Chapter DWD 218

Register November 2006 No. 611

Chapter DWD 218

FAIR EMPLOYMENT

DWD 218.01   Purpose.

DWD 218.02   Definitions.

DWD 218.03   Complaints.

DWD 218.04   Notification of respondent.

DWD 218.05   Preliminary review of complaints.

DWD 218.06   Investigations.

DWD 218.07   Initial determination.

DWD 218.08   Appeal of initial determination of no probable cause.

DWD 218.09   Private settlement and conciliation.

DWD 218.10   Dismissal of complaint for lack of jurisdiction or other procedural basis following certification to hearing.

DWD 218.11   Notice of hearing.

DWD 218.12   Answer.

DWD 218.13   Pre-hearing conference.

DWD 218.14   Pre-hearing discovery.

DWD 218.15   Subpoenas and motions.

DWD 218.16   Disqualification of the administrative law judge.

DWD 218.17   Exchange of names of witnesses and copies of exhibits.

DWD 218.18   Hearings.

DWD 218.19   Record of hearing.

DWD 218.20   Decision and order.

DWD 218.21   Petition for review by the labor and industry review commission.

DWD 218.22   Pre-employment inquiries and employment records.

DWD 218.23   Posting requirement.

DWD 218.24   Pay status and witness fees for state employee parties and state employee witnesses.

DWD 218.25   Filing of documents by facsimile transmission or electronic mail.

Ch. DWD 218 Note Note: Chapter Ind 88 as it existed on June 30, 1995 was repealed and chapter ILHR 218 was created effective 7-1-95. Chapter ILHR 218 was renumbered chapter DWD 218 under s. 13.93 (2m) (b) 1., and corrections made under s. 13.93 (2m) (b) 6. and 7., Stats., Register, November, 1997, No. 503.

DWD 218.01 DWD 218.01 Purpose. The purpose of this chapter is to implement the provisions of ss. 16.009 (5) (d), 46.90 (4) (b), 50.07 (3) (b), 106.56, 111.31 to 111.395, 146.997, and 321.65 (7) (b), Stats. Sections 111.31 to 111.395, Stats., prohibit employment discrimination, unfair honesty testing, and unfair genetic testing. Section 16.009 (5), Stats., prohibits retaliation for reports to the Board on Aging and Long Term Care. Section 46.90 (4) (b), Stats., prohibits retaliation for reporting the abuse of an elderly person to a state or county agency. Section 50.07 (3) (b), Stats., prohibits retaliation for reports of abuse in care and service residential facilities. Section 146.997, Stats., prohibits retaliation against health care workers who report certain information about a health care facility or health care provider. Section 321.65 (7) (b), Stats., provides reemployment rights after national guard, state defense force, or public health emergency service. Section 106.56, Stats., prohibits discrimination on the basis of physical condition or developmental disability in post-secondary education. The goal of this chapter is to provide a constructive, impartial and speedy procedure for resolving disputes arising under these laws.

DWD 218.01 History History: Cr. Register, June, 1995, No. 474, eff. 7-1-95; CR 06-062: am. Register November 2006 No. 611, eff. 12-1-06; corrections made under s. 13.92 (4) (b) 7., Stats., Register March 2013 No. 687.

DWD 218.02 DWD 218.02 Definitions. When used in this chapter or in the Wisconsin fair employment act:

DWD 218.02(1) (1) “Act” means the Wisconsin fair employment act, ss. 111.31 to 111.395, Stats.

DWD 218.02(2) (2) “Administrative law judge” means the examiner appointed to conduct hearings under the act.

DWD 218.02(2m) (2m) “Agency” means an office, department, independent agency, authority, institution, association, society or other body in state government created or authorized to be created by the constitution or any law, including the legislature and the courts.

DWD 218.02(3) (3) “Complainant” means the person who files a complaint alleging that an action prohibited by the act has been committed.

DWD 218.02(4) (4) “Day”, when used in time computations in this chapter, means a calendar day, except that if the last day of the time period is a Saturday, Sunday or legal holiday, the last day shall be the next business day.

DWD 218.02(5) (5) “Division” means the equal rights division of the department of workforce development.

DWD 218.02(6) (6) “Filing” means the physical receipt of a document.

DWD 218.02(7) (7) “Person” includes, but is not limited to, one or more individuals, partnerships, associations, corporations, joint stock companies, trusts, unincorporated organizations, trustees, or trustees or receivers in bankruptcy.

DWD 218.02(8) (8) “Probable cause” means a reasonable ground for belief, supported by facts and circumstances strong enough in themselves to warrant a prudent person to believe, that a violation of the act probably has been or is being committed.

DWD 218.02(9) (9) “Respondent” means the person or agency alleged to have committed an action prohibited by the act.

DWD 218.02 History History: Cr. Register, June, 1995, No. 474, eff. 7-1-95; emerg. cr. (2m), am. (9) eff. 8-5-03; CR 03-092: cr. (2m), am. (9) Register March 2004 No. 579, eff. 4-1-04.

DWD 218.03 DWD 218.03 Complaints.

DWD 218.03(1) (1) Who may file complaints. A complaint may be filed by any person or by the person’s duly authorized representative. A complaint filed by a representative shall state that the representative is authorized to file the complaint.

DWD 218.03(2) (2) Where to file complaints.

DWD 218.03(2)(a) (a) A complaint may be filed in person with any division office, or it may be mailed or sent by facsimile transmission to one of the following division offices:

DWD 218.03(2)(a)1. 1. Equal Rights Division, 201 East Washington Avenue, Madison, Wisconsin 53702. Facsimile number: 608-267-4592.

DWD 218.03(2)(a)2. 2. Equal Rights Division, 819 North Sixth Street, Milwaukee, Wisconsin 53203. Facsimile number: 414-227-4084.

DWD 218.03(2)(b) (b) A complaint filed by facsimile transmission shall conform with the requirements of s. DWD 218.25 (1).

DWD 218.03(3) (3) Form and content of complaint. A complaint shall be written on a form which is available at any division office or on any form acceptable to the department. Each complaint shall be signed by the person filing the complaint or by the person’s duly authorized representative. The signature constitutes an acknowledgment that the party or the representative has read the complaint; that to the best of that person’s knowledge, information and belief the complaint is true and correct; and that the complaint is not being used for any improper purpose, such as to harass the party against whom the complaint is filed. Each complaint shall contain all of the following information:

DWD 218.03(3)(a) (a) The name and address of the complainant.

DWD 218.03(3)(b) (b) The name and address of the respondent.

DWD 218.03(3)(c) (c) A concise statement of the facts, including pertinent dates, constituting the alleged act of employment discrimination, unfair honesty testing or unfair genetic testing.

DWD 218.03(4) (4) Assistance by the department. The department shall, upon request, provide appropriate assistance in completing and filing complaints.

DWD 218.03(5) (5) Date of filing of complaint deferred by another agency. A complaint which is deferred to the department by a federal or local employment opportunity agency with which the department has a worksharing agreement complies with the requirements of sub. (3) and is considered filed when received by the federal or local agency.

DWD 218.03(6) (6) 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 45 days before hearing unless good cause is shown for the failure to amend the complaint prior to that time. If the complaint is amended prior to the issuance of an initial determination, the department shall investigate the allegations of the amended complaint. If the complaint is amended after the case has been certified to hearing, the chief of the hearing section or the administrative law judge may remand the complaint to the investigation section to conduct an investigation and issue an initial determination as to whether probable cause exists to believe that the respondent has violated the act as alleged in the amended complaint. An amended complaint shall be dismissed if it does not meet the requirements of s. DWD 218.05 (1).