PROPOSED RULEMAKING ORDER
The Labor and Industry Review Commission proposes an order to renumber and amend LIRC 1.027; to amend LIRC 1.01, 1.02 (intro.), 1.03, 1.05, 1.07, LIRC ch. 2 (title), 2.015 (intro.) and (1) to (7), 3.04 and 3.05; to repeal and recreate LIRC 1.015, 1.025, 1.04, 2.01, 2.05, 3.01 and 4.01; to create 1.02 (10), 1.08, 2.05 (Note), 3.05 (Note), 4.04 (Note), and LIRC ch. 5, relating to procedures before the commission. ANALYSIS
Statutes interpreted.
Sections 40.65, 66.191, 102.18 (3) and (4), 102.23, 103.06 (6), 106.52 (4), 108.09 (6) and (7), 108.10 (2) and (3), 111.39 (5) (a), 303.07 (7), and 303.21, Stats. Statutory authority.
Section 103.04 (2), Stats., authorizes the commission to promulgate rules of procedure. The commission is not authorized to promulgate any other rules. Explanation of agency authority.
The Labor and Industry Review Commission serves as an independent higher authority for appeals of employment law decisions of administrative law judges involving unemployment insurance, worker’s compensation, fair employment, public accommodation, and worker classification compliance cases. The commission promulgates procedural rules pursuant to s. 103.04 (2), Stats. Related statutes or rules.
N/A
Plain language analysis.
The commission has statutory authority to promulgate rules regarding its procedures. The proposed rules will make the rules consistent with recent law changes in 2015 Wis. Acts 180 and 334, and will also clarify several commission procedures and help to improve the speed and efficiency in processing cases and issuing decisions. In LIRC 1, regarding general procedural rules in all cases before the commission, the proposed rules will provide useful definitions that will simplify drafting and interpretation of the rules. The structure of the rule for filing petitions for review with the commission is reorganized to separate out the different filing requirements for different program areas, and to clarify when and how petitions are filed in each program area. The rule will clarify that commission review is a de novo review of the record made at the hearing before an administrative law judge and will describe the record used for commission review. The proposed rule will clarify how the commission may take administrative notice of records maintained by the Department of Workforce Development (department), how the commission may contact the department (such as to verify monetary amounts reflected in decisions and overpayments or to verify the adjudicative process leading to the department’s determination), and how the commission may protect and seal confidential information in the record (such as social security numbers). The proposed rule will clarify when the commission may use a transcript of a hearing in lieu of a synopsis of a hearing. (The commission typically uses synopses of hearing testimony in its review but may use transcripts under certain circumstances.) The proposed rule will clarify how the commission may establish briefing schedules for parties in cases pending review. Finally, the proposed rule will clarify the process by which parties may request reconsideration or the setting aside of a commission decision. Various language changes are proposed for clarification and consistency in the rules.
In LIRC 2, regarding procedural rules for filing petitions for commission review of unemployment insurance appeal tribunal decisions, the proposed rule will update the manner in which petitions for commission review may be filed. A recent law change required that all petitions for commission review in unemployment insurance cases be filed with the commission and not with the department of workforce development. The proposed rule will clarify that the petitions for commission review of these decisions may be filed with the commission by mail, by facsimile transmission, or on-line through the commission’s website. This will further facilitate the desired automation of the commission’s processes, reduce errors, and improve efficiencies and timeliness. A note is created to explain that the commission has answers to frequently asked questions about appealing a commission unemployment insurance decision to circuit court and sample pleadings on the commission’s website. The proposed rule makes changes to the provision regarding judicial review of commission decisions to take into account recent law changes. Various language changes are proposed for clarification and consistency in the rules.
In LIRC 3 and 4, regarding procedural rules for filing petitions for commission review in worker’s compensation and equal rights cases, the proposed rule will update the locations at which petitions for commission review may be filed. The rule allowing parties to answer petitions for review is moved to LIRC 3 because answers are filed only in worker’s compensation cases. Notes are created to explain that the commission has answers to frequently asked questions about appealing commission worker’s compensation and fair employment decisions to circuit court with sample pleadings. Various language changes are proposed for clarification and consistency in the rules.
