Wis. Admin. Code DWD — Department of Workforce Development

Wis. Admin. Code § DWD 60.01 Authority and purpose {#sec-dwd-60.01 omnilex-key=us-wi-regs-official--agency-dwd--DWD 60.01}

This chapter sets forth standards and guidelines for administration by the department of a program of supervised business enterprises operated by blind persons. The department establishes new business enterprises and, as feasible, develops, expands and upgrades existing enterprises which are not providing an adequate income to operators or not providing a level of service meeting customer demand. The chapter is promulgated pursuant to rule-making authority conferred by s. 227.11 (2) (a), Stats., and implements s. 47.03 (4) to (8), Stats., as well as the Randolph-Sheppard Act, as amended, 20 USC 107.

History

Cr. Register, May, 1983, No. 329, eff. 6-1-83; reprinted to correct error, Register, January, 1984, No. 337; am. Register, April, 1987, No. 376, eff. 5-1-87.

Wis. Admin. Code § DWD 60.02 Definitions {#sec-dwd-60.02 omnilex-key=us-wi-regs-official--agency-dwd--DWD 60.02}

As used in this chapter:

(1) “Active participation” means a formal, ongoing process involving the mutual exchange of information and advice in regard to planning and review of proposed program policies, standards and procedures, with the understanding that only the department has the responsibility to administer the program consistent with applicable statutes, regulations and this chapter, and that the right of the committee to actively participate does not affect that responsibility.

(2) “Blind” has the meaning prescribed in s. 47.01, Stats.

(3) “Business enterprise” means a vending facility or other small for-profit enterprise operated by or to be operated by one or more blind persons supervised by the department.

(4) “Co-manager” means an operator who shares the duties and responsibilities of operating a business enterprise with another operator or other operators.

(5) “Committee” means a committee of operators of supervised business enterprises, the members of which are elected to represent all licensees in the state.

(6) “Competency” means fulfilling the requirements of this chapter.

(7) “Contract” means the agreement between the department and the owner or occupant of the premises where the business enterprise is located.

(8) “Department” means the department of workforce development.

(9) “Division” means the department’s division of vocational rehabilitation.

(10) “Existing management deficiencies” means deficiencies in operational requirements rather than in individual operator performance, which may occur when the operator is working at full capacity but is unable to fulfill all operational requirements of the business.

(11) “Fair value” means the price acceptable to the department and the operator, or, when the 2 parties do not agree, the value as appraised by any person agreed to by both parties, in either case taking into account the condition of the equipment, its remaining useful life, location, installation and removal costs and other relevant factors permitted by law, to arrive at a depreciated price.

(12) “Gross sales” means all revenues received from the operation of the business enterprise, including those assigned to the operators by the department.

(13) “License” means a written document issued by the department to a blind person, authorizing the blind person to operate a business of the type named in the document.

(14) “Licensee” means a person eligible to become the operator of a business enterprise.

(15) “Managerial duty list” or “duty list” means a comprehensive descriptive statement of the co-managers’ shared and individual duty assignments and mutual performance expectations.

(16) “Management need” means the number of operators necessary to maintain or improve efficiency, profits or food handling and safety.

(17) “Management services” means supervision, inspection, quality control, consultation, accounting, regulating, inservice training and other services provided on a systematic basis to support and improve business enterprises.

(18) “Net proceeds” means the amount remaining from the sale of articles or services of business enterprises and any vending machine or other income accruing to an operator, after deducting the cost of the sales and other expenses but excluding set-aside charges required to be paid by the operator.

(19) “Operator” means a blind licensee who is operating a supervised business enterprise on federal or other property.

(20) “Operator’s agreement” means the document issued by the department that authorizes an operator to conduct business at a specific location.

(21) “Permit” means the agreement with the controlling body or organization of the federal building or other property in which the business enterprise is located.

(22) “Randolph-Sheppard Act” means 20 USC 107.

(23) “Set-aside” means the money collected by the department from operators, based on a percentage of net proceeds, to be used for purposes stated in s. DWD 60.11 (4).

(24) “Vendor-owner” means a business enterprise operator who has exercised the option to purchase the stock and equipment of the business enterprise.

History

Cr. Register, May, 1983, No. 329, eff. 6-1-83; renum. (4) to (20) to be (5) to (9), (11) to (14) and (17) to (24), cr. (4), (10), (15), (16); Register, May, 1994, No. 461, eff. 6-1-94; correction in (8) made under s. 13.93 (2m) (b) 6., Stats., Register, December, 1996, No. 492.

Wis. Admin. Code § DWD 60.03 Committee of operators {#sec-dwd-60.03 omnilex-key=us-wi-regs-official--agency-dwd--DWD 60.03}

(1) There shall be an elected committee of operators to actively participate with the department in the administration of the business enterprise program. The department shall call and conduct elections of committee members. Only operators may nominate candidates and only operators may vote for committee members. All operators shall be given the opportunity to vote for committee members.

(2) The committee shall have not less than 5 members nor more than 9 members, all elected by the operators. Elections shall be held each year. Each member shall serve a term of 2 years, except that at the first election at least 2 members shall be elected for 1 year terms.

(3) The committee shall meet at least 4 times a year to carry out its responsibilities.

(4) The department shall communicate with the committee and receive communications from the committee on matters within the purview of the committee.

(5) Committee responsibilities shall include but are not limited to:

(a) Active participation with the department in its work of making major administrative decisions and policy and program development decisions affecting the overall administration of the business enterprise program;

(b) Receiving and transmitting grievances to the department at the request of blind licensees and serving as an advocate for these licensees in connection with their grievances;

(c) Active participation with the department in the development and administration of a system for transfer and promotion of operators;

(d) Active participation with the department in development of operator training and retraining programs;

(e) Sponsoring, with the assistance of the department, meetings and instructional conferences for operators within the state;

(f) Active participation with the department, on at least an annual basis, in establishing the amount of set-aside funds needed for the coming year and the subsequent charges to arrive at that amount. The department shall maintain adequate records to support the reasonableness of the charges for each purpose for which the funds are spent;

(g) Active participation with the department in updating and making other revisions in the format of the operator’s agreement and in this chapter.

Note: The form for the operator’s agreement may be accessed online at https://dwd.wisconsin.gov/dvr/programs/bep/default.htm. The form may also be obtained by contacting the Division of Vocational Rehabilitation, P.O. Box 7852, Madison, Wisconsin 53707, telephone (800) 442-3477.

(6) The committee may delegate any of its work to subcommittees or individual committee members.

History

Cr. Register, May, 1983, No. 329, eff. 6-1-83.

Wis. Admin. Code § DWD 60.04 Access by operators to program information {#sec-dwd-60.04 omnilex-key=us-wi-regs-official--agency-dwd--DWD 60.04}

(1) In accordance with the Randolph-Sheppard Act, each operator under this part shall be permitted access to all program and financial data relevant to the operation of the supervised business enterprise program, including quarterly and annual financial reports, provided that this disclosure does not violate applicable federal or state laws pertaining to the disclosure of confidential information.

(2) At the request of an operator, department staff shall arrange a convenient time to assist in the interpretation of such financial data.

(3) If the department cannot provide the requested information in a routine manner, the department may charge for the services involved in obtaining the requested data on an actual cost basis.

History

Cr. Register, May, 1983, No. 329, eff. 6-1-83.

Wis. Admin. Code § DWD 60.05 Grievances {#sec-dwd-60.05 omnilex-key=us-wi-regs-official--agency-dwd--DWD 60.05}

Grievances of operators, other licensees and applicants for licenses under this chapter shall be processed in accordance with the following procedure:

(1) Any operator or other affected party dissatisfied with any action or decision of the department may file a written grievance with the committee under s. DWD 60.03 (5) (b).

(2) If the aggrieved party is dissatisfied with the outcome of the committee review, the aggrieved party or the committee may forward the written grievance to the division for administrative review by a staff member of the division. The division staff member shall arrange a mutually convenient time and place for the administrative review, and shall notify the grievant of the outcome of the review by certified mail within 10 working days following the review.

(3) If the aggrieved party is dissatisfied with the outcome of the administrative review, the aggrieved party may, within 30 working days after the date of the written notice of the outcome of the review, file a written request for a full evidentiary hearing before a panel appointed by the division administrator consisting of persons knowledgeable about rehabilitation of the blind but who are not staff members of the division. The panel shall make a recommendation to the division administrator who shall notify the grievant of his or her final decision by certified mail within 10 working days after receipt of the panel’s recommendation.

(4) If the aggrieved party continues to be dissatisfied with the decision under sub. (3), the individual may, within 30 working days after the date of the notification of the fair hearing outcome, file a complaint with the secretary of the U.S. department of education who will convene an ad hoc arbitration panel to make a final and binding decision on the parties. (See 34 CFR 395.13)

History

Cr. Register, May, 1983, No. 329, eff. 6-1-83.

Wis. Admin. Code § DWD 60.06 Licensees {#sec-dwd-60.06 omnilex-key=us-wi-regs-official--agency-dwd--DWD 60.06}

(1) Eligibility. The following are eligibility requirements for new licensees in the business enterprise program:

(a) The applicant shall be a citizen of the United States.

(b) The applicant shall be blind.

(c) The applicant shall have adequate training to operate the business enterprise efficiently and in accordance with this chapter, as evidenced by successful completion of a training program or equivalent experience, in either case as approved by the department. In offering training opportunities, preference shall be given by the department to persons who need employment.

(d) The applicant shall be otherwise capable of operating the business enterprise, as determined by the department.

(2) Issuance of license.

(a) A license shall be issued by the department for an indefinite period subject to suspension or termination.

(b) A license is not transferable.

History

Cr. Register, May, 1983, No. 329, eff. 6-1-83.

Wis. Admin. Code § DWD 60.07 Selection of suitable locations {#sec-dwd-60.07 omnilex-key=us-wi-regs-official--agency-dwd--DWD 60.07}

(1) Determination.

(a) The department may establish a business at a particular location only if establishment of the enterprise at that location is likely to contribute to the development of significant economic opportunities for the blind and is likely to provide for the most productive use of program assets.

(b) The determination under par. (a) shall be made on the basis of an evaluation of relevant factors disclosed and recorded as the result of a survey of the location. Factors to be evaluated shall include population, traffic, competition, continued availability of the location, type of premises and potential return on investment.

(2) Effect of loss of sales.

(a) Closing or converting the business. If the business enterprise established under sub. (1) is adversely affected by factors beyond the control of the department or of the operator so that there is at least a 35% decline in sales at that location from one 3-month period to the next or a reduction to zero sales in a shorter period of time, the department may close that business enterprise or convert it to a vending machine operation and may establish a new business enterprise under sub. (1) at a different location. The amount of loss shall be reviewed and verified by the department.

(b) Transfer following loss of sales.

The operator affected by par. (a) may request transfer to another location, and, subject to par. (c), shall be given preference in the selection process under s. DWD 60.08 when the next 2 program vacancies occur, regardless of income or location of the program vacancies within the state, except that preferential transfer rights shall not apply to seasonal operators.
If the operator affected by par. (a) elects not to transfer to one of the next 2 available openings, his or her priority for transfer shall be exhausted and further transfer shall be in accordance with s. DWD 60.08.

(c) Transfer dependent on satisfactory performance and ability to handle new tasks. An operator may transfer under this subsection only if his or her past performance is judged satisfactory by the department with the active participation of the committee and with consideration of the views of building management in the affected location, and if the department finds that the operator is able to perform the anticipated new tasks. The new tasks may result from a change in management responsibilities, increased scope of the business, change in number and type of employes or change in overall job duties. If an otherwise competent operator lacks the skills needed in the new enterprise, the department shall help the operator acquire those skills through an appropriate retraining program.

(d) Probationary period following transfer. An operator who transfers to a new location under this subsection shall serve a probationary period as described in s. DWD 60.08 (6).

History

Cr. Register, May, 1983, No. 329, eff. 6-1-83; r. and recr. Register, April, 1987, No. 376, eff. 5-1-87.

Wis. Admin. Code § DWD 60.08 Selection of operators {#sec-dwd-60.08 omnilex-key=us-wi-regs-official--agency-dwd--DWD 60.08}

(1) Department responsibility. The department shall select operators for business enterprises from among persons licensed to operate business enterprises. The licensee deemed to be best suited for an available business enterprise shall be selected. The department may appoint a committee of operators and department staff to make a recommendation about the best suited licensee for the available business enterprise.

(2) Notification of vacancies. The department shall notify all licensees in writing of vacancies in business enterprises throughout the state with instruction for applying to fill the vacancies.

(3) Order of preference. In selecting an operator for a vacancy, the department shall first consider applicants who are currently operators and thereafter applicants who are licensees but not currently operators, except that preference shall be given to a licensee who was an operator and has requested transfer to a new location in accordance with s. DWD 60.07 (2) (b).

(4) Method of notifying a successful applicant. The department shall notify the successful applicant in writing by return receipt requested mail of its offer of a vacant operator position to that individual. Within 5 working days after receipt of an offer, the successful applicant shall notify the department in writing by return receipt requested mail that he or she accepts or refuses the offer. Refusal of an offer is final and irrevocable. An applicant who changes his or her mind after accepting an offer and who was an operator at another location at the time of acceptance is not permitted to recover the operator position vacated upon acceptance of the new position unless all affected licensees, the committee and the department agree.

(5) Inventory. When a new operator takes over a business enterprise, the department and the operator or the operator’s representative shall immediately conduct a physical inventory of equipment, accessories and merchandise.

(6) Probationary period. All operators shall serve a probationary period of 6 months, including operators who have been promoted or transferred. The department may shorten the probationary period to 3 months following an operator’s satisfactory management of the business enterprise during that period, or the department may lengthen the probationary period to one year.

(7) Co-management.

(a) Definition. In this subsection, “assessment” means an examination of operational requirements that include but are not limited to operating hours or days, volume of merchandise sold, number of peak sales periods per day, complexity and extensiveness of product line and inventory, number of employes, total labor hours per day, ratio of employe hours to management hours, sales generated per employe, required management skill level, the scope of managerial responsibilities and stipulations of agreement with building management.

(b) Need.

A co-manager position may be established only when department staff, with participation of the committee, determine that an additional operator is necessary to satisfy the management needs of the enterprise.
Department staff shall determine management need on the basis of an assessment of operational requirements undertaken with participation of the committee.
A new facility shall have an assessment before any vacancy is posted. If the need for co-management is uncertain, the vacancy announcement shall indicate that co-management may be needed in the future.
A facility that is operational shall have an assessment when department staff determine that an assessment is appropriate or when an operator requests an assessment.

At an existing facility, a co-manager position may be added when department staff determine it is needed for facility management, as identified in one of the following ways:

a. Through an assessment done in accordance with par. (b); or

b. Through an assessment after department staff have determined that existing management deficiencies threaten the ongoing operation of the business.

A co-manager position may be eliminated only when that position is vacant and department staff, with participation of the committee, determine that the management need of the business is satisfied without it. This assessment shall indicate the need for any additional employe hours with the elimination of the co-manager position. The position may not be eliminated if additional employe hours exceed 9 hours per day or 45 hours per week.

(d) Managerial duty list.

When a co-manager position is announced, the announcement shall contain an existing or proposed managerial duty list. The duty list may not be revised while the position is vacant.
For a facility opened after June 1, 1994 the approved co-managers shall submit the managerial duty list to the department within 60 days after the opening date of the business. Department staff may, within 30 days after receiving the duty list, and with the advice of the committee, reject the duty list or require that it be revised. If a co-manager disagrees with the action of the department, he or she may file a grievance in accordance with s. DWD 60.05.
For a facility that is in operation on June 1, 1994 the approved co-managers shall submit the managerial duty list to the department within 60 days after June 1, 1994.
Co-managers of a business that has had a duty list previously approved by the department may revise the duty list, subject to approval of the department. The revised duty list shall reflect a new co-manager’s previous work experience and shall be further revised as his or her skill level progresses. The committee may participate in the approval process at the request of an affected operator or the department. Within 30 days after receiving a revised duty list, department staff may reject that list or require additional changes in it. If a co-manager disagrees with the action of the department, he or she may file a grievance under s. DWD 60.05. Pending a decision on the grievance, the original duty list shall remain in effect except for those items that are not in dispute.

(e) Equal responsibility and equal income sharing.

Co-managers shall be equally responsible for business operations and for complying with this chapter.
Co-managers shall equally share the income of the business unless they and the department agree on a different distribution or if the effect of equal sharing is to reduce the percentage or share of the income of the business received by a co-manager who was a co-manager on June 1, 1994.

History

Cr. Register, May, 1983, No. 329, eff. 6-1-83; am. (1) and (3), renum. (4) and (5) to be (5) and (6), cr. (4), Register, April, 1987, No. 376, eff. 5-1-87; cr. (7), Register, May, 1994, No. 461, eff. 6-1-94.

Wis. Admin. Code § DWD 60.09 Setting up the business enterprise {#sec-dwd-60.09 omnilex-key=us-wi-regs-official--agency-dwd--DWD 60.09}

(1) Equipment.

(a) Department responsibility. The department shall provide each business enterprise with suitable equipment and shall arrange for all normal repair and replacement of this equipment except for an enterprise which has vendor owned equipment.

(b) Title to equipment.

‘Department ownership.’ All rights, title to and interest in business enterprise equipment, other than equipment owned and maintained by vending machine companies or suppliers, is vested in the department unless the operator exercises the option to purchase the equipment as provided in subd. 2.
‘Vendor ownership.’

a. All rights, title to and interest in business enterprise equipment may be vested in an operator, as authorized by s. 47.03 (4), Stats., and the Randolph-Sheppard Act, provided that the operator has competently operated the business enterprise under supervision of the department for one year, and if the organization responsible for the building in which the business enterprise is located grants permission. The vendor-owner shall remain under supervision of the department.

b. The business enterprise equipment shall be sold at a fair value based on the condition and serviceability of the equipment at the time of sale. Merchandise shall be sold at the original purchase price. Total payment shall be due to the department when the bill of sale is signed.

c. A bill of sale between the operator and the department shall contain the terms and conditions of the sale, in accordance with this chapter and the conditions of any permit or contract governing the premises on which the business enterprise is located. Upon completion of the sale the operator shall be responsible for maintaining, repairing, and replacing all business enterprise equipment, and the set-aside charge for these services is suspended. In the event the operator fails to meet all obligations to provide proper maintenance, repair and replacement of equipment, the department may elect to make the necessary repair or replacement and charge the vendor-owner for such repair or replacement.

d. The department retains a first option to repurchase within 90 days the equipment and stock in the event the vendor-owner dies, ceases to be a licensee, transfers to another business enterprise, or requests in writing purchase by the department. If the option to repurchase is not exercised, the department shall, if requested, provide a written statement to the vendor-owner giving the reasons for not exercising the option.

(c) Receipt of equipment. Equipment furnished to the operator or removed by the department from the operator shall be acknowledged by a receipt signed by the operator or his or her agent or by the department’s representative, as is appropriate.

(d) Care of equipment. Equipment furnished by the department shall be used only for the purpose stated in the operator’s agreement. The operator shall exercise reasonable care in the use and maintenance of that equipment in order to keep it in good condition.

(e) Change or addition of equipment. The operator shall not add to or change any piece of equipment without prior written approval of the department.

(2) Initial stock.

(a) Department responsibility.

The department shall provide each business enterprise with an adequate initial stock, including merchandise, supplies, and operating capital, as determined by the department to be adequate to begin operation. This level shall be adjusted annually by an index determined by current wholesale prices for such stock.
The department shall reimburse the operator if he or she leaves a particular location due to transfer, resignation or dismissal, for any usable and salable stocks and supplies above the current adjusted level. The operator shall reimburse the department if the closing inventory is less than the current adjusted level. In the event of an operator’s death, the estate shall be reimbursed accordingly or the estate shall reimburse the department. The department shall determine the amount to be paid to or collected from an operator or an operator’s estate within 60 calendar days after completion of the closing inventory. Payment or collection shall occur within 30 days after determination of the amount to be paid or collected.

(b) Operator responsibility.

The operator shall acknowledge initial stock furnished by the department by signing a receipt to that effect.
The operator shall maintain a stock level and amount of operating capital adequate to conduct the business enterprise efficiently and effectively, as determined by the department.

(3) Bonding. All operators except vendor-owners shall be bonded and shall be assessed an annual bonding charge by the department.

(4) Income from vending machines.

(a) Income from vending machines on state or other property within reasonable proximity to and in direct competition with a business enterprise shall be assigned to the operator of such business enterprise. A vending machine is in reasonable proximity to and in direct competition with a business enterprise if it vends articles of a type authorized in the permit and is so located that it attracts customers who would otherwise patronize the business enterprise.

(b) Income from vending machines not within reasonable proximity to or in direct competition with a business enterprise may be used for management services for the business enterprise program.

(c) In all cases, income from vending machines shall be distributed as provided under the Randolph-Sheppard Act and 34 CFR 395.8.

(5) Insurance.

(a) Every business enterprise shall have adequate liability and fire insurance at levels established by the state of Wisconsin office of risk management.

(b) If the department obtains the necessary insurance coverage, the operator shall reimburse the department.

(c) Unless otherwise agreed, the first premium for insurance coverage for each new business enterprise shall be paid by the department as a part of the initial installation costs.

(6) Licenses and permits.

(a) Each business enterprise shall have all licenses and permits required by law for the conduct of the business enterprise.

(b) If the department obtains the required licenses and permits, the operator shall reimburse the department for them.

History

Cr. Register, May, 1983, No. 329, eff. 6-1-83; correction in (1) (b) 2. a. made under s. 13.93 (2m) (b) 7., Stats.

Wis. Admin. Code § DWD 60.10 Operating the business enterprise {#sec-dwd-60.10 omnilex-key=us-wi-regs-official--agency-dwd--DWD 60.10}

(1) Operator behavior.

(a) General. The operator shall:

Perform faithfully and to the best of his or her ability all duties necessary to the proper conduct and operation of the business enterprise;
Operate the business in compliance with all applicable provisions of federal, state, and local law;
Operate the business in accordance with this chapter and the permit or contract with the controlling body or organization of the building or property in which the business is located; and
Cooperate with duly authorized representatives of the department in the performance of their official responsibilities.

(b) Prohibited behavior by operator and employes. The operator or any employe of the operator, while engaged in the pursuit of duties and responsibilities as operator on the premises where the business enterprise is located or elsewhere, shall refrain from any action or conduct which may bring or reflect discredit to the business enterprise operation, to the owner or manager of the premises where the business enterprise is located or to the department’s business enterprise program. Such prohibited action or conduct shall include, but shall not be limited to, the following:

Use of alcoholic beverages, controlled substances as defined in ch. 961, Stats., or other drugs unless prescribed by a physician for the user;
The presence or possession of alcoholic beverages, except as these relate to the business, on the premises where the business enterprise is located;
Conduct offensive under current community standards;
The use of language blatantly offensive to a reasonable person;
Embezzlement;
The making of false reports; or
The commission of a felony or a misdemeanor.

(c) Prohibited absences. Except as otherwise provided in this chapter, absentee management, supervision and operation of the business enterprise and the realization of its net proceeds by the operator in absentia for other than brief, non-routine periods is prohibited.

(d) Relief periods. The operator may establish a schedule of relief periods for employes during business hours, subject to the approval of the department.

(e) Vacations. The operator may take a maximum of 30 working days vacation each calendar year after notifying the department of the name, address, and telephone number of the relief operator.

(f) Illness. Necessary absence of the operator due to personal illness is allowable if the absence does not exceed one period of 30 consecutive working days in any calendar year, or 2 or more periods totaling not more than 45 working days in any calendar year. The department may extend the allowable period of absence where special circumstances exist.

(2) Employment practices.

(a) Operator responsibility. The operator shall:

Employ and compensate such employes as are necessary to the effective and efficient operation of the business enterprise;
Employ and compensate a relief operator to insure continuous operation of the business enterprise during an absence of the licensed operator;
Comply with all applicable labor and civil rights laws;
Limit the persons employed to preclude unnecessarily excessive costs;
Terminate the employment of any person whose continued employment is detrimental to the business enterprise;
Keep and preserve legally required detailed records of payroll and payroll deductions; and
Observe the following order of preference in hiring qualified persons:

a. Severely disabled applicants.

b. Non-severely disabled applicants.

c. Non-disabled applicants.

(b) Department responsibility. The department shall:

Assist each operator in identifying qualified disabled persons to be considered for employment; and
Notify the operator of any situation arising from the operator’s employment practices which is detrimental to the operation and requires prompt and immediate correction.

(3) Cash basis and credit.

(a) The operator shall transact all business on a 30 calendar day cash basis and shall pay all obligations promptly when due.

(b) The operator shall pay and discharge any obligations within 30 days after written notice from the department that:

The operator is delinquent in the payment of any business accounts; or
The department has received a complaint concerning monies due a business creditor of the operator, or has been asked to provide assistance in the collection of these monies.

(4) Merchandise. Only merchandise of a class or type authorized by the permit or contract shall be sold by the operator or the operator’s employes.

(5) Display of license. The operator shall at all times conspicuously display at the business enterprise location the license issued by the department and shall neither cause nor permit the license to be covered or removed.

(6) Records and reports.

(a) Operator responsibility. The operator shall:

Establish and maintain a business checking account in a depository commercial bank chartered to do business in the state of Wisconsin, deposit all business receipts and revenues therein, and insure that business and personal funds shall not become mingled in the account;
Keep and preserve a full and complete record of all receipts and disbursements required by internal revenue service guidelines;
Prepare and submit to the department, on or before the 5th working day of each month, a sales report for the previous month along with all bills paid that month;
Make available to the department during regular business hours all records and books of account for the purpose of review or audit; and
Provide or report to the department in the form prescribed information about the business enterprise required by this chapter or otherwise requested by the department.

(b) Department responsibility. The department shall assist the operator in the establishment of proper books of account and record-keeping procedures.

(7) Payment of fees. The operator shall, within 30 days from the date of invoice, send all fees to the department which are owed to the department for the preceding month. Fees may be paid by check or money order made payable to the department’s business enterprise program and sent to the address on the invoice.

(8) Penalty for late report or fees.

(a) All reports required pursuant to sub. (6) (a) received after the due date shall be assessed a late penalty charge as determined annually by the department in consultation with the committee.

(b) All fees required pursuant to s. DWD 60.11 received after the due date shall be assessed an interest charge of 1% per month (12% per annum) of the unpaid balance.

(c) If the reports or fees are late due to reasons beyond the operator’s control, the penalty may be waived by the department upon receipt of the set-aside fees or fully completed reports accompanied by a statement justifying the lateness.

(9) State sales tax.

(a) Every operator shall obtain a Wisconsin seller’s permit in the operator’s name.

(b) If the department obtains the seller’s permit, the operator shall reimburse the department for the permit.

(c) The operator shall pay in full within prescribed time limits all state sales tax due and shall comply with the provisions of ss. 77.51 and 77.52, Stats.

History

Cr. Register, May, 1983, No. 329, eff. 6-1-83.

Wis. Admin. Code § DWD 60.11 Set-aside funds {#sec-dwd-60.11 omnilex-key=us-wi-regs-official--agency-dwd--DWD 60.11}

(1) Requirement. The department shall collect, maintain and administer funds from the net proceeds of the operation of each business enterprise, including vendor-owned enterprises, in accordance with provisions of this section.

(2) Amount.

(a) Funds that the department requires be set aside shall be computed on the basis of a percentage of the individual operator’s net proceeds for a given month. The department may each year reconsider and change that percentage to ensure that set-aside funds are sufficient for the uses made of these funds. Set-aside charges for vendor-owned enterprises shall be at a reduced rate to reflect vendor-owner responsibility for maintenance, repair and replacement of all business enterprise equipment.

(b) The department shall bill operators each month for the set-aside charge.

(3) Accounting. Set-aside funds maintained by the department shall be accounted for in accordance with generally accepted principles of fund accounting.

(4) Uses. Set-aside funds may be expended only for the following purposes:

(a) To maintain and replace equipment;

(b) To purchase new equipment;

(d) To assure a fair minimum return to operators; and

(e) To establish and maintain retirement or pension funds, health insurance contributions and provisions for paid sick leave and vacation time.

History

Cr. Register, May, 1983, No. 329, eff. 6-1-83.

Wis. Admin. Code § DWD 60.12 Corrective action {#sec-dwd-60.12 omnilex-key=us-wi-regs-official--agency-dwd--DWD 60.12}

(1) Conduct or performance shortcomings. If the operator fails to conduct the business enterprise in compliance with the operator’s agreement or to maintain reasonable performance levels as demonstrated by comparison with prior periods of operation in the same location or other business enterprises of a similar type, the department shall review the evidence with the committee and solicit the committee’s recommendations for corrective action.

(2) Corrective action alternatives. Corrective action alternatives available to the department include but are not limited to :

(a) Specific or additional management and supervision services;

(b) Suspension of the license for a period not to exceed 30 days;

(d) Termination of the license.

(3) Notice.

(a) Exchange as provided in par. (b), no suspension, demotion or termination shall be made until the department gives notice to the operator, by registered or certified mail, with return receipt requested, of facts or conduct which warrant the intended action, and the operator has been given an opportunity to show compliance with all lawful requirements for the retention of the license.

(b) The department may immediately suspend an operator’s license, followed by notice and the opportunity to contest the action, if in the judgment of the department there is a substantial probability that the behavior of the operator will result in harm to the health, safety or welfare of other persons.

(4) Grounds for suspension. An operator’s license may be suspended for a period not to exceed 30 calendar days, except in cases of extended illness or incapacity, on one or more of the following grounds:

(a) Failure to operate the business enterprise in compliance with the operator’s agreement;

(b) Failure to maintain acceptable performance levels after being provided the opportunity for additional training; or

(5) Grounds for demotion. An operator may be demoted to a lesser-demanding business enterprise on one or both of the following grounds:

(a) Recurring noncompliance with terms of the operator’s agreement; or

(b) Repeated failure to maintain acceptable levels of performance in operation of the business enterprise.

(6) Grounds for termination. An operator’s license may be terminated for one or more of the following reasons:

(a) Withdrawal of the operator without notice;

(b) Withdrawal of the permit or contract by the controlling body or organization of the building or property in which the business enterprise is operating, due to fault of the operator;

(c) Decision by the department after recommendation of the committee that an enterprise is not being operated in accordance with the law or this chapter or within the terms and conditions of the agreement between the department and the operator;

(d) Any willful or malicious destruction of any equipment furnished to the operator;

(e) Willful falsification of any record or report required to be kept or made by the operator; or

(f) Misconduct specified in s. DWD 60.10 (1).

(7) Informing the operator of rights. In the event of suspension, demotion or termination, the operator shall be informed of his or her right to review of the decision as provided in s. DWD 60.05.

(8) Surrender of premises.

(a) Upon suspension, demotion or termination, the operator shall vacate the business enterprise premises upon the effective date of that action.

(b) If a vendor-owner does not vacate the premises as required under par. (a), the department may remove any of the property of the business enterprise owned by the vendor-owner and place this property in storage at the expense of the vendor-owner or else deliver it to the vendor-owner at that person’s expense.

(9) Inventory. Upon suspension, demotion or termination, a physical inventory and valuation of equipment, accessories and merchandise shall be made by the department and the operator or the operator’s representative. If the operator chooses not to be present and not to be represented by an agent, the department may engage the assistance of a third party.

History

Cr. Register, May, 1983, No. 329, eff. 6-1-83.

Wis. Admin. Code § DWD 60.13 Other reasons for suspending or terminating a license or transferring an operator to a less-demanding business {#sec-dwd-60.13 omnilex-key=us-wi-regs-official--agency-dwd--DWD 60.13}

(1) Suspension. An operator’s license may be suspended by the department for an indefinite period in the event of extended illness or incapacity when there is reasonable expectation, based on medical evidence, that the operator will return to the business. The operator shall be reinstated when the period of incapacity has ended as certified by a physician.

(2) Termination. An operator’s license may be terminated by the department for any of the following reasons:

(a) Improvement of the operator’s vision to the extent that the operator is no longer legally blind;

(b) Delivery to the department of a written request from the operator for cancellation of the license;

(c) Extended illness or incapacity of the operator preventing personal operation of the business enterprise, when there is no reasonable expectation, based on medical evidence, that the operator can return to work; or

(d) Death of the operator.

(3) Transfer of operator. On written request of the operator, the department may transfer that person to a smaller or otherwise less-demanding business enterprise.

(4) Follow-up activity.

(a) At the time that an operator is notified that the operator’s license is being suspended or terminated, the operator shall be informed of his or her right to challenge the decision as provided in s. DWD 60.05.

(b)

The operator shall vacate the business enterprise premises on the effective date of the suspension, termination or transfer.
If a vendor-owner does not vacate the premises as required under subd. 1., the department may remove any of the property of the business enterprise owned by the vendor and place it in storage at the vendor-owner’s expense or else deliver it to the vendor-owner at that person’s expense.

(c) Upon suspension, termination or transfer, a physical inventory and valuation of equipment, accessories and merchandise shall be made by the department and the operator or the operator’s representative. If the operator chooses not to be present and not to be represented by an agent, the department may engage the assistance of a third party.

(d) Upon notification of the death of an operator, the department shall arrange with the representatives of the estate for the settlement of accounts on the basis of the interests of affected parties.

History

Cr. Register, May, 1983, No. 329, eff. 6-1-83.

Wis. Admin. Code § DWD 60.14 Operator’s agreement {#sec-dwd-60.14 omnilex-key=us-wi-regs-official--agency-dwd--DWD 60.14}

(1) The form for the agreement between the department and an operator shall be as found on the department’s website.

(2) The agreement between the department and an operator shall include, as attachments, the following exhibits specific to the business enterprise:

(a)

An inventory of the equipment which shall state the purchase price of each item, and
An inventory of the initial stock of merchandise and supplies which shall state the total purchase price of the initial stock;

(b) A copy of this chapter;

(c) A copy of the permit or contract between the department and the owner or occupant of the premises where the business enterprise is located;

(d) In the case of a co-managed business enterprise, a managerial duty list developed by the co-managers of the business and approved by the department; and

(e) Any other documents which in the judgment of the department are required by the particular circumstances.

(3) The department shall ensure that the department and the operator each have a signed copy of the agreement including all attachments.

History

Cr. Register, May, 1983, No. 329, eff. 6-1-83; am. (2) (c), renum. (2) (d) to be (2) (e), cr. (2) (d), Register, May, 1994, No. 461, eff. 6-1-94; correction in (1) made under s. 13.92 (4) (b) 7., Stats., Register March 2015 No. 711; correction in (1) made under s. 13.92 (4) (b) 6., 7., Stats., Register February 2026 No. 842.

Chapter DWD 65 ORDER OF SELECTION FOR VOCATIONAL REHABILITATION SERVICES

Wis. Admin. Code § DWD 65.01 Authority and purpose {#sec-dwd-65.01 omnilex-key=us-wi-regs-official--agency-dwd--DWD 65.01}

Section 47.02, Stats., requires the department to implement an order of selection when there are insufficient resources to serve all eligible individuals who apply for vocational rehabilitation services. An order of selection shall provide services to individuals with the most significant disabilities first.

History

Cr. Register, October, 1994, No. 466, 12-1-94; CR 18-013: r. and recr. Register July 2018 No. 751, eff. 8-1-18.

