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. DWD 226.18(4)(4) Failure to comply with discovery requests; duty to consult with opposing party. The administrative law judge may compel discovery, issue protective orders, and impose sanctions in the manner provided under ch. 804, Stats. All motions to compel discovery or motions for protective orders shall be accompanied by a statement in writing by the party making the motion that, after consultation in person or by telephone with the opposing party and sincere attempts to resolve their differences, the parties are unable to reach agreement. The statement shall state the date and place of such consultation and the names of all parties participating in the consultation. DWD 226.18(5)(5) Filing with the department. Copies of discovery requests and responses to discovery requests need not be filed with the department, except as required under sub. (2). DWD 226.18 HistoryHistory: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22; correction in (3) made under s. 35.17, Stats., Register June 2022 No. 798. DWD 226.19(1)(1) Subpoenas. Subpoenas, including subpoenas to compel the attendance of witnesses and subpoenas requiring the production of material, may be issued by the department or by an attorney of record. The department or a party’s attorney of record may issue a subpoena to compel the attendance of a witness or the production of documents. A subpoena issued by an attorney shall be in substantially the same form as provided in s. 805.07 (4), Stats., and shall be served in the manner provided in s. 805.07 (5), Stats. Witnesses summoned by a subpoena who are not employees of the civil service, as defined in s. 230.03 (6), Stats., shall be entitled to the witness and mileage fees set forth in s. 814.67 (1) (a) and (c), Stats. The cost of service, witness and mileage fees shall be paid by the person issuing the subpoena. Subpoenas may be enforced under s. 885.12, Stats. DWD 226.19(2)(2) Motions. Motions made during a hearing may be stated orally and shall, with the ruling of the administrative law judge, be included in the record of the hearing. All other motions shall be in writing and shall state briefly the relief requested and the grounds upon which the moving party is entitled to relief. All written motions shall be filed with the administrative law judge assigned to the case. Any briefs or other papers in support of a motion, including affidavits and documentary evidence, shall be filed with the motion. Any party opposing the motion may file a written response. All written motions shall be decided without further argument unless requested by the administrative law judge. DWD 226.19 HistoryHistory: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22. DWD 226.20DWD 226.20 Disqualification of the administrative law judge. Upon the administrative law judge’s own motion, or upon a timely and sufficient affidavit filed by any party, the administrative law judge shall determine whether to disqualify himself or herself because of personal bias or other reason. The administrative law judge’s determination shall be made a part of the record and decision in the case. DWD 226.20 HistoryHistory: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22. DWD 226.21DWD 226.21 Exchange of names of witnesses and copies of exhibits. By the 10th day before the hearing, the parties shall file with the department and serve upon the other party a written list of the names of witnesses and copies of the exhibits that the parties intend to use at the hearing. The administrative law judge may exclude witnesses and exhibits not identified in a timely fashion under this section. This section does not apply to witnesses and exhibits offered in rebuttal which the party could not reasonably have anticipated using before the hearing.
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Chs. DWD 218-226; Civil Rights
administrativecode/DWD 226.09(2)
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