Chapter DWD 60

DWD 60.03 DWD 60.03 Committee of operators.

DWD 60.03(1) (1) There shall be an elected committee of operators to actively participate with the department in the administration of the business enterprise program. The department shall call and conduct elections of committee members. Only operators may nominate candidates and only operators may vote for committee members. All operators shall be given the opportunity to vote for committee members.

DWD 60.03(2) (2) The committee shall have not less than 5 members nor more than 9 members, all elected by the operators. Elections shall be held each year. Each member shall serve a term of 2 years, except that at the first election at least 2 members shall be elected for 1 year terms.

DWD 60.03(3) (3) The committee shall meet at least 4 times a year to carry out its responsibilities.

DWD 60.03(4) (4) The department shall communicate with the committee and receive communications from the committee on matters within the purview of the committee.

DWD 60.03(5) (5) Committee responsibilities shall include but are not limited to:

DWD 60.03(5)(a) (a) Active participation with the department in its work of making major administrative decisions and policy and program development decisions affecting the overall administration of the business enterprise program;

DWD 60.03(5)(b) (b) Receiving and transmitting grievances to the department at the request of blind licensees and serving as an advocate for these licensees in connection with their grievances;

DWD 60.03(5)(c) (c) Active participation with the department in the development and administration of a system for transfer and promotion of operators;

DWD 60.03(5)(d) (d) Active participation with the department in development of operator training and retraining programs;

DWD 60.03(5)(e) (e) Sponsoring, with the assistance of the department, meetings and instructional conferences for operators within the state;

DWD 60.03(5)(f) (f) Active participation with the department, on at least an annual basis, in establishing the amount of set-aside funds needed for the coming year and the subsequent charges to arrive at that amount. The department shall maintain adequate records to support the reasonableness of the charges for each purpose for which the funds are spent;

DWD 60.03(5)(g) (g) Active participation with the department in updating and making other revisions in the format of the operator’s agreement and in this chapter. (See ch. DWD 60 Appendix.)

DWD 60.03(6) (6) The committee may delegate any of its work to subcommittees or individual committee members.

DWD 60.03 History History: Cr. Register, May, 1983, No. 329, eff. 6-1-83.

DWD 60.04 DWD 60.04 Access by operators to program information.

DWD 60.04(1) (1) In accordance with the Randolph-Sheppard Act, each operator under this part shall be permitted access to all program and financial data relevant to the operation of the supervised business enterprise program, including quarterly and annual financial reports, provided that this disclosure does not violate applicable federal or state laws pertaining to the disclosure of confidential information.

DWD 60.04(2) (2) At the request of an operator, department staff shall arrange a convenient time to assist in the interpretation of such financial data.

DWD 60.04(3) (3) If the department cannot provide the requested information in a routine manner, the department may charge for the services involved in obtaining the requested data on an actual cost basis.

DWD 60.04 History History: Cr. Register, May, 1983, No. 329, eff. 6-1-83.

DWD 60.05 DWD 60.05 Grievances. Grievances of operators, other licensees and applicants for licenses under this chapter shall be processed in accordance with the following procedure:

DWD 60.05(1) (1) Any operator or other affected party dissatisfied with any action or decision of the department may file a written grievance with the committee under s. DWD 60.03 (5) (b).

DWD 60.05(2) (2) If the aggrieved party is dissatisfied with the outcome of the committee review, the aggrieved party or the committee may forward the written grievance to the division for administrative review by a staff member of the division. The division staff member shall arrange a mutually convenient time and place for the administrative review, and shall notify the grievant of the outcome of the review by certified mail within 10 working days following the review.

DWD 60.05(3) (3) If the aggrieved party is dissatisfied with the outcome of the administrative review, the aggrieved party may, within 30 working days after the date of the written notice of the outcome of the review, file a written request for a full evidentiary hearing before a panel appointed by the division administrator consisting of persons knowledgeable about rehabilitation of the blind but who are not staff members of the division. The panel shall make a recommendation to the division administrator who shall notify the grievant of his or her final decision by certified mail within 10 working days after receipt of the panel’s recommendation.

