Chapter DWD 226

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 History History: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22.

DWD 226.20 DWD 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 History History: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22.

DWD 226.21 DWD 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.

DWD 226.21 History History: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22; correction made under s. 35.17, Stats., Register June 2022 No. 798.

DWD 226.22 DWD 226.22 Hearings.

DWD 226.22(1) (1) Procedure. Hearings shall be conducted in conformity with s. 103.11 and ch. 227, Stats.

DWD 226.22(2) (2) Postponements and continuances. All requests for postponements shall be filed with the administrative law judge within 10 days after the notice of hearing or by the date set by the administrative law judge for filing motions, except where emergency circumstances arise before the hearing. The party requesting a postponement shall send a copy of the request to all other parties when the request is filed with the department. Postponements and continuances may be granted only for good cause shown and may not be granted solely for the convenience of the parties or their attorneys.

DWD 226.22(3) (3) Appearance of parties. Parties may appear at the hearing in person and by counsel or other representative.

DWD 226.22(4) (4) Failure to appear at hearing. If the complainant fails to appear at the hearing, either in person or by a representative authorized to proceed on behalf of the complainant, the administrative law judge shall dismiss the complaint. If the respondent fails to appear at the hearing, the hearing shall proceed as scheduled. If within 10 days after the date of hearing, any party who fails to appear shows good cause in writing for the failure to appear, the administrative law judge may reopen the hearing.

DWD 226.22 History History: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22.

DWD 226.23 DWD 226.23 Record of hearing.

DWD 226.23(1) (1) Method of recording hearing. A stenographic, electronic, or other record of oral proceedings shall be made at all hearings conducted under s. 103.11, Stats. Any party wishing to have a court reporter present to transcribe the proceedings shall be permitted to do so at their own expense. If the hearing is recorded, the original recording shall remain in the department for 5 years following the hearing, after which it may be discarded.

DWD 226.23(2) (2) Requirements for preparation of transcripts. Any party may file a transcript of the hearing with the department. The transcript shall be prepared by an independent, reputable court reporter or transcriptionist. The transcript shall include a certification by the transcriptionist that it is an original, verbatim transcript of the proceedings.

DWD 226.23(3) (3) Cost for transcription of record. Transcription of the record for purposes other than judicial review shall be at the expense of any party who requests the transcription. If a party arranges for a transcript, the transcript will be filed with the department and the department shall provide a copy to any other party or parties at no additional cost. For the purpose of judicial review, the department shall prepare at its own expense and provide to the court a transcript of the record, unless a transcript has already been prepared at the request of a party.

DWD 226.23 History History: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22.

DWD 226.24 DWD 226.24 Decision and order.

DWD 226.24(1) (1) General. After the close of the hearing, including any briefs that may be allowed by the administrative law judge, the administrative law judge shall prepare a formal written decision which shall include findings of fact, conclusions of law, and an order, and which may be accompanied by an opinion.

DWD 226.24(2) (2) Decision and order after hearing on the issue of probable cause. After a hearing on the issue of probable cause, the administrative law judge shall issue a decision and order which dismisses the allegations of the complaint or which orders that the case be certified for a hearing on the merits of the complaint, depending upon the administrative law judge’s findings and conclusions on the issue of probable cause. If the decision of the administrative law judge determines that no probable cause exists, a certified copy of the decision and 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. A decision and order finding no probable cause may be appealed to court if it is a final decision and order as defined in s. DWD 226.25 (1).

DWD 226.24(3) (3) Decision and order after hearing on the merits. After a hearing on the merits, the administrative law judge shall issue a decision and an order that shall either dismiss the allegations of the complaint or shall order such action by the respondent as shall effectuate the purposes of s. 103.11, Stats., depending upon the administrative law judge’s findings and conclusions on the merits of the complaint. The order may award reasonable attorney fees to a complainant who prevails in a case. A certified copy of the decision and 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 226.24(4) (4) Computation of interest. Interest on any award made under this chapter shall be added to that award and computed at an annual rate as set forth in s. 815.05 (8), Stats. Interest shall be computed by calendar quarter.

DWD 226.24 History History: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22; correction in (2) made under s. 35.17, Stats., Register June 2022 No. 798.

DWD 226.25 DWD 226.25 Appeals.

DWD 226.25(1) (1) Appeals limited to final decisions and orders. Any party may seek judicial review of a final decision and order of the administrative law judge. Only final decisions and orders of the administrative law judge may be appealed. A final decision is one that disposes of the entire complaint and leaves no further proceedings on that complaint pending before the department.

DWD 226.25(2) (2) Notice of appeal rights. Every decision and order of an administrative law judge under s. DWD 226.24 shall be accompanied by a separate notice advising the parties of their rights to seek judicial review of the decision under s. 103.11 (13), Stats.

DWD 226.25 History History: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22.

DWD 226.26 DWD 226.26 Filing of documents.

DWD 226.26(1) (1) Filing of documents by facsimile transmission.

DWD 226.26(1)(a) (a) Unless otherwise directed by the department or ordered by the administrative law judge, documents may be filed by facsimile transmission. Documents filed by facsimile transmission shall include a cover sheet setting forth all of the following information:

DWD 226.26(1)(a)1. 1. The name of the sender.

DWD 226.26(1)(a)2. 2. The individual to whom the transmission is directed, if that individual is known.

DWD 226.26(1)(a)3. 3. The number of pages being transmitted, including the cover sheet.

DWD 226.26(1)(b) (b) The date of transmission recorded by the department’s facsimile equipment shall constitute the date of filing of a document under this section, except that documents filed by facsimile after the regular business hours of the department as established by s. 230.35 (4) (f), Stats., or on a day when the offices of the department are closed under s. 230.35 (4) (a), Stats., shall be considered filed on the next business day of the department.

DWD 226.26(2) (2) Filing of documents by email. Unless otherwise directed by the department or ordered by the administrative law judge, documents may be filed by email. If a party does not have the email address of the assigned equal rights officer or administrative law judge, the party may use [e-mail].

DWD 226.26(3) (3) Filing of documents by U.S. mail. Unless otherwise directed by the department or ordered by the administrative law judge, documents may be filed by U.S. mail.

DWD 226.26 History History: CR 21-097: cr. Register June 2022 No. 798, eff. 7-1-22.