Wis. Admin. Code § DWD 65.02 Applicability {#sec-dwd-65.02 omnilex-key=us-wi-regs-official--agency-dwd--DWD 65.02}

This chapter applies to the department and to consumers who have applied for vocational rehabilitation services, but do not have an approved IPE. This chapter does not apply to consumers currently receiving services under an approved IPE.

History

Cr. Register, October, 1994, No. 466, 12-1-94; CR 18-013: r. and recr. Register July 2018 No. 751, eff. 8-1-18.

Wis. Admin. Code § DWD 65.03 Definitions {#sec-dwd-65.03 omnilex-key=us-wi-regs-official--agency-dwd--DWD 65.03}

In this chapter:

(3) “Category” means the classification assigned to eligible individuals based on an assessment in each of the seven functional areas if an order of selection is imposed. Eligible individuals are assessed according to the significance of their disability as defined in the Rehabilitation Act of 1973, as amended, 29 USC 701.

(5m) “Consumer” means an individual determined by the department as eligible for vocational rehabilitation services.

(6) “Department” means the Wisconsin department of workforce development.

(9) “Employment outcome” means entering or retaining full or part-time competitive employment in the integrated labor market consistent with the definition in 29 USC 705 (11).

(12) “Individual with a significant disability” means a consumer with a severe physical or mental impairment which seriously limits one or more functional capacities who will need multiple vocational rehabilitation services over an extended period of time as prescribed under 29 USC 705 (21).

(12m) “IPE” means an individualized plan for employment.

(17) “Order of selection” means the establishment of a waiting list to determine which consumers will receive vocational rehabilitation services when resources are not available to all eligible individuals.

(18) “Primary services” means evaluation, counseling and guidance, physical or mental restoration, training, and placement services which are necessary to reach an IPE goal. “Primary services” does not include support services such as maintenance, transportation, personal assistance services or services to family members which are provided only to allow an individual to participate in one or more approved primary services.

(18m) “Student with a disability” means an individual with a disability in a secondary, postsecondary, or other recognized education program, who is not younger than 14 years of age and not older than 21 years of age, who is eligible for, or who is receiving, pre-employment transition services.

(25) “Vocational rehabilitation counselor” means a department employee who determines an individual’s eligibility for vocational rehabilitation services, and approves a consumer’s IPE.

(25m) “Wisconsin Rehabilitation Council” means a council composed of members who review, analyze, and advise the division regarding the performance of its responsibilities in providing quality services to people with disabilities as prescribed under 34 CFR 361.16.

History

Cr. Register, October, 1994, No. 466, 12-1-94; CR 18-013: r. (1), (2), r. and recr. (3), r. (4), (5), cr. (5m), r. (7), (8), am. (9), (10), r. (11), am. (12), cr. (12m), r. (13) to (15), am. (16), r. and recr. (17), am. (18), cr. (18m), r. (19) to (24), am. (25), cr. (25m), r. (26), (27) Register July 2018 No. 751, eff. 8-1-18; CR 22-008: am. (5m), r. (10), (16) Register June 2022 No. 798, eff. 7-1-22.

Wis. Admin. Code § DWD 65.04 Imposing an order of selection {#sec-dwd-65.04 omnilex-key=us-wi-regs-official--agency-dwd--DWD 65.04}

(1) Determining when an order of selection is required. The department shall determine prior to the beginning of every federal fiscal year, if adequate resources are available to provide all needed vocational rehabilitation services to all eligible consumers. The department shall consult with the Wisconsin Rehabilitation Council to determine if fiscal and personnel resources are available to meet the needs of all consumers. If the department determines there are insufficient resources to serve all eligible consumers, an order of selection shall be imposed.

(2) Continuation or termination of an order of selection. If an order of selection is imposed under sub. (1), the department shall consult with the Wisconsin Rehabilitation Council to determine prior to the beginning of every federal fiscal year, if a continuation or termination of an order of selection is necessary.

(3) Providing services under an order of selection.

(a) If an order of selection is imposed under sub. (1), the department shall provide services to consumers with the most significant disabilities and consumers at immediate risk of losing employment, notwithstanding significance of disability, who require specific services or equipment to maintain employment before serving consumers with less significant disabilities as prescribed under s. DWD 65.07.

(b) The department may provide a consumer at immediate risk of losing employment with services or equipment to maintain employment under par. (a) if all of the following are satisfied:

The consumer notifies the department that the consumer is at immediate risk of losing employment.
The department determines that the consumer would almost certainly lose the consumer’s current job if specific services or equipment are not provided in the very near future that would enable the consumer to maintain employment.

History

Cr. Register, October, 1994, No. 466, 12-1-94; CR 18-013: r. and rec. Register July 2018 No. 751, eff. 8-1-18; correction in (3) made under s. 35.17, Stats., Register July 2018 No. 751; CR 22-008: am. (3) Register June 2022 No. 798, eff. 7-1-22; CR 22-083: renum. (3) to (3) (a) and am., cr. (3) (b) Register October 2023 No. 814, eff. 11-1-23.

Wis. Admin. Code § DWD 65.06 Prohibited practices {#sec-dwd-65.06 omnilex-key=us-wi-regs-official--agency-dwd--DWD 65.06}

The department shall determine the relative position of an individual in the order of selection without regard to duration of residency, type of disability, age, sex, race, color, creed, national origin, source of referral, expected employment outcome, type of service needs, costs of services, or income level.

History

Cr. Register, October, 1994, No. 466, 12-1-94; CR 22-008: am. Register June 2022 No. 798, eff. 7-1-22.

Wis. Admin. Code § DWD 65.07 Determining the order of selection {#sec-dwd-65.07 omnilex-key=us-wi-regs-official--agency-dwd--DWD 65.07}

(1) Evaluation process. A vocational rehabilitation counselor shall evaluate each consumer’s case record using the functional assessment rating to determine the appropriate category for the consumer in an order of selection.

(3) Waitlist activation. When an order of selection is continued or imposed, services provided will be prioritized based on the date the application was received by the department for consumers assigned to the same category under an order of selection.

(4) Student with a disability. If a student with a disability has received pre-employment transition services prior to submitting an application, the department shall continue to provide pre-employment transition services to a student with a disability during the evaluation process under sub. (1) and prior to being determined eligible for vocational rehabilitation services. Pre-employment transition services shall continue if the student with a disability is placed in a category in an order of selection.

History

Cr. Register, October, 1994, No. 466, 12-1-94; CR 18-013: am. (1), r. (2), r. and recr. (3), cr. (4) Register July 2018 No. 751, eff. 8-1-18.

Wis. Admin. Code § DWD 65.08 Notice to affected consumers {#sec-dwd-65.08 omnilex-key=us-wi-regs-official--agency-dwd--DWD 65.08}

The department shall provide written notification to all consumers who may not receive services due to an order of selection. The notice shall include all of the following:

(1) The reason for the decision to impose, continue, or terminate an order of selection and the priority in which services will be provided.

(2) Identify the consumer’s category placement and information on how to file an appeal related to a consumer’s category placement.

(3) Information on how to request a reevaluation of category placement based on new information not previously considered during the evaluation process under s. DWD 65.07 (1).

History

Cr. Register, October, 1994, No. 466, 12-1-94; CR 18-013: am. (title), renum. DWD 68.05 to (intro.) and (1) to (3) and am., Register July 2018 No. 751, eff. 8-1-18; correction in (1) made under s. 35.17, Stats., Register July 2018 No. 751; CR 22-008: am. (intro.), (3) Register June 2022 No. 798, eff. 7-1-22.

Wis. Admin. Code § DWD 65.09 Request for review of category placement {#sec-dwd-65.09 omnilex-key=us-wi-regs-official--agency-dwd--DWD 65.09}

A consumer may request a review of their category placement within an order of selection when new information not previously considered during the evaluation process under s. DWD 65.07 (1) is available upon request by the consumer or the consumer’s designated representative.

Note: Information on how to file a request for reevaluation of category placement will be included in the notice issued under s. DWD 65.08.

History

Cr. Register, October, 1994, No. 466, 12-1-94; CR 18-013: am. Register July 2018 No. 751, eff. 8-1-18; CR 22-008: am. Register June 2022 No. 798, eff. 7-1-22.

Wis. Admin. Code § DWD 65.10 Review initiated by department {#sec-dwd-65.10 omnilex-key=us-wi-regs-official--agency-dwd--DWD 65.10}

The department shall contact each consumer in a category that will not receive services due to the imposition or continuation of an order of selection on an annual basis to determine if the consumer would like to continue to maintain category placement. The department shall make multiple attempts, through multiple methods of contact, including the consumer’s preferred mode of contact, prior to closing any case. If there is no response within 30 days, the department may close the case. Prior to closing any case, the department shall document the dates and methods of contact.

History

Cr. Register, October, 1994, No. 466, 12-1-94; CR 18-013: am. Register July 2018 No. 751, eff. 8-1-18; correction in (1) made under s. 35.17, Stats., Register July 2018 No. 751.

Wis. Admin. Code § DWD 65.11 Appeal of assigned position under an order of selection {#sec-dwd-65.11 omnilex-key=us-wi-regs-official--agency-dwd--DWD 65.11}

A consumer may appeal their category placement by submitting a request for a hearing to the department within 180 days of the date of the notice provided under s. DWD 65.08. Appeals are heard by impartial hearing officers under procedures established by the department in ch. DWD 75. A consumer may appeal the decision issued by an impartial hearing officer as prescribed under s. 227.53, Stats.

Note: To obtain a hearing request form, or for questions relating to filing a hearing request, contact the Hearing Coordinator, Division of Vocational Rehabilitation, P.O. Box 7852, Madison, Wisconsin 53707, telephone (800) 442-3477 or access the form online at http://dwd.wisconsin.gov/dvr/.

History

Cr. Register, October, 1994, No. 466, 12-1-94; CR 18-013: am. Register July 2018 No. 751, eff. 8-1-18; CR 22-008: am. Register June 2022 No. 798, eff. 7-1-22.

Chapter DWD 68 CONFIDENTIAL INFORMATION

Wis. Admin. Code § DWD 68.01 Introduction {#sec-dwd-68.01 omnilex-key=us-wi-regs-official--agency-dwd--DWD 68.01}

Pursuant to s. 47.02 (7), Stats., the purpose of this chapter is to ensure that the confidentiality of consumer records is maintained by the division and to allow access by a consumer to the consumer’s case record.

History

Cr. Register, June, 1976, No. 246, eff. 7-1-76; renum. from DVR 1.01, Register, April, 1982, No. 316, eff. 5-1-82; correction made under s. 13.93 (2m) (b) 7., Stats., Register, May, 1994, No. 461; CR 22-008: am. Register June 2022 No. 798, eff. 7-1-22; correction made under s. 35.17, Stats., Register June 2022 No. 798.

Wis. Admin. Code § DWD 68.02 Definitions {#sec-dwd-68.02 omnilex-key=us-wi-regs-official--agency-dwd--DWD 68.02}

In this chapter:

(1) “Case record” or “record” means information, whether written or not, relating to a consumer, received or acquired in connection with the performance of a vocational rehabilitation function.

(3) “Consumer” means a person who has been referred to or has applied for, is currently receiving, or has received in the past, vocational rehabilitation services.

(3m) “Consumer identifying information” means the name, address, social security number, or similar information by which the identity of the consumer can be determined with reasonable accuracy and speed, either directly, or by reference to other publicly available information.

(4) “Designated representative” means an attorney, physician, parent, guardian, or other adult designated in writing by a consumer to represent the consumer’s interests.

(4m) “Division” means the division of vocational rehabilitation.

(5) Except as provided in sub. (6), “in the administration of the vocational rehabilitation program” means any of the following:

(a) The direction and coordination of consumer services within the division, including contracts with the division for purchased rehabilitation services that are part of the consumer’s rehabilitation program.

(b) The coordination of programs in the department of workforce development involving the vocational rehabilitation plan of a consumer.

(c) The auditing, planning, or evaluation of vocational rehabilitation programs by lawfully authorized governmental agencies if the resulting report does not contain consumer identifying information.

(6) Subsection (5) does not apply to s. DWD 68.12.

History

Cr. Register, June, 1976, No. 246, eff. 7-1-76; renum, from DVR 1.02, Register, April, 1982, No. 316, eff. 5-1-82; CR 22-008: am. (1) to (4), cr. (4m), am. (5) Register June 2022 No. 798, eff. 7-1-22; renum. (2) to (3m) under s. 13.92 (4) (b) 1., Stats., Register June 2022 No. 798.

Wis. Admin. Code § DWD 68.03 Applicability {#sec-dwd-68.03 omnilex-key=us-wi-regs-official--agency-dwd--DWD 68.03}

The provisions of this chapter apply to any person who has access to information about consumers. The provisions apply both during and after a person’s employment or other relationship giving rise to the access.

History

Cr. Register, June, 1976, No. 246, eff. 7-1-76; renum, from DVR 1.03, Register, April, 1982, No. 316, eff. 5-1-82; CR 22-008: am. Register June 2022 No. 798, eff. 7-1-22.

Wis. Admin. Code § DWD 68.04 Administration of this chapter {#sec-dwd-68.04 omnilex-key=us-wi-regs-official--agency-dwd--DWD 68.04}

(1) No person, agency, or organization may disclose, directly or indirectly, any information concerning a consumer except in the administration of the vocational rehabilitation program, or as authorized in this chapter, or with the informed written consent of the consumer.

(2) The release of information concerning a consumer obtained from the records of a private or public agency or individual is subject to the law applicable to or rules of the agency or individual concerning the release of the information. If no law or rule exists, the information is subject to the provisions of this chapter.

History

Cr. Register, June, 1976, No. 246, eff. 7-1-76; renum. from DVR 1.04, Register, April, 1982, No. 316, eff. 5-1-82; CR 22-008: am. (title), r. (intro.), am. (1), (2) Register June 2022 No. 798, eff. 7-1-22.

An informed consent for disclosure of information to an individual, agency, or organization other than the consumer or a designated representative must be in writing and must contain all of the following:

(1) The name of the person or organization to which the disclosure is to be made.

(2) The name of the consumer.

(4) The specific type of information to be disclosed.

(5) The time period during which the consent is effective.

(6) The date on which the consent is signed.

(7) The signature of the consumer or person legally authorized to give consent for the consumer.

Note: A form for providing informed consent for disclosure of information may be accessed online at https://dwd.wisconsin.gov/dwd/forms/dvr/dvr-199-e.htm.

History

Cr. Register, June, 1976, No. 246, eff. 7-1-76; renum. from DVR 1.05, Register, April, 1982, No. 316, eff. 5-1-82; CR 22-008: am. (intro.), (1), (2), r. (3), am. (4) to (7) Register June 2022 No. 798, eff. 7-1-22.

Wis. Admin. Code § DWD 68.06 Notation of release of information {#sec-dwd-68.06 omnilex-key=us-wi-regs-official--agency-dwd--DWD 68.06}

Each time information about a consumer is released pursuant to the consumer’s informed consent under s. DWD 68.05, a notation must be made in the consumer’s record that includes all of the following:

(1) The name of the person or organization to whom the information was released.

(2) The identification of the information released.

(4) The date of the release.

History

Cr. Register, June, 1976, No. 246, eff. 7-1-76; renum. from DVR 1.06, Register, April, 1982, No. 316, eff. 5-1-82; CR 22-008: am. (intro.), (1), (2), r. (3) Register June 2022 No. 798, eff. 7-1-22.

Wis. Admin. Code § DWD 68.08 Notification of rights and responsibilities {#sec-dwd-68.08 omnilex-key=us-wi-regs-official--agency-dwd--DWD 68.08}

(1) The division shall ensure that a person, including an employee, who has access to information about consumers, including consumer case records, is aware of the person’s responsibilities to maintain the confidentiality of the information and the criminal liabilities for violation of this chapter.

(2) The division shall provide without cost a copy of this chapter and any policies created to interpret this chapter to each employee and, upon request, to a consumer or any other person.

(3) The division shall notify each consumer that information that the consumer gives to the division shall be kept confidential and that a consumer has certain rights of access to the consumer’s case record.

History

Cr. Register, June, 1976, No. 246, eff. 7-1-76; renum. from DVR 1.08, Register, April, 1982, No. 316, eff. 5-1-82; CR 22-008: renum. DWD 68.08 to (1) to (3) and am. Register June 2022 No. 798, eff. 7-1-22.

Wis. Admin. Code § DWD 68.09 Non-consumer requests {#sec-dwd-68.09 omnilex-key=us-wi-regs-official--agency-dwd--DWD 68.09}

A request for information from a case record, by an individual or organization that is neither a consumer nor included in s. DWD 68.02 (5), must be in writing and must specify the particular information wanted.

History

Cr. Register, June, 1976, No. 246, eff. 7-1-76; renum. from DVR 1.09, Register, April, 1982, No. 316, eff. 5-1-82; CR 22-008: am. Register June 2022 No. 798, eff. 7-1-22.

Wis. Admin. Code § DWD 68.11 Notice not to re-release {#sec-dwd-68.11 omnilex-key=us-wi-regs-official--agency-dwd--DWD 68.11}

Information released from a case record to an agency, organization, or individual that is not the consumer must be accompanied by a written notice that it shall not release the information to any other individual, agency, or organization without the informed written consent of the consumer.

History

Cr. Register, June, 1976, No. 246, eff. 7-1-76; renum. from DVR 1.11, Register, April, 1982, No. 316, eff. 5-1-82; CR 22-008: am. Register June 2022 No. 798, eff. 7-1-22.

Wis. Admin. Code § DWD 68.12 Release of records for an audit, evaluation, or research {#sec-dwd-68.12 omnilex-key=us-wi-regs-official--agency-dwd--DWD 68.12}

Information from a case record may be released without the consent of the consumer to an organization or individual engaged in an audit, evaluation, or research only for purposes connected with the administration of the vocational rehabilitation program if all of the following are satisfied:

(1) The information will be used only for the purpose for which it was provided.

(2) The information will be released only to persons officially connected with the audit, evaluation, or research.

(2g) The information will not be released to the consumer.

(2r) The information will be managed in a manner to safeguard confidentiality.

(3) The final product of the research will not reveal any consumer identifying information without the informed written consent of the consumer.

History

Cr. Register, June, 1976, No. 246, eff. 7-1-76; renum. from DVR 1.12, Register, April, 1982, No. 316, eff. 5-1-82; CR 22-008: am. (intro.), (1), (2), cr. (2g), (2r), am. (3) Register June 2022 No. 798, eff. 7-1-22.

Wis. Admin. Code § DWD 68.13 Release of records to employers {#sec-dwd-68.13 omnilex-key=us-wi-regs-official--agency-dwd--DWD 68.13}

Relevant information from a consumer’s case record may be released to a potential employer without consent of the consumer in order to ascertain the possibilities of a job placement for the consumer if no consumer identifying information is disclosed. Consumer identifying information may be released to a potential employer only with the informed written consent of the consumer.

History

Cr. Register, June, 1976, No. 246, eff. 7-1-76; renum. from DVR 1.13, Register, April, 1982, No. 316, eff. 5-1-82; CR 22-008: am. Register June 2022 No. 798, eff. 7-1-22.

Wis. Admin. Code § DWD 68.14 Release of records to consumers {#sec-dwd-68.14 omnilex-key=us-wi-regs-official--agency-dwd--DWD 68.14}

(1e) A case record is the property of the department of workforce development and may be released to clients as provided in this section.

(1m) Except as provided in sub. (2), upon request of a consumer, information in the consumer’s case record shall be released to the consumer, or, upon the request of the consumer, to the consumer’s designated representative.

(1s) The consumer or the designated representative shall present valid identification or be identified by a vocational rehabilitation employee before information is released.

(2)

(a) Medical, psychological, or other information that the division determines may be harmful to a consumer may not be released directly to the consumer, but must be provided to the consumer through a third party chosen by the consumer, including an advocate, family member, or qualified medical or mental health professional, except that if a representative has been appointed by a court to represent the consumer, the information must be released to the court-appointed representative.

(b) If the division makes a determination under par. (a) about a consumer, the division shall provide the consumer with written notice of the determination.

(3) A consumer may appeal a determination under sub. (2) (a) by submitting a request for a hearing to the department within 180 days after the date of the written notice under sub. (2) (b). Appeals shall be heard by impartial hearing officers under the procedures established by the department in ch. DWD 75.

History

Cr. Register, June, 1976, No. 246, eff. 7-1-76; renum. from DVR 1.14, Register, April, 1982, No. 316, eff. 5-1-82; correction in (2) made under s. 13.93 (2m) (b) 5., Stats., Register, May, 1994, No. 461; CR 22-008: am. (title), renum. (intro.), (1) to (1m), (1s) and am., renum. (1e) from DWD 68.16 and am., r. and recr. (2), (3) Register June 2022 No. 798, eff. 7-1-22.

Wis. Admin. Code § DWD 68.15 Record amendments and additions {#sec-dwd-68.15 omnilex-key=us-wi-regs-official--agency-dwd--DWD 68.15}

A consumer who believes that information in the consumer’s case record is inaccurate or misleading may request that the division amend the information. A letter, memorandum, or document submitted by a consumer for the purpose of correcting alleged inaccurate or misleading information in the consumer’s case record shall be included in that record. The division shall document in the case record the consumer’s request under this section and the division’s response to the request.

History

Cr. Register, June, 1976, No. 246, eff. 7-1-76; renum. from DVR 1.15, Register, April, 1982, No. 316, eff. 5-1-82; CR 22-008: am. Register June 2022 No. 798, eff. 7-1-22.

Wis. Admin. Code § DWD 68.17 Penalties {#sec-dwd-68.17 omnilex-key=us-wi-regs-official--agency-dwd--DWD 68.17}

A person who violates this chapter shall, pursuant to s. 47.02 (7), Stats., be fined not exceeding $500 or imprisoned not exceeding 6 months or both.

History

Cr. Register, June, 1976, No. 246, eff. 7-1-76; renum. from DVR 1.17, Register, April, 1982, No. 316, eff. 5-1-82; correction made under s. 13.93 (2m) (b) 7., Stats., Register, May, 1994, No. 461; CR 22-008: am. Register June 2022 No. 798, eff. 7-1-22.

Chapter DWD 75 APPEAL PROCEDURES FOR PERSONS APPLYING FOR OR RECEIVING VOCATIONAL REHABILITATION SERVICES

Wis. Admin. Code § DWD 75.01 Authority and purpose {#sec-dwd-75.01 omnilex-key=us-wi-regs-official--agency-dwd--DWD 75.01}

This chapter is promulgated under the authority of ss. 47.02 (5) and 103.005 (1), Stats., and in conformity with requirements under 29 USC 722 (c), and 34 CFR 361.57, to develop and implement procedures for an applicant or eligible individual appealing the determination of ineligibility or any determination made by personnel of the division that affects the provision of vocational rehabilitation services by the division under the rehabilitation act of 1973, as amended.

History

Cr. Register, December, 1996, No. 492, eff. 1-1-97; CR 15-055: am. Register May 2016 No. 725, eff. 6-1-16; CR 22-008: am. Register June 2022 No. 798, eff. 7-1-22.

Wis. Admin. Code § DWD 75.02 Applicability {#sec-dwd-75.02 omnilex-key=us-wi-regs-official--agency-dwd--DWD 75.02}

This chapter applies to the department, applicants, eligible individuals, and representatives of applicants or eligible individuals. An applicant or eligible individual who is dissatisfied with a determination of ineligibility or any determination made by personnel of the division that affects the provision of vocational rehabilitation services under the act, or a decision issued by a hearing officer that affects the provisions of vocational rehabilitation services, may request a timely review of that determination or decision.

History

Cr. Register, December, 1996, No. 492, eff. 1-1-97; CR 22-008: am. Register June 2022 No. 798, eff. 7-1-22.

Wis. Admin. Code § DWD 75.03 Definitions {#sec-dwd-75.03 omnilex-key=us-wi-regs-official--agency-dwd--DWD 75.03}

In this chapter:

(1) “Act” means the federal rehabilitation act of 1973, as amended, 29 USC 701 et seq.

(2) “Administrator” means the administrator of the division.

(2m) “Administrator’s representative” means an employee of the department designated by the administrator to represent the department at each hearing.

(3) “Appeal” means a request for relief filed with the division by the applicant or eligible individual based on the determination of ineligibility or the determination affecting the provision of services issued by the division.

(3m) “Contract administrator” means an employee of the department responsible for administering the contracts with the hearing officer.

(5) “Department” means the Wisconsin department of workforce development.

(5r) “Determination of ineligibility” means a determination issued by the department to an individual who applies for vocational rehabilitation services and is determined not to be eligible for the services; or a decision issued by the department to an eligible individual receiving services under an IPE and is determined to no longer be eligible for services.

(6) “Division” means the department’s division of vocational rehabilitation.

(7) “File” or “filed” means the physical receipt of a document by the person designated in this chapter.

(8) “Hearing” means a formal review by an impartial hearing officer of the determination of ineligibility or the determination affecting the provision of services issued by the division.

(9) “Hearing coordinator” means an employee of the department within the division who maintains the records of hearings, contacts hearing officers to schedule hearings and ensures that time requirements for the completion and reporting of hearings are observed.

(10) “Hearing request” means a written request for a hearing signed by an applicant or eligible individual to appeal a determination of ineligibility or the determination affecting the provision of services.

(11) “Intent to review” means the department will review the decision of a hearing officer to determine if the decision will stand or be modified.

(12) “IPE” means individualized plan for employment.

(13) “Order of selection” means the order of priority for service, by category, required by 29 USC 721 (a) (5) (A) to ensure that consumers with the most severe functional limitations who need multiple services over an extended period of time or consumers who require specific services or equipment to maintain employment are served before consumers who have less severe functional limitations or do not require multiple services over an extended period of time.

(14) “Party” means an applicant, eligible individual, or their representative or the administrator’s representative.

(15) “Prehearing conference” means a joint face-to-face meeting, a telephone conference, separate meetings or separate telephone calls by the hearing officer with the parties prior to the hearing to formulate a statement of the issues presented by an appeal, identify potential witnesses, establish a schedule for discovery and deadlines for exchange of witness lists and exhibits, receive motions and clarify any remaining issues to be considered or excluded from a hearing.

(16) “Representative” means a parent, guardian, other family member or advocate designated in writing by the applicant or eligible individual, or a representative of the applicant or eligible individual appointed by a court.

(16m) “Secretary” means the secretary of the department.

(17) “Wisconsin client assistance program” means a service program established by the governor under 34 CFR 370.2 (a) to (d).

History

Cr. Register, December, 1996, No. 492, eff. 1-1-97; CR 15-055: cr. (2m), am. (3), cr. (3m), r. (4), cr. (5r), am. (8) to (16), cr. (16m), am. (17), Register May 2016 No. 725, eff. 6-1-16; CR 22-008: am. (3), (8), (10), (13), (14) Register June 2022 No. 798, eff. 7-1-22.

Wis. Admin. Code § DWD 75.04 Right to a hearing {#sec-dwd-75.04 omnilex-key=us-wi-regs-official--agency-dwd--DWD 75.04}

An applicant or eligible individual may appeal a determination of ineligibility or the determination affecting the provision of services including a decision relating to an order of selection for services, whenever vocational rehabilitation services for an individual are denied, reduced, suspended, or terminated.

History

Cr. Register, December, 1996, No. 492, eff. 1-1-97; CR 15-055: am. Register May 2016 No. 725, eff. 6-1-16; CR 22-008: am. Register June 2022 No. 798, eff. 7-1-22.

Wis. Admin. Code § DWD 75.05 Filing a hearing request {#sec-dwd-75.05 omnilex-key=us-wi-regs-official--agency-dwd--DWD 75.05}

(1) Time limits. The time limit for filing a hearing request shall be within 180 days after the date of written notice of a determination of ineligibility or a determination affecting the provision of services. Failure to file a hearing request within the 180-day limit shall be cause for the hearing request to be dismissed.

(2) How to file. An applicant or eligible individual shall file a written hearing request and state the issues involved in the appeal and the desired outcome on a form provided by the department with the hearing coordinator.

History

Cr. Register, December, 1996, No. 492, eff. 1-1-97; CR 15-055: am. Register May 2016 No. 725, eff. 6-1-16; CR 22-008: am. (1) Register June 2022 No. 798, eff. 7-1-22.

Wis. Admin. Code § DWD 75.06 Acknowledgment of a hearing request {#sec-dwd-75.06 omnilex-key=us-wi-regs-official--agency-dwd--DWD 75.06}

The hearing coordinator shall acknowledge receipt of a hearing request in writing and notify the parties within 5 working days after receiving the request. If a representative has been designated, the hearing coordinator shall notify the applicant’s or eligible individual’s representative in writing. The acknowledgment of a hearing request shall include a copy of this chapter, and information on appeal rights and the Wisconsin client assistance program.

History

Cr. Register, December, 1996, No. 492, eff. 1-1-97; CR 15-055: am. Register May 2016 No. 725, eff. 6-1-16.

Wis. Admin. Code § DWD 75.07 Time limit for hearing {#sec-dwd-75.07 omnilex-key=us-wi-regs-official--agency-dwd--DWD 75.07}

A hearing shall be held within 60 calendar days of the receipt of the hearing request by the hearing coordinator unless the parties agree to a specific extension of time.

History

Cr. Register, December, 1996, No. 492, eff. 1-1-97; CR 15-055: am. Register May 2016 No. 725, eff. 6-1-16.

Wis. Admin. Code § DWD 75.08 Motions relative to a hearing {#sec-dwd-75.08 omnilex-key=us-wi-regs-official--agency-dwd--DWD 75.08}

Motions shall be in writing and may be filed at any time prior to a scheduled hearing. A motion shall state the grounds of the motion and the relief or order requested. Briefs, affidavits, documentary evidence and other papers in support of a motion shall be filed with the motion and the hearing officer. Motions relative to a hearing may include any of the following:

(1) Motion to extend time limits. A motion to extend any time limit, including the 60-day time limit for holding a hearing.

(2) Motion to dismiss a hearing request for lack of subject matter jurisdiction. A motion to dismiss a hearing request on the grounds that the department does not have subject matter jurisdiction may be filed at any time.

(3) Motion to amend a hearing request. A motion to expand or restrict the nature or scope of the hearing.

(4) Motion to withdraw a hearing request. An applicant, eligible individual, or their representative may withdraw from the appeal process at any time.

(5) Motion for a substitute hearing officer. Either party may file a motion for a substitute hearing officer for reasons of conflict of interest, bias, or qualifications.

History

Cr. Register, December, 1996, No. 492, eff. 1-1-97; CR 15-055: am. Register May 2016 No. 725, eff. 6-1-16; CR 22-008: am. (intro.), (4) Register June 2022 No. 798, eff. 7-1-22.

Wis. Admin. Code § DWD 75.09 Identification of a representative {#sec-dwd-75.09 omnilex-key=us-wi-regs-official--agency-dwd--DWD 75.09}

(1) Administrator’s representative. An administrator’s representative shall be designated for each hearing.

(2) Representative of applicant or eligible individual. An applicant or eligible individual may designate a representative for a hearing. As provided under 34 CFR 370.4, upon the request of an applicant or eligible individual, the Wisconsin client assistance program may provide assistance and advocacy services for the applicant or eligible individual and may be the designated representative of an applicant or eligible individual.

(3) Notice of representation. Notice of representation shall be filed with the hearing officer as part of the prehearing conference under s. DWD 75.14, or within 5 working days in advance of the scheduled hearing. If the representative of the applicant or eligible individual has been properly designated in writing prior to a hearing request, that designation shall be valid for a hearing unless revoked by the applicant or eligible individual. If the applicant or eligible individual is not present at a hearing to introduce a representative, the hearing officer may require the representative to present identification before the hearing may proceed.

History

Cr. Register, December, 1996, No. 492, eff. 1-1-97; CR 15-055: am. Register May 2016 No. 725, eff. 6-1-16.

Wis. Admin. Code § DWD 75.10 Filing documents {#sec-dwd-75.10 omnilex-key=us-wi-regs-official--agency-dwd--DWD 75.10}

(1) Documents filed with representative. If the applicant or eligible individual has designated a representative in writing, all correspondence and other documents related to the hearing shall be sent by mail or electronic mail to the representative of the applicant or eligible individual. For documents sent by mail or electronic mail, the date the document is received by the applicant, eligible individual, or their representative determines the date of filing.

(2) Filing in person. For papers filed in person, the date the applicant, eligible individual, or their representative receives the document determines the filing date.

(3) Document exchange. Filing of any document with the hearing officer or the hearing coordinator constitutes a certification that a copy of the document has been served on the other parties.

History

Cr. Register, December, 1996, No. 492, eff. 1-1-97; CR 15-055: am. (1), (2) Register May 2016 No. 725, eff. 6-1-16; CR 22-008: am. (1), (2) Register June 2022 No. 798, eff. 7-1-22.

Wis. Admin. Code § DWD 75.11 Services while a hearing officer’s decision is pending {#sec-dwd-75.11 omnilex-key=us-wi-regs-official--agency-dwd--DWD 75.11}

Pending the decision of a hearing officer, the department may not suspend, reduce, or terminate vocational rehabilitation services including evaluation and assessment services and IPE development unless any of the following apply:

(1) The services were obtained through misrepresentation, fraud, collusion, or criminal conduct.

(2) The applicant, eligible individual, or, in appropriate cases, the applicant’s or eligible individual’s representative requests a suspension, reduction, or termination of services.

History

Cr. Register, December, 1996, No. 492, eff. 1-1-97; CR 15-055: renum. 75.11 to 75.11 (intro.) and (1) and am., cr. (2) Register May 2016 No. 725, eff. 6-1-16; CR 22-008: am. (2) Register June 2022 No. 798, eff. 7-1-22.

Wis. Admin. Code § DWD 75.12 Hearing officer qualifications {#sec-dwd-75.12 omnilex-key=us-wi-regs-official--agency-dwd--DWD 75.12}

A hearing officer shall be impartial and have knowledge of the delivery of vocational rehabilitation services, the requirements of the state plan for services under the act, federal regulations and state regulations and policy governing the provision of the services and the procedures for conducting an impartial hearing. The hearing officer shall not:

(1) Be an employee of the department or other public agency except as an administrative law judge, a hearing examiner or an employee of an institution of higher education. An individual is not considered an employee of the department solely because the individual is paid by the department to serve as a hearing officer.

(2) Be a member of the state rehabilitation planning advisory council.

(3) Have been previously involved in the vocational rehabilitation of the applicant or eligible individual.

(4) Have any personal or financial interest that may conflict with the hearing officer’s obligation to be objective.

History

Cr. Register, December, 1996, No. 492, eff. 1-1-97; CR 15-055: am. (intro.), (1), (3) Register May 2016 No. 725, eff. 6-1-16.

Wis. Admin. Code § DWD 75.13 Authority of the hearing officer {#sec-dwd-75.13 omnilex-key=us-wi-regs-official--agency-dwd--DWD 75.13}

(1) The hearing officer shall conduct a prehearing conference with the parties as specified under s. DWD 75.14. The hearing officer may receive and act on motions under s. DWD 75.08, use the power of subpoena under s. 885.01, Stats., and contact any party prior to a scheduled hearing to obtain needed information or suggest mediation if the parties agree that agreement is possible prior to the hearing. The parties retain all rights under this chapter regardless of their participation or nonparticipation in mediation.

(2) The hearing officer shall control the course and conduct of the hearing to ensure that all required procedures are followed, that the parties are fairly represented and that the issues are presented clearly and briefly.