DWD 60.05(4) (4) If the aggrieved party continues to be dissatisfied with the decision under sub. (3), the individual may, within 30 working days after the date of the notification of the fair hearing outcome, file a complaint with the secretary of the U.S. department of education who will convene an ad hoc arbitration panel to make a final and binding decision on the parties. (See 34 CFR 395.13)

DWD 60.05 History History: Cr. Register, May, 1983, No. 329, eff. 6-1-83.

DWD 60.06 DWD 60.06 Licensees.

DWD 60.06(1) (1) Eligibility. The following are eligibility requirements for new licensees in the business enterprise program:

DWD 60.06(1)(a) (a) The applicant shall be a citizen of the United States.

DWD 60.06(1)(b) (b) The applicant shall be blind.

DWD 60.06(1)(c) (c) The applicant shall have adequate training to operate the business enterprise efficiently and in accordance with this chapter, as evidenced by successful completion of a training program or equivalent experience, in either case as approved by the department. In offering training opportunities, preference shall be given by the department to persons who need employment.

DWD 60.06(1)(d) (d) The applicant shall be otherwise capable of operating the business enterprise, as determined by the department.

DWD 60.06(2) (2) Issuance of license.

DWD 60.06(2)(a) (a) A license shall be issued by the department for an indefinite period subject to suspension or termination.

DWD 60.06(2)(b) (b) A license is not transferable.

DWD 60.06 History History: Cr. Register, May, 1983, No. 329, eff. 6-1-83.

DWD 60.07 DWD 60.07 Selection of suitable locations.

DWD 60.07(1) (1) Determination.

DWD 60.07(1)(a) (a) The department may establish a business at a particular location only if establishment of the enterprise at that location is likely to contribute to the development of significant economic opportunities for the blind and is likely to provide for the most productive use of program assets.

DWD 60.07(1)(b) (b) The determination under par. (a) shall be made on the basis of an evaluation of relevant factors disclosed and recorded as the result of a survey of the location. Factors to be evaluated shall include population, traffic, competition, continued availability of the location, type of premises and potential return on investment.

DWD 60.07(2) (2) Effect of loss of sales.

DWD 60.07(2)(a) (a) Closing or converting the business. If the business enterprise established under sub. (1) is adversely affected by factors beyond the control of the department or of the operator so that there is at least a 35% decline in sales at that location from one 3-month period to the next or a reduction to zero sales in a shorter period of time, the department may close that business enterprise or convert it to a vending machine operation and may establish a new business enterprise under sub. (1) at a different location. The amount of loss shall be reviewed and verified by the department.

DWD 60.07(2)(b) (b) Transfer following loss of sales.

DWD 60.07(2)(b)1. 1. The operator affected by par. (a) may request transfer to another location, and, subject to par. (c), shall be given preference in the selection process under s. DWD 60.08 when the next 2 program vacancies occur, regardless of income or location of the program vacancies within the state, except that preferential transfer rights shall not apply to seasonal operators.

DWD 60.07(2)(b)2. 2. If the operator affected by par. (a) elects not to transfer to one of the next 2 available openings, his or her priority for transfer shall be exhausted and further transfer shall be in accordance with s. DWD 60.08.

DWD 60.07(2)(c) (c) Transfer dependent on satisfactory performance and ability to handle new tasks. An operator may transfer under this subsection only if his or her past performance is judged satisfactory by the department with the active participation of the committee and with consideration of the views of building management in the affected location, and if the department finds that the operator is able to perform the anticipated new tasks. The new tasks may result from a change in management responsibilities, increased scope of the business, change in number and type of employes or change in overall job duties. If an otherwise competent operator lacks the skills needed in the new enterprise, the department shall help the operator acquire those skills through an appropriate retraining program.

DWD 60.07(2)(d) (d) Probationary period following transfer. An operator who transfers to a new location under this subsection shall serve a probationary period as described in s. DWD 60.08 (6).

DWD 60.07 History History: Cr. Register, May, 1983, No. 329, eff. 6-1-83; r. and recr. Register, April, 1987, No. 376, eff. 5-1-87.

DWD 60.08 DWD 60.08 Selection of operators.

DWD 60.08(1) (1) Department responsibility. The department shall select operators for business enterprises from among persons licensed to operate business enterprises. The licensee deemed to be best suited for an available business enterprise shall be selected. The department may appoint a committee of operators and department staff to make a recommendation about the best suited licensee for the available business enterprise.

