DWD 226.031(1)(1) The employee meets the employer’s requirements for taking the other leave which are in effect for all employees. DWD 226.031 HistoryHistory: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22; correction in (intro.) made under s. 35.17, Stats., Register June 2022 No. 798. DWD 226.04(1)(1) An employee shall be deemed to be continuing to make the contributions required of the employee under group health insurance coverage within the meaning of s. 103.11 (9) (b), Stats., if the employee pays the contribution required by the employer within the time required by the employer. DWD 226.04(2)(2) The employer may not require the employee to pay the employee’s contribution, except into escrow as provided by s. 103.11 (9) (c), Stats., more frequently, or in greater amounts, than was required of the employee before the leave being taken. DWD 226.04(3)(3) The employer may not deny leave under s. 103.11, Stats., based upon nonpayment by the employee into the escrow account. DWD 226.04(4)(4) In the event an employer requires an employee to fund an escrow account under s. 103.11 (9) (c), Stats., the employer may pay from the escrow account the amount of the employee’s contribution which either is or becomes due during any leave taken under s. 103.11, Stats. DWD 226.04 HistoryHistory: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22. DWD 226.05DWD 226.05 Time to commence administrative proceedings. If an employer is not in compliance with the notice posting requirements of s. 103.11 (14) (a), Stats., when a violation occurs under s. 103.11, Stats., an employee complaining of that violation shall be deemed not to “reasonably have known” that a violation occurred within the meaning of s. 103.11 (12) (a), Stats., at the time of the violation or the first date that the employee obtains actual knowledge of the information contained in the required notice, whichever date occurs earlier. If the employer is not in compliance with the notice posting requirements of s. 103.11 (14) (a), Stats., when a violation occurs under s. 103.11, Stats., the employer has the burden of proving actual knowledge on the part of the employee within the meaning of this section. DWD 226.05 HistoryHistory: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22. DWD 226.06(1)(1) Who may file a complaint. 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 226.06(2)(a)(a) A complaint may be filed on the department’s website or filed in person or by mail, facsimile transmission, or email to the office of the department’s equal rights division. DWD 226.06 NoteNote: The offices of the department’s equal rights division are at the following addresses:
DWD 226.06 Note1. Equal Rights Division, 201 East Washington Avenue, Madison, WI 53703; PO Box 8928, Madison, WI 53708. Facsimile: 608-327-6001. Email address: ERInfo@dwd.wisconsin.gov. DWD 226.06 Note2. Equal Rights Division, 819 North 6th Street, Milwaukee, WI 53203. Facsimile: 414-227-4084. Email address: ERInfo@dwd.wisconsin.gov. Access to the division’s Milwaukee office is on the 7th Street side of the building. DWD 226.06(3)(3) Content of complaint. A complaint shall be submitted on a form provided by the department and 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. Complaints filed on the department’s website shall be acknowledged using the certification method required in the instructions on the website. The complaint shall contain all of the following information: DWD 226.06(3)(c)(c) A concise statement of the facts, including pertinent dates, constituting the alleged prohibited action. DWD 226.06(4)(4) Assistance by the department. The department shall, upon request, provide appropriate assistance in completing and filing complaints. DWD 226.06(5)(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). DWD 226.06(6)(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 226.06 HistoryHistory: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22; correction in (2) (a) made under s. 35.17, Stats., Register June 2022 No. 798. DWD 226.07DWD 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 226.07 HistoryHistory: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22. DWD 226.08(1)(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. DWD 226.08(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 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 226.08 HistoryHistory: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22. DWD 226.09DWD 226.09 Preliminary review of complaints. DWD 226.09(1)(1) Review of complaint. The department shall review every complaint filed to determine all of the following: DWD 226.09(1)(d)(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. DWD 226.09(2)(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 U.S. mail to the last known address of each party and to their attorneys of record. DWD 226.09(3)(a)(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: DWD 226.09(3)(a)2.2. 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). DWD 226.09(3)(b)(b) If a timely appeal is filed, the department shall serve a copy of the appeal upon all other parties by U.S. 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 226.09 HistoryHistory: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22. DWD 226.10(1)(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. DWD 226.10(2)(2) Dismissal of complaint before completion of investigation. DWD 226.10(2)(a)(a) The department may dismiss a complaint before completion of an investigation under the any of the following circumstances: DWD 226.10(2)(a)1.1. 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. DWD 226.10(2)(a)2.2. 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. DWD 226.10(2)(a)3.3. The allegations in the complaint have been previously dismissed with prejudice by the department or by a state or federal court. DWD 226.10(2)(b)1.1. 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: DWD 226.10(2)(b)1.b.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). DWD 226.10(2)(b)2.2. If a timely appeal is filed, the department shall serve a copy of the appeal upon all other parties by U.S. 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 U.S. 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 226.10 HistoryHistory: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22; correction in (1) made under s. 35.17, Stats., Register June 2022 No. 798. DWD 226.11(1)(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. DWD 226.11(2)(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. DWD 226.11(3)(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 226.11 HistoryHistory: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22. DWD 226.12DWD 226.12 Appeal of initial determination of no probable cause. DWD 226.12(1)(1) An appeal shall be filed within 10 days of the date of the initial determination. DWD 226.12(2)(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. DWD 226.12(3)(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 226.12 HistoryHistory: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22. DWD 226.13DWD 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 226.13 HistoryHistory: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22. DWD 226.14DWD 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 U.S. mail to the last-known address of each party and to their attorneys of record. DWD 226.14 HistoryHistory: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22. DWD 226.15(1)(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 U.S. 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. DWD 226.15(2)(a)(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. DWD 226.15(2)(b)(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 226.15 HistoryHistory: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22. DWD 226.16(1)(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 department’s bureau of hearings and mediation 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. DWD 226.16(2)(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 226.16 HistoryHistory: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22. DWD 226.17DWD 226.17 Prehearing conference. In any case which has been certified to hearing, a prehearing conference may be held in accordance with s. 227.44 (4), Stats. DWD 226.17 HistoryHistory: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22. DWD 226.18(1)(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. DWD 226.18(2)(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. DWD 226.18(3)(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.
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