(3) Except as provided under s. DWD 75.19, the decision of the hearing officer is final.

History

Cr. Register, December, 1996, No. 492, eff. 1-1-97; CR 15-055: am. (1), (3) Register May 2016 No. 725, eff. 6-1-16.

Wis. Admin. Code § DWD 75.14 Prehearing conference {#sec-dwd-75.14 omnilex-key=us-wi-regs-official--agency-dwd--DWD 75.14}

(1) Purpose. The hearing officer shall ask the parties to participate in a prehearing conference to do one or more of the following:

(a) Formulate a statement of the issue or issues presented by an appeal.

(b) Identify potential witnesses and receive motions.

(d) Clarify any other issues to be considered or excluded from a hearing.

(2) Participation. The administrator’s representative shall participate in the prehearing conference. If the applicant, eligible individual, or their representative fails to participate in a prehearing conference without prior notice, the hearing officer shall continue the prehearing conference period for 5 working days. During this period the applicant, eligible individual, or their representative may file a good cause explanation, including the need for reasonable and specific disability accommodations, and request that the prehearing conference be rescheduled. If a good cause explanation is not filed within 5 working days, the hearing officer shall schedule the hearing within the 60-day limit and notify the parties and the hearing coordinator of this decision. The department may review this decision as provided in s. DWD 75.19.

(3) Hearing not delayed by participation in a prehearing conference. Participation in a prehearing conference shall not delay a hearing and does not affect time limits under this chapter. The parties shall not forfeit any rights under this chapter by participating in a prehearing conference or meeting to reach agreement prior to a hearing.

History

Cr. Register, December, 1996, No. 492, eff. 1-1-97; CR 15-055: am. (title), (1) (intro.), (2), (3) Register May 2016 No. 725, eff. 6-1-16; CR 22-008: am. (2) Register June 2022 No. 798, eff. 7-1-22.

Wis. Admin. Code § DWD 75.15 Agreement prior to a hearing {#sec-dwd-75.15 omnilex-key=us-wi-regs-official--agency-dwd--DWD 75.15}

(1) Notice of agreement. If the parties reach agreement prior to a hearing, the hearing officer shall notify the parties by certified mail that the issue has been resolved by mutual agreement and is dismissed without prejudice. The dismissal notice shall include a brief summary of the agreement between the parties and advise the parties that failure to meet the conditions of the agreement shall be grounds for a new hearing request.

(2) If proposed settlement rejected. If either party rejects a proposal prior to a scheduled hearing, the scheduled hearing shall be held without additional notice.

History

Cr. Register, December, 1996, No. 492, eff. 1-1-97.

Wis. Admin. Code § DWD 75.16 Hearing procedures {#sec-dwd-75.16 omnilex-key=us-wi-regs-official--agency-dwd--DWD 75.16}

(1) Hearing is closed. A hearing shall be closed to the public as a confidential matter unless the applicant, eligible individual, or their representative files a motion to open the hearing within 5 working days in advance of the scheduled hearing.

(2) Hearing not a court. The hearing officer is not bound by the rules of evidence and customary procedures of a court of law. However, the hearing officer shall adhere to the hearing procedures in this section unless there is good cause and shall document, on the record of the hearing, the reasons for deviation from any procedure required under this chapter.

(3) Attendance at a hearing. Parties and witnesses shall attend a scheduled hearing unless a motion has been filed with the hearing officer within 5 working days prior to a scheduled hearing stating reasonable cause for an individual to participate in the hearing, including the need for reasonable and specific disability accommodations, by a live, real time electronic means as an alternative to appearing in person. The hearing officer may grant the request if the other party has no objection.

(4) Testimony by witnesses. Witnesses may testify in person by answering questions posed to them, in narrative form, or by deposition provided that the witness agrees in advance, as part of the deposition, to permit the recording of the testimony and any subsequent cross-examination and the witness understands a subpoena to appear may be issued by the hearing officer based on the information in the deposition. For reasonable and specific disability accommodations or to provide testimony by deposition or electronic means, witnesses shall file a request with the hearing officer within 5 working days prior to a scheduled hearing. The hearing officer may grant the request if the other party does not object provided that the witness agrees in advance and on the record to permit the recording of the witness’s telephone testimony and any subsequent cross-examination.

(5) Identification of witnesses and exhibits. Each party shall file a list of witnesses and submit a copy of exhibits not previously identified in the prehearing conference with the hearing officer and the other party within 5 working days prior to a scheduled hearing.

(6) Record of the hearing.

(a) Recording. The hearing officer shall record each hearing. The applicant, eligible individual, or their representative may obtain one free copy of the recording by contacting the hearing coordinator. No other recording of the hearing is permitted.

Note: To obtain a copy of the recorded hearing, contact the Hearing Coordinator, Division of Vocational Rehabilitation, P.O. Box 7852, Madison, Wisconsin 53707 or telephone (800) 442-3477.

(b) Transcript. Transcripts of the hearing record may be provided at the expense of the requestor. However, a party who cannot, due to a disability, use the free copy of the recording provided in par. (a) may file a written request with the hearing coordinator for a copy of the record in an alternate format as a reasonable accommodation.

Note: To file a written request for a transcript of the hearing record, contact the Hearing Coordinator, Division of Vocational Rehabilitation, P.O. Box 7852, Madison, Wisconsin 53707 or telephone (800) 442-3477.

(7) Opening statement by hearing officer. The hearing officer shall open the hearing with a brief statement of the date, the location of the hearing, the issues, the parties directly involved in the hearing and the standard procedures and shall remind all parties and witnesses present that all personally identifiable information made available for the hearing is confidential.

(8) Roll call.

(a) The hearing officer shall determine if the parties and announced witnesses are present. The hearing officer may admit other individuals to the hearing for good cause at the request of either party.

(b) If either party fails to appear at a hearing without prior notice, the hearing officer shall immediately reschedule the hearing to a date within 5 working days after the current date to allow the absent party to explain the absence. The hearing officer shall notify the parties and the hearing coordinator by certified mail or electronic mail of the new hearing date and the reason for rescheduling the hearing. If the applicant, eligible individual, or their representative fails to appear at the rescheduled hearing, the hearing officer shall dismiss the appeal. This dismissal shall not be construed as violation of the 60-day limit for holding a hearing since the hearing was scheduled and held but the applicant, eligible individual, or their representative did not appear to present testimony or evidence. The department may review this decision as provided in s. DWD 75.19.

(9) Admissibility of evidence or testimony. At the request of either party, the hearing officer may exclude testimony or evidence. The hearing officer may also exclude immaterial, irrelevant or unduly repetitious testimony. A decision to exclude evidence or testimony shall be made on the record and shall include the rationale and arguments used by the hearing officer to exclude the material. The hearing officer may issue reserved rulings on evidence and determine, before the close of the hearing, if the material will be considered in the decision.

(10) Administering oath. The hearing officer shall swear in the parties and all witnesses. After the roll call, witnesses shall be present in the hearing room only while giving testimony.

(11) Cross-examination. Cross-examination is not limited to matters to which a party or witness testified on direct examination.

(12) Preliminary statements by the parties. The hearing officer shall ask the parties to state their names for the record.

(13) Request for direct testimony, evidence and arguments.

(a) The hearing officer shall ask the parties to present written and oral statements regarding the facts, issues and desired outcome of the hearing. This includes new information which may not have been available when the original request for a hearing was filed.

(b) Witnesses may testify either by answering questions posed to them or in narrative form. Written or electronic depositions may also be used with the understanding that a witness may be asked or subpoenaed to appear by the hearing officer based on the information in the deposition.

(d) The hearing officer shall ensure that the parties have an opportunity to review and comment on all evidence.

(e) At the request of either party, the hearing officer may exclude the testimony of a witness.

(14) Direct testimony.

(a) The hearing officer shall ask the administrator’s representative and witnesses to make the first presentation and to question the applicant, eligible individual, or their representative.

(b) The hearing officer shall ask the applicant, eligible individual, or their representative to make the second presentation and to question the administrator’s representative and witnesses.

(15) Rebuttal and questions. The hearing officer shall give the administrator’s representative and witnesses the opportunity to make a rebuttal of evidence presented at the hearing and to question the applicant, eligible individual, or their representative and then give the same opportunity to the applicant, eligible individual, or their representative.

(16) Closing arguments. The hearing officer shall ask the administrator’s representative to present closing arguments and then ask the applicant, eligible individual, or their representative to present closing arguments. Closing arguments may be submitted both as verbal arguments and as written briefs.

(17) Ending the hearing. The hearing officer shall issue a written decision within 10 calendar days of a written motion under s. DWD 75.08 and within 30 calendar days of a hearing. The hearing officer shall provide a report of the hearing including the findings and the grounds for the decision. The decision shall state that the decision is final unless the administrator’s representative or the applicant, eligible individual, or their representative requests a review of the decision of the hearing officer within 20 calendar days after the decision is issued, under s. DWD 75.19, or the applicant, eligible individual, or their representative chooses to petition the circuit court under s. 227.53, Stats. The notice shall specify the procedures for seeking judicial review in circuit court. The hearing officer shall send the original to the applicant, eligible individual, or their representative and send a copy of the notice to the administrator’s representative and to the hearing coordinator for placement in the applicant’s or eligible individual’s case record.

History

Cr. Register, December, 1996, No. 492, eff. 1-1-97; CR 15-055: am. (1), (3) to (5), (6) (a), (b), (7), (8) (b), (9), (14) (a), (b), (15) to (17) Register May 2016 No. 725, eff. 6-1-16; CR 22-008: am. (1), (6) (a), (7), (8) (b), (14) to (17) Register June 2022 No. 798, eff. 7-1-22; correction in (14) (a) made under s. 35.17, Stats., Register June 2022 No. 798.

Wis. Admin. Code § DWD 75.17 Decision of the hearing officer {#sec-dwd-75.17 omnilex-key=us-wi-regs-official--agency-dwd--DWD 75.17}

The hearing officer shall issue a written decision within 10 calendar days of a written motion under s. DWD 75.08 and within 30 calendar days of a hearing. The hearing officer shall provide a report of the hearing including the findings and the grounds for the decision. The decision shall state that the decision is final unless the administrator’s representative or the applicant, eligible individual, or their representative requests a review of the decision of the hearing officer within 20 calendar days after the decision is issued, under s. DWD 75.19, or the applicant, eligible individual, or their representative chooses to petition the circuit court under s. 227.53, Stats. The notice shall specify the procedures for seeking judicial review in circuit court. The hearing officer shall send the original to the applicant, eligible individual, or their representative and send a copy of the notice to the administrator’s representative and to the hearing coordinator for placement in the applicant’s or eligible individual’s case record.

History

Cr. Register, December, 1996, No. 492, eff. 1-1-97; CR 15-055: am. Register May 2016 No. 725, eff. 6-1-16; CR 22-008: am. Register June 2022 No. 798, eff. 7-1-22.

Wis. Admin. Code § DWD 75.18 Hearing officer’s report {#sec-dwd-75.18 omnilex-key=us-wi-regs-official--agency-dwd--DWD 75.18}

The hearing officer shall forward the recording of the hearing, a written summary of the hearing and any other items specified by contract to the hearing coordinator. The hearing coordinator shall ensure that all required materials have been received and shall forward the materials to the department for a decision as to whether a formal review of the hearing officer’s decision is needed.

History

Cr. Register, December, 1996, No. 492, eff. 1-1-97; CR 15-055: am. Register May 2016 No. 725, eff. 6-1-16.

Wis. Admin. Code § DWD 75.19 Review of hearing officer’s decision {#sec-dwd-75.19 omnilex-key=us-wi-regs-official--agency-dwd--DWD 75.19}

(1) Notice of intent to review. The department, or the applicant or eligible individual, may initiate a review of the hearing officer’s decision issued under s. DWD 75.17. If the department decides to initiate a review of the hearing officer’s decision, written notice of this decision shall be filed with the parties by certified mail within 20 calendar days of the date that the decision of the hearing officer was mailed. The intent to review notice shall advise the parties that additional evidence and information relevant to the final decision may be filed with the department within 30 calendar days following the date of the intent to review notice and that the department may also collect new evidence from other sources during that period.

(2) Review authority. Authority for modifying the decision of a hearing officer under this chapter is reserved to the department secretary and may not be otherwise delegated.

(3) Basis for changing hearing officer decision. The department may not modify a decision of a hearing officer which supports the position of the applicant or eligible individual unless, based on clear and convincing evidence, the decision is clearly contrary to law or federal policy issuances.

(5) Notice of outcome of the department’s review. The department shall notify the parties in writing by certified mail of the outcome of the review within 30 calendar days after the date of the intent to review notice. The notice shall state the findings, the grounds for the final decision, that it is the final decision unless modified by a court and information on how to file a request for circuit court review. The department shall send copies of the letter and any attachments to the hearing coordinator for placement in the applicant’s or eligible individual’s case record, to the hearing officer and to the contract administrator.

History

Cr. Register, December, 1996, No. 492, eff. 1-1-97; CR 15-055: am. (title), (1), (2) (title), renum. (2) to (2) (a) and am., cr. (2) (b), (c), am. (3) to (5) Register May 2016 No. 725, eff. 6-1-16; CR 22-008: am. (2) (title), renum. (2) (a) to (2) and am., r. (2) (b), (c), (4) Register June 2022 No. 798, eff. 7-1-22.

Chapter DWD 80 WORKER’S COMPENSATION

Wis. Admin. Code § DWD 80.01 Definitions {#sec-dwd-80.01 omnilex-key=us-wi-regs-official--agency-dwd--DWD 80.01}

(1) “Act,” “compensation act” or “worker’s compensation act” means ch. 102, Stats.

(2) “Department” means the department of workforce development.

(3) “Commission” means the labor and industry review commission.

History

1-2-56; am. Register, April, 1975, No. 232, eff. 5-1-75; r. and recr. Register, September, 1982, No. 321, eff. 10-1-82; correction in (2) made under s. 13.93 (2m) (b) 6., Stats., July, 1996, No. 487.

Wis. Admin. Code § DWD 80.02 Reports {#sec-dwd-80.02 omnilex-key=us-wi-regs-official--agency-dwd--DWD 80.02}

(1) Employers. An employer covered by the provisions of ch. 102, Stats., shall, within one day after the death of an employee due to a compensable injury, report the death to the department and the employer’s insurance carrier by telegraph, telephone, letter, facsimile transmission or other means authorized by the department on a case-by-case basis as communication technologies change. An insured employer shall also notify its insurance carrier of a compensable injury within 7 days after the accident or beginning of a disability from occupational disease related to the employee’s compensable injury if any of the following occurs:

(a) Disability exists beyond the 3rd day after the employee leaves work as a result of the accident or disease. In counting the days on which disability exists, include Sunday only if the employee usually works on Sunday.

(b) An employer’s insurance carrier has primary liability for unpaid medical treatment.

(2) Self-insured employers and insurance companies; reports. Except as provided in sub. (3m), for injuries under sub. (1) (a) self-insured employers and insurance companies shall submit all of the following to the department:

(a) A first report of injury with the information required by a completed form WKC-12 on or before the 14th day after an accident or the beginning of a disability from occupational disease. If an employer does not notify the insurance carrier of the injury until after the 14th day, the insurance carrier shall submit the WKC-12 to the department within 7 days of receiving notice of the injury from any source.

(b) A supplementary report with the information required by form WKC-13 on or before the 30th day following the day on which the injury in par. (a) occurred or on or before the 30th day following the day the injury was reported to the department, if the injury was not required to be reported under par. (a).

(c) For injuries occurring before April 10, 2022, the wage information required by form WKC-13-A if the wage is less than the maximum wage as defined by s. 102.11 (1), Stats. The WKC-13 required in par. (b) and the WKC-13-A shall be submitted together, except that if the wage information required by form WKC-13-A is not available at the time the WKC-13 is submitted, the insurance carrier or self-insured employer shall estimate on the WKC-13 the date by which the WKC-13-A will be submitted.

(cm) For injuries occurring on or after April 10, 2022, the wage information required by the form WKC-13-A1 if the wage is less than the maximum wage as defined by s. 102.11 (1), Stats. The WKC-13 required in par. (b) and the WKC-13-A1 shall be submitted together, except that if the wage information required by form WKC-13-A1 is not available at the time the WKC-13 is submitted, the insurance carrier or self-insured employer shall estimate on the WKC-13 the date on which the WKC-13-A1 will be submitted.

(d) For injuries occurring before April 10, 2022, if applicable, a signed statement from the employee verifying that the employee restricts his or her availability on the labor market to part-time employment, and is not actively employed elsewhere. The employee’s self-restriction statement shall accompany the WKC-13-A, but no statement is required if the employee is under the age of 16.

(dm) For injuries occurring on or after April 10, 2022, if applicable, a signed statement from the employee verifying that the employee restricts his or her availability to part-time employment, an employment application indicating an hour or shift preference, or other evidence to establish the employee chose to work less than full-time. The employee’s self-restriction statement, employment application, or other evidence to establish the employee chose to work less than full-time shall accompany the WKC-13-A1.

(e) A report within 30 days after each of the following events occurs, with a copy to the employee, using form WKC-13 indicating all worker’s compensation payments to date and the periods of time for which any of the following payments were made or salary continuation paid in lieu of compensation:

Payment of compensation is changed from temporary disability or salary continuation in lieu of compensation to permanent disability.
Temporary disability benefits or salary continuation in lieu of compensation are reinstated.
Temporary partial disability is paid. The insurance carrier or self-insured employer shall also include the information required by form WKC-7359.
Final payment of compensation is made or salary continuation paid in lieu of compensation ended. If there are more than 3 weeks of temporary disability or any permanent disability, or if the employee has undergone surgery to treat the injured employee’s injury, other than surgery to correct a hernia, or if the injured employee sustained an eye injury requiring treatment on 3 or more occasions outside of the employers premises, the insurance carrier or self-insured employer shall submit a final treating practitioner’s report together with the final form WKC-13 or shall explain why the report is not being submitted and shall estimate when the final treating practitioner’s report will be submitted.
When a self-insured employer or insurance company transfers an open claim, with 26 weeks or more of temporary disability or permanent total disability paid, to a new claims handling office or third party administrator, the self-insured employer or insurance company shall file a paper form WKC-13 with the new claims handling office or third party administrator. The self-insured employer or insurance company shall file a paper copy of the form WKC-13 with the department upon request made by the department. The department may require a self-insured employer or insurance company to submit form WKC-13 for open claims with less than 26 weeks of temporary disability or permanent total disability paid upon request made by the department.

(f) When submitting a stipulation or compromise, and at the time of hearing, a current form WKC-13 indicating all worker’s compensation payments to date and the periods of time for which these payments were made.

(g) Written notice within 7 days, with a copy to the employee, after each of the following:

Payments are stopped for any reason. If any payments are stopped for a reason other than the employee’s return to work, the self-insured employer or insurance carrier shall explain why it stopped payments and shall advise the employee what to do to reinstate payments.
A decision to deny liability for payment of compensation for reported claims after a concession of liability is made, giving the reason for the denial and advising the employee of the right to a hearing before the division of hearings and appeals.
Amputation will require an artificial member or appliance.

(i) If increased compensation is due, a final receipt within 30 days of the final payment to the employee, as proof of payment of that increased compensation.

(j) If the employee fails to return to a practitioner for a final examination, written notice within 30 days, with a copy to the employee, advising the employee that in order to determine permanent disability, if any, the final examination is necessary.

(k) By June 30 of each calendar year, a self-insured employer or insurance company shall file a report with the department that lists the date and amount of payment for permanent total disability and supplemental benefits paid during the previous calendar year on a form prescribed by the department.

Note: To obtain a copy of the forms under this subsection, contact the Department of Workforce Development, 201 East Washington Avenue, P.O. Box 7901, Madison, Wisconsin 53707-7901 or access forms online at http://www.dwd.wisconsin.gov.

(2m) Self-insured employers and insurance companies; notice to employee.

(a) For all injuries under sub. (1) (a), self-insured employers and insurance companies shall provide written notice to the employee within 14 days of the date of an alleged injury indicating one of the following:

A decision to deny liability for payment of compensation giving the specific reason for the denial and advising the employee of the right to a hearing before the division of hearings and appeals.
An explanation that the claim is not paid because the insurance company or self-insured employer is still investigating the claim. The notice shall specify if additional medical or other information is needed to complete the investigation. The notice shall advise the employee of the right to a hearing before the department if the claim is subsequently denied.

(b) If the notice of injury from the employee to the insured employer or from the insured employer to its insurance company was not made within 7 days of the date of the alleged injury, the insurance company shall provide notice under par. (a) 1. or 2. within 14 days of receiving notice of the alleged injury from any source.

(3) Evaluation. In evaluating whether payments of compensation and reports made by insurance carriers and self-insured employers were prompt and proper under the provisions of ss. 102.28 (2) and 102.31 (3), Stats., and before undertaking to revoke the exemption from insurance under s. 102.28 (2) (c), Stats., or before recommending under s. 102.31 (3), Stats., to the commissioner of insurance that enforcement proceedings under s. 601.64, Stats., be invoked the department will consider all of the following performance standards together with all other factors bearing on the performance and activities of the insurance carrier or self-insured employer:

(a) Payment of first indemnity. Whether 80% or more of first indemnity payments are mailed to the injured employee in 14 days or less following the date of injury or the last day worked after the injury before the first day of compensable lost time.

(b) First report of injury. Whether 70% or more of reports required under sub. (2) (a) are received by the department within 14 days of the date of injury or the last day worked after injury before the first day of compensable lost time.

(c) Correct and complete names. Names of self-insured employers on reports filed with the department must be correct and complete. The name of an insurance group is not a substitute for the name of the individual company insuring the risk. The name of an insurance service company is not a substitute.

(d) Penalty frequency and severity. The number and amount of penalties assessed for violations of ss. 102.18 (1) (bp), 102.22 (1), 102.57, and 102.60, Stats.

(3m) Reporting by electronic, magnetic or other media.

(a) Employer or insurer request.

An employer, self-insured employer or insurer may make a written request to the department to submit the information in reports or amendments to reports required to be filed with the department in sub. (1) or (2) via electronic, magnetic or other media satisfactory to the department. The department may authorize an employer, self-insured employer or insurer to use electronic, magnetic or other reporting media after considering the extent to which it will help the employer, self-insured employer or insurer meet or exceed the applicable reporting requirements and performance standards in subs. (1) to (3).
The authorization shall be in writing and shall state the terms and conditions for granting and revoking the privilege to use electronic, magnetic or other reporting media, including any terms and conditions relating to reporting requirements or performance standards in subs. (1) to (3). The written authorization shall specify what variations exist, if any, between the data required to be submitted on forms WKC-12, WKC-13, WKC-13-A, or other forms that are used by the department and the data required to be submitted via electronic, magnetic or other media.

(b) Department requirement.

The department may require an employer, self-insured employer, or insurer to submit all or selected information in reports or amendments to reports required to be filed with the department in sub. (1) or (2) via electronic, magnetic, or other media satisfactory to the department. The department may require an employer, self-insured employer, or insurer to use electronic, magnetic, or other reporting media after considering the extent to which it will help the employer, self-insured employer, or insurer meet or exceed the applicable reporting requirements and performance standards in subs. (1) to (3).
The directive that requires reporting by electronic, magnetic, or other media shall be in writing and shall set forth terms and conditions that include a deadline for compliance.
An employer, self-insured employer, or insurer may request a waiver within 60 days of the date of the department’s directive that requires reporting by electronic, magnetic, or other media. The department may grant the waiver if the department is satisfied that the employer, self-insured employer, or insurer has established good cause.

History

1-2-56; am. (1) and (2), Register, October, 1965, No. 118, eff. 11-1-66; am. Register, April, 1975, No. 232, eff. 5-1-75; am. (1), r. and recr. (2), Register, September, 1982, No. 321, eff. 10-1-82; am. (2) (intro.) and cr. (3), Register, September, 1986, No. 369, eff. 10-1-86; renum. (1) to be (1) (a) and am., cr. (1) (b) and (3m), am. (2) (intro.), Register, November, 1993, No. 455, eff. 12-1-.93; r. and recr. (1) and (2), am. (3) (intro.), (a), (b), (3m) (b) and r. (3m) (c), Register, December, 1997, No. 504, eff. 1-1-98; CR 03-125: am. (2) (b) and (g) 2., r. (2) (h), cr. (2m) and (3m) (b), renum. (3m) (a) and (b) to be (3m) (a) 1. and 2. Register June 2004 No. 582, eff. 7-1-04; CR 07-019: am. (2) (e) 4., Register October 2007 No. 622, eff. 11-1-07; CR 15-030: am. (2) (e) (intro.), 1., 2., 4., cr. (2) (e) 5., (k) Register October 2015 No. 718, eff. 11-1-15; correction in (2) (g) 2., (2m) (a) 1., 2. under s. 13.92 (4) (b) 6., 35.17, Stats., Register May 2018 No. 749; EmR2212: emerg. am. (2) (intro.), (c), cr. (2) (cm), am. (2) (d), cr. (2) (dm), eff. 10-15-22; CR 22-072: am. (2) (intro.), (c), cr. (2) (cm), am. (2) (d), cr. (2) (dm) Register May 2023 No. 809, eff. 6-1-23.

Wis. Admin. Code § DWD 80.025 Inspection and copying of records {#sec-dwd-80.025 omnilex-key=us-wi-regs-official--agency-dwd--DWD 80.025}

(1) The policy of the state on public access to records is set forth in ss. 19.31 to 19.37, Stats. The policy of the department is to provide, to the greatest extent possible, ready and open access to public records. In the worker’s compensation division, access may be limited in particular cases only when consideration of the information in a file leads to the conclusion that the public interest served by nondisclosure is greater than the public interest served by disclosure. The inspection and copying of worker’s compensation records shall be subject to the conditions specified in this section.

(2) The requester shall provide sufficient information on each individual file requested to permit identification and location of the specific file. Desirable information on claim files includes:

(a) The correct name of the individual who has claimed a work-related disability;

(b) The claimant’s social security number;

(d) The name of the employing firm or firms at the time of the claimed injury or illness;

(e) The name of the employing firm’s insurance carrier.

(3) Requesters may inspect claim files only in the division’s Madison office and under the supervision of division staff. Requesters shall direct requests to inspect files to the receptionist between the hours of 7:45 a.m. and 4:30 p.m. Requesters shall return all files by 4:30 p.m.

(4) Requesters may not remove files from the division offices without written authorization from the administrator of the division.

(5) Requesters wishing to make copies of all or a part of a file may do so under the supervision of division staff on the coin-operated copy machine provided for that purpose.

(6) The division of hearings and appeals shall provide transcripts of testimony taken or proceedings had before the division only in accordance with s. HA 4.13.

(7) The division shall furnish copies of documents from worker’s compensation claim files as requested, with the following limits:

(a) At least one week must be allowed before copies can be delivered or mailed.

(b) Advance payment shall not be required except as provided in par. (e). The division shall send an invoice to the requester for the necessary costs as set forth in par. (c).

20 cents per page for photocopying.
$2.00 for certifying copies.
$3.00 per request for postage and handling when copies are to be mailed.

(d) Upon a proper showing of inability to pay, the division shall furnish the requested copies upon such terms as may be agreed.

(e) If the requester has unpaid copying fees from prior requests outstanding in an amount that exceeds $5.00, the division shall require the requester to pay the amount owed before providing more copies.

History

Cr. Register, March, 1986, No. 363, eff. 4-1-86; correction in (6) under s. 13.92 (4) (b) 6., 7., Stats., Register May 2018 No. 749.

Wis. Admin. Code § DWD 80.03 Compromise {#sec-dwd-80.03 omnilex-key=us-wi-regs-official--agency-dwd--DWD 80.03}

(1) Whenever an employer and an employee enter into a compromise agreement concerning the employer’s liability under ch. 102, Stats., for a particular injury to that employee, the following conditions shall be fulfilled:

(a) The compromise agreement shall be in writing, or in the alternative, oral on the record at the time of scheduled hearing;

(b) The compromise agreement shall be mailed to the department unless made on the record;

(d) No compromise agreement may provide for a lump sum payment of more than the incurred medical expenses plus sums accrued as compensation or death benefits to the date of the agreement and $10,000 in unaccrued benefits where the compromise settlement in a claim other than for death benefits involves a dispute as to the extent of permanent disability. Lump sum payments will be considered after approval of the compromise in accordance with s. DWD 80.39.

(e) Compromise agreements which provide for payment of a lump sum into an account in a bank, trust company or other financial institution, which account is subject to release as the department directs, will be authorized.

(f) Appropriate structured settlements will be approved.

(g) All written compromise agreements submitted to the department shall contain the following:

(2) If the department approves the compromise agreement, an order shall be issued by the department directing payment in accordance with the terms of the compromise agreement. No compromise agreement is valid without an order of the department approving the agreement.

(3) Section 102.16 (1), Stats., places upon the department the responsibility for reviewing, approving, modifying, setting aside and issuing awards on compromise agreements. The action that is taken on any individual claim is dependent upon the facts, circumstances and judgment of the merits of compromise in that specific case. In arriving at a judgment of the merits the department will take into account the following general considerations:

(a) Medical reports, statements or other information submitted by the parties to show that there is a genuine and significant basis for a dispute between the parties.

(b) Estimates of the disability by the physicians, chiropractors or podiatrists which do not vary significantly in estimates of the scheduled or nonscheduled disability will not be presumed to demonstrate a basis for dispute.

(c) The length of time since active treatment has been necessary. The presumption is that the longer the interval the less likely that treatment will be required in the future.

(d) Scientific knowledge or experience indicating that there may be further progression of the disability or that future treatment may be required. Examples of such conditions are: skull fractures with laceration of the dura, sub-capitol fractures of the femur, silicosis and asbestosis.

(e) The length of time since the date of injury.

(f) Any and all other factors that bear on the equity of the proposed compromise.

History

1-2-56; am., Register, April, 1975, No. 232, eff. 5-1-75; r. and recr. Register, September, 1982, No. 321, eff. 10-1-82; am. (1) (d), cr. (1) (f) and (g) and (3), Register, September, 1986, No. 369, eff. 10-1-86; CR 07-019: am. (1) (d) and (g), Register October 2007 No. 622, eff. 11-1-07.

Wis. Admin. Code § DWD 80.06 Parties {#sec-dwd-80.06 omnilex-key=us-wi-regs-official--agency-dwd--DWD 80.06}

The parties to the controversy shall be known as the applicant and the respondent. The party filing the application for relief shall be known as the applicant and an adverse party as the respondent. Any party may appear in person or by an attorney or agent.

History

1-2-56; am. Register, September, 1982, No. 321, eff. 10-1-82.

Wis. Admin. Code § DWD 80.07 Service {#sec-dwd-80.07 omnilex-key=us-wi-regs-official--agency-dwd--DWD 80.07}

All service of papers, unless otherwise directed by the department or by law, may be made by mail and proof of such mailing shall be prima facie proof of such service. Time within which service shall be made shall be the same as in courts of record unless otherwise specified by rule or order of the department.

History

1-2-56; am. Register, April, 1975, No. 232, eff. 5-1-75.

Wis. Admin. Code § DWD 80.10 Stipulations {#sec-dwd-80.10 omnilex-key=us-wi-regs-official--agency-dwd--DWD 80.10}

Parties to a controversy may stipulate the facts in writing, and the department may thereupon make its order or award. Stipulations must set forth in detail the manner of computing the compensation due and must be accompanied by a report from a physician stating the extent of the disability.

History

1-2-56; am. Register, April, 1975, No. 232, eff. 5-1-75.

Wis. Admin. Code § DWD 80.21 Reports by practitioners and expert witnesses {#sec-dwd-80.21 omnilex-key=us-wi-regs-official--agency-dwd--DWD 80.21}

(1) Upon the request of the department, any party in interest to a claim under ch. 102, Stats., shall furnish to the department and to all parties in interest copies of all reports by practitioners and expert witnesses in their possession or procurable by them.

(2) In cases involving nonscheduled injuries under s. 102.44 (2) or (3), Stats., any party in interest to a claim under the act shall, upon the request of the department, also furnish to the department and to all parties in interest any reports in their possession or reasonably available to them relating to the loss of earning capacity as set forth in s. DWD 80.34.

(3) Any party who does not comply with the request of the department under sub. (1) or (2) shall be barred from presenting the reports or the testimony contained therein at the hearing.

(4) No testimony or reports from expert witnesses on the issue of loss of earning capacity may be received unless the party offering the evidence has notified the department and the other parties of interest of the party’s intent to provide the testimony or reports and the names of expert witnesses involved as required under the provisions of s. 102.17 (7), Stats.

History

1-2-56; am. Register, April, 1975, No. 232, eff. 5-1-75; am. (1), cr. (2), (3) and (4), Register, September, 1982, No. 321, eff. 10-1-82; CR 02-094: r. and recr. (4) Register November 2002 No. 563, eff. 12-1-02.

Wis. Admin. Code § DWD 80.23 Common insurance of employer and third party {#sec-dwd-80.23 omnilex-key=us-wi-regs-official--agency-dwd--DWD 80.23}

In all cases where compensation becomes payable and the insurance carrier of an employer and of a third party shall be the same, or if there is common control of the insurer of each, the insurance carrier of the employer shall promptly notify the parties in interest and the department of that fact.

History

1-2-56; am. Register, April, 1975, No. 232, eff. 5-1-75.

Wis. Admin. Code § DWD 80.25 Loss of hearing {#sec-dwd-80.25 omnilex-key=us-wi-regs-official--agency-dwd--DWD 80.25}

The department adopts the following standards for the determination and evaluation of noise induced hearing loss, other occupational hearing loss and accidental hearing loss:

(1) Harmful noise. Hearing loss resulting from hazardous noise exposure depends upon several factors, namely, the overall intensity (sound pressure level), the daily exposure, the frequency characteristic of the noise spectrum and the total lifetime exposure. Noise exposure level of 90 decibels or more as measured on the A scale of a sound level meter for 8 hours a day is considered to be harmful.

(2) Measurement of noise. Noise shall be measured with a sound level meter which meets ANSI standard 1983 and shall be measured on the “A” weighted network for “slow response.” Noise levels reaching maxima at intervals of one second or less shall be classified as being continuous. The measurement of noise is primarily the function of acoustical engineers and properly trained personnel. Noise should be scientifically measured by properly trained individuals using approved calibrated instruments which at the present time include sound level meters, octave band analyzers and oscilloscopes, the latter particularly for impact-type noises.

(3) Measure of hearing acuity. The use of pure tone air and bone conduction audiometry performed under proper testing conditions is recommended for establishing the hearing acuity of workers. The audiometer should be one which meets the specifications of ANSI standard 53.6-1969 (4). The audiometer should be periodically calibrated. Preemployment records should include a satisfactory personal and occupational history as they may pertain to hearing status. Otological examination should be made where indicated.

(4) Formula for measuring hearing impairment. For the purpose of determining the hearing impairment, pure tone air conduction audiometry is used, measuring all frequencies between 500 and 6,000 Hz. This formula uses the average of the 4 speech frequencies of 500, 1,000, 2,000, and 3,000 Hz. Audiometric measurement for these 4 frequencies averaging 30 decibels or less on the ANSI calibration does not constitute any practical hearing impairment. A table for evaluating hearing impairment based upon the average readings of these 4 frequencies follows below. No deduction is made for presbycusis.

(5) Diagnosis and evaluation. The diagnosis of occupational hearing loss is based upon the occupational and medical history, the results of the otological and audiometric examinations and their evaluation.

(6) Treatment. There is no known medical or surgical treatment for improving or restoring hearing loss due to hazardous noise exposure. Hearing loss will be improved in non-occupational settings with the use of a hearing aid. Since a hearing aid relieves from the effect of injury the cost is compensable where prescribed by a physician.

(7) Allowance for tinnitus. In addition to the above impairment, if tinnitus has permanently resulted due to work exposure, an allowance of 5% loss of hearing impairment for the affected ear or ears shall be computed.

(8) Hearing impairment table.

(9) Method for determining percent of hearing impairment.

(a) Obtain for each ear the average hearing level in decibels at the 4 frequencies, 500, 1,000, 2,000 and 3,000 Hz.

(b) See Table for converting to percentage of hearing impairment in each ear.

(c) To determine the percentage of impairment for both ears, multiply the lesser loss by 5, add the greater loss and divide by 6. Following are examples of the calculation of hearing loss:

History

1-2-56; am. Register, January, 1960, No. 49, eff. 2-1-60; am. Register, October, 1965, No. 118, eff. 11-1-65; r. and recr. Register, September, 1972, No. 201, eff. 10-1-72; am. (1) to (4), r. (5), renum. (6) and (7) to be (5) and (6), cr. (7) and am. (8), Register, September, 1975, No. 237, eff. 10-1-75; am. (intro.), (2) to (4), (6), (8) and (9), Register, September, 1986, No. 369, eff. 10-1-86; CR 20-031: am. (9) (c) A. 2., C. 2. Register October 2021 No. 790, eff. 11-1-21.

Wis. Admin. Code § DWD 80.26 Loss of vision; determination {#sec-dwd-80.26 omnilex-key=us-wi-regs-official--agency-dwd--DWD 80.26}

The following rules for determining loss of visual efficiency shall be applicable to all cases settled after December 1, 1941, irrespective of the date of injury, except that, in the examples for computations of compensation payable and of the percentage of permanent total disability, the computation of the percentage of visual impairment must be applied to the provisions of the worker’s compensation act as they existed at the date of the injury.

(1) Maximum and minimum limits of the primary coordinate factors of vision. In order to determine the various degrees of visual efficiency, a) normal or maximum, and b) minimum, limits for each coordinate function must be established; i.e., the 100% point and the 0% point.

(a) Maximum limits. The maximum efficiency for each of these is established by existing and accepted standards.

‘Central visual acuity.’ The ability to recognize letters or characters which subtend an angle of 5 minutes, each unit part of which subtends a 1 minute angle at the distance viewed is accepted as standard. Therefore a 20/20 Snellen or A.M.A. and a 14/14 A.M.A. are employed as the maximum acuity of central vision, or 100% acuity for distance vision and near vision respectively.
‘Field vision.’ A visual field having an area which extends from the point of fixation outward 65, down and out 65, down 55, down and in 45, inward 45, in and up 45, upward 45, and up and out 55 is accepted as 100% industrial visual field efficiency.
‘Binocular vision.’ Maximum binocular vision is present if there is absence of diplopia in all parts of the field of binocular fixation, and if the 2 eyes give useful binocular vision.

(b) Minimum limits. The minimum limit, or the 0% of the coordinate functions of vision, is established at that degree of deficiency which reduces vision to a state of industrial uselessness.

‘Central visual acuity.’ The minimum limit of this function is established as the loss of light perception, light perception being qualitative vision. The practical minimum limit of quantitative visual acuity is established as the ability to distinguish form. Experience, experiment and authoritative opinion show that for distance vision 20/200 Snellen or A.M.A. Chart is 80% loss of visual efficiency, 20/380 is 96% loss, and 20/800 is 99.9% loss, and that for near vision 14/141 A.M.A. Reading Card is 80% loss of visual efficiency, 14/266 is 96% loss, and 14/560 is 99.9% loss. Table 1 shows the percentage loss of visual efficiency corresponding to the Snellen and other notations for distant and for near vision, for the measurable range of quantitative visual acuity.
‘Field vision.’ The minimum limit for this function is established as a concentric central contraction of the visual field to 5. This degree of contraction of the visual field of an eye reduces the visual efficiency to zero.
‘Binocular vision.’ The minimum limit is established by the presence of diplopia in all parts of the motor field, or by lack of useful binocular vision. This condition constitutes 50% motor field efficiency.

(c) Where distance vision is less than 20/200 and the A.M.A. Chart is used, readings will be at 10 feet. The percentage of efficiency and loss may be obtained from this table by comparison with corresponding readings on the basis of 20 feet, interpolating between readings if necessary. In view of the lack of uniform standards among the various near vision charts, readings for near vision, within the range of vision covered thereby, are to be according to the American Medical Association Rating Reading Card of 1932.

(2) Measurement of coordinate factors of vision and the computation of their partial loss.

(a) Central visual acuity.

Central visual acuity shall be measured both for distance and for near, each eye being measured separately, both with and without correction. Where the purpose of the computation is to determine loss of vision resulting from injury, if correction is needed for a presbyopia due to age or for some other condition clearly not due to the injury (see section on miscellaneous regulations), the central visual acuity “without correction”, as the term is used herein, shall be measured with a correction applied for such presbyopia or other preexisting condition but without correction for any condition which may have resulted from the injury. The central visual acuity “with correction” shall be measured with correction applied for all conditions present.
The percentage of central visual acuity efficiency of the eye for distance vision shall be based on the best percentage of central visual acuity between the percentage of central visual acuity with and without correction. However, in no case shall such subtraction for glasses be taken at more than 25%, or less than 5%, of total central visual acuity efficiency. If a subtraction of 5%, however, reduces the percentage of central visual acuity efficiency below that obtainable without correction, the percentage obtainable without correction shall be adopted unless correction is nevertheless necessary to prevent eye strain or for other reasons.
The percentage of central visual acuity efficiency of the eye for near vision shall be based on a similar computation from the near vision readings, with and without correction.
The percentage of central visual acuity efficiency of the eye in question shall be the result of the weighted values assigned to these 2 percentages for distance and for near. A onefold value is assigned to distance vision and a twofold value to near vision. Thus, if the central visual efficiency for distance is 70% and that for near is 40%, the percentage of central visual efficiency for the eye in question would be:
The Snellen test letters or characters as published by the Committee on Compensation for Eye Injuries of the American Medical Association and designated “Industrial Vision Test Charts” subtend a 5 minute angle, and their component parts a 1 minute angle. These test letters or the equivalent are to be used at an examining distance of 20 feet for distant vision (except as otherwise noted on the Chart where vision is very poor), and of 14 inches for near vision, from the patient. The illumination is to be not less than three foot candles, nor more than ten foot candles on the surface of the chart.
Table 1 shows the percentage of central visual acuity efficiency and the percentage loss of such efficiency, both for distance and for near, for partial loss between 100% and zero vision for either eye.

(b) Field vision.

The extent of the field of vision shall be determined by the use of the usual perimetric test methods, a white target being employed which subtends a 1 degree angle under illumination of not less than 3 foot candles, and the result plotted on the industrial visual field chart. The readings should be taken, if possible, without restriction to the field covered by the correction worn.
The amount of radial contraction in the 8 principal meridians shall be determined. The sum of the degrees of field vision remaining on these meridians,divided by 420 (the sum of the 8 principal radii of the industrial visual field) will give the visual field efficiency of one eye in per cent, subject to the proviso stated in the section on “Minimum Limits” that a concentric central contraction of the field to a diameter of 5 degrees reduces the visual efficiency to zero.
Where the impairment of field is irregular and not fairly disclosed by the 8 radii, the impaired area should be sketched upon the diagram on the report blank, and the computation be based on a greater number of radii, or otherwise, as may be necessary to a fair determination.

Binocular vision shall be measured in all parts of the motor field, recognized methods being used for testing. It shall be measured with any useful correction applied.
Diplopia may involve the field of binocular fixation entirely or partially. When diplopia is present, this shall be plotted on the industrial motor field chart. This chart is divided into 20 rectangles, 4 by 5 degrees in size. The partial loss due to diplopia is that proportional area which shows diplopia as indicated on the plotted chart compared with the entire motor field area.
When diplopia involves the entire motor field, causing an irremediable diplopia, or when there is absence of useful binocular vision due to lack of accommodation or other reason, the loss of coordinate visual efficiency is equal to 50% loss of the vision existing in one eye (ordinarily the injured, or the more seriously injured, eye); and when the diplopia is partial, the loss in visual efficiency shall be proportional and based on the efficiency factor value of one eye as stated in table 2. When useful correction is applied to relieve diplopia, 5% of total motor field efficiency of one eye shall be deducted from the percent of such efficiency obtainable with the correction. A correction which does not improve motor field efficiency by at least 5% of total will not ordinarily be considered useful.

(3) Industrial visual efficiency of one eye. The industrial visual efficiency of one eye is determined by obtaining the product of the computed coordinate efficiency values of central visual acuity, of field of vision, and of binocular vision. Thus, if central visual acuity efficiency is 50%, visual field efficiency is 80% and the binocular vision efficiency is 100%, the resultant visual efficiency of the eye will be 50 × 80 × 100 = 40%. Should useful binocular vision be absent in all of the motor field so that binocular efficiency is reduced to 50%, the visual efficiency would be 50 × 80 × 50 = 20%.

(4) Computation of compensation for impairment of vision. When the percentage of industrial visual efficiency of each eye has been thus determined, it is subtracted from 100%. The difference represents the percentage impairment of each eye for industrial use. These percentages are applied directly to the specific schedules of the Worker’s Compensation Act.

(5) Types of ocular injury not included in the disturbance of coordinate factors. Certain types of ocular disturbance are not included in the foregoing computations and these may result in disabilities, the value of which cannot be computed by any scale as yet scientifically possible of deduction. Such are disturbances of accommodation not previously provided for in these rules, of color vision, of adaptation to light and dark, metamorphopsia, entropion, ectropion, lagophthalmos, epiphora, and muscle disturbances not included under diplopia. For such disabilities additional compensation shall be awarded, but in no case shall such additional award make the total compensation for loss in industrial visual efficiency greater than that provided by law for total permanent disability.

(6) Miscellaneous rules.

(a) Compensation shall not be computed until all adequate and reasonable operations and treatment known to medical science have been attempted to correct the defect. Further, before there shall be made the final examination on which compensation is to be computed, at least 3 months shall have elapsed after the last trace of visible inflammation has disappeared, except in cases of disturbance of extrinsic ocular muscles, optic nerve atrophy, injury of the retina, sympathetic ophthalmia, and traumatic cataract; in such cases, at least 12 months and preferably not more than 16 months shall intervene before the examination shall be made on which final compensation is to be computed. In case the injury is one which may cause cataract, optic atrophy, disturbance of the retina, or other conditions, which may further impair vision after the time of the final examination, note thereof should be made by the examining physician on his report.

(b) In cases of additional loss in visual efficiency, when it is known that there was present a preexisting subnormal vision, compensation shall be based on the loss incurred as a result of eye injury or occupational condition specifically responsible for the additional loss. In case there exists no record or no adequate and positive evidence of preexisting subnormal vision, it shall be assumed that the visual efficiency prior to any injury was 100%. In order to effect the above purpose, the examining physician should carefully distinguish, in regard to each of the coordinate factors, between impairments resulting from the injury and impairments not so resulting as established by the type of proof here stated. Such other impairments should, however, be also reported, separately. Computation must occasionally also be made of impairment of vision not resulting from the injury, as, for instance, for the purpose of computing additional indemnity due under the provisions of the Worker’s Compensation Act on account of preexisting disability of one or both eyes.

Note: Example of computation covering partial disability to a single eye

Note: Example of computation covering partial disability to both eyes

Note: Example of compensation covering enucleation of one eye and partial disability of the other eye

Wis. Admin. Code § DWD 80.27 Forms {#sec-dwd-80.27 omnilex-key=us-wi-regs-official--agency-dwd--DWD 80.27}

A sample copy of all forms referred to in these rules may be obtained upon a request to the Worker’s Compensation Division, Department of Workforce Development, Post Office Box 7901, Madison, WI 53707.

History

Cr. Register, October, 1957, No. 22, eff. 11-1-57; am. (1), Register, October, 1965, No. 118, eff. 12-1-65; am. Register, April, 1975, No. 232, eff. 5-1-75; r. and recr. Register, September, 1982, No. 321, eff. 10-1-82; correction made under s. 13.93 (2m) (b) 6., Stats., Register, July, 1996, No. 487, eff. 8-1-96.

Wis. Admin. Code § DWD 80.29 Value of room or meals {#sec-dwd-80.29 omnilex-key=us-wi-regs-official--agency-dwd--DWD 80.29}

For the purpose of determining the value of lodging and meals for wage purposes under ch. 102, Stats., the allowance provided under ch. DWD 272 shall apply.

History

Cr. Register, October, 1960, No. 58, eff. 11-1-60; am. (1) (a) and (b), Register, October, 1963, No. 94, eff. 11-1-63; r. and recr. Register, January, 1967, No. 133, eff. 2-1-67; am. Register, November, 1970, No. 179, eff. 12-1-70; r. and recr. Register, April, 1975, No. 232, eff. 5-1-75; correction made under s. 13.93 (2m) (b) 7., Stats., Register, July, 1996, No. 487, eff. 8-1-96; correction made under s. 13.93 (2m) (b) 7., Stats., Register, December, 1997, No. 504.

Wis. Admin. Code § DWD 80.30 Average weekly earnings for members of volunteer fire companies or fire departments {#sec-dwd-80.30 omnilex-key=us-wi-regs-official--agency-dwd--DWD 80.30}

The maximum average weekly earnings under the provisions of s. 102.11, Stats., which are in effect on the date of injury shall be used in computing the amount of compensation payable to an employee as defined by s. 102.07 (7), Stats., except as specific showing may be made in an individual case that such wage is not proper.

History

Cr. Register, June, 1961, No. 66, eff. 7-1-61.

Wis. Admin. Code § DWD 80.32 Permanent disabilities {#sec-dwd-80.32 omnilex-key=us-wi-regs-official--agency-dwd--DWD 80.32}

Minimum percentages of loss of use for amputation levels, losses of motion, sensory losses and surgical procedures.

(1) The disabilities set forth in this section are the minimums for the described conditions. However, findings of additional disabling elements shall result in an estimate higher than the minimum. The minimum also assumes that the member, the back, etc., was previously without disability. Appropriate reduction shall be made for any preexisting disability.

Note: An example would be where in addition to a described loss of motion, pain and circulatory disturbance further limits the use of an arm or a leg. A meniscectomy in a knee with less than a good result would call for an estimate higher than 5% loss of use of the leg at the knee. The same principle would apply to surgical procedures on the back. The schedule of minimum disabilities contained in this section was adopted upon the advice of a worker’s compensation advisory council subcommittee after a survey of doctors experienced in treating industrial injuries.

(2) Amputations, upper or lower extremities

(3) Hip

(4) Knee

(5) Ankle

(6) Toes

(7) Shoulder

(8) Elbow

(9) Wrist

(10) Complete Sensory Loss

(11) Back

Note: It is the subcommittee’s intention that a separate minimum 5% allowance be given for every surgical procedure (open or closed, radical or partial) that is done to relieve from the effects of a disc lesion or spinal cord pressure. Each disc treated or surgical procedure performed will qualify for a 5% rating. Due to the fact a fusion involves 2 procedures a 1) laminectomy (dissectomy) and a 2) fusion procedure, 10% permanent total disability will apply when the 2 surgical procedures are done at the same time or separately.

(12) Fingers

(a) Complete ankylosis

(b) Loss of Motion

(13) Kidney

(14) Loss of Smell

History

Cr. Register, October, 1965, No. 118, eff. 11-1-65; r. and recr. Register, April, 1975, No. 232, eff. 5-1-75; r. and recr. (1), Register, September, 1982, No. 321, eff. 10-1-82; cr. (13) and (14), Register, September, 1986, No. 369, eff. 10-1-86; am. (intro.), (3) to (5), (7), (9), (11) and (12) (a) and (b), Register, June, 1994, No. 462, eff. 7-1-94; reprinted to restore dropped copy in (1), Register, March, 1995, No. 471; CR 07-019: am. (11), Register October 2007 No. 622, eff. 11-1-07.

Wis. Admin. Code § DWD 80.33 Permanent disabilities; fingertip amputations {#sec-dwd-80.33 omnilex-key=us-wi-regs-official--agency-dwd--DWD 80.33}

In estimating permanent disability as a result of fingertip amputations, amputation of the distal one-third or less shall be considered the equivalent of 45% loss of use of the distal phalanx, amputation of not more than the distal two-thirds but more than the distal one-third shall be considered the equivalent of 80% loss of use of the distal phalanx, and amputation of more than the distal two-thirds shall be considered as 100% loss of the distal phalanx, provided there is not added disability as a result of malformed nail or tissue. In no case shall the allowance be greater than it would have been for amputation of the entire distal phalanx.

History

Cr. Register, October, 1965, No. 118, eff. 11-1-65; am. Register, November, 1970, No. 179, eff. 12-1-70.

Wis. Admin. Code § DWD 80.34 Loss of earning capacity {#sec-dwd-80.34 omnilex-key=us-wi-regs-official--agency-dwd--DWD 80.34}

(1) Any department determinations as to loss of earning capacity for injuries arising under s. 102.44 (2) and (3), Stats., shall take into account the effect of the injured employee’s permanent physical and mental limitations resulting from the injury upon present and potential earnings in view of the following factors:

(a) Age;

(b) Education;

(d) Previous work experience;

(e) Previous earnings;

(f) Present occupation and earnings;

(g) Likelihood of future suitable occupational change;

(h) Efforts to obtain suitable employment;

(i) Willingness to make reasonable change in a residence to secure suitable employment;

(j) Success of and willingness to participate in reasonable physical and vocational rehabilitation program; and

(k) Other pertinent evidence.

History

Cr. Register, September, 1982, No. 321, eff. 10-1-82.

Wis. Admin. Code § DWD 80.38 Assessment of administrative expenses {#sec-dwd-80.38 omnilex-key=us-wi-regs-official--agency-dwd--DWD 80.38}

(1) For purposes of determining assessment payments under s. 102.75, Stats., “indemnity paid or payable” excludes:

(a) Payments made for medical, hospital or related expenses.

(b) Additional payments for penalties and increased compensation.

(d) Payments made from the work injury supplemental benefit fund other than those paid under s. 102.44 (1), Stats.

(e) Payments made under ss. 102.475, 102.35, and 102.18 (1) (bp), Stats.

(f) Payments made under statutory provisions other than those of ch. 102, Stats.

(g) Payments made pursuant to a compromise agreement to the extent that they cannot be determined to be indemnity paid or payable under sub. (2).

(2) For purposes of determining assessment payments under s. 102.75, Stats., “indemnity paid or payable” includes:

(a) Supplemental benefit payments made under s. 102.44 (1), Stats., from the work injury supplemental benefit fund if they were determined to be payable prior to the time the case is initially closed.

(b) Death benefits paid under ss. 102.46, 102.47, 102.48 and 102.50, Stats.

(c) Portions of social security benefits, sick leave, holiday pay, salary and other wage continuation payments which offset or are paid in lieu of the daily or weekly indemnity due.

History

Cr. Register, September, 1984, No. 345, eff. 10-1-84.

Wis. Admin. Code § DWD 80.39 Advance payment of unaccrued compensation {#sec-dwd-80.39 omnilex-key=us-wi-regs-official--agency-dwd--DWD 80.39}

(1) The department may order partial or full payment of unaccrued compensation to an employee or his or her dependents pursuant to s. 102.32 (6m), Stats., upon consideration of the following factors:

(a) The length of time since the injury;

(b) The total income of the employee or the dependent;

(d) The age of the employee or the dependent;

(e) The other available assets of the employee or the dependent;

(f) The loss of benefits because of interest credit due to self-insured employer or insurance carrier;

(g) The purpose for which the advancement is requested;

(h) The other financial obligations of the employee or the dependent;

(i) The employment status of the employee or the dependent;

(j) If the advancement is requested for the purchase of real estate, the cost of the real estate and availability of other necessary financing for the real estate;

(k) The employee’s or the dependent’s previous experience in and likelihood of success in a proposed business venture;

(L) The probable income and security of any proposed investment; and

(m) Other information indicating whether an advancement is in the best interest of the applicant.

History

Cr. Register, September, 1982, No. 321, eff. 10-1-82; CR 07-019: am. (1), Register October 2007 No. 622, eff. 11-1-07.

Wis. Admin. Code § DWD 80.40 Assessment for unpaid claims of insolvent self-insurer {#sec-dwd-80.40 omnilex-key=us-wi-regs-official--agency-dwd--DWD 80.40}

If an employer currently or formerly exempted from the duty to insure by written order of the department under s. 102.28 (2) (b), Stats., is unable to pay any award and if judgement is rendered in accordance with s. 102.20, Stats., against that employer and returned unsatisfied in whole or in part, the department shall determine payment into the fund established by s. 102.28 (8), Stats., as follows:

(1) The department shall prepare an estimate of the payments that should be made by the insolvent exempt employer due for the period up to the date of the order from the department and for one year following the date of the order. If the department elects to retain an insurance carrier or insurance service organization under s. 102.28 (7) (c), Stats., the department will prepare an estimate of the charges that will be made by such carrier or organization to process, investigate and pay such claims for the same period. The sum of these 2 amounts shall be prorated on the basis of the gross payroll for this state of each exempt employer as reported to the department for the previous calendar year for unemployment insurance purposes under ch. 108, Stats., or, if an exempt employer is not covered under ch. 108, on the basis of the comparable gross payroll for the exempt employer as determined by the department.

(2) The department shall assess and order payment within 30 days by each exempt employer the amount determined under sub. (1) to the state treasurer for deposit in the fund created by s. 102.28 (8), Stats.

(3) The department shall prepare an estimate of the total remaining liability of the insolvent exempt employer and an estimate of the amount that may be recovered from that employer, its receiver or trustee in bankruptcy. Such estimates shall be communicated to all exempt employers.

(4) For any further assessment following the initial order the department shall estimate the amount due and payable during the following year and the charges expected from any insurance carrier or insurance service organization for such year and assess and order payment by each such exempt employer as provided by s. 102.28 (7) (b), Stats.

(5) At the time orders are issued under sub. (4) the department shall prepare an estimate of the remaining liability of the insolvent exempt employer and the amount that may reasonably be expected to be recovered from such employer, its receiver or trustee in bankruptcy. Such estimates will be communicated to all exempt employers.

(6) All money due and payable to injured employees which remain unpaid shall be considered money payable for making future estimates.

(7) All money recovered by the attorney general and paid into the fund shall be used in the payment of unpaid claims and shall be taken into account in making estimates and assessments.

(8) The department may not require the state or any local governmental unit that has independent taxing authority that elected to be self-insured under s. 102.28 (2) (bm), Stats., to make any payments into the fund established under s. 102.28 (8), Stats., or for that fund to make any payments for the liability of the state or any local governmental unit that has independent taxing authority under ch. 102, Stats.

History

Cr. Register, September, 1986, No. 369, eff. 10-1-86; CR 25-005: am. (intro.), (1), (4), (6), cr. (8) Register July 2025 No. 835, eff. 8-1-25.

Wis. Admin. Code § DWD 80.41 Computation of monthly salary and reimbursement to retirement fund under s. 66.191, 1981 Stats {#sec-dwd-80.41 omnilex-key=us-wi-regs-official--agency-dwd--DWD 80.41}

(1) Fringe benefits shall not be included in the computation of salary, earnings or wages under s. 66.191, 1981 Stats., unless such benefits are income for Wisconsin income tax purposes.

(2) An eligible employee under s. 66.191, 1981 Stats., shall file with the department before an award is entered, as provided in s. 66.191, 1981 Stats., a waiver of disability annuity payments which may be due under s. 40.63, Stats., and further shall consent to reimbursement to the Wisconsin retirement fund of all disability benefits recovered under the provisions of s. 40.63, Stats.

Note: 1983 Wis. Act 191 repealed s. 66.191, 1981 Stats. However, people are still receiving benefits under this statute.

History

Cr. Register, September, 1982, No. 321, eff. 10-1-82; corrections in (title), (1), (2) made under s. 13.92 (4) (b) 7., Stats., Register March 2015 No. 711.

Wis. Admin. Code § DWD 80.42 Vocational rehabilitation; reporting requirement {#sec-dwd-80.42 omnilex-key=us-wi-regs-official--agency-dwd--DWD 80.42}

In order to determine whether or not an employee should be referred to the division of vocational rehabilitation for services, the self-insured employer or insurance carrier shall notify the department whenever temporary total disability will exceed 13 weeks. This report shall be made within 13 weeks from the date of the initial disability or when such disability can be determined, whichever is earlier, and shall include a current practitioner’s report.

History

Cr. Register, September, 1982, No. 321, eff. 10-1-82.

Wis. Admin. Code § DWD 80.43 Fees and costs {#sec-dwd-80.43 omnilex-key=us-wi-regs-official--agency-dwd--DWD 80.43}

Section 102.26, Stats., provides for a maximum attorney’s fee of 20% of the amount in dispute. Section 102.26 (3), Stats., places upon the department the responsibilities for fixing the fee and providing for the direct payment of the fee. In the exercise of this responsibility, the department shall take into account the following considerations:

(1) The department shall balance the need to preserve the maximum amount of benefits for the injured employee and the need for fees which are sufficient to insure adequate representation for claimants under ch. 102, Stats.

(2) Fees shall not be allowed on medical expenses to the extent that other sources, such as group insurance, are available to pay such expenses.

(3) Fees for permanent total disability shall not be allowed on compensation awards due beyond 500 weeks.

(4) The existence of a dispute under s. 102.26 (2), Stats., is dependent upon a disagreement after the employer or insurer has had adequate time and information to take a position on liability. Neither the holding of a hearing nor the filing of an application for a hearing alone may determine the existence of a dispute. However, a finding that a dispute exists shall not be precluded by an employer’s or insurer’s purposeful inactivity on the issue of liability.

(5) Where representation is the result of the representative’s employment by an insurance carrier, an employer, a union, a social service agency or a public agency, the representative may not charge a fee on a contingency basis.

(6) Where there has been successive representation by various representatives, the division of fees by the department shall take into account the relative value of the services performed by each representative, any concessions of disability, offers of settlement and other matters.

(7) Where a claimant appears by an attorney of record any fee shall be payable to such attorney regardless of the cooperation or involvement of agents or other non-attorneys. The division of such fee with agents or other non-attorneys shall be at the discretion of the attorney of record. If there is disagreement among successive attorneys the department will make appropriate apportionment of any or all fees for services.

History

Cr. Register, September, 1982, No. 321, eff. 10-1-82; cr. (7), Register, September, 1986, No. 369, eff. 10-1-86.

Wis. Admin. Code § DWD 80.46 Contribution to support of unestranged surviving parent {#sec-dwd-80.46 omnilex-key=us-wi-regs-official--agency-dwd--DWD 80.46}

In assessing support under s. 102.48, Stats., the payment of room and board by a child to his or her parent shall not be considered as contribution to support of the parent.

History

Cr. Register, September, 1982, No. 321, eff. 10-1-82.

Wis. Admin. Code § DWD 80.47 Medical release of employee for restricted work in the healing period {#sec-dwd-80.47 omnilex-key=us-wi-regs-official--agency-dwd--DWD 80.47}

Even though an employee could return to a restricted type of work during the healing period, unless suitable employment within the physical and mental limitations of the employee is furnished by the employer or some other employer, compensation for temporary disability shall continue during the healing period.

History

Cr. Register, September, 1982, No. 321, eff. 10-1-82.

Wis. Admin. Code § DWD 80.48 Reassignment of death benefits {#sec-dwd-80.48 omnilex-key=us-wi-regs-official--agency-dwd--DWD 80.48}

When a spouse who is entitled to death benefits remarries, the department shall reassign the death benefits to the children designated in ss. 102.51 (1) and 102.49, Stats., unless a showing is made that undue hardship would result for the spouse because of the reassignment.

History

Cr. Register, September, 1982, No. 321, eff. 10-1-82.

Wis. Admin. Code § DWD 80.49 Vocational rehabilitation benefits {#sec-dwd-80.49 omnilex-key=us-wi-regs-official--agency-dwd--DWD 80.49}

(1) Purpose. The primary purpose of vocational rehabilitation benefits is to provide a method to restore an injured worker as nearly as possible to the worker’s preinjury earning capacity and potential.

(2) Eligibility. The determination of eligibility for vocational rehabilitation training and whether a person is a suitable subject for training is the responsibility of the division of vocational rehabilitation. If the division of vocational rehabilitation determines that an employee is eligible to receive services under 29 USC 701 to 797b, but that the division of vocational rehabilitation cannot provide those services for the employee, the employee may select a private rehabilitation specialist certified by the department to determine whether the employee can return to suitable employment without rehabilitative training and whether rehabilitative training is necessary to develop a retraining program to restore as nearly as possible the employee to his or her preinjury earning capacity and potential.

(3) 80-week rule. Extension of vocational rehabilitation benefits beyond 80 weeks may not be authorized pursuant to s. 102.61 (1) or (1m), Stats., if the primary purpose of further training is to improve upon preinjury earning capacity rather than restoring it.

(4) Definitions. In subs. (4) to (11), all of the following definitions apply:

(a) “IPE” means an individualized plan for employment developed by a specialist which identifies the vocational goal of a retraining program, the intermediate objectives to reach that goal and the methods by which progress will be measured.

(b) “Retraining program” means a course of instruction on a regular basis which provides an employee with marketable job skills or enhances existing job skills to make them marketable.

(c) “Specialist” means a person certified by the department to provide vocational rehabilitation services to injured employees under s. 102.61 (1m), Stats.

(d) Except as provided in sub. (5), “suitable employment” means a job within the employee’s permanent work restrictions for which the employee has the necessary physical capacity, knowledge, transferable skills and ability and which pays at least 85 percent of the employee’s preinjury average weekly wage.

(5) Suitable employment exceptions.

(a) A job offer at or above 85% of the average weekly wage shall not constitute suitable employment if:

An employee’s education, training or employment experience demonstrates a career or vocational path; the average weekly wage on the date of injury does not reflect the earnings which the employee could reasonably have expected in the demonstrated career or vocational path; and the permanent work restrictions caused by the injury impede the employee’s ability to pursue the demonstrated career or vocational path; or,
The employee’s average weekly wage is calculated pursuant to the part-time wage rules in s. 102.11 (1) (f), Stats., or s. DWD 80.51 (4) or (5) and the employee’s average weekly wage for compensation purposes exceeds the gross average weekly wages of the part-time employment.

(b) The average weekly wage for purposes of determining suitable employment under par. (a) 1. shall be determined by expert vocational evidence regarding the average weekly wage that the employee may have reasonably expected in the demonstrated career or vocational path.

(c) The average weekly wage for purposes of determining suitable employment under par. (a) 2. shall be determined by expert vocational evidence regarding the employee’s age, educational potential, past job experience, aptitude, proven abilities, and ambitions on the date of injury.

(6) Specialist certification.

(a) A person may apply to the department for certification as a specialist at any time. The department may require applicants to submit, and certified specialists to regularly report, information describing their services, including the geographic areas served by the specialist and the nature, cost and outcome of services provided to employees under this section.

(b) After evaluating the information submitted under par. (a), the department shall certify a person as a specialist if the person has a license or certificate which is current, valid and otherwise in good standing as one of the following, or may certify the person as provided in par. (c):

Certified professional counselor with specialty in vocational rehabilitation from the department of safety and professional services.
Certified disability management specialist from the certification of disability management specialist commission.
Certified rehabilitation counselor from the commission on rehabilitation counselor certification.
Certified vocational evaluator from the commission on certification of work adjustment and vocational evaluation specialists.

Note: The Commission on Rehabilitation Counselor Certification (CRCC) is located at 1699 E. Woodfield Road, Suite 300, Schaumburg, Illinois 60173. The Certification of Disability Management Specialist Commission (CDMS) is located at 8735 W. Higgins Road, Suite 300, Chicago, Illinois 60631. The Commission on Certification of Work Adjustment and Vocational Evaluation Specialists is located at 7910 Woodmont Avenue, Suite 1430, Bethesda, Maryland 20814-3015.

(c) The department may certify a person as a specialist if the person has state or national certification, licensing or accreditation in vocational rehabilitation other than that required in par. (b) which is acceptable to the department. The department may require a specialist certified under this paragraph to serve a period of probation up to 3 years as a condition of certification. The department shall specify the conditions of the probationary certification. The department may revoke the probationary certification at any time without a hearing for conduct which violated the conditions of probation established by the department or conduct sufficient to decertify the specialist under par. (e).

(d) Unless certification is suspended or revoked under par. (e), certification by the department under par. (b) is valid for 3 years. If a specialist applies to the department to renew his or her certification before the expiration of the certification period, the certification shall remain in effect until the department renews or denies the application to renew. A renewal is valid for three years.

(e) Only the department may initiate a proceeding to suspend or revoke a specialist’s certification under this section. The department may suspend or revoke a specialist’s certification, after providing the specialist with a hearing, when the department determines that the specialist did not maintain a current, valid certificate or license specified in par. (b) or the specialist intentionally or repeatedly:

Fails to comply with the provisions of ch. 102, Stats., or ch. DWD 80;
Fails to comply with the orders, rulings, reporting requirements or other instructions of the department or its representatives;
Charges excessive fees compared to the value of the services performed or ordered to be performed; or,
Misrepresents the employee’s work history, age, education, medical history or condition, diagnostic test results or other factors significantly related to an employee’s retraining program.

(f) The department shall maintain a current listing of all specialists certified by the department, including the areas they serve, and provide the list upon request.

(7) Employee choice.

(a) At the end of the medical healing period, the self-insured employer or insurance carrier shall notify the employee, on a form provided by the department, of the employee’s potential eligibility to receive rehabilitation services.

(b) The department shall arrange with the division of vocational rehabilitation to receive timely notice whenever the division of vocational rehabilitation determines under s. 102.61 (1m), Stats., that it cannot serve an eligible employee. When the division of vocational rehabilitation notifies the department that it cannot serve an eligible employee, the department shall mail to the employee and the self-insured employer or insurance carrier a list of certified specialists serving the area where the employee resides.

(c) The employee may choose any certified specialist. The employee may choose a second certified specialist only by mutual agreement with the self-insured employer or insurance carrier or with the permission of the department. Partners are deemed to be one specialist.

(d) A specialist selected by an employee under par. (c) shall notify the department and the self-insured employer or insurance carrier within 7 days of that selection. The department may develop a form for this purpose.

(e) The self-insured employer or insurance carrier is liable for the reasonable and necessary cost of the specialist’s services and the reasonable cost of the training program recommended by the specialist provided that the employee and the specialist substantially comply with the requirements in subs. (8) to (11). Except with the prior consent of the self-insured employer or insurance carrier, the reasonable cost of any specialist’s services to the employee shall not exceed $1,000 for each date of injury as defined in s. 102.01 (2) (g), Stats. Effective on the first day of January each year after 1995, the department shall adjust the $1,000 limit by the same percentage change as the average annual percentage change in the U.S. consumer price index for all urban consumers, U.S. city average, as determined by the U.S. department of labor, for the 12 months ending on September 30 of the prior year. The department shall notify insurance carriers, self-insured employers and specialists likely to be affected by the annual change in the limit.

Note: To obtain a copy of all forms under this subsection, contact the Department of Workforce Development, 201 East Washington Avenue, P.O. Box 7901, Madison, Wisconsin, 53707-7901 or access forms online at http://www.dwd.wisconsin.gov.

(8) Employer’s duties upon receipt of permanent restrictions. Upon receiving notice that the division of vocational rehabilitation cannot serve the employee under s. 102.61 (1m), Stats., the employee or a person authorized to act on the employee’s behalf shall provide the employer with a written report from a physician, podiatrist, psychologist or chiropractor stating the employee’s permanent work restrictions. Within 60 days of receiving the practitioner’s work restrictions, the employer shall provide to the employee or the employee’s authorized representative, in writing:

(a) An offer of suitable employment for the employee;

(b) A statement that the employer has no suitable employment available for the employee; or,

(c) A medical report from a physician, podiatrist, psychologist or chiropractor showing that the permanent work restrictions provided by the employee’s practitioner are in dispute, and medical or vocational documentation that the difference in work restrictions would materially affect either the employer’s ability to provide suitable employment or a specialist’s ability to recommend a retraining program. If after 30 days the employee and employer cannot resolve the dispute, either party may request a hearing before the division of hearings and appeals to determine the employee’s work restrictions. Within 30 days after the division of hearings and appeals determines the restrictions, the employer shall provide the written notice required in par. (a) or (b).

(9) 90-day placement effort.

(a) If the employer fails to respond as required in sub. (8), it shall be conclusively presumed for the purposes of s. 102.61 (1m), Stats., that the employer has no suitable employment available and the employee is entitled to receive vocational rehabilitation services from a specialist.

(b) If the employer does not make a written offer of suitable employment under sub. (8), the specialist shall determine whether there is suitable employment available for the employee in the general labor market without retraining. If suitable employment is reasonably likely to be available, the specialist shall attempt to place the employee in alternative suitable employment for at least 90 days prior to developing a retraining program. The employee shall cooperate fully in the specialist’s placement efforts and may not refuse an offer of suitable employment made within the 90-day period. In determining whether the offer is suitable the department shall consider age, education, training, previous work experience, previous earnings, present occupation and earnings, travel distance, goals of the employee, and the extent to which it would restore the employee’s preinjury earning capacity and potential.

(c) If the employee is placed in or refuses to accept suitable employment, the self-insured employer or insurance carrier is not liable for any further costs of the specialist’s services unless that suitable employment ends within the statute of limitations in s. 102.17 (4), Stats.

(10) Retraining.

(a) If, after reasonably diligent effort by the employee and the specialist, the employee does not obtain suitable employment, then there is a rebuttable presumption that the employee needs retraining. The presumption is rebuttable by evidence that:

No retraining program can help restore as nearly as possible the employee’s wage earning capacity;
The employee or the specialist did not make a reasonably diligent effort under sub. (9) (b) to obtain suitable employment for the employee; or
The employee or specialist withheld or misrepresented highly material facts.

(b) A retraining program of 80 weeks or less is presumed to be reasonable and the employer shall pay the cost of the program, mileage and maintenance benefits, and temporary total disability benefits.

(c) A retraining program more than 80 weeks may be reasonable, but there is no presumption that training over 80 weeks is required. Extension of vocational rehabilitation benefits beyond 80 weeks may not be authorized if the primary purpose of further training is to improve upon preinjury earning capacity rather than restoring it.

(d) If the retraining program developed by the specialist is for more than 80 weeks, the self-insured employer or the insurance carrier may offer an alternative retraining program which will restore the employee’s preinjury earning capacity in less time than the retraining program developed by the specialist. An employee may not refuse a self-insured employer’s or insurance carrier’s timely, good-faith, written offer of an alternative retraining program without reasonable cause.

(11) Specialist’s services.

(a) A specialist shall develop an IPE for a retraining program for the employee, and may amend it to achieve suitable employment.

(b) A specialist shall make periodic written reports at reasonable intervals to the employee, employer and insurance carrier describing vocational rehabilitation activities which have occurred during that interval.

(c) Within a reasonable period of time after receiving a written request from an employee, employer, worker’s compensation insurance carrier or department or their representatives, a specialist shall provide that person with any information or written material reasonably related to the specialist’s services to the employee undertaken as a result of any injury for which the employee claims compensation.

History

Cr. Register, September, 1982, No. 321, eff. 10-1-82; emerg. am. (2), r. (3), renum. (4) to be (3), cr. (4) to (11), eff. 11-7-94, am. (2), r. (3), renum. (3) to be (4) and am., cr. (4) to (11), Register, April, 1995, No. 472, eff. 5-1-95; corrections in (2) and (5) (a) 2. made under s. 13.93 (2m) (b) 7., Stats., Register, July, 1996, No. 487; eff. 8-1-96; corrections made under s. 13.93 (2m) (b) 6., Stats., Register, December, 1997, No. 504; CR 07-019: am. (2), (7) (b) and (8), Register October 2007 No. 622, eff. 11-1-07; correction in (6) (b) 1. made under s. 13.92 (4) (b) 6., Stats., Register February 2012 No. 674; CR 15-030: am. (4) (intro.), (a), (6) (b) 1. to 3., (f), (11) (a) Register October 2015 No. 718, eff. 11-1-15; correction in (8) (c) under s. 13.92 (4) (b) 6., 35.17, Stats., Register May 2018 No. 749; EmR2212: emerg. am. (5) (a) 2., eff. 10-12-22; CR 22-072: am. (5) (a) 2., Register May 2023 No. 809, eff. 6-1-23.

Wis. Admin. Code § DWD 80.50 Computation of permanent disabilities {#sec-dwd-80.50 omnilex-key=us-wi-regs-official--agency-dwd--DWD 80.50}

(1) In computing permanent partial disabilities, the number of weeks attributable to more distal disabilities shall be deducted from the number of weeks in the schedule for more proximal disabilities before applying the percentage of disability for the more proximal injury, except that:

(a) Such a deduction shall not include multiple injury factors under s. 102.53, Stats., and the dominant hand increase under s. 102.54, Stats.; and

(b) Such a deduction shall include preexisting disabilities.

(2) The number of weeks attributable to scheduled disabilities shall be deducted from 1,000 weeks before computing the number of weeks due for a non-scheduled disability resulting from the same injury. This deduction shall not include multiple injury factors under s. 102.53, Stats., and the dominant hand increase under s. 102.54, Stats.

(3) Multiple injury factors under s. 102.53, Stats., and the dominant hand increase under s. 102.54, Stats., do not apply to compensation for disfigurement under s. 102.56, Stats.

History

Cr. Register, August, 1981, No. 308, eff. 9-1-81; r. and recr. Register, September, 1982, No. 321, eff. 10-1-82; CR 07-019: am. (1) (a), (2) and (3), Register October 2007 No. 622, eff. 11-1-07.

Wis. Admin. Code § DWD 80.51 Computation of weekly wage {#sec-dwd-80.51 omnilex-key=us-wi-regs-official--agency-dwd--DWD 80.51}

Pursuant to s. 102.11, Stats.

(1) In determining daily earnings, if the number of hours a full-time employee worked had been either decreased or increased for a period of at least 90 total days prior to the injury, then this revised schedule worked during those 90 days shall be considered to be normal full-time employment.

(2) When an employee furnishes his or her truck to the employer and is paid by the employer in gross to include operating expenses, one-third of that gross sum is considered as wages except as a showing is made to the contrary.

(3) Prisoners injured in prison industries are considered to be earning the maximum average weekly earnings under the provisions of s. 102.11, Stats., except as a showing is made to the contrary.

(4) The 24-hour minimum workweek under s. 102.11 (1) (f) 1., 2019 Stats., does not apply to a part-time employee unless the employee is a member of a regularly scheduled class of part-time employees. In all other cases part-time employment is on the basis of normal full-time employment in such job. However, this subsection does not apply to part-time employees described in s. 102.11 (1) (f), Stats., who restrict availability on the labor market. As to the employees so described, those wages will be expanded to the normal part-time or full-time wages unless the employer or insurance company complies with s. DWD 80.02 (2) (d). This subsection does not apply to employees who are injured on or after April 10, 2022.

(5) Computation of the weekly wage for an employee who is injured while employed at part-time employment shall be made pursuant to s. 102.11 (1) (ap), Stats. This subsection applies to employees who are injured on or after April 10, 2022.

History

Cr. Register, September, 1982, No. 321, eff. 10-1-82; CR 07-019: am. (4), Register October 2007 No. 622, eff. 11-1-07; EmR2212: emerg. am. (4), cr. (5), eff. 10-15-22; CR 22-072: am. (4), cr. (5) Register May 2023 No. 809., eff. 6-1-23.

Wis. Admin. Code § DWD 80.52 Payment of permanent disability where the degree of permanency is disputed {#sec-dwd-80.52 omnilex-key=us-wi-regs-official--agency-dwd--DWD 80.52}

Where injury is conceded, but the employer or the employer’s insurer disputes the extent of permanent disability, payment of permanent disability shall begin with the later of sub. (1) or (2):

(1) Within 30 days of a report that provides the permanent disability rating, in the amount of the permanency set forth in the report; or

(2) Within 30 days after the employer or insurer receives a report from an examination performed under s. 102.13 (1) (a), Stats., in the amount of the permanent disability found as a result of that medical examination, if any. If such an examination had not previously been performed, the employer or employer’s insurer must give notice of a request for such an examination within 30 days of receiving a report that establishes the permanent disability under sub. (1). If a report from the examination is not available within 90 days of the request for the examination, the employer and insurer shall begin payment of the permanent disability set forth in the report under sub. (1).

History

CR 03-125: cr. Register June 2004 No. 582, eff. 7-1-04.

Wis. Admin. Code § DWD 80.60 Exemption from duty to insure (self-insurance) {#sec-dwd-80.60 omnilex-key=us-wi-regs-official--agency-dwd--DWD 80.60}

(1) Definitions. In this section:

(a) “Applicant” means a business entity applying for self-insurance.

(b) “Divided-insurance” means consent to the issuance of 2 or more policies, as provided in s. 102.31 (1), Stats.

(d) “Excess insurance” means catastrophic insurance for employers granted self-insurance, and is not full-insurance, self-insurance, partial-insurance or divided-insurance.

(e) “Full-insurance” means the insurance of all liability by one policy, as required in s. 102.31 (1) (a), Stats.

(f) “Partial-insurance” means self-insurance of a part of the liability and consent to the issuance of one or more policies on the remainder of the liability, as provided in ss. 102.28 (2) (b) and 102.31 (1), Stats.

(g) “Self-insurance” means exemption from the duty to insure, as provided in s. 102.28 (2) (b) and (bm), Stats.

(2) Excess insurance. Excess insurance may be carried without further order of the department or may be required by order of the department as set forth in sub. (4) (d) 3. and 7.

(3) Requirements for the state and local governmental units that have independent taxing authority.

(a) The state or a local governmental unit that has independent taxing authority may self-insure in accordance with s. 102.28 (2) (bm), Stats., if it is not partially insured or fully insured for the payment of compensation under this chapter, or to the extent it is not partially insured by written order under s. 102.31 (1), Stats., under one or more policies, and if it agrees to report faithfully all compensable injuries and agrees to comply with ch. 102, Stats., and all rules of the department. However, any such employer desiring partial insurance or divided insurance must submit an application to the department and be given special consent as described in s. DWD 80.61.

(b)

A local governmental unit that has independent taxing authority electing to self-insure shall notify the department in writing of the election before undertaking self-insurance, every 3 years after the initial notice, and 30 days before withdrawing from the self-insurance program.
The notice of election to self-insure shall be accompanied by a resolution, adopted by the governing body and signed by the elected or appointed chief executive of the local governmental unit that has independent taxing authority, stating its intent and agreement by the governing body to self-insure its worker’s compensation liability under ch. 102, Stats., and an agreement to faithfully report all compensable injuries and to comply with ch. 102, Stats., and all rules of the department in accordance with s. 102.28 (2) (bm), Stats.

(c)

Self-insurance granted under par. (a) is subject to revocation under s. 102.28 (2) (bm) 4., Stats. Once the privilege of self-insurance is revoked, further self-insurance may be authorized only under the procedures set forth in s. 102.28 (2) (bm) 4., Stats., and subd. 2.
After self-insurance of the state or a local governmental unit that has independent taxing authority is revoked, the state or local governmental unit may not elect to self-insure its liability for the payment of compensation under ch. 102, Stats., unless at least 3 calendar years have elapsed since the revocation, the department finds that the state or local governmental unit’s financial condition is adequate to pay its employees’ claims for compensation, the state or local governmental unit has not received an excessive number of claims for compensation, and the state or local governmental unit has faithfully discharged its obligations under ch. 102, Stats., and all rules of the department.

(4) Requirements for other employers.

(a) Employers other than those specified in sub. (3) desiring self-insurance shall submit an application on a form available from the department. A non-refundable fee, determined by the department as described in par. (ag), per employer, shall accompany the initial application. If the application is approved, the department shall permit self-insurance by written order. Every 3 years, a self-insured employer shall submit an application to renew self-insurance at least 60 days before the expiration date specified in the department’s order. Each quarter, or more often if requested by the department, a self-insured employer shall submit the most current financial statements to the department. Each year, a self-insured employer shall report work-injury claims payments to the department and other information related to worker’s compensation liability requested by the department. A self-insured employer shall immediately report to the department in writing any change in organizational structure that differs from the information provided in the annual report submitted to the department, including mergers, acquisitions, company name changes, consolidation, sale, or divestiture of divisions or subsidiaries. After a change in organizational structure, the department may revoke or modify the exemption from the duty to insure by providing reasonable written notice to the self-insured employer. If these changes result in the creation of a new parent or subsidiary, the department may waive or modify the requirement in par. (b) 1. to submit 5 years of audited financial statements. A fee of $200, per employer, and the assessment surcharge described in par. (am) may be billed by the department at the same time as the annual assessment under s. 102.75 (1), Stats. Self-insurance shall expire on the day specified by the department in its order. Unless the context indicates otherwise, all information submitted to the department to comply with this section shall be submitted on the latest version of a department approved form.

Note: For information regarding forms contact the worker’s compensation division, bureau of insurance programs, 201 East Washington Avenue, P.O. Box 7901, Madison, Wisconsin 53707.

(ag) In addition to any fee-for-service costs under par. (ax), the department shall charge each initial applicant for self-insurance a flat fee which the department estimates is the average cost for department employees to review the application for self-insurance, including employee salary and fringe benefits, supplies services and administrative costs, and information technology charges. The department shall review and, if necessary, modify the fee at least every 2 years.

(am) In addition to any fee-for-service costs under par. (ax), each year the department shall assess each self-insured employer except those specified in sub. (3), but including those specified in sub. (3) (c), a $200 fee and a proportionate share of the department’s remaining costs to administer the self-insurance program after deducting the total amount estimated to be collected from the $200 fees and the fees charged under par. (ag) for initial applications. The department shall determine the assessment amount under this paragraph in the same manner as costs and expenses are apportioned in s. 102.75 (1), Stats.

(ax) To assist the department in evaluating an initial application or a renewal application for self-insurance, the department may contract for financial, loss control or other fee-for-service expertise or it may direct the applicant to provide the necessary information. The department shall charge the applicant for self-insurance the full cost of any fee-for-service expenses which the department incurs in evaluating the application for self-insurance. If these charges are related to an application for renewal of self-insurance, the department may bill the employer at the same time as the annual assessment under s. 102.75 (1), Stats.

(b) The minimum requirements necessary for initial consideration for self-insurance are set forth in this paragraph. References in this paragraph to “board of directors” and “stockholders of the corporation” apply only to corporations but an equivalent requirement as determined by the department shall be applied to sole proprietorships, partnerships and other forms of business ownership.

The applicant, when submitting an initial request for self-insurance, shall submit audited financial statements (which includes the opinion of a certified public accountant) for a minimum of the latest five. Except as authorized by the department, employers self-insured under this subsection shall submit to the department audited or unaudited financial statements each quarter and audited financial statements each year.
If the employer is a corporation or a partnership which is a majority or wholly owned subsidiary, it shall submit to the department a guaranty of payments by the ultimate or top parent company on a department form and a certified copy of the resolution adopted by the board of directors of the parent corporation.
If the employer is a corporation, it shall submit a certified copy of the resolution adopted by the board of directors authorizing the execution of the initial application:

a. Applications by organizations other than corporations shall be signed by one or more persons possessing authority to execute such application.

b. Partnerships must submit a consent by all the partners that all individuals executing the application have the authority to act for the applicant partnership.

Corporations, limited partnerships, and limited liability companies shall be registered with the department of financial institutions if so required by statutes administered or rules promulgated by the department of financial institutions.

4m. Corporations, limited partnerships, and limited liability companies that are not required to be registered with the department of financial institutions shall be registered with the appropriate state of Wisconsin government agency where required by statute or administrative rule.

The employer shall submit a copy of its current safety and loss control plan.

(c) The following criteria may be considered by the department in evaluating the qualifications of an applicant for the initial application or renewal of self-insurance status:

The financial strength and liquidity of the employer to include: profit and loss history; financial and performance ratios; characteristics and trends for the employer or the consolidated group of employers to which the employer belongs; characteristics and trends for other employers of the same or the most similar industry in which the employer or the employer’s consolidated group is involved;
The employer’s organizational structure, management background, kind of business, length of time in business, and any intended or newly implemented reorganization including but not limited to merger, consolidation, acquisition of new business, divesting or spinning off of assets or other changes;
The nature and extent of the employer’s business operations and assets in the state of Wisconsin;
The employer’s bond or other business ratings;
The number of employer’s employees, payroll and hours worked in Wisconsin;
The employer’s performance indicators under ch. 102, Stats., including, but not limited to, promptness or time taken in making first indemnity payments, promptness or time taken in submitting first reports, and injury and illness incidence and severity rates;
The existing or proposed claims administration, occupational health, safety, and loss control programs to be maintained by the employer. The department may require certification of the occupational safety and health program by state or independently qualified specialists;
The worker’s compensation loss history, experience modification factor, reported losses, loss reserves and worker’s compensation premium of the employer; and
Excess insurance, surety bond, cash deposit or pledges of the employer, guaranty by the parent company, or other guarantees or pledges acceptable to the department.

(d) The required minimum bond, minimum amount of cash, letter of credit or securities deposits, minimum acceptable excess insurance upper limit, maximum excess insurance retention, or other security satisfactory to the department, shall be determined after the application has been reviewed and analyzed by the department. The employer and the employer’s surety or other agent providing security shall use the latest version of any forms required by the department. All surety bonds and excess policies shall be written on standard forms approved by the Wisconsin compensation rating bureau or the commissioner of insurance, or both. Any change in the language used in the approved standard form is not accepted unless the department approves it in writing. The following conditions shall also apply to self-insured employers:

Surety bonds shall be written by companies authorized to transact surety business in Wisconsin and acceptable to the department.
Cash or equivalent securities shall be deposited with banks or trust companies authorized to exercise trust powers in Wisconsin and acceptable to the department. These securities shall be negotiable and converted into cash at anytime by the depository at the request of the department.
If excess insurance is required by the department, it shall be procured from a licensed excess insurance carrier and written on the basis of rates and policy form filed with and approved by the state of Wisconsin commissioner of insurance. The policy for the required excess insurance shall be filed with and approved by the Wisconsin compensation rating bureau.
Each self-insured employer shall provide security of at least $500,000. The department may increase the minimum required security amount after considering the criteria in par. (c).
If the self-insured employer provides a surety bond, the surety company shall pay worker’s compensation liabilities of the employer up to the aggregate amount of the bond without deducting any of its costs for investigating, paying, defending against, or providing other services related to the worker’s compensation claims. If a self-insured employer has more than one surety bond, the surety company whose bond is in effect on the date of injury is liable for claims related to that injury.
If the self-insured employer provides security in any form other than a surety bond, the department shall add 30 percent to the minimum amount in subd. 4.
Each employer self-insured under this subsection shall obtain a specific per occurrence excess insurance policy with retention and maximum limits approved by the department and in a form approved by the Wisconsin compensation rating bureau under ch. 626, Stats. In determining the limits the department shall consider, among other things, the criteria in par. (c).

(dm) The department may call and use any security provided by an employer under par. (d) to pay that employer’s worker’s compensation liabilities and to administer that employer’s worker’s compensation claims if the department has a reasonable basis to believe that the employer is not able or will not be able to timely pay the worker’s compensation liabilities incurred during the period for which that employer was authorized to be self-insured. The department may contract with a third-party administrator or other agent to administer payments. The employer is responsible for any unpaid liabilities. Within 2 working days of receiving written notice from the department, the employer whose security was called shall provide the department with the names and addresses of all present and former employees of the employer during the most recent 3 years in which the employer was self-insured. Within 30 days of receiving written notice from the department, the employer whose security was called shall provide the department with copies of any worker’s compensation, medical or employment files requested by the department or summary information related to those files in a format requested by the department.

Note: In addition to a demonstrated failure to make timely worker’s compensation payments, “a reasonable basis to believe that an employer...will not be able to timely pay worker’s compensation liabilities” is intended to include such things as proceedings before bankruptcy court which may have an adverse financial impact on the employer or credible reports that an employer is preparing to seek some form of shelter in bankruptcy or receivership.

(dx) A surety or bonding company shall provide the department with a written plan acceptable to the department for the review and payment of any worker’s compensation liability of the self-insured employer within 15 days after the department notifies the surety or bonding company that it is calling the bond. When the department approves the plan the surety or bonding company may contract with a third-party administrator or other agent to pay worker’s compensation benefits and other liabilities.

(e) Whenever the department has reason to believe that an employer currently or previously granted self-insurance for its parent or subsidiary company is liquidating and distributing its assets to its owners, or is selling or is about to sell the tangible property it owns and maintains in Wisconsin and the employer or its parent or subsidiary company is moving or is about to move its operations out of Wisconsin, without providing for the payment under the terms of the agreement in the self-insurance application or guaranty form it has executed and submitted to the department, the department may, through the attorney general, cause a petition to be filed to enjoin and restrain the employer from engaging in such action until such time as all obligations of self-insurance meet the satisfaction of the department. Whenever an employer exits self-insurance status the department may require such employer to provide all available information regarding past or outstanding worker’s compensation claims or liability and may require securities sufficient to provide payment for those claims or liabilities.

(f) The department may require a self-insured employer to update the information provided in pars. (b) to (e) at any time.

History

Cr. Register, September, 1982, No. 321, eff. 10-1-82; am. (3), (4) (a), (b) (intro.) and (c) (intro.), cr. (4) (b) 11., Register, September, 1986, No. 369, eff. 10-1-86; emerg. r. (4) (b) 1., renum. (4) (b) 2. to 11. to be 1. to 10., eff. 3-22-88; am, (4) (b) (intro), r. (4) (b) 1., renum. (4) (b) 2. to 11. to be 1. to 10., Register, August, 1988, No. 392, eff. 9-1-88; am. (1), (2), (3) (b) and (4), Register, April, 1990, No. 412, eff. 5-1-90; am. (4) (a), cr. (4) (ag) to (ax), (f), Register, July, 1996, No. 487, eff. 8-1-96; am. (2), (3) (b), (4) (a), (am), (4) (b) 1. and 4., (4) (d) (intro.), cr. (4) (d) 4. to 7., (dm) and (dx), Register, November, 1998, No. 515, eff. 12-1-98; CR 25-005: am. (1) (g), (3) (title), (a), (b), renum. (3) (c) to (3) (c) 1. and am., cr. (3) (c) 2., am. (4) (a), (b) 4., cr. (4) (b) 4m. Register July 2025 No. 835, eff. 8-1-25; correction in (4) (a) made under s. 35.17, Stats., Register July 2025 No. 835.

Wis. Admin. Code § DWD 80.61 Divided insurance and partial insurance requirements under s. 102.31 (1) and (7), Stats., for all employers, including contractors working on a wrap-up project {#sec-dwd-80.61 omnilex-key=us-wi-regs-official--agency-dwd--DWD 80.61}

(1) Definitions. In this section:

(a) “Divided-insurance” means consent to the issuance of 2 or more policies, as provided in s. 102.31 (1), Stats.

(b) “Partial-insurance” means self-insurance of a part of the liability and consent to the issuance of one or more policies on the remainder of the liability, as provided in ss. 102.28 (2) (b) and 102.31 (1), Stats.

(2) Requirements.

(a) The requirements for partial-insurance and divided-insurance by 2 or more insurance companies are as follows:

Submission of an application on department forms available from the department. If the application is approved, the department shall permit partial-insurance or divided-insurance by written order. In the application, the employer shall agree to assume full responsibility to immediately make all payments of compensation and medical expense as the department may require, pending a final determination as to liability between the insurance carriers under divided-insurance or between the employer and the insurance carrier under partial-insurance, if a dispute should arise as to which insurance company or whether the employer or insurance company is responsible for a particular injury or illness sustained during the time the written order is in effect.
If the applicant is a local governmental unit that has independent taxing authority, it shall submit a certified statement by an officer or the attorney for the local governmental unit which cites the legal authority for executing the application and agreement when the initial application is submitted.
If the employer is a corporation, it shall submit a certified copy of the resolution adopted by the board of directors authorizing the execution of the initial application. Applications by organizations other than corporations shall be signed by person(s) possessing authority to execute such application. Partnerships must submit a consent by all the partners that the individual(s) executing the application has the authority to act for the applicant partnership.
Partial-insurance or divided insurance shall not be permitted when the portion of the entity to be insured is unable to obtain coverage under voluntary markets. Otherwise,

a. The department shall permit divided insurance to local governmental units that have independent taxing authority which have ownership of nursing homes in order that the nursing homes may be separately insured and develop a separate experience rate.

b. Subdivision 4. a. does not apply after December 31, 1992.

(b) Renewal applications shall be submitted to the department on a department form no later than 3 months prior to the expiration date of the department’s order. Partial-insurance and divided-insurance shall expire on the date specified in the order unless continued in force by further order, as the department deems necessary.

Note: To obtain a renewal application form, contact the Department of Workforce Development, Worker’s Compensation Division, 201 East Washington Avenue, P.O. Box 7901, Madison, Wisconsin 53707 or call (608) 266-1340.

(3) Divided-insurance for designated carrier wrap-up construction projects.

(a) Definitions. In this subsection:

“Bureau” means the Wisconsin compensation rating bureau.
“Designated wrap-up carrier” means the designated carrier or insurance company which insures the wrap-up project under ch. 102, Stats.
“Job site” means the premises and vicinity upon which the operations covered under the contract with the contractor or subcontractor are to be performed.
“Material supplier” means vendors, suppliers, material dealers, and others whose function is solely to supply or transport material, equipment, or parts to or from the construction site.
“Owner” means the person, firm, corporation or local governmental unit that has independent taxing authority having lawful possession of the construction project.
“Regular carrier” means the insurance company which insures all operations of a contractor or subcontractor under ch. 102, Stats., except for work done on the wrap-up project.
“Subcontractor” means a person who contracts with a contractor and also includes any subcontractor of a subcontractor.
“Wrap-up project” means a construction project wherein the owner selects a carrier, and this carrier issues a separate worker’s compensation policy to each contractor and subcontractor scheduled to work on the project for work which will be done on the project, and where the owner pays for each such policy.

(b) Minimum wrap-up project requirements. Wrap-up projects shall comply with the following:

The estimated project cost of completion shall be equal to at least $25 million. The estimated project cost of completion shall be the estimate of the costs of the total construction contracts to be awarded by the owner on the wrap-up project.
The estimated standard worker’s compensation manual premium shall be equal to $250,000 or more.
The project shall be confined to a single location except that in connection with the building of a road, bridge, pipeline, tunnel, waterway, or 2 or more concurrent wrap-up projects involving the same owner and the same insurance carrier the entire job or the concurrent projects are considered as a single project location.
The project shall have a definite completion date involving work to be performed continuously until completion and may not be extended to include maintenance work following completion.
All contractors and subcontractors shall be included under the wrap-up program.
All material suppliers shall be included in the safety program on the job site while unloading and handling material and performing other work, but material suppliers shall be excluded from the rest of the wrap-up program.
The submission of all bids and the letting of all contracts shall be on an ex-insurance basis.

The wrap-up plan and application shall be submitted on a form provided by the department. If the application is approved, the department shall permit divided-insurance on the wrap-up project.

Note: To obtain the form under this paragraph, contact the Department of Workforce Development, Worker’s Compensation Division, 201 East Washington Avenue, P.O. Box 7901, Madison, Wisconsin 53707 or call (608) 266-1340.

The owner shall comply with all conditions and agreements in the application, including, but not limited to:

a. The reimbursement of the department’s costs incurred because of the wrap-up project.

b. The selection of a licensed and qualified designated wrap-up carrier having a record of compliance with the requirements of ch. 102, Stats., which is acceptable to the department.

c. Informing each contractor and subcontractor and each contractor’s and subcontractor’s insurance company either directly or through the bureau, at the bureau’s discretion, of each one’s responsibilities and the need for attaching a proper endorsement to the regular carrier’s policy to exclude coverage for the wrap-up job site.

d. The submission of each contractor’s and subcontractor’s application, on a form provided by the department, to the department prior to the time the contractor or subcontractor begins work on the wrap-up project.

e. The notification of department and bureau of any entity status change resulting from ensuing reorganization.

f. The assumption of responsibility for immediately making direct compensation payments if a dispute arises over coverage.

g. The payment of an employee’s attorney’s fees and lost wages resulting from a dispute.

If the owner is a corporation, it shall submit a certified copy of the resolution by the board of directors authorizing and directing the execution of the application and agreement.
If the owner is a subsidiary of a corporation, it shall submit a guaranty and agreement by the owner’s ultimate or top parent company agreeing to promptly satisfy all of the requirements and obligations assumed by the owner on the wrap-up project in case of default by the owner.

(d) Minimum requirements for designated wrap-up carrier.

The designated wrap-up carrier shall submit an application on forms available from the department. If the application is approved, the department shall permit divided-insurance for each contractor and subcontractor scheduled to work on the wrap-up project.

Note: To obtain application forms, contact the Department of Workforce Development, Worker’s Compensation Division, 201 East Washington Avenue, P.O. Box 7901, Madison, Wisconsin 53707 or call (608) 266-1340.

The designated wrap-up carrier shall comply with all conditions and agreements in the application, including, but not limited to:

a. Informing each contractor’s and subcontractor’s insurance company either directly or through the bureau, at the bureau’s discretion, of each one’s responsibilities and the need for attaching a proper endorsement to the regular carrier’s policy to exclude coverage for the wrap-up job site;

b. The issuance of each individual contractor’s and subcontractor’s wrap-up policy prior to the time the contractor and subcontractor begin work on the job site;

c. The notification of department and bureau of any entity status change resulting from ensuing reorganization;

d. Becoming the full risk insurer for any contractor or subcontractor not having purchased a worker’s compensation policy during the time the contractor or subcontractor is under contract on the wrap-up project, except as to an employer granted self-insurance; and

e. Becoming the full risk insurer for any contractor or subcontractor not insured or self-insured while working on the wrap-up project.

The designated wrap-up carrier shall submit a certified copy of a statement from an officer authorizing and directing the execution of the application and agreement.

(e) Application for contractors and subcontractors. The owner shall submit an application for divided insurance on forms available from the department for each contractor and subcontractor scheduled to work on the project.

(em) Waiver of requirements. The department may waive one or more requirements in pars. (b) to (e) if it determines that a waiver will not impair the construction owner’s ability to ensure minimum confusion about insurance coverage and maximum safety on the construction project site.

(f) Reimbursement for expenses incurred by department. The department shall be reimbursed for those expenses incurred because of the designated carrier wrap-up program. Where the department specifically consents to divided-insurance or partial-insurance on a wrap-up project, the owner shall reimburse the department, within 30 days after the date of a written request by the department, a sum determined by the department not to exceed 2% of the total audited worker’s compensation premium charged, with payment not to exceed 1% of the estimated worker’s compensation premium upon initial request. If an additional levy is determined to be necessary, a request shall be made for a sum that results in a total charge not to exceed 2% of the total audited worker’s compensation premium charged.

(g) Inapplicability to other employers. This subsection does not apply to any group of employers other than those specified in this section on any other type of operations nor to any single contract or policy of insurance for any group or association of employers.

History

Cr. Register, September, 1982, No. 321, eff. 10-1-82; am. (2) (a) 1., (3) (b) 3. and (3) (d) 3., r. and recr. (3) (e), Register, September, 1986, No. 369, eff. 10-1-86; am. (2) (a) 2. to (c), Register, April, 1990, No. 412, eff. 5-1-90; cr. (3) (em), Register, April, 1994, No. 460, eff. 5-1-94; CR 15-030: am. (3) (c) 1., 2. a. to f. Register October 2015 No. 718, eff. 11-1-15; CR 25-005: am. (title), (2) (a) 2., 4. a., (3) (a) 5., (g) Register July 2025 No. 835, eff. 8-1-25.

Wis. Admin. Code § DWD 80.62 Uninsured employers fund {#sec-dwd-80.62 omnilex-key=us-wi-regs-official--agency-dwd--DWD 80.62}

(1) Purpose. The purpose of this section is to clarify the department’s procedures for handling claims for compensation to injured workers under s. 102.81 (1), Stats. This section also defines the financial standards and actuarial principles which the department will use to monitor the adequacy of the cash balance in the fund to pay both known claims and claims incurred but not reported under s. 102.81 (1), Stats.

(2) Definitions. In this section:

(a) “Agent” means a third-party administrator or other person selected by the department to assist in the administration of the uninsured employers fund program.

(b) “Case reserve” means the best estimate documented in the claim-loss file of all liability to pay compensation on a claim under s. 102.81 (1), Stats.

(c) “Claim” means an injury suffered by an employee of an uninsured employer for which the uninsured employer is liable under s. 102.03, Stats., and which is reported to the department on a form approved by the department for reporting work-related injuries.

(d) “Fund” means the uninsured employers fund in s. 102.80, Stats.

(e) “Incurred but not reported reserve” or “IBNR reserve” means the best actuarial estimate of liability to pay compensation under s. 102.81 (1), Stats., for injuries which occurred on or prior to the current accounting date, for which there is no claim yet reported to the department.

(f) “Insolvent” means inadequate to fund all claims under s. 102.81 (1), Stats.

(g) “Solvent” means adequate to pay all claims under s. 102.81 (1), Stats.

(h) “Ultimate reserve” means the best actuarial estimate of aggregate case reserves from all claims, the expected future development of claims that have been reported, and IBNR reserve.

(i) “Uninsured employer” means an employer who is subject to ch. 102, Stats., under s. 102.04 (1), Stats., and who has not complied with the duty to insure or to obtain an exemption from the duty to insure under s. 102.28 (2) or (3), Stats.

(3) Reporting a claim.

(a) In addition to the notice to an employer required under s. 102.12, Stats., an employee shall report a claim for compensation under s. 102.81, Stats., to the department on a form provided by the department within a reasonable time after the employee has reason to believe that an uninsured employer may be liable for the injury.

Note: To obtain a form to report a claim for compensation, contact the Department of Workforce Development, Worker’s Compensation Division, 201 East Washington Avenue, P.O. Box 7901, Madison, Wisconsin 53707 or call (608) 266-1340.

(b) After receiving a claim under par. (a), the department shall determine whether the employer is an uninsured employer by reviewing its own records and the records maintained by the Wisconsin compensation rating bureau. Within 14 days after receiving a claim under par. (a), the department shall send the employer written notice that a claim has been reported and that the department has made an initial determination that the employer is, or is not, an uninsured employer with respect to the claimed injury. The department shall send a copy of the notice to the employee who filed the claim. If the department later modifies its initial determination regarding the employer’s insurance status with respect to a claim reported under this section, it shall promptly notify the employer and the employee of the reason for the modification and the likely impact of this change on the claim, if any. The employer shall notify its insurance carrier of any modification if the department determines that the employer is an insured employer.

(c) If the department determines that the employer is an uninsured employer it shall promptly seek reimbursement as provided in s. 102.82 (1), Stats., and additional payments to the fund as provided in s. 102.82 (2), Stats. The department may also initiate penalty proceedings under s. 102.85, Stats. If the department determines that the employer is not an uninsured employer it shall notify the parties and close the claim. Nothing in this section shall prevent the department from taking other appropriate action on a claim including penalties and interest due under ss. 102.16 (3), 102.18 (1) (b) and (bp), 102.22 (1), 102.35 (3), 102.57 and 102.60, Stats.

(4) Paying a claim. Within 14 days after a claim is reported to the department, the department or its agent shall mail the first indemnity payment to the injured employee, deny the claim or explain to the employee who filed a claim the reason that the claim is still under review. The department or its agent shall report to the employee regarding the status of the claim at least once every 30 days from the date of the first notification that the claim is under review until the first indemnity payment is made or the claim is denied.

(5) Employee cooperation.

(a) An employee who makes a claim shall cooperate with the department or its agent in the investigation or payment of a claim.

(b) The department or its agent may deny compensation on a claim if an employee fails to provide reasonable assistance to the department or its agent, including recorded interviews, questionnaire responses, medical and other releases, copies of relevant payroll checks, check stubs, bank records, wage statements, tax returns or other similar documentation to identify the employer who may be liable for the injury under s. 102.03, Stats. The department or its agent may also require the employee to document any medical treatment, vocational rehabilitation services or other bills or expenses related to a claim. To verify information submitted in support of a claim for compensation the department or its agent may share information related to a claim with other governmental agencies, including those responsible for tax collection, unemployment insurance, medical assistance, vocational rehabilitation, family support or general relief. Any information obtained from a patient health care record or that may constitute a patient health care record will be shared only to the extent authorized by ss. 146.81 to 146.84, Stats.

(c) If an employee fails to cooperate as required by par. (b), the department may suspend action upon an application filed under s. 102.17 (1), Stats., or may issue an order to dismiss the application with or without prejudice.

(6) Employer cooperation. An employer who is alleged to be uninsured shall cooperate with the department or its agent in the investigation of a claim by providing any records related to payroll, personnel, taxes, ownership of the business or its assets or other documents which the department or its agent request from the employer to determine the employer’s liability under s. 102.03, Stats. If an employer fails to provide information requested under this subsection, the department may presume the employer is an uninsured employer.

(7) Department agents.

(a) The department may select one or more agents to assist the department in its administration of the uninsured employers program, including agents selected for any of the following:

To receive, review, record, investigate, pay or deny a claim.
To represent the legal interests of the uninsured employers fund and to make appearances on behalf of the uninsured employers fund in proceedings under ss. 102.16 to 102.29, Stats.
To seek reimbursement from employers under s. 102.82 (1), Stats., for payments made from the fund to or on behalf of employees or their dependents and for claims administration expenses.
To seek additional payments to the fund under s. 102.82 (2), Stats.
To prepare reports, audits or other summary information related to the program.
To collect overpayments from employees or their dependents or from those to whom overpayments were made on behalf of employees or their dependents where benefits were improperly paid.

(b) Except as provided in this section, the department or its agent shall have the same rights and responsibilities in administering claims under ch. 102, Stats., as an insurer authorized to do business in this state. The department or its agent is not liable for penalties and interest due under ss. 102.16 (3), 102.18 (1) (b) and (bp), 102.22 (1), 102.35 (3), 102.57 and 102.60, Stats.

(9) Determining the solvency of the fund.

(a) The department shall monitor the fund’s net balance of assets and liabilities to determine if the fund is solvent using the following accounting principles:

In determining the fund’s assets, the department shall not include recoveries under s. 102.29 (1), Stats., unless they are in process of payment and due within 30 days, or vouchers in the process of payment which are not fully credited to the fund’s account.
In determining the fund’s liabilities, the department shall estimate the ultimate reserves without discounting, and shall not include reinsurance recoveries that are less than 60 days overdue.

(b) If the secretary determines that ultimate liabilities to the fund on known and IBNR claims exceed 85% of the cash balance in the fund, the secretary shall consult with the council on worker’s compensation. If the secretary determines that the fund’s ultimate liabilities exceed the fund’s ultimate assets, or that there is a reasonable likelihood that the fund’s liabilities will exceed the fund’s assets within 3 months, the secretary shall file the certificate of insolvency in s. 102.80 (3) (ag), Stats.

(10) Temporary reduction or delay of payments from the fund.

(a) If the secretary files a certificate under s. 102.80 (3) (ag), Stats., the department shall continue to pay compensation under s. 102.81 (1), Stats., on claims reported to the department prior to the date specified in that certificate after which no new claims under s. 102.81 (1), Stats., will be accepted or paid.

(b) If the cash balance in the fund is not sufficient to pay all compensation or other liabilities due in a timely manner, the department may temporarily reduce or delay payments on claims to employees, dependents of employees, health care providers, vocational rehabilitation specialists and others to whom the fund is liable. To manage the fund’s cash flow, the department may adopt a uniform, pro-rata reduction schedule or it may establish different payment schedules for different types of liabilities. The department may amend its payment schedule as necessary.

(c) The department shall provide written notice to each person who does not receive timely compensation from the fund which explains the reduced or delayed payment schedule adopted by the department to resolve the cash-flow problem.

History

Cr. Register, July, 1996, No. 487, eff. 8-1-96; CR 03-125: am. (7) (a) 3. Register June 2004 No. 582, eff. 7-1-04; CR 15-030: r. (8) Register October 2015 No. 718, eff. 11-1-15.

Wis. Admin. Code § DWD 80.65 Notice of cancellation, termination, or nonrenewal {#sec-dwd-80.65 omnilex-key=us-wi-regs-official--agency-dwd--DWD 80.65}

Notice of cancellation, termination, or nonrenewal of a policy under ss.102.31 (2) (a) and 102.315 (10), Stats., shall be given in writing to the Wisconsin compensation rating bureau, as defined in s. 626.02 (1), Stats., rather than the department. Whenever the Wisconsin compensation rating bureau receives notice of cancellation, termination, or nonrenewal pursuant to this section, it shall immediately notify the department of cancellation, termination, or nonrenewal.

Note: Notice of cancellation, termination, or nonrenewal given to the Wisconsin Compensation Rating Bureau can be submitted in electronic formats through facsimile machine transmission, electronic mail, certified mail or by personal service. This note may be updated without rulemaking at any time the means of notification are changed.

A person may contact the Wisconsin Compensation Rating Bureau by telephone at (262) 796-4540, by visiting the website at: http://www.wcrb.org, or by writing to the following address:

Wisconsin Compensation Rating Bureau P.O. Box 3080 Milwaukee, WI 53201-3080

History

Cr. Register, September, 1982, No. 321, eff. 10-1-82; CR 03-125: am. Register June 2004 No. 582, eff. 7-1-04; CR 15-030: am. Register October 2015 No. 718, eff. 11-1-15.

Wis. Admin. Code § DWD 80.67 Insurer name change {#sec-dwd-80.67 omnilex-key=us-wi-regs-official--agency-dwd--DWD 80.67}

A worker’s compensation insurer shall notify the department and the Wisconsin compensation rating bureau in writing 30 days before the effective date of a change in its name. The insurer shall comply with the name change requirements in its state of domicile and in the state of Wisconsin. On or before the effective date of an approved name change, the insurer shall notify each of its employers insured under ch. 102, Stats., that the insurer’s name is changed. Insurers shall notify employers by an endorsement to the employer’s existing policy that states the insurer’s new name. The insurer shall file a copy of the endorsement with the Wisconsin compensation rating bureau by personal service, facsimile, or certified mail at the same time that it provides notice to its employers insured under ch. 102, Stats.

Note: The State of Wisconsin Office of the Commissioner of Insurance requires an advance notice of an insurer name change or reorganization. For further information, contact OCI at (608) 266-3585 or (800) 236-8517.

History

Cr. Register, September, 1986, No. 369, eff. 10-1-86; CR 00-181: r. and recr., Register July 2001, No. 547 eff. 8-1-01.

Wis. Admin. Code § DWD 80.68 Payment of benefits under s. 102.59, Stats {#sec-dwd-80.68 omnilex-key=us-wi-regs-official--agency-dwd--DWD 80.68}

(1) Payment of benefits under s. 102.59, Stats., shall initially be made to the individual entitled to the benefits at such time as payments of primary compensation by the employer cease to be made or would have been made had there been no payment under s. 102.32 (6m), Stats., unless the preexisting disability and the disability for which primary compensation is being paid combine to result in permanent total disability.

(2) Payments received by an employee or dependent from an account in a financial institution or from an annuity policy where such account or annuity policy are established through settlement of the claim for primary compensation, shall be considered payments by the employer or insurance carrier.

(3) Payments under s. 102.59, Stats., shall be on a periodic basis but subject to s. 102.32 (6m) and (7), Stats.

Note: This rule is adopted to insure the solvency of the work injury supplemental benefit and to insure the protection of dependents as of the date of death of the employee with the preexisting disability.

History

Cr. Register, September, 1986, No. 369, eff. 10-1-86; CR 07-019: am. (1) and (3), Register October 2007 No. 622, eff. 11-1-07.

Wis. Admin. Code § DWD 80.70 Malice or bad faith {#sec-dwd-80.70 omnilex-key=us-wi-regs-official--agency-dwd--DWD 80.70}

(1) An employer who unreasonably refuses or unreasonably fails to report an alleged injury to its insurance company providing worker’s compensation coverage, shall be deemed to have acted with malice or bad faith.

(2) An insurance company or self-insured employer who, without credible evidence which demonstrates that the claim for the payments is fairly debatable, unreasonably fails to make payment of compensation or reasonable and necessary medical expenses, or after having commenced those payments, unreasonably suspends or terminates them, shall be deemed to have acted with malice or in bad faith.

History

Cr. Register, September, 1982, No. 321, eff. 10-1-82.

Wis. Admin. Code § DWD 80.72 Health service fee dispute resolution process {#sec-dwd-80.72 omnilex-key=us-wi-regs-official--agency-dwd--DWD 80.72}

(1) Purpose. The purpose of this section is to establish the procedures and requirements for resolving a dispute under s. 102.16 (2), Stats., between a health service provider and an insurer or self-insured employer over the reasonableness of a fee charged by the health service provider relating to the examination or treatment of an injured worker, and to specify the standards that health service fee data bases must meet for certification by the department.

(2) Definitions. In this section:

(a) “ADA” means American dental association.

(b) “Applicant” means the person requesting certification of a data base.

(d) “CPT code” means the American medical association’s 1992 physicians’ current procedural terminology.

Note: This volume is on file in the offices of the secretary of state and the legislative reference bureau, and in the worker’s compensation division of the department, GEF I, room 161, 201 E. Washington Ave., Madison, Wisconsin. Copies can be obtained from local textbook stores or from the American medical association, order department: OP054192, P.O. Box 10950, Chicago, IL 60601.

(e) “Data base” means a list of fees for procedures compiled and sorted by CPT code, ICD-9-CM code, ADA code, DRG code, or other similar coding which is systematically collected, assembled, and updated, and which does not include procedures charged under medicare.

(f) “DRG” means a diagnostic related group established by the federal health care financing administration.

(g) “Dispute” means a disagreement between a health service provider and an insurer or self-insured employer over the reasonableness of a fee charged by a health service provider where the insurer or self-insured employer refuses to pay part or all of the fee.

(h) “Fee” or “health service fee” means the amount charged for a procedure by a health service provider.

(i) “Formula amount” means the mean fee for a procedure plus 1.2 standard deviations from that mean as shown by data from a certified data base.

(j) “ICD-9-CM” means the commission on professional and hospital activities’ international classification of diseases, 9th revision, clinical modification.

Note: This volume is on file in the offices of the secretary of state and the legislative reference bureau, and in the worker’s compensation division of the department, GEF I, room 161, 201 E. Washington Ave., Madison, Wisconsin. Copies can be obtained from local textbook stores, or from superintendent of documents, U.S. government printing office, Washington, D.C., 20402, (stock number 917014000001.

(k) “Procedure” or “health service procedure” means any treatment of an injured worker under s. 102.42, Stats.

(L) “Provider” or “health service provider” includes a physician, podiatrist, psychologist, optometrist, chiropractor, dentist, physician’s assistant, advanced practice nurse prescriber, therapist, medical technician, or hospital.

(m) “Self-insurer” means an employer who has been granted an exemption from the duty to insure under s. 102.28 (2), Stats.

(3) Justification of disputed fees.

(a) In a case where liability or the extent of disability is in dispute, an insurer or self-insured employer shall provide written notice of the dispute to the health care provider within 30 days after receiving a completed bill that clearly identifies the provider’s name, address and phone number; the patient–employee; the date of service; and the health service procedure, unless there is good cause for delay in providing notice. In a case where liability or the extent of disability is not in issue, and a health care provider charges a fee which an insurer or self-insurer refuses to pay because it is more than the formula amount, the insurer or self-insurer shall, except as provided in sub. (6) (b), mail or deliver written notice to the provider within 30 days after receiving a completed bill which clearly identifies the provider’s name, address and phone number; the patient-employe; the date of service; the health service procedure; and the amount charged for each procedure. The notice from the insurer or self-insurer to the provider shall specify all of the following:

The name of the patient-employe and the employer;
The date of the procedure in dispute;
The amount charged for the procedure;
The CPT code, ADA code, ICD-9-CM code, DRG code or other certified code for the procedure;
The formula amount for the procedure and the certified data base from which that amount was determined;
The amount of the fee that is in dispute beyond the formula amount;
The provider’s obligation under par. (c), if the fee is beyond the formula amount, to provide the insurer or self-insurer with a written justification for the higher fee, at least 20 days prior to submitting the dispute to the department. The notice must clearly explain that the only justification for a fee more than the formula amount is that the service provided in this particular case is more difficult or more complicated than in the usual case; and
The insurer’s or self-insurer’s obligation under par. (d) to respond within 15 days of receiving the provider’s written justification for charging a fee beyond the formula amount.
That pursuant to s. 102.16 (2) (b), Stats., once the notice required by this subsection is received by a provider, a health service provider may not collect the disputed fee from, or bring an action for collection of the disputed fee against, the employee who received the services for which the fee was charged.

(b) If the provider and the insurer or self-insurer agree on the facts in sub. (3) (a) 1. to 6., the provider may submit the dispute to the department at any time. If the provider believes there is a factual error in the notice provided by the insurer or self-insurer, it must raise the issue as provided in par. (c).

(c) If, after receiving notice from the insurer or self-insurer, the provider believes a fee beyond the formula amount is justified, or if it does not agree with the factual information provided in the notice under par. (a), then, at least 20 days prior to submitting a dispute to the department, the provider must submit a written justification to the insurer or self-insurer noting the factual error or explaining the extent to which the service provided in the disputed case was more difficult or more complicated than in the usual case, or both.

(d) If the provider submits a written justification under par. (c), the insurer or self-insurer has 15 days after receiving the notice to notify the provider that it accepts the provider’s explanation or to explain its continuing refusal to pay the fee. If the insurer or self-insurer accepts the provider’s justification, the fee must be paid in full, or in an amount mutually agreed to by the provider and insurer or self-insurer, within 30 days from the date the insurer or self-insurer received written justification under par. (c).

(e) If only a portion of the fee is in dispute, the insurer or self-insurer shall, within the 30-day notice period specified in par. (a), pay the remainder of the fee which is not in dispute.

(4) Submitting disputed fees.

(a) For the department to determine whether or not a fee is reasonable under s. 102.16 (2), Stats., a provider shall file a written request to the department to resolve the dispute within 6 months after an insurer or self-insurer first refuses to pay as provided in sub. (3) (a), and provide a copy of the request and all attachments to the insurer or self-insured employer.

(b) A request by a provider shall include copies of all correspondence in its possession related to the fee dispute.

(c) The department shall notify the insurer or self-insurer when a request to settle the dispute is submitted that the insurer or self-insurer has 20 days to file an answer or a default judgment will be ordered.

(d) The insurer or self-insurer shall file an answer with the department, and send a copy to the provider, within 20 days from the date of the department’s notice of dispute. The answer shall include:

Copies of any prior correspondence relating to the fee dispute which the provider has not already filed.
Information from a certified data base on fees charged by other providers for comparable services or procedures which clearly demonstrates that the fee in dispute is beyond the formula amount for the service or procedure.
An explanation of why the service provided in the disputed case is not more difficult or complicated than in the usual case.

(e) The department shall examine the material submitted by all parties and issue its order resolving the dispute within 90 days after receiving the material submitted under par. (d). The department shall send a copy of the order to the provider, the insurer or self-insurer and the employee. If the fee dispute involves a claim for which an application for hearing is filed under s. 102.17, Stats., or an injury for which the insurer or self-insurer disputes the cause of the injury, the extent of disability, or other issues which could result in an application for hearing being filed, the department may delay resolution of the fee dispute until a hearing is held or an order is issued resolving the dispute between the injured employee and the insurer or self-insurer.

(f) The department may develop and require the use of forms to facilitate the exchange of information.

(5) Department initiative. The department may initiate resolution of a fee dispute when requested to do so by an injured worker, an insurer or a self-insurer. The department shall direct the parties to follow the process provided for in subs. (3) and (4), except where the department specifically determines that extraordinary circumstances justify some modification to expedite or facilitate a fair resolution of the dispute.

(6) Interest on late payment.

(a) Except as provided in par. (b), in addition to any amount paid or awarded in a fee dispute, where an insurer or self-insurer fails to respond as required in subs. (3) and (4) or as directed under sub. (5), the insurer or self-insurer shall pay simple interest on the payment or award to the provider at an annual rate of 12%, to be computed by the insurer or self-insurer, from the date that the insurer or self-insurer first missed a deadline for response, to the date of actual payment to the provider.

(b) If the insurer or self-insurer notifies the provider within 30 days of receiving a completed bill under sub. (3) (a), that it needs additional documentation from the provider regarding the bill or treatment, the insurer or self-insurer shall have 30 days from the date it receives the provider’s response to this request for additional documentation to comply with the notice requirement in sub. (3) (a). Examples of additional documentation include requests for a narrative description of services provided or medical reports.

(c) For the purpose of calculating the extent to which any claim is overdue, the date of actual payment is the date on which a draft or other valid instrument which is equivalent to payment is postmarked in the U.S. mail in a properly addressed, postpaid envelope, or, if not so posted, on the date of delivery.

(7) Certification of data bases.

(a) Before the department may certify a data base under s. 102.16 (2), Stats., and sub. (8), it shall determine that all of the following apply:

The fees in the data base accurately reflect the amounts charged by providers for procedures rather than the amounts paid to or collected by providers, and do not include any medicare charges.
The information in the data base is compiled and sorted by CPT code, ICD-9-CM code, ADA code, DRG code or other similar coding accepted by the department.
The information in the data base is compiled and sorted into economically similar regions within the state, with the fee based on the location at which the service was provided.
The information in the data base can be presented in a way which clearly indicates the formula amount for each procedure.
The applicant authorizes and assists the department to audit or investigate the accuracy of any statements made in the application for certification by any reasonable method including, if the applicant did not collect or compile the data itself, providing a means for the department to audit or investigate the process used by the person who collected or compiled the data.
The information in the data base is up-dated and published or distributed by other methods at least every 6 months.

(b) Before the department may certify a data base under s. 102.16 (2), Stats., it shall consider all of the following:

The coverage of the data base, including the number of CPT codes, ICD-9-CM codes or DRGs for which there are data; the number of data entries for each code or DRG; the number of different providers contributing to a code or DRG entry; and the extent to which reliable data exist for injuries most commonly associated with worker’s compensation claims;
The sources from which the data are collected, including the number of different providers, insurers or self-insurers;
The age of the data, and the frequency of the updates in the data;
The method by which the data are compiled, including the method by which mistakes in charges are identified and corrected prior to entry and the extent to which this occurs; and the conditions under which charges reported to the applicant may be excluded and the extent to which this occurs;
The extent to which the data are representative of the entire geographic area for which certification is sought;
The length of time the applicant has been in business and doing business in Wisconsin;
The length of time the data base has been in existence;
Whether the data base has been certified by any organization or government agency.

(8) Application for certification; decertification.

(a) To obtain certification from the department, an applicant shall submit a complete description of the items covered in sub. (7) to the department. The department may require the submission of other information which it deems relevant.

(b) The applicant shall clearly identify any trade secrets under s. 19.36 (5), Stats. The department shall treat any information marked as trade secrets as confidential and shall use it solely for the purpose of certification and shall take appropriate steps to prevent its release.

(c) Notwithstanding par. (b), the department may create a technical advisory group consisting of individuals with special expertise from both the public and private sectors to assist the department in reviewing and evaluating an application.

(d) The department shall certify a data base for one year at a time. The department may extend the one-year certification period while an application for renewal is under review by the department.

(e) If the department determines that an applicant has misrepresented a material fact in its application or that it no longer meets the requirements in sub. (7), the department may decertify a data base after providing the applicant with notice of the basis for decertification and an opportunity to respond.

(9) Applicability. This section first applies to health service procedures provided on July 1, 1992 and shall take effect on July 1, 1992.

History

Cr. Register, June, 1992, No. 438, eff. 7-1-92; CR 03-125: am. (3) (a) (intro.) Register June 2004 No. 582, eff. 7-1-04; CR 07-019: am. (2) (i) and (L), Register October 2007 No. 622, eff. 11-1-07; CR 25-005: am. (2) (i) Register July 2025 No. 835, eff. 8-1-25.

Wis. Admin. Code § DWD 80.73 Health service necessity of treatment dispute resolution process {#sec-dwd-80.73 omnilex-key=us-wi-regs-official--agency-dwd--DWD 80.73}

(1) Purpose. The purpose of this section is to establish the procedures and requirements for resolving a dispute under s. 102.16 (2m), Stats., between a health service provider and an insurer or self-insurer over the necessity of treatment rendered by a provider to an injured worker.

(2) Definitions. In this section:

(a) “Dispute” means a disagreement between a provider and an insurer or self-insurer over the necessity of treatment rendered to an injured worker where the insurer or self-insurer refuses to pay part or all of the provider’s bill.

(b) “Expert” means a person licensed to practice in the same health care profession as the individual health service provider whose treatment is under review, and who provides an opinion on the necessity of treatment rendered to an injured worker for an impartial health care services review organization or as a member of an independent panel established by the department.

(c) “Licensed to practice in the same health care profession” means licensed to practice as a physician, psychologist, chiropractor, podiatrist or dentist.

(d) “Provider” includes a hospital, physician, psychologist, chiropractor, podiatrist, physician’s assistant, advanced practice nurse prescriber, or dentist, or another licensed medical practitioner who provides treatment ordered by a physician, psychologist, chiropractor, podiatrist, physician’s assistant, advanced practice nurse prescriber, or dentist whose order of treatment is subject to review.

(e) “Review organization” or “impartial health care services review organization” means a public or private entity not owned or operated by, or regularly doing medical reviews for, any insurer, self-insurer, or provider, and which, for a fee, can provide expert opinions regarding the necessity of treatment provided to an injured worker.

(f) “Self-insurer” means an employer who has been granted an exemption from the duty to insure under s. 102.28 (2), Stats.

(g) “Treatment” means any procedure intended to cure and relieve an injured worker from the effects of an injury under s. 102.42, Stats.

(3) Notice to the provider.

(a) In a case where liability or the extent of liability is in dispute, an insurer or self-insured employer shall provide written notice of the dispute to the health care provider within 60 days after receiving a bill that documents the treatment provided to the worker, unless there is good cause for delay in providing notice. An insurer or self-insurer which refuses to pay for treatment rendered to an injured worker because it disputes that the treatment is necessary shall, in a case where liability or the extent of liability is not an issue, give the provider written notice within 60 days of receiving a bill which documents the treatment provided to the worker. The notice shall specify all of the following:

The name of the patient employee.
The name of the employer on the date of injury.
The date of the treatment in dispute.
The amount charged for the treatment and the amount in dispute.
The reason that the insurer or self-insurer believes the treatment was unnecessary, including the organization and credentials of any person who provides supporting medical documentation and a copy of the supporting medical documentation from that person.
The provider’s right to initiate an independent review by the department within 9 months under sub. (6), including a description of how costs will be assessed under sub. (8).
The address to use in directing correspondence to the insurer or self-insurer regarding the dispute.
That pursuant to s. 102.16 (2m) (b), Stats., once the notice required by this subsection is received by a provider, the provider may not collect a fee for the disputed treatment from, or bring an action for collection of the fee for that disputed treatment against, the employee who received the treatment.

(b) At the request of an insurer or self-insurer, the department may extend the 60-day period in par. (a) where the insurer or self-insurer is unable to obtain the supporting medical documentation within the 60-day period, or where the department determines other extraordinary circumstances justify an extension.

(c) Except as provided in par. (b), if an insurer or self-insurer provides the notice after the 60-day period, the provider may immediately request the department to issue a default order requiring the insurer or self-insurer to pay the full amount in dispute.

(4) Notice to the insurer or self-insurer. After receiving notice from the insurer or self-insurer under sub. (3) and, except as provided in sub. (3) (b) and (c), at least 30 days prior to submitting a dispute to the department, the provider shall explain to the insurer or self-insurer in writing why the treatment was necessary to cure and relieve the effects of the injury, including a diagnosis of the condition for which treatment was provided.

(5) Response by the insurer or self-insurer.

(a) Within 30 days from the date on which the provider sent or delivered notice under sub. (4), an insurer or self-insurer shall notify the provider whether or not it accepts the provider’s explanation regarding necessity of treatment.

(b) If the insurer or self-insurer accepts the provider’s explanation, the provider’s fee must be paid in full, or in an amount mutually agreed to by the provider and insurer or self-insurer, within the 30-day period specified in par. (a). In the case of late payment, the insurer or self-insurer shall pay simple interest on the amount mutually agreed upon at the annual rate of 12 percent, from the day after the 30-day period lapses to the date of actual payment to the provider.

(6) Submitting disputes to the department.

(a) For the department to determine whether or not treatment was necessary under s. 102.16 (2m), Stats., a provider shall, after the 30-day notice period in sub. (4) has elapsed, apply to the department in writing to resolve the dispute. The provider shall apply to the department within 9 months from the date it receives notice under sub. (3) from the insurer or self-insurer refusing to pay the provider’s bill.

(b) The provider’s application to the department shall include copies of all correspondence related to the dispute.

(c) At the time it files the application with the department, the provider shall send or deliver to the insurer or self-insurer which is refusing to pay for the treatment in dispute a copy of all materials submitted to the department.

(d) When an application to resolve a dispute is submitted, the department shall notify the insurer or self-insurer that it has 20 days to either pay the bill in full for the treatment in dispute or to file an answer under par. (e) for the department to use in the review process in sub. (7).

(e) The answer shall include copies of any prior correspondence relating to the dispute which the provider has not already filed, and any other material which responds to the provider’s application. The answer shall include the name of the organization, and credentials of any individual, whose review of the case has been relied upon in reaching the decision to deny payment.

(f) The department may develop and require the use of forms to facilitate the exchange of information.

Note: To obtain a form under par. (f), contact the Department of Workforce Development, Worker’s Compensation Division, 201 East Washington Avenue, P.O. Box 7901, Madison, Wisconsin 53707 or access the form online at http://dwd.wisconsin.gov.

(7) Review process.

(a) After the 20-day period in sub. (6) (d) for the insurer or self-insurer to answer has passed, the department shall provide a copy of all materials in its possession relating to a dispute to an impartial health care services review organization, or to an expert from a panel of experts established by the department, to obtain an expert written opinion on the necessity of treatment in dispute.

(b) In all cases where the dispute involves a Wisconsin provider, the expert reviewer shall be licensed to practice in Wisconsin.

(c) When necessary to provide a fair and informed decision, the expert may contact the provider, insurer or self-insurer for clarification of issues raised in the written materials. Where the contact is in writing, the expert shall provide all parties to the dispute with a copy of the request for clarification and a copy of any responses received. Where the contact is by phone, the expert shall arrange a conference call giving all parties an opportunity to participate simultaneously.

(d) Within 90 days of receiving the material from the department under par. (a), the review organization or panel shall provide the department with the expert’s written opinion regarding the necessity of treatment, including a recommendation regarding how much of the provider’s bill the insurer or self-insurer should pay, if any. At the same time that it provides an opinion to the department, the review organization or panel on which the expert serves shall send a copy of the opinion to the provider and the insurer or self-insurer which are parties to the dispute.

(e) The provider, insurer or self-insurer shall have 30 days from the date the expert’s opinion is received by the department under par. (d) to present written evidence to the department that the expert’s opinion is in error. Unless the department receives clear and convincing written evidence that the opinion is in error, the department shall adopt the written opinion of the expert as the department’s determination on the issues covered in the written opinion.

(f) If the necessity of treatment dispute involves a claim for which an application for hearing is filed under s. 102.17, Stats., or an injury for which the insurer or self-insurer disputes the cause of the injury, the extent of the disability, or other issues which could result in an application for hearing being filed, the department may delay resolution of the necessity of treatment dispute until a hearing is held or an order is issued resolving the dispute between the injured employee and the insurer or self-insurer.

(8) Payment of costs.

(a) The department shall charge the insurer or self-insurer the full cost of obtaining the written opinion of the expert for the first dispute involving the necessity of treatment rendered by an individual provider, unless the department determines the provider’s position in the dispute is frivolous or based on fraudulent representations.

(b) In a subsequent dispute involving the same provider, the department shall charge the full cost of obtaining the expert’s opinion to the losing party.

(c) Any time prior to the department’s order determining the necessity of treatment, the department shall dismiss the application if the provider and insurer or self-insurer mutually agree on the necessity of treatment and the payment of any costs incurred by the department related to obtaining the expert opinion.

(9) Department initiative. In addition to the provider’s right to submit a dispute to the department under sub. (6), the department may initiate resolution of a dispute on necessity of treatment when requested to do so by an injured worker, an insurer or a self-insurer. The department shall notify the insurer or self-insurer of its intention to initiate the dispute resolution process and shall direct them to provide information necessary to resolve the dispute. The department shall allow up to 60 days for the parties to respond, but may extend the response period at the request of either party.

(10) Expert panels. The department may establish one or more panels of experts in one or more treating disciplines, and may set the terms and conditions for membership on any panel. In making appointments to a panel the department shall consider:

(a) An individual’s training and experience, including:

The number of years of practice in a particular discipline;
The extent to which the individual currently derives his or her income from an active practice in a particular discipline; and,
Certification by boards or other organizations;

(b) The recommendation of organizations that regulate or promote professional standards in the discipline for which the panel is being created; and,

(c) Any other factors that the department may determine are relevant to an individual’s ability to serve fairly and impartially as a member of an expert panel.

(11) Applicability. This section first applies to health services provided on January 1, 1992, and shall take effect on July 1, 1992.

History

Emerg. cr. eff. 1-1-92; cr. Register, June, 1992, No. 438, eff. 7-1-92; CR 03-125: am. (3) (a) (intro.) Register June 2004 No. 582, eff. 7-1-04; CR 07-019: am. (2) (d), Register October 2007 No. 622, eff. 11-1-07; CR 15-030: am. (3) (a) 1. to 7., (6) (f) Register October 2015 No. 718, eff. 11-1-15.

Chapter DWD 81 WORKER’S COMPENSATION TREATMENT GUIDELINES

Wis. Admin. Code § DWD 81.01 Purpose and application {#sec-dwd-81.01 omnilex-key=us-wi-regs-official--agency-dwd--DWD 81.01}

(1) Purpose.

(a) The purpose of this chapter is to establish guidelines for necessary and appropriate treatment of patients with compensable worker’s compensation injuries under s. 102.16 (2m), Stats., and s. DWD 80.73.

(b) The guidelines contained in this chapter are factors for an impartial health care services review organization and a member from an independent panel of experts established by the department to consider in rendering opinions to resolve necessity of treatment disputes arising under s. 102.16 (2m), Stats., and s. DWD 80.73.

(c) Sections DWD 81.01 to 81.13 do not affect any determination of liability for an injury under ch. 102, Stats., and are not intended to expand or restrict a health care provider’s scope of practice under any other statute.

(2) Application. All treatment shall be medically necessary as defined in s. DWD 81.03 (10). In the absence of a specific guideline any applicable general guidelines govern. A departure from a guideline that limits the duration or type of treatment may be appropriate in any of the circumstances specified in s. DWD 81.04 (5). All limitations on the duration of a specific treatment modality or type of modality begin with the first time the modality is initiated after November 1, 2007. This chapter does not apply to treatment of an injury after an insurer has denied liability for the injury, except in cases in which the guidelines apply to treatment initiated after liability has been established.

History

CR 07-019: cr. Register October 2007 No. 622, eff. 11-1-07.

Wis. Admin. Code § DWD 81.02 Incorporation by reference {#sec-dwd-81.02 omnilex-key=us-wi-regs-official--agency-dwd--DWD 81.02}

The ICD-9-CM diagnostic codes referenced in this chapter are contained in the fourth edition of the International Classification of Diseases, Clinical Modification, 9th Revision, 1994, and corresponding annual updates. This document is incorporated by reference.

Note: This volume is published by the United States Department of Health and Human Services, Centers for Medicare and Medicaid Services, and may be purchased through the Superintendent of Documents, United States Government Printing Office, Washington, D.C. 20402. It is on file at the Worker’s Compensation Division of the Department of Workforce Development and at the office of the Legislative Reference Bureau.

History

CR 07-019: cr. Register October 2007 No. 622, eff. 11-1-07.

Wis. Admin. Code § DWD 81.03 Definitions {#sec-dwd-81.03 omnilex-key=us-wi-regs-official--agency-dwd--DWD 81.03}

Unless otherwise provided, in this chapter:

(1) “Active treatment” means treatment specified in ss. DWD 81.06 (4), 81.07 (4), 81.08 (4), 81.09 (4), and 81.10 (2) that requires active patient participation in a therapeutic program to increase flexibility, strength, endurance, or awareness of proper body mechanics.

(2) “Chronic pain” means complaint of persistent pain beyond 12 weeks of appropriate treatment provided under this chapter. It is persistent with verbal and nonverbal pain behaviors that exceed the identifiable pathology and medical condition. It is pain that interferes with physical, psychological, social, or vocational functioning.

(3) “Condition” means the symptoms, physical signs, clinical findings, and functional status that characterize a person’s complaint, illness, or injury related to a current claim for compensation.

(4) “Day” means calendar day.

(5) “Emergency treatment” means treatment that is required for the immediate diagnosis and treatment of a medical condition that, if not immediately diagnosed and treated, could lead to serious physical or mental disability or death, or is immediately necessary to alleviate severe pain. Emergency treatment includes treatment delivered in response to symptoms that may or may not represent an actual emergency but that is necessary to determine whether an emergency exists.

(6) “Etiology” means the anatomic alteration, physiologic dysfunction, or other biological or psychological abnormality that is considered a cause of the patient’s condition.

(7) “Functional status” means the ability of an individual to engage in activities of daily living and other social, recreational, and vocational activities.

(8) “Initial nonsurgical management or treatment” is initial treatment provided after an injury that includes passive treatment, active treatment, injections, and durable medical equipment under ss. DWD 81.06 (3), (4), (5), and (8), 81.07 (3), (4), (5), and (8), 81.08 (3), (4), (5), and (8), 81.09 (3), (4), (5), and (8), and 81.10 (2). Scheduled and nonscheduled medication may be a part of initial nonsurgical treatment. Initial nonsurgical management does not include surgery or chronic management modalities under s. DWD 81.13.

(9) “Medical imaging procedure” is a technique, process, or technology used to create a visual image of the body or its function. Medical imaging includes X-rays, tomography, angiography, venography, myelography, computed tomography scanning, magnetic resonance imaging scanning, ultrasound imaging, nuclear isotope imaging, positron emission tomography scanning, and thermography.

(10) “Medically necessary treatment” means those health services for a compensable injury that are reasonable and necessary for the diagnosis and to cure or relieve a condition consistent with any applicable treatment guidelines in this chapter. If ss. DWD 81.04 to 81.13 do not apply, the treatment must be reasonable and necessary for the diagnosis and to cure or relieve a condition consistent with the current accepted standards of practice within the scope of the provider’s license or certification.

(11) “Neurologic deficit” means a loss of function secondary to involvement of the central or peripheral nervous system. This includes motor loss; spasticity; loss of reflex; radicular or anatomic sensory loss; loss of bowel, bladder or erectile function; impairment of special senses, including vision, hearing, taste, or smell; or deficits in cognitive or memory function.

(12) “Progressive neurologic deficit” means any neurologic deficit that has become worse by history or been noted by repeated examination since onset.

(13) “Passive treatment” is any treatment modality specified in ss. DWD 81.06 (3), 81.07 (3), 81.08 (3), 81.09 (3), and 81.10 (2). Passive treatment modalities include bedrest, thermal treatment, traction, acupuncture, electrical muscle stimulation, braces, manual and mechanical therapy, massage, and adjustments.

(14) “Static neurologic deficit” means any neurologic deficit that has remained the same by history or been noted by repeated examination since onset.

(15) “Therapeutic injection” is any injection modality specified in ss. DWD 81.06 (5), 81.07 (5), 81.08 (5), 81.09 (5), and 81.10 (2). Therapeutic injections include trigger point injections, sacroiliac injections, facet joint injections, facet nerve blocks, nerve root blocks, epidural injections, soft tissue injections, peripheral nerve blocks, injections for peripheral nerve entrapment, and sympathetic blocks.

(16) “Week” means calendar week.

History

CR 07-019: cr. Register October 2007 No. 622, eff. 11-1-07.

Wis. Admin. Code § DWD 81.04 General treatment guidelines; excessive treatment {#sec-dwd-81.04 omnilex-key=us-wi-regs-official--agency-dwd--DWD 81.04}

(1) General.

(a) All treatment shall be medically necessary treatment. A health care provider shall evaluate the medical necessity of all treatment under par. (b) on an ongoing basis. This chapter does not require or permit any more frequent examinations than would normally be required for the condition being treated but may require ongoing evaluation of the patient that is medically necessary and consistent with accepted medical practice.

(b) The health care provider shall evaluate at each visit whether initial nonsurgical treatment for the low back, cervical, thoracic, and upper extremity conditions specified in ss. DWD 81.06 to 81.09 is effective according to subds. 1. to 3. No later than any applicable treatment response time in ss. DWD 81.06 to 81.09, the health care provider shall evaluate whether the passive, active, injection, or medication treatment modality is resulting in progressive improvement as specified in all of the following:

The patient’s subjective complaints of pain or disability are progressively improving, as evidenced by documentation in the medical record of decreased distribution, frequency, or intensity of symptoms.
The objective clinical findings are progressively improving, as evidenced by documentation in the medical record of resolution or objectively measured improvement in physical signs of injury.
The patient’s functional status, especially vocational activities, is progressively improving, as evidenced by documentation in the medical record or successive reports of work ability of less restrictive limitations on activity.

(c) Except as otherwise provided under ss. DWD 81.06 (3) (b), 81.07 (3) (b), 81.08 (3) (b), and 81.09 (3) (b), if there is not progressive improvement in at least 2 criteria of par. (b) 1. to 3., the modality shall be discontinued or significantly modified, or the health care provider shall reconsider the diagnosis. The evaluation of the effectiveness of the treatment modality may be delegated to an allied health professional directly providing the treatment.

(d) The health care provider shall use the least intensive setting appropriate and shall assist the patient in becoming independent in the patient’s own care to the extent possible so that prolonged or repeated use of health care providers and medical facilities is minimized.

(2) Documentation. A health care provider shall maintain an appropriate record of any treatment provided to a patient. An appropriate record is a legible health care service record or report that substantiates the nature and necessity of a health care service being billed and its relationship to the work injury.

(3) Nonoperative treatment. A health care provider shall provide a trial of nonoperative treatment before offering or performing surgical treatment unless the treatment for the condition requires immediate surgery, unless an emergency situation exists, or unless the accepted standard of initial treatment for the condition is surgery.

(4) Chemical dependency. A health care provider shall maintain diligence to detect incipient or actual chemical dependency to any medication prescribed for treatment of the patient’s condition. In cases of incipient or actual dependency, the health care provider shall refer the patient for appropriate evaluation and treatment of the dependency.

(5) Departure from guidelines. A health care provider’s departure from a guideline that limits the duration or type of treatment in this chapter may be appropriate in any of the following circumstances:

(a) There is a documented medical complication.

(b) Previous treatment did not meet the accepted standard of practice and meet the guidelines in this chapter for the health care provider who ordered the treatment.

(c) The treatment is necessary to assist the patient in the initial return to work where the patient’s work activities place stress on the part of the body affected by the work injury. The health care provider shall document in the medical record the specific work activities that place stress on the affected body part, the details of the treatment plan, and treatment delivered on each visit, the patient’s response to the treatment, and efforts to promote patient independence in the patient’s own care to the extent possible so that prolonged or repeated use of health care providers and medical facilities is minimized.

(d) The treatment continues to meet 2 of the following 3 criteria, as documented in the medical record:

The patient’s subjective complaints of pain are progressively improving as evidenced by documentation in the medical record of decreased distribution, frequency, or intensity of symptoms.
The patient’s objective clinical findings are progressively improving, as evidenced by documentation in the medical record of resolution or objectively measured improvement in physical signs of injury.
The patient’s functional status, especially vocational activity, is objectively improving, as evidenced by documentation in the medical record or successive reports of work ability of less restrictive limitations on activity.

(e) There is an incapacitating exacerbation of the patient’s condition. Additional treatment for the incapacitating exacerbation shall comply with and may not exceed the guidelines in this chapter.

History

CR 07-019: cr. Register October 2007 No. 622, eff. 11-1-07.

Wis. Admin. Code § DWD 81.05 Guidelines for medical imaging {#sec-dwd-81.05 omnilex-key=us-wi-regs-official--agency-dwd--DWD 81.05}

(1) General principles.

(a) Documentation. Except for emergency evaluation of significant trauma, a health care provider shall document in the medical record an appropriate history and physical examination, along with a review of any existing medical records and laboratory or imaging studies regarding the patient’s condition before ordering any imaging study. All medical imaging shall comply with all of the following:

(b) Effective imaging. A health care provider shall initially order the single most effective imaging study for diagnosing the suspected etiology of a patient’s condition. No concurrent or additional imaging studies shall be ordered until the results of the first study are known and reviewed by the treating health care provider. If the first imaging study is negative, no additional imaging is necessary except for repeat and alternative imaging allowed under pars. (e) and (f).

(c) Appropriate imaging. Imaging solely to rule out a diagnosis not seriously being considered as the etiology of the patient’s condition is not necessary.

(d) Routine imaging. Imaging on a routine basis is not necessary unless the information from the study is necessary to develop a treatment plan.

(e) Repeat imaging. Repeat imaging of the same views of the same body part with the same imaging modality is not necessary except for any of the following:

To diagnose a suspected fracture or suspected dislocation.
To monitor a therapy or treatment that is known to result in a change in imaging findings and imaging of these changes are necessary to determine the efficacy of the therapy or treatment; repeat imaging is not appropriate solely to determine the efficacy of physical therapy or chiropractic treatment.
To follow up a surgical procedure.
To diagnose a change in the patient’s condition marked by new or altered physical findings.
To evaluate a new episode of injury or exacerbation that in itself warrants an imaging study.
When the treating health care provider and a radiologist from a different practice have reviewed a previous imaging study and agree that it is a technically inadequate study.

(f) Alternative imaging.

Persistence of a patient’s subjective complaint or failure of the condition to respond to treatment are not legitimate indications for repeat imaging. In this instance an alternative imaging study may be necessary if another etiology of the patient’s condition is suspected because of the failure of the condition to improve.
Alternative imaging may not follow up negative findings unless there has been a change in the suspected etiology and the first imaging study is not an appropriate evaluation for the suspected etiology.
Alternative imaging may follow up abnormal but inconclusive findings in another imaging study. An inconclusive finding may not provide an adequate basis for accurate diagnosis.

(2) Specific imaging procedures for low back pain.

(a) Except for the emergency evaluation of significant trauma, a health care provider shall document in the medical record an appropriate history and physical examination, along with a review of any existing medical records and laboratory or imaging studies regarding the patient’s condition, before ordering any imaging study of the low back.

(b) A health care provider may order computed tomography scanning for any of the following:

When cauda equina syndrome is suspected.
For evaluation of progressive neurologic deficit.
When bony lesion is suspected on the basis of other tests or imaging procedures.

(c) Except as specified in par. (b), a health care provider may not order computed tomography scanning in the first 4 weeks after an injury. Computed tomography scanning is necessary after 4 weeks if the patient continues with symptoms and physical findings after the course of initial nonsurgical care and if the patient’s condition prevents the resumption of the regular activities of daily life, including regular vocational activities.

(d) A health care provider may order magnetic resonance imaging scanning for any of the following:

When cauda equina syndrome is suspected.
For evaluation of progressive neurologic deficit.
When previous spinal surgery has been performed and there is a need to differentiate scar due to previous surgery from disc herniation, tumor, or hemorrhage.
Suspected discitis.

(e) Except as specified in par. (d), a health care provider may not order magnetic resonance imaging scanning in the first 4 weeks after an injury. Magnetic resonance imaging scanning is necessary after 4 weeks if the patient continues with symptoms and physical findings after the course of initial nonsurgical care and if the patient’s condition prevents the resumption of the regular activities of daily life, including regular vocational activities.

(f) A health care provider may order myelography for any of the following:

Myelography may be substituted for otherwise necessary computed tomography scanning or magnetic resonance imaging scanning in accordance with pars. (b) and (d), if those imaging modalities are not locally available.
In addition to computed tomography scanning or magnetic resonance imaging scanning, if there are progressive neurologic deficits or changes and computed tomography scanning or magnetic resonance imaging scanning has been negative.
For preoperative evaluation in cases of surgical intervention, but only if computed tomography scanning or magnetic resonance imaging scanning have failed to provide a definite preoperative diagnosis.

(g) A health care provider may order computed tomography myelography for any of the following:

The patient’s condition is predominantly sciatica, there has been previous spinal surgery, and tumor is suspected.
The patient’s condition is predominantly sciatica, there has been previous spinal surgery, and magnetic resonance imaging scanning is equivocal.
When spinal stenosis is suspected and the computed tomography scanning or magnetic resonance imaging scanning is equivocal.
If there are progressive neurologic symptoms or changes and computed tomography scanning or magnetic resonance imaging scanning has been negative.
For preoperative evaluation in cases of surgical intervention, but only if computed tomography scanning or magnetic resonance imaging scanning have failed to provide a definite preoperative diagnosis.

(h) A health care provider may order intravenous enhanced computed tomography scanning only if there has been previous spinal surgery, and the imaging study is being used to differentiate scar due to previous surgery from disc herniation or tumor, but only if intrathecal contrast for computed tomography-myelography is contraindicated and magnetic resonance imaging scanning is not available or is also contraindicated.

(i) A health care provider may order enhanced magnetic resonance imaging scanning for any of the following:

There has been previous spinal surgery, and the imaging study is being used to differentiate scar due to previous surgery from disc herniation or tumor.
Hemorrhage is suspected.
Tumor or vascular malformation is suspected.
Infection or inflammatory disease is suspected.
Unenhanced magnetic resonance imaging scanning was equivocal.

(j) A health care provider may order discography for any of the following:

All of the following are present:

a. Back pain is the predominant complaint.

b. The patient has failed to improve with initial nonsurgical management.

c. Other imaging has not established a diagnosis.

d. Lumbar fusion surgery or other surgical procedures are being considered as a therapy.

There has been previous spinal surgery, and pseudoarthrosis, recurrent disc herniation, annular tear, or internal disc disruption is suspected.

(k) A health care provider may order computed tomography discography when it is necessary to view the morphology of a disc.

(L) A health care provider may not order nuclear isotope imaging including technicium, indium, and gallium scans, unless tumor, stress fracture, infection, avascular necrosis, or inflammatory lesion is suspected on the basis of history, physical examination findings, laboratory studies, or the results of other imaging studies.

(m) A health care provider may not order thermography for the diagnosis of any of the clinical categories of low back conditions in s. DWD 81.06 (1) (b).

(n) A health care provider may order anterior-posterior and lateral X-rays of the lumbosacral spine for any of the following:

When there is a history of significant acute trauma as the precipitating event of the patient’s condition, and fracture, dislocation, or fracture dislocation is suspected.
When the history, signs, symptoms, or laboratory studies indicate possible tumor, infection, or inflammatory lesion.
For postoperative follow-up of lumbar fusion surgery.
When the patient is more than 50 years of age.
Before beginning a course of treatment with spinal adjustment or manipulation.
Eight weeks after an injury if the patient continues with symptoms and physical findings after the course of initial nonsurgical care and if the patient’s condition prevents the resumption of the regular activities of daily life, including regular vocational activities.

(o) A health care provider may not order anterior-posterior and lateral X-rays of the lumbosacral spine for any of the following:

To verify progress during initial nonsurgical treatment.
To evaluate a successful initial nonsurgical treatment program.

(p) A health care provider may order oblique X-rays of the lumbosacral spine for any of the following:

To follow up abnormalities detected on anterior-posterior or lateral X-ray.
For postoperative follow-up of lumbar fusion surgery.
To follow up spondylolysis or spondylolisthesis not adequately diagnosed by other necessary imaging procedures.

(q) A health care provider may not order oblique X-rays of the lumbosacral spine as part of a package of X-rays including anterior-posterior and lateral X-rays of the lumbosacral spine.

(r) A health care provider may not order electronic X-ray analysis of plain radiographs and diagnostic ultrasound of the lumbar spine for diagnosis of any of the low back conditions in s. DWD 81.06 (1) (b).

History

CR 07-019: cr. Register October 2007 No. 622, eff. 11-1-07.

Wis. Admin. Code § DWD 81.06 Low back pain {#sec-dwd-81.06 omnilex-key=us-wi-regs-official--agency-dwd--DWD 81.06}

(1) Diagnostic procedures for the evaluation of low back pain.

(a) A health care provider shall determine the nature of the low back condition before initiating treatment.

(b) A health care provider shall perform and document an appropriate history and physical examination. Based on the history and physical examination the health care provider shall assign the patient at each visit to the appropriate clinical category under subds. 1. to 4. The health care provider shall document the diagnosis in the medical record. For the purposes of subds. 2. and 3., “radicular pain” means pain radiating distal to the knee, or pain conforming to a dermatomal distribution, and accompanied by anatomically congruent motor weakness, or reflex changes. This section does not apply to fractures of the lumbar spine, or low back pain due to an infectious, immunologic, metabolic, endocrine, neurologic, visceral, or neoplastic disease process.

Regional low back pain, includes referred pain to the leg above the knee unless it conforms to an L2, L3, or L4 dermatomal distribution and is accompanied by anatomically congruent motor weakness or reflex changes. Regional low back pain includes the diagnoses of lumbar, lumbosacral, or sacroiliac strain, sprain, myofascial syndrome, musculoligamentous injury, soft tissue injury, spondylosis, and other diagnoses for pain believed to originate in the discs, ligaments, muscles, or other soft tissues of the lumbar spine or sacroiliac joints and that effects the lumbosacral region, with or without referral to the buttocks or leg, or both above the knee, including ICD-9-CM codes 720 to 720.9, 721, 721.3, 721.5 to 721.90, 722, 722.3, 722.32, 722.5, 722.51, 722.52, 722.6, 722.9, 722.90, 722.93, 724.2, 724.5, 724.6, 724.8, 724.9, 732.0, 737 to 737.9, 738.4, 738.5, 739.2 to 739.4, 756.1 to 756.19, 847.2 to 847.9, 922.3, 926.1, 926.11, and 926.12.
Radicular pain, with or without regional low back pain, with static or no neurologic deficit. This includes the diagnoses of sciatica; lumbar or lumbosacral radiculopathy, radiculitis, or neuritis; displacement or herniation of intervertebral disc with myelopathy, radiculopathy, radiculitis, or neuritis; spinal stenosis with myelopathy, radiculopathy, radiculitis, or neuritis; and any other diagnoses for pain in the leg below the knee believed to originate with irritation of a nerve root in the lumbar spine, including ICD-9-CM codes 721.4, 721.42 721.91, 722.1, 722.10, 722.2, 722.7, 722.73, 724.0, 724.00, 724.02, 724.09, 724.3, 724.4, and 724.9. In these cases, neurologic findings on history and physical examination are either absent or do not show progressive deterioration.
Radicular pain, with or without regional low back pain, with progressive neurologic deficit. This includes the same diagnoses as subd. 2., except this subdivision applies when there is a history of progressive deterioration in the neurologic symptoms and physical findings which include worsening sensory loss, increasing muscle weakness, or progressive reflex changes.
Cauda equina syndrome, which is a syndrome characterized by anesthesia in the buttocks, genitalia, or thigh and accompanied by disturbed bowel and bladder function, including ICD-9-CM codes 344.6, 344.60, and 344.61.

(c) A health care provider may not order laboratory tests in the evaluation of a patient with regional low back pain, radicular pain, or cauda equina syndrome, except for any of the following:

When a patient’s history, age, or examination suggests infection, metabolic-endocrinologic disorders, tumorous conditions, systemic musculoskeletal disorders, such as rheumatoid arthritis or ankylosing spondylitis.
To evaluate potential adverse side effects of medications.
As part of a preoperative evaluation.

(d) Laboratory tests may be ordered any time a health care provider suspects any of the conditions in par. (c), if the health care provider justifies the need for the tests ordered with clear documentation of the indications.

(e) Medical imaging evaluation of the lumbosacral spine shall be based on the findings of the history and physical examination and may not be ordered before a health care provider’s clinical evaluation of the patient. Medical imaging may not be performed as a routine procedure and shall comply with all of the guidelines in s. DWD 81.05 (1) and (2). A health care provider shall document the appropriate indications for any medical imaging studies obtained.

(f) A health care provider may not order electromyography and nerve conduction studies for regional low back pain as defined in s. DWD 81.06 (1) (b) 1. A health care provider may order electromyography and nerve conduction studies as a diagnostic tool for radicular pain and cauda equina syndrome as defined in s. DWD 81.06 (1) (b) 2. to 4. after the first 3 weeks of radicular symptoms. Repeat electromyography and nerve conduction studies for radicular pain and cauda equina syndrome are not necessary unless a new neurologic symptom or progression of existing finding has developed that in itself would warrant electrodiagnostic testing. Failure to improve with treatment is not an indication for repeat testing.

(g) A health care provider may not order the use of any of the following procedures or tests for the diagnosis of any of the clinical categories in par. (b) 1. to 4.:

Surface electromyography or surface paraspinal electromyography.
Thermography.
Plethysmography.
Electronic X-ray analysis of plain radiographs.
Diagnostic ultrasound of the lumbar spine.
Somatosensory evoked potentials and motor evoked potentials.

(h) A health care provider may not order computerized range of motion or strength measuring tests during the period of initial nonsurgical management but may order these tests during the period of chronic management when used in conjunction with a computerized exercise program, work hardening program, or work conditioning program. During the period of initial nonsurgical management, computerized range of motion or strength testing may be performed but shall be done in conjunction with an office visit with a health care provider’s evaluation or treatment, or physical or occupational therapy evaluation or treatment.

(i) A health care provider may order personality or psychosocial evaluations for evaluating patients who continue to have problems despite appropriate care. A treating health care provider may perform this evaluation or may refer the patient for consultation with another health care provider in order to obtain a psychological evaluation. These evaluations may be used to assess the patient for a number of psychological conditions that may interfere with recovery from the injury. Since more than one of these psychological conditions may be present in a given case, the health care provider performing the evaluation shall consider all of the following:

Is symptom magnification occurring?
Does the patient exhibit an emotional reaction to the injury, such as depression, fear, or anger, that is interfering with recovery?
Are there other personality factors or disorders that are interfering with recovery?
Is the patient chemically dependent?
Are there any interpersonal conflicts interfering with recovery?
Does the patient have a chronic pain syndrome or psychogenic pain?
In cases in which surgery is a possible treatment, are psychological factors likely to interfere with the potential benefit of the surgery?

(j) All of the following are guidelines for diagnostic analgesic blocks or injection studies and include facet joint injection, facet nerve injection, epidural differential spinal block, nerve block, and nerve root block:

These procedures are used to localize the source of pain before surgery and to diagnose conditions that fail to respond to initial nonsurgical management.
These injections are invasive and are not necessary when done as diagnostic procedures only, unless noninvasive procedures have failed to establish the diagnosis.
Selection of patients, choice of procedure, and localization of the level of injection may be determined by documented clinical findings indicating possible pathologic conditions and the source of pain symptoms.
These blocks and injections may also be used as therapeutic modalities and are subject to the guidelines of sub. (5).

(k) Functional capacity assessment or evaluation is a comprehensive and objective assessment of a patient’s ability to perform work tasks. The components of a functional capacity assessment or evaluation include neuromusculoskeletal screening, tests of manual material handling, assessment of functional mobility, and measurement of postural tolerance. A functional capacity assessment or evaluation is an individualized testing process and the component tests and measurements are determined by the patient’s condition and the requested information. Functional capacity assessments and evaluations are performed to determine and report a patient’s physical capacities in general or to determine work tolerance for a specific job, task, or work activity.

A functional capacity assessment or evaluation is not necessary during the period of initial nonsurgical management.
A functional capacity assessment or evaluation is necessary in any of the following circumstances:

a. To identify the patient’s activity restrictions and capabilities.

b. To resolve a question about the patient’s ability to do a specific job.

A functional capacity evaluation may not establish baseline performance before treatment or for subsequent assessments to evaluate change during or after treatment.
A health care provider may direct only one completed functional capacity evaluation per injury.

(L) Consultations with other health care providers may be initiated at any time by the treating health care provider consistent with accepted medical practice.

(2) General treatment guidelines for low back pain.

(a) All medical care for low back pain appropriately assigned to a clinical category in sub. (1) (b) is determined by the diagnosis and clinical category that the patient has been assigned. General guidelines for treatment modalities are set forth in subs. (3) to (10). Specific treatment guidelines for each clinical category are set forth in subs. (11), (12), and (13), as follows:

Subsection (11) governs regional low back pain.
Subsection (12) governs radicular pain with no or static neurologic deficits.
Subsection (13) governs cauda equina syndrome and radicular pain with progressive neurologic deficits.

(b) A health care provider shall, at each visit, reassess the appropriateness of the clinical category assigned and reassign the patient if warranted by new clinical information including symptoms, signs, results of diagnostic testing and opinions, and information obtained from consultations with other health care providers. If the clinical category is changed, the treatment plan shall be appropriately modified to reflect the new clinical category. A change of clinical category may not in itself allow a health care provider to continue a therapy or treatment modality past the maximum duration specified in subs. (3) to (10) or to repeat a therapy or treatment previously provided for the same injury.

First, all patients with low back problems, except patients with progressive neurologic deficit or cauda equina syndrome under sub. (1) (b) 3. or 4., shall be given initial nonsurgical management which may include active treatment modalities, passive treatment modalities, injections, durable medical equipment, and medications. These modalities and guidelines are described in subs. (3), (4), (5), (8), and (10). The period of initial nonsurgical treatment begins with the first active, passive, medication, durable medical equipment, or injection modality initiated. Initial nonsurgical treatment shall result in progressive improvement as specified in sub. (9).
Second, for patients with persistent symptoms, initial nonsurgical management is followed by a period of surgical evaluation. This evaluation shall be completed in a timely manner. Surgery, if necessary, shall be performed as expeditiously as possible consistent with sound medical practice and subs. (6), (11), (12), (13), and s. DWD 81.12. A treating health care provider may do the evaluation or may refer the patient to another health care provider.

a. Patients with radicular pain with progressive neurological deficit or cauda equina syndrome may require immediate surgical therapy.

b. Any patient who has had surgery may require postoperative therapy in a clinical setting with active and passive treatment modalities. This therapy may be in addition to any received during the period of initial nonsurgical care.

c. Surgery shall follow the guidelines in subs. (6), (11), (12), (13), and s. DWD 81.12.

d. A decision against surgery at any particular time does not preclude a decision for surgery at a later date.

Third, for those patients who are not candidates for or refuse surgical therapy, or who do not have complete resolution of their symptoms with surgery, a period of chronic management may be necessary. Chronic management modalities are described in s. DWD 81.13 and may include durable medical equipment as described in sub. (8).

(d) A treating health care provider may refer the patient for a consultation at any time during the course of treatment consistent with accepted medical practice.

(3) Passive treatment modalities.

(a) General. Except as set forth in par. (b) and s. DWD 81.04 (5), a health care provider may not direct the use of passive treatment modalities in a clinical setting as set forth in pars. (c) to (i) beyond 12 calendar weeks after any of the passive modalities in pars. (c) to (i) are initiated. There are no limitations on the use of passive treatment modalities by the patient at home.

(b) Additional passive treatment modalities. A health care provider may direct an additional 12 visits for the use of passive treatment modalities over an additional 12 months if all of the following apply:

The patient is released to work or is permanently totally disabled and the additional passive treatment shall result in progressive improvement in, or maintenance of, the functional status that was achieved during the initial 12 weeks of passive care.
The treatment is not given on a regularly scheduled basis.
A health care provider documents in the medical record a plan to encourage the patient’s independence and decreased reliance on health care providers.
Management of the patient’s condition includes active treatment modalities during this period.
The additional 12 visits for passive treatment does not delay the required surgical or chronic pain evaluation required by this chapter.
Passive care is not necessary while the patient has chronic pain syndrome.

(c) Adjustment or manipulation of joints. For purposes of this paragraph, “adjustment or manipulation of joints” includes chiropractic and osteopathic adjustments or manipulations. All of the following guidelines apply to adjustment or manipulation of joints:

Time for treatment response is 3 to 5 treatments.
Maximum treatment frequency is up to 5 times per week for the first one to 2 weeks decreasing in frequency until the end of the maximum treatment duration period in subd. 3.
Maximum treatment duration is 12 weeks.

(d) Thermal treatment. For purposes of this paragraph, “thermal treatment” includes all superficial and deep heating and cooling modalities. Superficial thermal modalities include hot packs, hot soaks, hot water bottles, hydrocollators, heating pads, ice packs, cold soaks, infrared, whirlpool, and fluidotherapy. Deep thermal modalities include diathermy, ultrasound, and microwave. All of the following guidelines apply to thermal treatment:

Thermal treatment given in a clinical setting:

a. Time for treatment response is 2 to 4 treatments.

b. Maximum treatment frequency is up to 5 times per week for the first one to 3 weeks decreasing in frequency until the end of the maximum treatment duration period in subd. 1. c.

c. Maximum treatment duration is 12 weeks in a clinical setting but only if given in conjunction with other therapies.

Home use of thermal modalities may be prescribed at any time during the course of treatment. Home use may only involve hot packs, hot soaks, hot water bottles, hydrocollators, heating pads, ice packs, and cold soaks that can be applied by the patient without health care provider assistance. Home use of thermal modalities does not require any special training or monitoring, other than that usually provided by the health care provider during an office visit.

(e) Electrical muscle stimulation. For purposes of this paragraph, “electrical muscle stimulation” includes galvanic stimulation, transcutaneous electrical nerve stimulation, interferential, and microcurrent techniques. All of the following guidelines apply to electrical muscle stimulation:

Electrical muscle stimulation given in a clinical setting:

a. Time for treatment response is 2 to 4 treatments.

b. Maximum treatment frequency is up to 5 times per week for the first one to 3 weeks decreasing in frequency until the end of the maximum treatment duration period in subd. 1. c.

c. Maximum treatment duration is 12 weeks of treatment in a clinical setting but only if given in conjunction with other therapies.

Home use of an electrical stimulation device may be prescribed at any time during a course of treatment. Initial use of an electrical stimulation device shall be in a supervised setting in order to ensure proper electrode placement and patient education. All of the following guidelines apply to home use of an electrical muscle stimulation device:

a. The time for patient education and training is one to 3 sessions.

b. Patient may use the electrical stimulation device for one month, at which time effectiveness of the treatment shall be reevaluated by a health care provider before continuing home use of the device.

(f) Mechanical traction. All of the following guidelines apply to mechanical traction:

Treatment given in a clinical setting:

a. Time for treatment response is 3 treatments.

b. Maximum treatment frequency is up to 3 times per week for the first one to 3 weeks decreasing in frequency until the end of the maximum treatment duration period in subd. 1. c.

c. Maximum treatment duration is 12 weeks in a clinical setting but only if used in conjunction with other therapies.

Home use of a mechanical traction device may be prescribed as follow-up to use of traction in a clinical setting if it has proven to be effective treatment and is expected to continue to be effective treatment. Initial use of a mechanical traction device shall be in a supervised setting in order to ensure proper patient education. All of the following guidelines apply to home use of a mechanical traction device:

a. Time for patient education and training is one session.

b. Patient may use the mechanical traction device for one month, at which time effectiveness of the treatment shall be reevaluated by a health care provider before continuing home use of the device.

(g) Acupuncture treatments. For purposes of this paragraph, “acupuncture treatments” include endorphin-mediated analgesic therapy that includes classic acupuncture and acupressure. All of the following guidelines apply to acupuncture treatments:

Time for treatment response is 3 to 5 sessions.
Maximum treatment frequency is up to 3 times per week for one to 3 weeks decreasing in frequency until the end of the maximum treatment duration period in subd. 3.
Maximum treatment duration is 12 weeks.

(h) Manual therapy. For purposes of this paragraph, “manual therapy” includes soft tissue and joint mobilization, therapeutic massage, and manual traction. All of the following guidelines apply to manual therapy:

Time for treatment response is 3 to 5 treatments.
Maximum treatment frequency is up to 5 times per week for the first one to 2 weeks decreasing in frequency until the end of the maximum treatment duration period in subd. 3.
Maximum treatment duration is 12 weeks.

(i) Phoresis. For purposes of this paragraph, “phoresis” includes iontophoresis and phonophoresis. All of the following guidelines apply to phoresis:

Time for treatment response is 3 to 5 sessions.
Maximum treatment frequency is up to 3 times per week for the first one to 3 weeks decreasing in frequency until the end of the maximum treatment duration period in subd. 3.
Maximum treatment is 9 sessions of either iontophoresis or phonophoresis, or combination, to any one site, with a maximum duration of 12 weeks for all treatment.

(j) Bedrest. Prolonged restriction of activity and immobilization are detrimental to a patient’s recovery. Bedrest shall not be prescribed for more than 7 days.

(k) Spinal braces and other movement restricting appliances. All of the following guidelines apply to spinal braces and other movement-restricting appliances:

Bracing required for longer than 2 weeks shall be accompanied by active muscle strengthening exercise to avoid deconditioning and prolonged disability.
Time for treatment response is 3 days.
Treatment frequency is limited to intermittent use during times of increased physical stress or prophylactic use at work.
Maximum continuous duration is 3 weeks unless patient is status postfusion.

(4) Active treatment modalitis.

(a) Active treatment modalities shall be used as set forth in pars. (b) to (f). A health care provider’s use of active treatment modalities may extend past the 12-week limitation on passive treatment modalities so long as the maximum durations for the active treatment modalities are not exceeded.

(b) Education shall teach the patient about pertinent anatomy and physiology as it relates to spinal function for the purpose of injury prevention. Education includes training on posture, biomechanics, and relaxation. The maximum number of treatments is 3 visits, which include an initial education and training session and 2 follow-up visits.

(c) Posture and work method training shall instruct the patient in the proper performance of job activities. Topics include proper positioning of the trunk, neck and arms, use of optimum biomechanics in performing job tasks, and appropriate pacing of activities. Methods include didactic sessions, demonstrations, exercises, and simulated work tasks. The maximum number of treatments is 3 visits.

(d) Worksite analysis and modification shall examine the patient’s work station, tools, and job duties. A health care provider’s recommendations may be made for the alteration of the work station, selection of alternate tools, modification of job duties, and provision of adaptive equipment. The maximum number of treatments is 3 visits.

(e) Exercise, which is important to the success of an initial nonsurgical treatment program and a return to normal activity, shall include active patient participation in activities designed to increase flexibility, strength, endurance, or muscle relaxation. Exercise shall, at least in part, be specifically aimed at the musculature of the lumbosacral spine. Aerobic exercise and extremity strengthening may be performed as adjunctive treatment, but may not be the primary focus of the exercise program.

(f) Exercises shall be evaluated to determine if the desired goals are being attained. Strength, flexibility, and endurance shall be objectively measured. A health care provider may objectively measure the treatment response as often as necessary for optimal care after the initial evaluation. Subdivisions 1. and 2. govern supervised and unsupervised exercise, except for computerized exercise programs and health clubs, which are governed by s. DWD 81.13.

‘Guidelines for supervised exercise.’ One goal of an exercise program shall be to teach the patient how to maintain and maximize any gains experienced from exercise. Self-management of the condition shall be promoted. All of the following guidelines apply to supervised exercise:

a. Maximum treatment frequency is 5 times for the first week decreasing to 3 times per week for the next 2 weeks and decreasing in frequency after the third week.

b. Maximum duration is 12 weeks.

‘Guidelines for unsupervised exercise.’ Unsupervised exercise shall be provided in the least intensive setting appropriate to the goals of the exercise program and may supplement or follow the period of supervised exercise. All of the following guidelines apply to unsupervised exercise:

a. Maximum treatment frequency is up to 3 visits for instruction and monitoring.

b. There is no limit on the duration or frequency of exercise at home.

(5) Therapeutic injections.

(a) Injection modalities are necessary as set forth in pars. (b) to (d). A health care provider’s use of injections may extend past the 12-week limit on passive treatment modalities so long as the maximum treatment for injections is not exceeded.

(b) For purposes of this subsection, “therapeutic injections” include injections of trigger points, facet joints, facet nerves, sacroiliac joints, sympathetic nerves, epidurals, nerve roots, and peripheral nerves. Therapeutic injections may only be given in conjunction with active treatment modalities directed to the same anatomical site.