DWD 60.08(2) (2) Notification of vacancies. The department shall notify all licensees in writing of vacancies in business enterprises throughout the state with instruction for applying to fill the vacancies.

DWD 60.08(3) (3) Order of preference. In selecting an operator for a vacancy, the department shall first consider applicants who are currently operators and thereafter applicants who are licensees but not currently operators, except that preference shall be given to a licensee who was an operator and has requested transfer to a new location in accordance with s. DWD 60.07 (2) (b).

DWD 60.08(4) (4) Method of notifying a successful applicant. The department shall notify the successful applicant in writing by return receipt requested mail of its offer of a vacant operator position to that individual. Within 5 working days after receipt of an offer, the successful applicant shall notify the department in writing by return receipt requested mail that he or she accepts or refuses the offer. Refusal of an offer is final and irrevocable. An applicant who changes his or her mind after accepting an offer and who was an operator at another location at the time of acceptance is not permitted to recover the operator position vacated upon acceptance of the new position unless all affected licensees, the committee and the department agree.

DWD 60.08(5) (5) Inventory. When a new operator takes over a business enterprise, the department and the operator or the operator’s representative shall immediately conduct a physical inventory of equipment, accessories and merchandise.

DWD 60.08(6) (6) Probationary period. All operators shall serve a probationary period of 6 months, including operators who have been promoted or transferred. The department may shorten the probationary period to 3 months following an operator’s satisfactory management of the business enterprise during that period, or the department may lengthen the probationary period to one year.

DWD 60.08(7) (7) Co-management.

DWD 60.08(7)(a) (a) Definition. In this subsection, “assessment” means an examination of operational requirements that include but are not limited to operating hours or days, volume of merchandise sold, number of peak sales periods per day, complexity and extensiveness of product line and inventory, number of employes, total labor hours per day, ratio of employe hours to management hours, sales generated per employe, required management skill level, the scope of managerial responsibilities and stipulations of agreement with building management.

DWD 60.08(7)(b) (b) Need.

DWD 60.08(7)(b)1. 1. A co-manager position may be established only when department staff, with participation of the committee, determine that an additional operator is necessary to satisfy the management needs of the enterprise.

DWD 60.08(7)(b)2. 2. Department staff shall determine management need on the basis of an assessment of operational requirements undertaken with participation of the committee.

DWD 60.08(7)(b)3. 3. A new facility shall have an assessment before any vacancy is posted. If the need for co-management is uncertain, the vacancy announcement shall indicate that co-management may be needed in the future.

DWD 60.08(7)(b)4. 4. A facility that is operational shall have an assessment when department staff determine that an assessment is appropriate or when an operator requests an assessment.

DWD 60.08(7)(c) (c) Criteria for co-management.

DWD 60.08(7)(c)1. 1. At an existing facility, a co-manager position may be added when department staff determine it is needed for facility management, as identified in one of the following ways:

DWD 60.08(7)(c)1.a. a. Through an assessment done in accordance with par. (b); or

DWD 60.08(7)(c)1.b. b. Through an assessment after department staff have determined that existing management deficiencies threaten the ongoing operation of the business.

DWD 60.08(7)(c)2. 2. A co-manager position may be eliminated only when that position is vacant and department staff, with participation of the committee, determine that the management need of the business is satisfied without it. This assessment shall indicate the need for any additional employe hours with the elimination of the co-manager position. The position may not be eliminated if additional employe hours exceed 9 hours per day or 45 hours per week.

DWD 60.08(7)(d) (d) Managerial duty list.

DWD 60.08(7)(d)1. 1. When a co-manager position is announced, the announcement shall contain an existing or proposed managerial duty list. The duty list may not be revised while the position is vacant.

DWD 60.08(7)(d)2. 2. For a facility opened after June 1, 1994 the approved co-managers shall submit the managerial duty list to the department within 60 days after the opening date of the business. Department staff may, within 30 days after receiving the duty list, and with the advice of the committee, reject the duty list or require that it be revised. If a co-manager disagrees with the action of the department, he or she may file a grievance in accordance with s. DWD 60.05.

DWD 60.08(7)(d)3. 3. For a facility that is in operation on June 1, 1994 the approved co-managers shall submit the managerial duty list to the department within 60 days after June 1, 1994.

