) (enacted by 2009 Wis. Act 292) and two statutes involving certain local government duty disability benefits under Wis. Stat. § 59.88 and 62.624 (2015 Wis. Act 55, Sections 1923p and 1948L). The proposed rule also adds definitions to be used generally in the rules. In recognition of the fact that unemployment insurance decisions are subject to time lapse standards, the proposed rule clarifies that answers in opposition to a petition for review filed in unemployment insurance appeals will only be considered if received before the commission has reached a decision on the petition. The proposed rule also makes a number of stylistic changes to improve clarity and conform to current rule drafting practices. The proposed rule merges LIRC 2, regarding procedural rules for filing petitions for commission review of unemployment insurance appeal tribunal decisions, with LIRC 1. The proposed rule reflects statutory changes providing that petitions may no longer be filed with the Department of Workforce Development (Wis. Stat. § 108.09(6), as affected by 2015 Wis. Act 334, Section 50). The proposed rule also reflects current LIRC practice which permits the filing of petitions for review in unemployment insurance and worker classification compliance cases in several ways including by mail, by fax, in person at the commission’s office, or online at the commission’s website. The rule is further revised to reflect the fact that the provisions contained in LIRC 2 also pertain to review of appeal tribunal decisions regarding worker classification compliance, pursuant to Wis. Stat. § 103.06(6)(c). The revised rule also deletes the provisions relating to judicial review that restate statutory provisions regarding appealing commission decisions to circuit court and are therefore redundant, except with respect to a provision allowing service of pleadings in actions for judicial review on the commission by mail which is retained. The proposed rule merges LIRC 3, regarding procedural rules for filing petitions for commission review of worker’s compensation cases, with LIRC 1. The proposed rule updates the location at which petitions for commission review in worker’s compensation cases to reflect statutory changes permitting petitions to be filed with the commission, the Division of Hearings and Appeals of the Department of Administration, or the Department of Workforce Development (see Wis. Stat. § 102.18(3), as affected by 2015 Wis. Act 55, Section 2831d) and clarifies that petitions may be filed in several ways including by mail, by fax, in person, or online at the commission’s website. The proposed rule also provides for the remand of compromises to the Division of Hearings and Appeals to reflect amendments to Wis. Stat. §§ 102.18 (4)(d) by Wis. Act. 55, Sections 2843d, and 2847d. The revised rule also deletes the provisions relating to judicial review that restate statutory provisions regarding appealing commission decisions to circuit court and are therefore redundant, except with respect to provisions allowing service of pleadings in actions for judicial review on the commission by mail which is retained. The proposed rule merges LIRC 4, regarding procedural rules for filing petitions for commission review of equal rights administrative law judge decisions, with LIRC 1. The revised rule also deletes the provisions relating to judicial review that restate statutory provisions regarding appealing commission decisions to circuit court and are therefore redundant.
Summary of, and comparison with, existing or proposed federal regulation: There is no existing or proposed federal regulation that is intended to address the activities to be regulated by the rule.
Comments received during preliminary comment period. The commission solicited comments concerning its scope statement from the bureau of legal affairs in the unemployment insurance division in the department of workforce development; the equal rights division in the department of workforce development; the worker’s compensation division in the department of workforce development; and the division of hearings and appeals in the department of administration. The commission also posted its scope statement and a draft of the proposed rules on its website on November 22, 2021. The only comment the commission received concerned retaining language in current §§ LIRC 2.05 and 3.05 dealing with acceptance of service of pleadings in actions for judicial review by mail, and the commission’s proposed rules include a provision retaining that language.
Comparison with rules in adjacent states:
Illinois and Iowa have administrative rules governing procedures by administrative appellate bodies for review of decisions following hearings in unemployment insurance, workers compensation, and equal rights cases. Michigan has administrative rules governing procedures by administrative appellate bodies for review of decisions following hearings in unemployment insurance and workers compensation cases. Minnesota has administrative rules governing procedures by the Minnesota workers’ compensation court of appeals for review of decisions following hearings in workers compensation cases. Those rules, which are generally consistent with changes to the commission’s procedure made in the proposed rule order, are:
Ill. Admin. Code tit. 50, sections 9040.10 to 9040.80 (Review by Illinois workers’ compensation commission)
Ill. Admin. Code tit. 56, sections 2720.300 to 2720.245 (Appeals to board of review – Unemployment insurance)
Ill. Admin. Code tit. 56, sections 5300.910 to 5300.1170 (Review by Illinois human rights commission of administrative law judge decisions regarding civil rights violations involving labor and employment)
Iowa Admin. Code Rule 161.4.23 et seq. (Review of contested case decisions involving discrimination in employment by Iowa civil rights commission)
Iowa Admin. Code Rule 486.3.1 et seq. (Unemployment insurance appeals before Iowa employment appeal board)
Iowa Admin. Code Rule 876.4.27 et seq. (Review of workers compensation contested cases by Iowa workers’ compensation commissioner)
Mich. Admin. Code Rule 37.16 to 37.18 (Fair employment and employment discrimination decisions of the Michigan civil rights commission are appealed to circuit court)
Mich. Admin. Code Rules 792.11314 to 792.11321 (Workers compensation appeals before the Michigan, Workers’ Disability Compensation Appeals Commission created in Executive Reorganization Order No. 2019-13)
Mich. Admin. Code Rule 792.11417 to 792.11433 (Unemployment insurance appeals before the Michigan Unemployment Insurance Appeals Commission (Commission) created in Executive Order No. 2019-13)
Minn. Admin. Code Rule 9800.0100 to 9800.1800 (Rules of procedure before the Minnesota workers’ compensation court of appeals)
Summary of factual data and analytical methodologies: No factual data or analytical methodologies were used in the preparation of the proposed rule. The proposed rule pertains only to procedure before the commission. It does not establish regulatory standards and includes no substantive or interpretative provisions.
Analysis and supporting documents used to determine effect on small business:
