Chapter DWD 224

DWD 224.14   Pre–hearing conference.

DWD 224.15   Pre–hearing discovery.

DWD 224.16   Subpoenas and motions.

DWD 224.17   Disqualification of the administrative law judge.

DWD 224.18   Exchange of names of witnesses and copies of exhibits.

DWD 224.19   Hearings.

DWD 224.20   Record of hearing.

DWD 224.21   Decision and order.

DWD 224.22   Appeals.

DWD 224.23   Pay status and witness fees for state employee parties and state employee witnesses.

DWD 224.24   Filing of documents by facsimile transmission or electronic mail.

Ch. DWD 224 Note Note: Chapter DWD 224 was created by emergency rule effective August 5, 2003.

DWD 224.01 DWD 224.01 Purpose. The purpose of this chapter is to implement the law relating to complaints filed against the state as an employer under subch. III of ch. 230, Stats., commonly referred to as the “whistleblower” law.

DWD 224.01 History History: CR 03-092: cr. Register March 2004 No. 579, eff. 4-1-04.

DWD 224.02 DWD 224.02 Definitions. When used in this chapter:

DWD 224.02(1) (1) “Administrative law judge” means the examiner appointed to conduct hearings under subch. III of ch. 230, Stats.

DWD 224.02(2) (2) “Appointing authority” has the meaning given in s. 230.80 (1m), Stats.

DWD 224.02 Note Note: Section 230.80 (1m), Stats., provides that “appointing authority” means “the chief officer of any governmental unit unless another person is authorized to appoint subordinate staff by the constitution or any law.”

DWD 224.02(3) (3) “Complainant” means the employee who files a complaint alleging that an action prohibited by subch. III of ch. 230, Stats., has been committed.

DWD 224.02(4) (4) “Day” 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 224.02(5) (5) “Division” means the equal rights division of the department of workforce development.

DWD 224.02(6) (6) “Employee” has the meaning given in s. 230.80 (3), Stats.

DWD 224.02 Note Note: Section 230.80 (3), Stats., provides that “employee” means “any person employed by any governmental unit except:

DWD 224.02 Note (a) A person employed by the office of the governor, the courts, the legislature or a service agency under subch. IV of ch. 13.

DWD 224.02 Note (b) A person who is, or whose immediate supervisor is, assigned to an executive salary group or university senior executive salary group s. 20.923.”

DWD 224.02(7) (7) “Filing” means the physical receipt of a document.

DWD 224.02(8) (8) “Governmental unit” has the meaning given in s. 230.80 (4), Stats.

DWD 224.02 Note Note: Section 230.80 (4), Stats., provides that “governmental unit” means “any association, authority, board, commission, department, independent agency, institution, office, society or other body in state government created or authorized to be created by the constitution or any law, including the legislature, the office of the governor and the courts. ‘Governmental unit’ does not mean any political subdivision of the state or body within one or more political subdivisions which is created by law or by action of one or more political subdivisions.”

DWD 224.02(9) (9) “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 subch. III of ch. 230, Stats., probably has been or is being committed.

DWD 224.02(10) (10) “Respondent” means the appointing authority, agent of an appointing authority, supervisor, or governmental unit alleged to have committed an action prohibited by subch. III of ch. 230, Stats.

DWD 224.02(11) (11) “Retaliatory action” has the meaning given in s. 230.80 (8), Stats.

DWD 224.02 Note Note: Section 230.80 (8), Stats., provides that “retaliatory action’ means “a disciplinary action take because of any of the following:

DWD 224.02 Note (a) The employee lawfully disclosed information under s. 230.81 or filed a complaint under s. 230.85 (1).

DWD 224.02 Note (b) The employee testified or assisted or will testify or assist in any action or proceeding relating to the lawful disclosure of information under s. 230.81 by another employee.

DWD 224.02 Note (c) The appointing authority, agent of an appointing authority or supervisor believes the employee engaged in any activity described in par. (a) or (b).”

DWD 224.02(12) (12) “Service of the complaint upon the respondent” under s. 230.85 (2), Stats., means mailing of the complaint to the respondent.

DWD 224.02(13) (13) “Unanimous vote” as it is used in s. 230.85 (3) (b), Stats., means the decision of the administrative law judge.

DWD 224.02 History History: CR 03-092: cr. Register March 2004 No. 579, eff. 4-1-04.

DWD 224.03 DWD 224.03 Complaints.

DWD 224.03(1) (1) Who may file complaints. A complaint may be filed by any employee or by the employee’s duly authorized representative. A complaint filed by a representative shall state that the representative is authorized to file the complaint.

DWD 224.03(2) (2) Where to file complaints.

DWD 224.03(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 224.03(2)(a)1. 1. Equal Rights Division, 201 East Washington Avenue, Madison, WI 53702. Facsimile number: 608-267-4592.

DWD 224.03(2)(a)2. 2. Equal Rights Division, 819 North 6th Street, Milwaukee, WI 53203. Facsimile number: 414-227-4084.

DWD 224.03(2)(b) (b) A complaint filed by facsimile transmission shall conform with the requirements of s. DWD 224.24 (1).

DWD 224.03(3) (3) Form and content of complaint. A complaint shall be written on a form that is available at any division office or on any form acceptable to the division. Each complaint shall be signed by the employee filing the complaint or by the employee’s duly authorized representative. The signature constitutes an acknowledgment that the employee or the representative has read the complaint; that to the best of that employee’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 224.03(3)(a) (a) The name and address of the complainant.

DWD 224.03(3)(b) (b) The name and address of the respondent.

DWD 224.03(3)(c) (c) A concise statement of the facts, including pertinent dates, constituting the alleged retaliatory action.

DWD 224.03 Note Note: A complaint form is also available on the Department of Workforce Development’s website at http://www.dwd.state.wi.us/ by following the link to Equal Rights.

DWD 224.03(4) (4) Assistance by the division. The division shall, upon request, provide appropriate assistance in completing and filing complaints.

DWD 224.03(5) (5) Amendment of complaint. A complaint may be amended, subject to the approval of the division, except that a complaint may not be amended less than 20 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 division 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 took retaliatory action as alleged in the amended complaint. An amended complaint shall be dismissed if it does not meet the requirements of s. DWD 224.06 (1).

DWD 224.03(6) (6) Withdrawal of complaint. A complaint may be withdrawn at any time. A request for 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 withdrawal, the division shall dismiss the complaint by written order. Such dismissal shall be with prejudice unless otherwise expressly stated in the order.

DWD 224.03 History History: CR 03-092: cr. Register March 2004 No. 579, eff. 4-1-04; CR 06-062: am. (2) Register November 2006 No. 611, eff. 12-1-06.

DWD 224.04 DWD 224.04 Notification of respondent.

DWD 224.04(1) (1) When notice is to be sent. The division shall serve a copy of a complaint that meets the requirements of s. DWD 224.03 upon each respondent prior to the commencement of any investigation.

DWD 224.04(2) (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 specified by the division. The notice shall further state that, if the respondent fails to answer the complaint in writing, the division may make an initial determination as to whether retaliatory action has occurred based only on the division’s investigation and the information supplied by the complainant.

DWD 224.04 History History: CR 03-092: cr. Register March 2004 No. 579, eff. 4-1-04.

DWD 224.05 DWD 224.05 Complainant’s duty to respond to correspondence from the division. The division may dismiss the complaint if the complainant fails to respond to the division within 20 days from the date of mailing of any correspondence from the division concerning the complaint, provided that correspondence was sent by certified mail, return receipt requested, to the last known address of the complainant.

DWD 224.05 History History: CR 03-092: cr. Register March 2004 No. 579, eff. 4-1-04.

DWD 224.06 DWD 224.06 Preliminary review of complaints.

DWD 224.06(1) (1) Review of complaint. The division shall review every complaint filed to determine all of the following:

DWD 224.06(1)(a) (a) Whether the complainant is protected by subch. III of ch. 230, Stats.

DWD 224.06(1)(b) (b) Whether the respondent is subject to subch. III of ch. 230, Stats.

DWD 224.06(1)(c) (c) Whether the complaint states a claim for relief under subch. III of ch. 230, Stats.

DWD 224.06(1)(d) (d) Whether the complaint was filed within the time period set forth in s. 230.85 (1), Stats., if that issue is raised in writing by the respondent.

DWD 224.06(2) (2) Preliminary determination dismissing complaint. The division shall issue a preliminary determination dismissing any complaint or any portion of a complaint that fails to meet the requirements of sub. (1). The division shall send the order of dismissal by first class mail to the last known address of each party and to their attorneys of record.