LIRC 5 will be created to explain the process for requesting review of an appeal tribunal decision regarding worker classification compliance by the commission pursuant to Wis. Stat. §103.06(6)(c). This statutory provision was created by 2009 Wisconsin Act 292. No cases have yet been petitioned to the commission under this law. The commission must adopt rules to facilitate and explain the process for handling petitions for review under this new law. The proposed rules establish a process for appealing to the commission that is organized similarly to the appeal process for other program areas, but with specificity for worker classification compliance issues. Summary of, and comparison with, existing or proposed federal statutes and regulations.
There are no existing or proposed federal regulations that address the procedures to be regulated by these procedural rules of the commission.
Comparison with rules in adjacent states.
Illinois. The State of Illinois has a Board of Review of 5 members appointed by the Governor (2 employee representatives; 2 employer representatives; 1 unaffiliated) to hear appeals of unemployment insurance cases and various federal programs related to unemployment insurance administered by the Department of Employment Security, except claims involving labor disputes. Parties appeal a decision of an appeal hearing referee to the Board of Review within 30 days of the date of mailing the referee’s decision. Appeals are filed in person, by mail, online or by facsimile transmission. Parties may request a transcript of the hearing, to submit written argument, and present oral argument within certain deadlines. The Board of Review’s decision is based on the existing record obtained before the referee, with further hearings and oral argument seldom required, although parties may request to provide additional evidence if they meet certain conditions. The Board of Review must issue its decisions within 120 days of the date of appeal; if a decision is not issued within 120 days, an appellant may request a Notice of Right to Sue. If the Board of Review does not issue its decision within 14 days of the Notice of Right to Sue, the appellant may bring an action in circuit court. The Board of Review may issue decisions or remand a case to the referee; it does not have authority to reconsider its decisions.
Worker’s compensation cases are handled in Illinois by the independent Illinois Worker’s Compensation Commission (WCC). The first level decision is made by an arbitrator of the WCC. If a party disagrees with the decision of the arbitrator, they can appeal to the commission, a panel of three commissioners from the ten-member WCC. The panel reviews the decision of the arbitrator and reviews briefs and oral argument. Appeals of the commission’s decision are to the circuit court.
Fair employment laws in Illinois are handled by the Illinois Department of Human Rights (IDHR). A hearing is set before an ALJ of the Illinois Human Rights Commission within 30 to 90 days after a complaint has been filed with the IDHR. The ALJ issues a Recommended Order and Decision. If either party objects, the case will be reviewed by a three-member panel of commissioners. The commissioners are appointed by the governor and approved by the senate, and no more than seven commissioners may be appointed from the same political party. The commission consists of 13 commissioners. The panel may adopt, reverse or modify the proposed decision, or remand the case back to the ALJ. A party may appeal an unfavorable decision of the IHRC to the appellate court.
Iowa. The State of Iowa has a three-member Employment Appeal Board (EAB) that is appointed by the Governor and serves as the final administrative review for unemployment benefit appeals, peace officer issues, contractor registration requirements, rulings of the Occupational Safety and Health Administration (OSHA), and rulings of the Iowa Public Employees Retirement System. Slightly different procedures apply to appeals of different kinds of cases. Parties appeal a decision to the EAB within 15 days of the date of mailing an unemployment decision, or within 30 days for a personnel decision. In general, appeals are filed in person, by mail, or by facsimile transmission. The EAB may join additional parties and consolidate proceedings as necessary to resolve issues. The EAB’s review is based on the record before the administrative law judge. A copy of the testimony and evidence at the hearing is mailed to each party. Parties may request to present new or additional evidence before the EAB; the EAB may remand to take additional evidence or hold a hearing to allow parties to present evidence and take testimony. Parties may present briefs and the EAB may allow oral arguments in its discretion. The EAB must render a decision within a reasonable time. Any party may file an application for rehearing with the EAB within 20 days of the date of the EAB’s decision; an application shall be deemed denied unless the EAB acts within 20 days of the date of filing the application with the EAB. When the EAB issues its final decision, all administrative remedies have been exhausted and parties may petition to the district court for review.
Worker’s compensation cases are decided at the first level by a deputy worker’s compensation commissioner who issues an arbitration decision. If any party is dissatisfied with the decision, they can request rehearing or appeal to the Worker’s Compensation Commissioner. No new evidence is allowed and the parties brief the issues on appeal. If any party is dissatisfied with the decision of the Worker’s Compensation Commissioner, they can appeal to the district court.
Employment discrimination cases are handled in Iowa by the Iowa Civil Rights Commission. The commission consists of seven members appointed by the governor to serve four-year staggered terms and subject to confirmation by the senate. No more than four members of the commission may belong to the same political party. If an administrative law judge finds probable cause to believe the improper action occurred, a conciliator tries to negotiate a settlement on behalf of the commission and the complainant. If negotiation fails, a decision is made whether to proceed to a public hearing. If the commission determines the respondent violated the Iowa Civil Rights Act, the commission will order “make whole” relief. Appeals of the commission’s decision are to a district court.
Michigan. The State of Michigan has a three-member panel of commissioners, with representatives from three different sectors (employee, employer, general public). The panel member that is a representative of the general public serves as the chairperson. Michigan law provides that a party that loses a case before an administrative law judge has a right to appeal the decision to the Michigan Compensation Appellate Commission (MCAC). The MCAC handles appeals of worker’s compensation and unemployment insurance cases. An appeal to MCAC must be in writing and signed or verified and must be received within 30 days of the date of the administrative law judge’s decision. Parties before an ALJ may agree to bypass the ALJ and transfer the proceeding to the MCAC. If both parties agree, they can stipulate to bypass the MCAC and proceed directly to circuit court. The MCAC review is of the hearing and exhibits in the record before the ALJ. Transcripts of hearings are available only on request and are subject to printing and processing fees. A party may request an opportunity to present oral argument to the MCAC, but that is granted in only rare cases. A party may request to provide written argument or briefs, but the request will only be granted if a request for oral argument was not approved and 2 or more members of the MCAC and all parties agree that written argument should be considered. The MCAC issues written decisions or orders, but may omit giving any reasons for its decision if it affirms an ALJ decision without alteration or modification. A party may request a rehearing of a final decision of the MCAC within 30 days of the date of the decision. A final decision of the MCAC may be appealed to circuit court within 30 days from the date of mailing of the MCAC decision. A decision of the MCAC may be reopened within one year for good cause.
Fair employment and employment discrimination complaints in Michigan are filed with the Michigan Department of Civil Rights. Appeals of hearing referee decisions are handled by the Michigan Civil Rights Commission. The Commission is an 8-member body. Commissioners are appointed by the governor to four-year terms and the appointment must be approved by the senate. No more than four members may be from the same political party.
Minnesota. The State of Minnesota does not have a higher authority administrative review of administrative law judge unemployment insurance decisions. A party may request reconsideration of an administrative law judge’s decision within 20 calendar days after the date of mailing the decision. If a party disagrees with the lower level review reconsideration decision, they must appeal to the Minnesota Court of Appeals within 30 days after the decision was sent by electronic transmission or within 33 days after the decision was mailed, and serve the other parties. An employer that appeals must pay a $550 fee.
The State of Minnesota has an independent agency to review worker’s compensation decisions of compensation judges called the Minnesota Worker’s Compensation Court of Appeals. The agency consists of five review judges appointed to six-year terms by the governor and confirmed by the senate. A panel of three or five judges decides each appeal. The judges review the evidentiary record created at the initial hearing, preside over oral argument if necessary, and decide the legal and factual issues in the case, and issue written decisions and orders. Decisions are appealable directly to the Minnesota Supreme Court.
Fair employment cases in Minnesota are handled by the Minnesota Department of Human Rights. If complaints are not resolved there, they are referred to the attorney general for prosecution.