DWD 60.08(7)(d)4. 4. Co-managers of a business that has had a duty list previously approved by the department may revise the duty list, subject to approval of the department. The revised duty list shall reflect a new co-manager’s previous work experience and shall be further revised as his or her skill level progresses. The committee may participate in the approval process at the request of an affected operator or the department. Within 30 days after receiving a revised duty list, department staff may reject that list or require additional changes in it. If a co-manager disagrees with the action of the department, he or she may file a grievance under s. DWD 60.05. Pending a decision on the grievance, the original duty list shall remain in effect except for those items that are not in dispute.

DWD 60.08(7)(e) (e) Equal responsibility and equal income sharing.

DWD 60.08(7)(e)1. 1. Co-managers shall be equally responsible for business operations and for complying with this chapter.

DWD 60.08(7)(e)2. 2. Co-managers shall equally share the income of the business unless they and the department agree on a different distribution or if the effect of equal sharing is to reduce the percentage or share of the income of the business received by a co-manager who was a co-manager on June 1, 1994.

DWD 60.08 History History: Cr. Register, May, 1983, No. 329, eff. 6-1-83; am. (1) and (3), renum. (4) and (5) to be (5) and (6), cr. (4), Register, April, 1987, No. 376, eff. 5-1-87; cr. (7), Register, May, 1994, No. 461, eff. 6-1-94.

DWD 60.09 DWD 60.09 Setting up the business enterprise.

DWD 60.09(1) (1) Equipment.

DWD 60.09(1)(a) (a) Department responsibility. The department shall provide each business enterprise with suitable equipment and shall arrange for all normal repair and replacement of this equipment except for an enterprise which has vendor owned equipment.

DWD 60.09(1)(b) (b) Title to equipment.

DWD 60.09(1)(b)1. 1. ‘Department ownership.’ All rights, title to and interest in business enterprise equipment, other than equipment owned and maintained by vending machine companies or suppliers, is vested in the department unless the operator exercises the option to purchase the equipment as provided in subd. 2.

DWD 60.09(1)(b)2. 2. ‘Vendor ownership.’

DWD 60.09(1)(b)2.a. a. All rights, title to and interest in business enterprise equipment may be vested in an operator, as authorized by s. 47.03 (4), Stats., and the Randolph-Sheppard Act, provided that the operator has competently operated the business enterprise under supervision of the department for one year, and if the organization responsible for the building in which the business enterprise is located grants permission. The vendor-owner shall remain under supervision of the department.

DWD 60.09(1)(b)2.b. b. The business enterprise equipment shall be sold at a fair value based on the condition and serviceability of the equipment at the time of sale. Merchandise shall be sold at the original purchase price. Total payment shall be due to the department when the bill of sale is signed.

DWD 60.09(1)(b)2.c. c. A bill of sale between the operator and the department shall contain the terms and conditions of the sale, in accordance with this chapter and the conditions of any permit or contract governing the premises on which the business enterprise is located. Upon completion of the sale the operator shall be responsible for maintaining, repairing, and replacing all business enterprise equipment, and the set-aside charge for these services is suspended. In the event the operator fails to meet all obligations to provide proper maintenance, repair and replacement of equipment, the department may elect to make the necessary repair or replacement and charge the vendor-owner for such repair or replacement.

DWD 60.09(1)(b)2.d. d. The department retains a first option to repurchase within 90 days the equipment and stock in the event the vendor-owner dies, ceases to be a licensee, transfers to another business enterprise, or requests in writing purchase by the department. If the option to repurchase is not exercised, the department shall, if requested, provide a written statement to the vendor-owner giving the reasons for not exercising the option.

DWD 60.09(1)(c) (c) Receipt of equipment. Equipment furnished to the operator or removed by the department from the operator shall be acknowledged by a receipt signed by the operator or his or her agent or by the department’s representative, as is appropriate.

DWD 60.09(1)(d) (d) Care of equipment. Equipment furnished by the department shall be used only for the purpose stated in the operator’s agreement. The operator shall exercise reasonable care in the use and maintenance of that equipment in order to keep it in good condition.

DWD 60.09(1)(e) (e) Change or addition of equipment. The operator shall not add to or change any piece of equipment without prior written approval of the department.