DWD 224.06(3) (3) Appeal of preliminary determination. A complainant may appeal from an order dismissing a complaint under sub. (2) by filing a written appeal with the division. The appeal shall be filed within 20 days of the date of the order and shall state specifically the grounds upon which it is based. If a timely appeal is filed, the division shall serve a copy of the appeal upon all other parties. The matter shall be referred to the hearing section of the division 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 division shall serve the decision of the administrative law judge upon the 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 complainant may seek judicial review if it is a final decision and order as defined in s. DWD 224.22 (1).

DWD 224.06 History History: CR 03-092: cr. Register March 2004 No. 579, eff. 4-1-04.

DWD 224.07 DWD 224.07 Investigations.

DWD 224.07(1) (1) Conduct of investigation. Except as provided in sub. (3), the division shall investigate all complaints that satisfy the review under s. DWD 224.06. In conducting investigations under this chapter, the division may seek the cooperation of all persons to provide requested materials to the division; 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. In scheduling interviews with state employees, the division may consider the programmatic needs of the appointing authority. The division may subpoena persons or documents for the purpose of the investigation. Subpoenas may be enforced pursuant to s. 885.11, Stats.

DWD 224.07(2) (2) Advising complainant to amend complaint. If, during an investigation, it appears that the respondent has engaged in retaliatory action against the complainant that is not alleged in the complaint, the division may advise the complainant that the complaint should be amended.

DWD 224.07(3) (3) Dismissal of complaint prior to completion of investigation.

DWD 224.07(3)(a) (a) The division may dismiss a complaint prior to completion of an investigation under the following circumstances:

DWD 224.07(3)(a)1. 1. The complainant has failed to respond to correspondence from the division 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.

DWD 224.07(3)(a)2. 2. The complainant signed a valid waiver and release of claims arising out of the complainant’s employment with the respondent which would preclude the division from finding that the respondent has violated subch. III of ch. 230, Stats.

DWD 224.07(3)(a)3. 3. The allegations in the complaint have been previously dismissed by the division.

DWD 224.07(3)(b) (b) A complainant may appeal from an order dismissing a complaint under this subsection by filing a written appeal with the division. The appeal shall be filed within 20 days of the date of the order and shall state specifically the grounds upon which it is based. If a timely appeal is filed, the division shall serve a copy of the appeal upon all other parties. The matter shall be referred to the hearing section of the division for review by an administrative law judge. The administrative law judge shall issue a decision that shall either affirm, reverse, modify, or set aside the dismissal of the complaint. The decision of the administrative law judge shall be served upon the parties. If the decision reverses or sets aside the dismissal, the complaint shall be remanded for further investigation. If the decision affirms the dismissal of the complaint, it is subject to judicial review under ch. 227, Stats., if it is a final decision and order as defined in s. DWD 224.22 (1).

DWD 224.07 History History: CR 03-092: cr. Register March 2004 No. 579, eff. 4-1-04.

DWD 224.08 DWD 224.08 Initial determination.

DWD 224.08(1) (1) General. At the conclusion of the investigation, the division shall issue a written initial determination that shall state whether or not there is probable cause to believe that retaliatory action 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.

DWD 224.08(2) (2) Initial determination of probable cause. If the division initially determines that there is probable cause to believe that any retaliatory action occurred as alleged in the complaint, it shall certify the case to hearing. A hearing on the merits shall thereafter be noticed and conducted in accordance with the provisions of ss. DWD 224.12 to 224.21.

DWD 224.08(3) (3) Initial determination of no probable cause. If the division initially determines that there is no probable cause to believe that retaliatory action occurred as alleged in the complaint, it may dismiss those allegations. The division 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 224.09.

DWD 224.08 History History: CR 03-092: cr. Register March 2004 No. 579, eff. 4-1-04.

DWD 224.09 DWD 224.09 Appeal of initial determination of no probable cause.

DWD 224.09(1) (1) When filed. Within 30 days after the date of an initial determination finding that there is no probable cause, a complainant may file a written request for a hearing on the issue of probable cause. The request for hearing shall state specifically the grounds upon which the appeal is based. The division shall notify the respondent that an appeal has been filed within 10 days of receiving the appeal.

DWD 224.09(2) (2) Dismissal final if no appeal filed. If no timely written request for a hearing is filed, the initial determination’s order of dismissal shall be the final determination of the division.

DWD 224.09(3) (3) Certification to hearing on issue of probable cause; right to stipulate the case be decided on merits. If a timely appeal is filed, the division 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 224.12 and 224.14 to 224.21, except that the parties may stipulate prior to 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 division may, with the consent of the parties, consolidate the hearing on probable cause and the hearing on the merits.