Chapter DWD 279

DWD 279.06(6) (6) Conditional notice may be given upon the occurrence or nonoccurrence of an event, such as the renewal of a major contract, other than the renewal of a labor contract between the employer and any potentially affected employees as defined in s. 109.07 (1) (a), Stats., when the event is definite and the consequences of its occurrence will lead to a business closing or mass layoff less than 60 days after the event.

DWD 279.06 History History: Cr. Register, March, 1991, No. 423, eff. 4-1-91.

DWD 279.07 DWD 279.07 Posting of notice. An employer shall permanently post in one or more conspicuous places where notices to employees are customarily posted a written notice of employees’ rights, in a form approved by the department, as required by s. 109.07 (7), Stats.

DWD 279.07 Note Note: A copy of the form may be obtained at no charge from the department’s Equal Rights Division, P.O. Box 8928, Madison, Wisconsin 53708.

DWD 279.07 History History: Cr. Register, March, 1991, No. 423, eff. 4-1-91.

DWD 279.08 DWD 279.08 Exceptions. An employer is not liable for failure to give notice if the department, upon complaint, determines the business closing or mass layoff is caused by any of the following:

DWD 279.08(1) (1) A strike or a lockout not intended to evade the requirements of s. 109.07, Stats., including but not limited to loss of employment for nonstriking employees who lose work with an employer because of a strike.

DWD 279.08(2) (2) The sale of all or part of an employer’s business, if the purchaser agrees, in writing, as part of the purchase agreement to hire substantially all of the affected employees with not more than a 6 month break in employment.

DWD 279.08(3) (3) 

DWD 279.08(3)(a) (a) The relocation of all or part of an employer’s business within a reasonable commuting distance, if the employer offers to transfer or hire substantially all of the affected employees with not more than a 6-month break in employment.

DWD 279.08(3)(b) (b) Offers to transfer shall be considered a relocation under this subsection if the employee receives a bona fide transfer offer to an employment site owned and operated by a related enterprise. If the new employment site is within a reasonable commuting distance, the relocation exception will apply, regardless of whether the employer offers to compensate the affected employee for relocation costs. However, an employer’s offer to pay relocation costs may make a more distant site equivalent to one within a reasonable commuting distance for purposes of this subsection.

DWD 279.08(3)(c) (c) Under this subsection, a “reasonable commuting distance”shall be presumed to be a distance of less than 50 miles, unless an affected employee has already been commuting 50 miles or greater on a voluntary basis prior to the relocation or indicates in writing that he or she is willing to commute 50 miles or more under a relocation. On a case by case basis, the department may determine that a commuting distance of less than 50 miles is not reasonable if industry practice or local conditions, such as climate, geographic accessibility, the quality of roads, customary available transportation, including public transportation, and travel time, so warrant.

DWD 279.08(4) (4) 

DWD 279.08(4)(a) (a) The completion of a particular project, activity or undertaking or work of a specific duration, including seasonal work if the affected employees were hired with the understanding that their employment was limited to the duration of the work or project.

DWD 279.08(4)(b) (b) For the purposes of this paragraph, an employer is not required to provide notice to agricultural, construction or other employees whose work is clearly identified as seasonal but not recurring, or who are hired for harvesting, processing, or for work limited to a particular project.

DWD 279.08(4)(c) (c) The department shall consider usual and customary employment practices of the industry or locality, employment contracts or collective bargaining agreements in determining whether the exemption under this paragraph applies to a particular situation.

DWD 279.08(4)(d) (d) A particular project, activity or undertaking or work will be considered to be of a specific duration where employees understand that, upon completion of a particular project, activity, undertaking or work, their employment will cease. There is no requirement that a specific termination date be known or communicated to employees.

DWD 279.08(4)(e) (e) Whether affected employees understand at the time of hire that their employment was for a particular project, activity or undertaking, or work of a specific duration, shall be determined by reference to employment contracts, collective bargaining agreements or employment practices of an industry or a locality. The burden of proof will be the employer’s to show that the temporary nature of the project or facility was clearly understood.

DWD 279.08(5) (5) Business circumstances that were not foreseeable when the notice would have been timely given.

DWD 279.08(5)(a) (a) Factors that the department shall consider in determining whether the exemption under this paragraph applies include without limitation by enumeration a strike or lockout at a major supplier of the employer, a government ordered closing of an employment site without prior notice, the unexpected termination of a major contract the employer has with a principal client or customer, or an employer’s sudden inability to obtain sufficient supplies to be used in production at a competitive cost.

DWD 279.08(5)(b) (b) For purposes of this paragraph sudden, dramatic or unexpected events, are considered not foreseeable.

DWD 279.08(6) (6) A natural or man-made disaster beyond the control of the employer.

DWD 279.08(6)(a) (a) For purposes of this paragraph an employer must be able to demonstrate that its business closing or mass layoff is a direct result of a natural or man-made disaster.

DWD 279.08(6)(b) (b) Where a business closing or mass layoff is an indirect result of a natural or man-made disaster this exception does not apply, but the unforeseeable business circumstances exception in sub. (5) may apply.

DWD 279.08(7) (7) A temporary cessation of business operations, if the employer recalls the affected employees on or before the 60th day beginning after the cessation.

DWD 279.08(8) (8) 

DWD 279.08(8)(a) (a) At the time the 60-day notice would have been required, the employer was actively seeking capital or business to prevent or postpone indefinitely the closing or layoff and the employer reasonably believed both that it had a realistic opportunity of obtaining the necessary capital or business and that giving notice would prevent the employers’ action from succeeding.

DWD 279.08(8)(b) (b) Upon receipt of a complaint concerning an employers’ failure to give notice under this subsection, the department shall request from and the employer shall provide a written chronological record of those steps taken at or shortly before the time notice would have been required, which shall include the following:

DWD 279.08(8)(b)1. 1. Written requests for loans of capital to individuals or lending institutions.

DWD 279.08(8)(b)2. 2. Written replies granting or denying requests for loans of capital from individuals or lending institutions. If an offer for a loan or credit is rejected by the employer, the employer must state to the department the reasons, in writing for refusing the offer.

DWD 279.08(8)(b)3. 3. Evidence that the employer sought financing or refinancing through the issuance of stocks, bonds or other methods of internally generated financing or sought additional money, credit or business through any other commercially reasonable method.

DWD 279.08(8)(b)4. 4. Evidence that the capital or business sought was sufficient, if obtained, to have enabled the employer to avoid or postpone the closing or mass layoff.

DWD 279.08(8)(b)5. 5. Evidence that an employer’s business source would not do business with a troubled company or a company whose workforce would be looking for other jobs.

DWD 279.08(8)(c) (c) All records, individual documents or other material submitted under this paragraph shall be notarized by the employer as required by the department.

DWD 279.08(8)(d) (d) The employer shall provide to the department an affidavit verifying the content of the notarized documents.

DWD 279.08 History History: Cr. Register, March, 1991, No. 423, eff. 4-1-91.

DWD 279.09 DWD 279.09 Applicability.

DWD 279.09(1) (1) Voluntary notice by an employer is encouraged, even in situations which technically do not constitute a business closing or mass layoff. For that reason, whether particular actions by employers actually constitute a business closing or mass layoff within the meaning of s. 109.07, Stats., will depend on the actions themselves, and not on how characterized by an employer in any written notice.

DWD 279.09(2) (2) The amount for which an employer is liable for claims by affected employees shall be reduced by any wages paid by the employer for the period of the violation and any voluntary and unconditional payment by the employer to the employee that is not required by any legal or contractual obligation.

DWD 279.09(3) (3) An employee who has received notice of a business closing or mass layoff but who remains employed and is placed on paid leave or comparable program is not an affected employee for the purposes of this chapter even though the employee does not report to work or is transferred to another position or assigned different job duties.

DWD 279.09 History History: Cr. Register, March, 1991, No. 423, eff. 4-1-91.

DWD 279.10 DWD 279.10 Complaint. A complaint concerning an employer’s failure to give timely notice of a business closing or mass layoff, may be filed by any affected employee, the highest official of any municipality in which the affected employment site is located, or the collective bargaining representative of any affected employee. The complaint must be in writing, signed by the complainant and filed with the department’s Equal Rights Division, P.O. Box 8928, Madison Wisconsin 53708.

DWD 279.10 History History: Cr. Register, March, 1991, No. 423, eff. 4-1-91.

DWD 279.11 DWD 279.11 Reviews.

DWD 279.11(1) (1) After a department investigator has issued an initial determination on a claim, the claimant or the employer named in the claim may request an administrative review. If an investigator has issued a determination on whether notice should be given under s. 109.07 (1m), Stats., any person entitled to receive notice under s. 109.07 (1m), Stats., may request administrative review of that determination. All requests for administrative review of an initial determination must be in writing and must be mailed to the department within 10 days of the initial determination. A request for administrative review shall specify the reasons for contesting the initial determination. The department in its discretion may deny a request for administrative review if adequate issues for review are not presented.

DWD 279.11(2) (2) The administrative review shall be conducted by either the investigator’s supervisor or a designated department employee other than the investigator that issued the initial determination. The administrative review is not a contested case proceeding. The person conducting the review may determine whether the review shall be limited to the existing file or may include new information or arguments. The administrative review shall conclude with a written determination that either affirms, reverses or modifies the initial determination.

DWD 279.11 History History: Cr. Register, March, 1991, No. 423, eff. 4-1-91.

DWD 279.12 DWD 279.12 Referrals. The department shall refer each claim filed by an employee to the department of justice unless the claim is satisfied.

DWD 279.12 Note Note: The intent of this section is to provide for a prompt informal review of initial determinations. These decisions should not be subject to formal appeals because the determinations control only the contents of a case file referral to the department of justice. By providing that all unsatisfied claims are to be referred, this section preserves the right of any individual to take a claim to court under s. 109.07 (4) (c), Stats., if the department of justice does not proceed with the referral within 120 days. An employer that opposes the department’s determination will have an opportunity to present its arguments to the department of justice. If the department of justice proceeds in court, that will be a “de novo” proceeding.

DWD 279.12 History History: Cr. Register, March, 1991, No. 423, eff. 4-1-91.

DWD 279.13 DWD 279.13 Records and inspections. The employer shall maintain and have available for inspection by the department copies of all notices and correspondence delivered to affected employees, municipalities, collective bargaining representatives and the department, as well as any records used in connection with preparation and delivery of these notices.

DWD 279.13 History History: Cr. Register, March, 1991, No. 423, eff. 4-1-91.