All of the following guidelines apply to trigger point injections:

a. Time for treatment response is within 30 minutes.

b. Maximum treatment frequency is once per week to any one site if there is a positive response to the first injection at that site. If subsequent injections at that site demonstrate diminishing control of symptoms or fail to facilitate objective functional gains, then trigger point injections shall be redirected to other areas or discontinued. No more than 3 injections to different sites per patient visit may be given.

c. Maximum treatment is 4 injections to any one site.

All of the following guidelines apply to sacroiliac joint injections:

a. Time for treatment response is within one week.

b. Maximum treatment frequency may permit repeat injection 2 weeks after the previous injection if there is a positive response to the first injection. Only 2 injections per patient visit.

c. Maximum treatment is 2 injections to any one site.

All of the following guidelines apply to facet joint or nerve injections:

a. Time for treatment response is within one week.

b. Maximum treatment frequency is once every 2 weeks to any one site if there is a positive response to the first injection. If subsequent injections demonstrate diminishing control of symptoms or fail to facilitate objective functional gains, then injections shall be discontinued. Only 3 injections to different sites per patient visit.

c. Maximum treatment is 3 injections to any one site.

All of the following guidelines apply to nerve root blocks:

a. Time for treatment response is within one week.

b. Maximum treatment frequency may permit repeat injection 2 weeks after the previous injection if there is a positive response to the first injection. Only 3 injections to different sites per patient visit.

c. Maximum treatment is 2 injections to any one site. Maximum treatment is 2 injections to any one site.

All of the following guidelines apply to epidural injections:

a. Time for treatment response is within one week.

b. Maximum treatment frequency is once every 2 weeks if there is a positive response to the first injection. If subsequent injections demonstrate diminishing control of symptoms or fail to facilitate objective functional gains, then injections should be discontinued. Only one injection per patient visit.

c. Maximum treatment is 3 injections.

(c) For purposes of this paragraph, “lytic or sclerosing injections” include radio frequency denervation of the facet joints. These injections may only be given in conjunction with active treatment modalities directed to the same anatomical site. All of the following guidelines apply to lytic or sclerosing injections:

Time for treatment response is up to 6 weeks.
Maximum treatment frequency may repeat 4 times per year or once every 3 months for any site.
Maximum of 2 injections to any one site.

(d) Prolotherapy and botulinum toxin injections are not necessary in the treatment of low back problems.

(6) Surgery, including decompression procedures and arthrodesis.

(a) A health care provider may only perform surgery if it meets the specific guidelines specified in subs. (11), (12), (13), and s. DWD 81.12 (1).

(b) In order to optimize the beneficial effect of surgery, postoperative therapy with active and passive treatment modalities may be provided, even if these modalities had been used in the preoperative treatment of the condition. In the postoperative period, the maximum treatment duration with passive treatment modalities in a clinical setting from the initiation of the first passive modality used, except bedrest or bracing, is as follows:

Eight weeks following lumbar decompression or implantation of a spinal cord stimulator or intrathecal drug delivery system.
Twelve weeks following arthrodesis.

(d) The surgical therapies in subds. 1. and 2. have very limited application and require a personality or psychosocial evaluation that indicates the patient is likely to benefit from the treatment:

Spinal cord stimulator may be necessary for a patient who has neuropathic pain and has had a favorable response to a trial screening period.
Intrathecal drug delivery system may be necessary for a patient who has somatic or neuropathic pain and has had a favorable response to a trial screening period.

(7) Chronic management. Chronic management of low back pain shall be provided according to the guidelines of s. DWD 81.13.

(8) Durable medical equipment.

(a) A health care provider may direct the use of durable medical equipment in any of the following:

Lumbar braces, corsets, or supports are necessary within the guidelines of sub. (3) (k).
For patients using electrical muscle stimulation or mechanical traction devices at home, the device and any required supplies are necessary within the guidelines of sub. (3) (e) and (f).
Exercise equipment for home use, including bicycles, treadmills, and stairclimbers, are necessary only as part of an approved chronic management program. This equipment is not necessary during initial nonsurgical care or during reevaluation and surgical therapy. If the employer has an appropriate exercise facility on its premises with the prescribed equipment, the insurer may mandate use of that facility instead of authorizing purchase of the equipment for home use.

a. ‘Indications.’ The patient is deconditioned and requires reconditioning that may be accomplished only with the use of the prescribed exercise equipment. A health care provider shall document specific reasons why the exercise equipment is necessary and may not be replaced with other activities.

b. ‘Requirements.’ The use of the equipment shall have specific goals and there shall be a specific set of prescribed activities.

(b) All of the following durable medical equipment is not necessary for home use for low back conditions:

Whirlpools, Jacuzzis, hot tubs, and special bath or shower attachments.
Beds, waterbeds, mattresses, chairs, recliners, and loungers.

(9) Evaluation of treatment by health care provider.

(a) A health care provider shall evaluate at each visit whether the treatment is medically necessary and shall evaluate whether initial nonsurgical treatment is effective according to pars. (b) to (e). No later than the time for treatment response established for the specific modality in subs. (3) to (5), a health care provider shall evaluate whether the passive, active, injection, or medication treatment modality is resulting in progressive improvement in pars. (b) to (e).

(b) The patient’s subjective complaints of pain or disability are progressively improving, as evidenced by documentation in the medical record of decreased distribution, frequency, or intensity of symptoms.

(c) The objective clinical findings are progressively improving, as evidenced by documentation in the medical record of resolution or objectively measured improvement in physical signs of the injury.

(d) The patient’s functional status, especially vocational activity, is progressively improving, as evidenced by documentation in the medical record or documentation of work ability involving less restrictive limitations on activity.

(e) If there is not progressive improvement in at least 2 criteria specified in pars. (b) to (d), the modality shall be discontinued or significantly modified or a health care provider shall reconsider the diagnosis. The evaluation of the effectiveness of the treatment modality may be delegated to another health care provider.

(10) Medication management.

(a) Prescription of controlled substance medications under ch. 450, Stats., including opioids and narcotics, are indicated primarily for the treatment of severe acute pain. These medications are not recommended in the treatment of patients with persistent low back pain.

(b) Patients with radicular pain may require longer periods of treatment.

(c) A health care provider shall document the rationale for the use of any scheduled medication. Treatment with nonnarcotic medication may be appropriate during any phase of treatment and intermittently after all other treatment has been discontinued. The prescribing health care provider shall determine that ongoing medication is effective treatment for the patient’s condition.

(11) Specific treatment guidelines for regional low back pain.

(a) A health care provider shall use initial nonsurgical treatment as the first phase of treatment for all patients with regional low back pain under sub. (1) (b) 1.

The passive, active, injection, durable medical equipment, and medication treatment modalities and procedures in subs. (3), (4), (5), (8), and (10) may be used in sequence or simultaneously during the period of initial nonsurgical management, depending on the severity of the condition.
The only therapeutic injections necessary for patients with regional low back pain are trigger point injections, facet joint injections, facet nerve injections, sacroiliac joint injections, and epidural blocks, and their use shall meet the guidelines of sub. (5).
After the first week of treatment, initial nonsurgical treatment shall at all times contain active treatment modalities according to the guidelines in sub. (4).
Initial nonsurgical treatment shall be provided in the least intensive setting consistent with quality health care practices.
Except as otherwise specified in sub. (3), passive treatment modalities in a clinic setting or requiring attendance by a health care provider are not necessary beyond 12 weeks after any passive modality other than bedrest or bracing is first initiated.

(b) Surgical evaluation or chronic management is necessary if the patient continues with symptoms and physical findings after the course of initial nonsurgical care and if the patient’s condition prevents the resumption of the regular activities of daily life, including regular vocational activities. The purpose of surgical evaluation is to determine whether surgery is necessary in the treatment of a patient who has failed to recover with initial nonsurgical care. If the patient is not a surgical candidate, then chronic management is necessary.

Surgical evaluation, if necessary, may begin as soon as 8 weeks after, but shall begin no later than 12 weeks after, beginning initial nonsurgical management. An initial recommendation or decision against surgery may not preclude surgery at a later date.
Surgical evaluation may include the use of appropriate medical imaging techniques. The imaging technique shall be chosen on the basis of the suspected etiology of the patient’s condition but a health care provider shall follow the guidelines in s. DWD 81.05. Medical imaging studies that do not meet these guidelines are not necessary.
Surgical evaluation may also include diagnostic blocks and injections. These blocks and injections are only necessary if their use is consistent with the guidelines of sub. (1) (j).
Surgical evaluation may also include personality or psychosocial evaluation, consistent with the guidelines of sub. (1) (i).
Consultation with other health care providers may be appropriate as part of the surgical evaluation. The need for consultation and the choice of consultant will be determined by the findings on medical imaging, diagnostic analgesic blocks, and injections, if performed, and the patient’s ongoing subjective complaints and physical findings.
The only surgical procedures necessary for patients with regional low back pain are decompression of a lumbar nerve root or lumbar arthrodesis, with or without instrumentation, which shall meet the guidelines of sub. (6) and s. DWD 81.12 (1). For patients with failed back surgery, spinal cord stimulators or intrathecal drug delivery systems may be necessary and consistent with sub. (6) (d).

a. If surgery is necessary, it shall be offered to the patient as soon as possible. If the patient agrees to the proposed surgery, it shall be performed as expeditiously as possible consistent with sound medical practice.

b. If surgery is not necessary, or if the patient does not wish to proceed with surgery, then the patient is a candidate for chronic management under the guidelines in s. DWD 81.13.

(c) If the patient continues with symptoms and objective physical findings after surgical therapy has been rendered or the patient refuses surgical therapy or the patient was not a candidate for surgical therapy, and if the patient’s condition prevents the resumption of the regular activities of daily life including regular vocational activities, then the patient may be a candidate for chronic management that shall be provided under the guidelines in s. DWD 81.13.

(12) Specific treatment guidelines for radicular pain, with or without regional low back pain, with no or static neurologic deficits.

(a) Initial nonsurgical treatment is appropriate for all patients with radicular pain, with or without regional low back pain, with no or static neurologic deficits under sub. (1) (b) 2., and shall be the first phase of treatment. It shall be provided within the guidelines of sub. (11) (a), with the following modifications: Epidural blocks and nerve root and peripheral nerve blocks are the only therapeutic injections necessary for patients with radicular pain only. If there is a component of regional low back pain, therapeutic facet joint injections, facet nerve injections, trigger point injections, and sacroiliac injections may also be necessary.

(c) If the patient continues with symptoms and objective physical findings after surgical therapy has been rendered or the patient refused surgical therapy or the patient was not a candidate for surgical therapy, and if the patient’s condition prevents the resumption of the regular activities of daily life including regular vocational activities, then the patient may be a candidate for chronic management. Any course or program of chronic management for patients with radicular pain, with or without regional low back pain, with static neurologic deficits shall be provided under the guidelines of s. DWD 81.13.

(13) Specific treatment guidelines for cauda equina syndrome and for radicular pain, with or without regional low back pain, with progressive neurologic deficits.

(a) Patients with cauda equina syndrome or with radicular pain, with or without regional low back pain, with progressive neurologic deficits may require immediate or emergency surgical evaluation at any time during the course of the overall treatment. The decision to proceed with surgical evaluation is made by a health care provider based on the type of neurologic changes observed, the severity of the changes, the rate of progression of the changes, and the response to any initial nonsurgical treatments. Surgery, if necessary, may be performed at any time during the course of treatment. Surgical evaluation and surgery shall be provided within the guidelines of sub. (11) (b), except that surgical evaluation and surgical therapy may begin at any time.

(b) If a health care provider decides to proceed with a course of initial nonsurgical care for a patient with radicular pain with progressive neurologic changes, it shall follow the guidelines of sub. (12) (a).

(c) If the patient continues with symptoms and objective physical findings after surgical therapy has been rendered or the patient refuses surgical therapy or the patient was not a candidate for surgical therapy, and if the patient’s condition prevents the resumption of the regular activities of daily life including regular vocational activities, then the patient may be a candidate for chronic management. Any course or program of chronic management for patients with radicular pain, with or without regional low back pain, with foot drop or progressive neurologic changes at first presentation shall be provided under the guidelines of s. DWD 81.13.

History

CR 07-019: cr. Register October 2007 No. 622, eff. 11-1-07.

Wis. Admin. Code § DWD 81.07 Neck pain {#sec-dwd-81.07 omnilex-key=us-wi-regs-official--agency-dwd--DWD 81.07}

(1) Diagnostic procedures for treatment of neck injury.

(a) A health care provider shall determine the nature of the neck condition before initiating treatment.

(b) A health care provider shall perform and document an appropriate history and physical examination. Based on the history and physical examination the health care provider shall assign the patient at each visit to the appropriate clinical category in subds. 1. to 4. A health care provider shall document the diagnosis in the medical record. For the purposes of subds. 2. and 3., “radicular pain” means pain radiating distal to the shoulder. This section does not apply to fractures of the cervical spine or cervical pain due to an infectious, immunologic, metabolic, endocrine, neurologic, visceral, or neoplastic disease process.

Regional neck pain includes referred pain to the shoulder and upper back. Regional neck pain includes the diagnoses of cervical strain, sprain, myofascial syndrome, musculoligamentous injury, soft tissue injury, and other diagnoses for pain believed to originate in the discs, ligaments, muscles, or other soft tissues of the cervical spine and that affects the cervical region, with or without referral to the upper back or shoulder, including ICD-9-CM codes 720 to 720.9, 721 to 721.0, 721.5 to 721.90, 722.3 to 722.30, 722.4, 722.6, 722.9 to 722.91, 723 to 723.3, 723.5 to 723.9, 724.5, 724.8, 724.9, 732.0, 737 to 737.9, 738.4, 738.5, 739.1, 756.1 to 756.19, 847 to 847.0, 920, 922.3, 925, and 926.1 to 926.12.
Radicular pain, with or without regional neck pain, with no or static neurologic deficit includes the diagnoses of brachialgia, cervical radiculopathy, radiculitis, or neuritis; displacement or herniation of intervertebral disc with radiculopathy, radiculitis, or neuritis; spinal stenosis with radiculopathy, radiculitis, or neuritis; and other diagnoses for pain in the arm distal to the shoulder believed to originate with irritation of a nerve root in the cervical spine, including ICD-9-CM codes 721.1, 721.91, 722 to 722.0, 722.2, 722.7 to 722.71, 723.4, and 724 to 724.00. In these cases neurologic findings on history and examination are either absent or do not show progressive deterioration.
Radicular pain, with or without regional neck pain, with progressive neurologic deficit, includes the same diagnoses as subd. 2., except in these cases there is a history of progressive deterioration in the neurologic symptoms and physical findings, including worsening sensory loss, increasing muscle weakness, and progressive reflex changes.
Cervical compressive myelopathy, with or without radicular pain, is a condition characterized by weakness and spasticity in one or both legs and associated with any of the following: exaggerated reflexes, an extensor plantar response, bowel or bladder dysfunction, sensory ataxia, or bilateral sensory changes.

(c) A health care provider may not order laboratory tests in the evaluation of a patient with regional neck pain, or radicular pain, except for any of the following:

When a patient’s history, age, or examination suggests infection, metabolic-endocrinologic disorders, tumorous conditions, or systemic musculoskeletal disorders, such as rheumatoid arthritis or ankylosing spondylitis.
To evaluate potential adverse side effects of medications.
As part of a preoperative evaluation.

(d) Laboratory tests may be ordered at any time a health care provider suspects any of the conditions specified in par. (c), but a health care provider shall justify the need for the tests ordered with clear documentation of the indications.

(e) Medical imaging evaluation of the cervical spine shall be based on the findings of the history and physical examination and may not be ordered prior to a health care provider’s clinical evaluation of the patient. Medical imaging may not be performed as a routine procedure and shall comply with the guidelines in s. DWD 81.05. A health care provider shall document the appropriate indications for any medical imaging studies obtained.

(f) Electromyography and nerve conduction studies are always inappropriate for the regional neck pain diagnoses in par. (b) 1. to 4. Electromyography and nerve conduction studies may be an appropriate diagnostic tool for radicular pain and myelopathy diagnoses in par. (b) 2. to 4., after the first 3 weeks of radicular or myelopathy symptoms. Repeat electromyography and nerve conduction studies for radicular pain and myelopathy are not necessary unless a new neurologic symptom or finding has developed which in itself would warrant electrodiagnostic testing. Failure to improve with treatment is not an indication for repeat testing.

(g) A health care provider may not order the use of any of the following procedures or tests for the diagnosis of any of the clinical categories in par. (b) 1. to 4.:

Surface electromyography or surface paraspinal electromyography.
Thermography.
Plethysmography.
Electronic X-ray analysis of plain radiographs.
Diagnostic ultrasound of the spine.
Somatosensory evoked potentials and motor evoked potentials.

(h) A health care provider may not order computerized range of motion or strength measuring tests during the period of initial nonsurgical management, but may order these tests during the period of chronic management when used in conjunction with a computerized exercise program, work hardening program, or work conditioning program. During the period of initial nonsurgical management, computerized range of motion or strength testing may be performed but shall be done in conjunction with an office visit with a health care provider’s evaluation or treatment, or physical or occupational therapy evaluation or treatment.

(i) A health care provider may order personality or psychological evaluations for evaluating patients who continue to have problems despite appropriate care. A treating health care provider may perform this evaluation or may refer the patient for consultation with another health care provider in order to obtain a psychological evaluation. These evaluations may be used to assess the patient for a number of psychological conditions that may interfere with recovery from the injury. Since more than one of these psychological conditions may be present in a given case, a health care provider performing the evaluation shall consider all of the following:

Is symptom magnification occurring?
Does the patient exhibit an emotional reaction to the injury, such as depression, fear, or anger, that is interfering with recovery?
Are there other personality factors or disorders that are interfering with recovery?
Is the patient chemically dependent?
Are there any interpersonal conflicts interfering with recovery?
Does the patient have a chronic pain syndrome or psychogenic pain?
In cases in which surgery is a possible treatment, are psychological factors likely to interfere with the potential benefit of the surgery?

(j) All of the following are guidelines for diagnostic analgesic blocks or injection studies and include facet joint injection, facet nerve block, epidural differential spinal block, nerve block, and nerve root block.

These procedures are used to localize the source of pain prior to surgery and to diagnose conditions that fail to respond to initial nonsurgical management.
These blocks and injections are invasive and when done as diagnostic procedures are not necessary unless noninvasive procedures have failed to establish the diagnosis.
Selection of patients, choice of procedure, and localization of the level of injection shall be determined by documented clinical findings indicating possible pathologic conditions and the source of pain symptoms.
These blocks and injections may also be used as therapeutic modalities and are subject to the guidelines in sub. (5)

(k) Functional capacity assessment or evaluation is a comprehensive and objective assessment of patient’s ability to perform work tasks. The components of a functional capacity assessment or evaluation include neuromusculoskeletal screening, tests of manual material handling, assessment of functional mobility, and measurement of postural tolerance. A functional capacity assessment or evaluation is an individualized testing process and the component tests and measurements are determined by the patient’s condition and the requested information. Functional capacity assessments and evaluations are performed to determine a patient’s physical capacities in general or to determine and report work tolerance for a specific job, task, or work activity.

Functional capacity assessment or evaluation is not necessary during the period of initial nonoperative care.
Functional capacity assessment or evaluation is necessary in any of the following circumstances:

a. To identify the patient’s permanent activity restrictions and capabilities.

b. To assess the patient’s ability to do a specific job.

(L) Consultations with other health care providers may be initiated at any time by a treating health care provider consistent with accepted medical practice.

(2) General treatment guidelines for neck pain.

(a) All medical care for neck pain appropriately assigned to a clinical category in sub. (1) (b) is determined by the diagnosis and clinical category that the patient has been assigned. General guidelines for treatment modalities are set forth in subs. (3) to (10). Specific treatment guidelines for each clinical category are set forth in subs. (11) to (14) as follows:

Subsection (11) governs regional neck pain.
Subsection (12) governs radicular pain with no or static neurologic deficits.
Subsection (13) governs radicular pain with progressive neurologic deficits.
Subsection (14) governs myelopathy.

(b) A health care provider shall at each visit reassess the appropriateness of the clinical category assigned and reassign the patient if warranted by new clinical information including symptoms, signs, results of diagnostic testing and opinions, and information obtained from consultations with other health care providers. When the clinical category is changed the treatment plan shall be appropriately modified to reflect the new clinical category. A change of clinical category shall not in itself allow a health care provider to continue a therapy or treatment modality past the maximum duration specified in subs. (3) to (10) or to repeat a therapy or treatment previously provided for the same injury.

First, all patients with neck problems, except patients with radicular pain with progressive neurological deficit or myelopathy under sub. (1) (b) 3. and 4., shall be given initial nonsurgical care that may include both active and passive treatment modalities, injections, durable medical equipment, and medications. These modalities and guidelines are described in subs. (3), (4), (5), (8), and (10). The period of initial nonsurgical management begins with the first passive, active, injection, durable medical equipment, or medication modality initiated. Initial nonsurgical treatment shall result in progressive improvement as specified in sub. (9).
Second, for patients with persistent symptoms, initial nonoperative care is followed by a period of surgical evaluation. This evaluation shall be completed in a timely manner. Surgery, if necessary, shall be performed as expeditiously as possible consistent with sound medical practice and subs. (6), (11) to (14), and s. DWD 81.12 (1). A treating health care provider may do the evaluation or may refer the patient to another health care provider.

a. Patients with radicular pain with progressive neurological deficit or myelopathy may require immediate surgical therapy.

b. Any patient who has had surgery may require postoperative therapy with active and passive treatment modalities. This therapy may be in addition to any received during the period of initial nonsurgical management.

c. Surgery shall follow the guidelines in subs. (6), (11) to (14), and s. DWD 81.12 (1).

d. A decision against surgery at any particular time does not preclude a decision for surgery made at a later date.

Third, for those patients who are not candidates for or refuse surgical therapy, or who do not have complete resolution of their symptoms with surgery, a period of chronic management may be necessary. Chronic management modalities are described in s. DWD 81.13 and may include durable medical equipment as described in sub. (8).

(d) A treating health care provider may refer the patient for a consultation at any time during the course of treatment consistent with accepted medical practice.

(3) Passive treatment modalities.

(a) General. Except as set forth in par. (b) or s. DWD 81.04 (5), a health care provider may not direct the use of passive treatment modalities in a clinical setting as set forth in pars. (c) to (i) beyond 12 calendar weeks after any of the passive modalities in pars. (c) to (i) are initiated. There are no limitations on the use of passive treatment modalities by the patient at home.

(b) Additional passive treatment modalities. A health care provider may direct an additional 12 visits for the use of passive treatment modalities over an additional 12 months to be provided if all of the following apply:

The patient is released to work or is permanently totally disabled and the additional passive treatment shall result in progressive improvement in, or maintenance of, functional status achieved during the initial 12 weeks of passive care.
The treatment is not given on a regularly scheduled basis.
A health care provider documents in the medical record a plan to encourage the patient’s independence and decreased reliance on health care providers.
Management of the patient’s condition includes active treatment modalities during this period.
The additional 12 visits for passive treatment does not delay the required surgical or chronic pain evaluation required by this chapter.
Passive care is not necessary while the patient has chronic pain syndrome.

(c) Adjustment or manipulation of joints. For purposes of this paragraph “adjustment or manipulation of joints” includes chiropractic and osteopathic adjustments or manipulations. All of the following guidelines apply to adjustment or manipulation of joints:

Time for treatment response is 3 to 5 treatments.
Maximum treatment frequency is up to 5 times per week for the first one to 2 weeks decreasing in frequency until the end of the maximum treatment duration period in subd. 3.
Maximum treatment duration is 12 weeks.

(d) Thermal treatment. For purposes of this paragraph, “thermal treatment” includes all superficial, deep heating modalities, and cooling modalities. Superficial thermal modalities include hot packs, hot soaks, hot water bottles, hydrocollators, heating pads, ice packs, cold soaks, infrared, whirlpool, and fluidotherapy. Deep thermal modalities include diathermy, ultrasound, and microwave. All of the following guidelines apply to thermal treatment:

Treatment given in a clinical setting:

a. Time for treatment response is 2 to 4 treatments.

b. Maximum treatment frequency is up to 5 times per week for the first one to 3 weeks decreasing in frequency until the end of the maximum treatment duration period in subd. 1. c.

c. Maximum treatment duration is 12 weeks of treatment in a clinical setting, but only if given in conjunction with other therapies.

Home use of thermal modalities may be prescribed at any time during the course of treatment. Home use may only involve hot packs, hot soaks, hot water bottles, hydrocollators, heating pads, ice packs, and cold soaks that can be applied by the patient without health care provider assistance. Home use of thermal modalities may not require any special training or monitoring, other than that usually provided by a health care provider during an office visit.

Electrical muscle stimulation given in a clinical setting:

a. Time for treatment response is 2 to 4 treatments.

b. Maximum treatment frequency is up to 5 times per week for the first one to 3 weeks decreasing in frequency until the end of the maximum treatment duration period in subd. 1. c.

c. Maximum treatment duration is 12 weeks of treatment in a clinical setting, but only if given in conjunction with other therapies.

Home use of an electrical stimulation device may be prescribed at any time during a course of treatment. Initial use of an electrical stimulation device shall be in a supervised setting in order to ensure proper electrode placement and patient education. All of the following guidelines apply to home use of an electronic muscle stimulation device:

a. Time for patient education and training is one to 3 sessions.

(f) Mechanical traction. All of the following guidelines apply to mechanical traction:

Treatment given in a clinical setting:

a. Time for treatment response is 3 treatments.

b. Maximum treatment frequency is up to 3 times per week for the first one to 3 weeks and decreasing in frequency until the end of the maximum treatment duration period in subd. 1. c.

c. Maximum treatment duration is 12 weeks in a clinical setting, but only if used in conjunction with other therapies.

Home use of a mechanical traction device may be prescribed as follow-up to use of traction in a clinical setting if it has proven to be effective treatment and is expected to continue to be effective treatment. Initial use of a mechanical traction device shall be in a supervised setting in order to ensure proper patient education. All of the following guidelines apply to home use of a mechanical traction device:

a. Time for patient education and training is one session.

b. A patient may use the mechanical traction device for one month, at which time effectiveness of the treatment shall be reevaluated by a health care provider before continuing home use of the device.

Time for treatment response is 3 to 5 sessions.
Maximum treatment frequency is up to 3 times per week for one to 3 weeks and decreasing in frequency until the end of the maximum treatment duration period in subd. 3.
Maximum treatment duration is 12 weeks.

Time for treatment response is 3 to 5 treatments.
Maximum treatment frequency is up to 5 times per week for the first one to 2 weeks and decreasing in frequency until the end of the maximum treatment duration period in subd. 3.
Maximum treatment duration is 12 weeks.

(i) Phoresis. For purposes of this paragraph, “phoresis” includes iontophoresis and phonophoresis. All of the following guidelines apply to phoresis:

Time for treatment response is 3 to 5 sessions.
Maximum treatment frequency is up to 3 times per week for the first one to 3 weeks decreasing in frequency until the end of the maximum treatment duration period in subd. 3.
Maximum treatment duration is 12 weeks.

(j) Bedrest. Prolonged restriction of activity and immobilization are detrimental to a patient’s recovery. Bedrest shall not be prescribed for more than 7 days.

(k) Cervical collars, spinal braces, and other movement restricting appliances. All of the following guidelines apply to cervical collars, spinal braces, and other movement-restricting appliances:

Bracing required for longer than 2 weeks shall be accompanied by active muscle strengthening exercise to avoid deconditioning and prolonged disability.
Time for treatment response is 3 days.
Maximum treatment frequency is limited to intermittent use during times of increased physical stress or prophylactic use at work.
Maximum continuous duration is up to 3 weeks unless patient is status postfusion.

(4) Active treatment modalities.

(a) Active treatment modalities shall be used as set forth in pars. (b) to (f). A health care provider’s use of active treatment modalities may extend past the 12-week limitation on passive treatment modalities, so long as the maximum durations for the active treatment modalities are not exceeded.

(c) Posture and work method training shall instruct the patient in the proper performance of job activities. Topics include proper positioning of the trunk, neck, and arms, use of optimum biomechanics in performing job tasks, and appropriate pacing of activities. Methods include didactic sessions, demonstrations, exercises, and simulated work tasks. The maximum number of treatments is 3 visits.

(d) Worksite analysis and modification shall examine the patient’s work station, tools, and job duties. A health care provider may make recommendations for the alteration of the work station, selection of alternate tools, modification of job duties, and provision of adaptive equipment. The maximum number of treatments is 3 visits.

(e) Exercise, which is important to the success of an initial nonsurgical treatment program and a return to normal activity, shall include active patient participation in activities designed to increase flexibility, strength, endurance, or muscle relaxation. Exercise shall, at least in part, be specifically aimed at the musculature of the cervical spine. Aerobic exercise and extremity strengthening may be performed as adjunctive treatment, but may not be the primary focus of the exercise program.

(f) Exercises shall be evaluated to determine if the desired goals are being attained. Strength, flexibility, and endurance shall be objectively measured. A health care provider may objectively measure the treatment response as often as necessary for optimal care after the initial evaluation. Subds. 1. and 2. govern supervised and unsupervised exercise, except for computerized exercise programs and health clubs, which are governed by s. DWD 81.13.

‘Guidelines for supervised exercise.’ One goal of an exercise program shall be to teach the patient how to maintain and maximize any gains experienced from exercise. Self-management of the condition shall be promoted. All of the following guidelines apply to supervised exercise:

a. Maximum treatment frequency is 3 times per week for 3 weeks, decreasing in frequency until the end of the maximum treatment duration period in subd. 1. b.

b. Maximum duration is 12 weeks.

‘Guidelines for unsupervised exercise.’ Unsupervised exercise shall be provided in the least intensive setting appropriate to the goals of the exercise program and may supplement or follow the period of supervised exercise. All of the following guidelines apply to unsupervised exercise:

a. Maximum treatment frequency is up to 3 visits for instruction and monitoring.

b. There is no limit on the duration or frequency of exercise at home.

(5) Therapeutic injections.

(a) Injection modalities are necessary as set forth in pars. (b) to (d). A health care provider’s use of injections may extend past the 12-week limit on passive treatment modalities, so long as the maximum treatment for injections is not exceeded.

(b) For purposes of this paragraph, “therapeutic injections” include trigger points injections, facet joint injections, facet nerve blocks, sympathetic nerve blocks, epidurals, nerve root blocks, and peripheral nerve blocks. Therapeutic injections may only be given in conjunction with active treatment modalities directed to the same anatomical site.

All of the following guidelines apply to trigger point injections:

a. Time for treatment response is within 30 minutes.

b. Maximum treatment frequency is once per week if there is a positive response to the first injection at that site. If subsequent injections at that site demonstrate diminishing control of symptoms or fail to facilitate objective functional gains, then trigger point injections shall be redirected to other areas or discontinued. Only 3 injections per patient visit.

c. Maximum treatment is 4 injections to any one site.

All of the following guidelines apply to facet joint injections or facet nerve blocks:

a. Time for treatment response is within one week.

b. Maximum treatment frequency is once every 2 weeks if there is a positive response to the first injection or block. If subsequent injections or blocks demonstrate diminishing control of symptoms or fail to facilitate objective functional gains, then injections or blocks shall be discontinued. Only 3 injections or blocks per patient visit.

c. Maximum treatment is 3 injections or blocks to any one site.

All of the following guidelines apply to nerve root blocks:

a. Time for treatment response is within one week.

b. Maximum treatment frequency may permit repeat injection no sooner than 2 weeks after the previous injection if there is a positive response to the first injection. No more than 3 blocks per patient visit.

c. Maximum treatment is 2 blocks to any one site.

All of the following guidelines apply to epidural injections:

a. Time for treatment response is within one week.

b. Maximum treatment frequency is once every 2 weeks if there is a positive response to the first injection. If subsequent injections demonstrate diminishing control of symptoms or fail to facilitate objective functional gains, then injections shall be discontinued. Only one injection per patient visit.

c. Maximum treatment is 3 injections.

Time for treatment response is within one week.
Maximum treatment frequency, may repeat once for any site.
Maximum duration is 2 injections to any one site.

(d) Prolotherapy and botulinum toxin injections are not necessary in the treatment of neck problems.

(6) Surgery, including decompression procedures and arthrodesis.

(a) A health care provider may perform surgery only if it meets the specific guidelines of subs. (11) to (14) and s. DWD 81.12 (1).

(b) In order to optimize the beneficial effect of surgery, postoperative therapy with active and passive treatment modalities may be provided, even if these modalities had been used in the preoperative treatment of the condition. In the postoperative period the maximum treatment duration with passive treatment modalities in a clinical setting from the initiation of the first passive modality used, except bedrest or bracing, is as follows:

Eight weeks following decompression or implantation of a spinal cord stimulator or intrathecal drug delivery system.
Twelve weeks following arthrodesis.

(d) The surgical therapies in subds. 1. and 2. have very limited application and require a personality or psychosocial evaluation that indicates the patient is likely to benefit from the treatment.

Spinal cord stimulator may be necessary for a patient who has neuropathic pain and has had a favorable response to a trial screening period.
Intrathecal drug delivery system may be necessary for a patient who has somatic or neuropathic pain and has had a favorable response to a trial screening period.

(7) Chronic management. Chronic management of neck pain shall be provided according to the guidelines in s. DWD 81.13.

(8) Durable medical equipment.

(a) A health care provider may direct the use of durable medical equipment only as specified in pars. (b) to (e).

(b) Cervical collars, braces or supports, and home cervical traction devices may be necessary within the guidelines of sub. (3) (f) and (k).

(c) For patients using electrical muscle stimulation at home, the device and any required supplies are necessary within the guidelines of sub. (3) (e).

(d) Exercise equipment for home use, including bicycles, treadmills, and stairclimbers are necessary only as part of an approved chronic management program. This equipment is not necessary during initial nonoperative care or during reevaluation and surgical therapy. If the employer has an appropriate exercise facility on its premises with the prescribed equipment, the insurer may mandate the use of that facility instead of authorizing purchase of equipment for home use.

‘Indications.’ The patient is deconditioned and requires reconditioning that may be accomplished only with the use of the prescribed exercise equipment. A health care provider shall document specific reasons why the exercise equipment is necessary and may not be replaced with other activities.
‘Requirements.’ The use of the equipment shall have specific goals and there shall be a specific set of prescribed activities.

(e) All of the following durable medical equipment is not necessary for home use for neck pain conditions:

Whirlpools, Jacuzzis, hot tubs, and special bath or shower attachments.
Beds, waterbeds, mattresses, chairs, recliners, and loungers.

(9) Evaluation of treatment by health care provider.

(a) A health care provider shall evaluate at each visit whether the treatment is medically necessary and whether initial nonsurgical management is effective according to pars. (b) to (e). No later than the time for treatment response established for the specific modality in subs. (3) to (5), a health care provider shall evaluate whether the passive, active, injection, or medication treatment modality has resulted in progressive improvement as specified in pars. (b) to (e).

(c) The objective clinical findings are progressively improving, as evidenced by documentation in the medical record of resolution or objectively measured improvement in physical signs of injury.

(e) If there is not progressive improvement in at least 2 categories specified in pars. (b) to (d), the modality shall be discontinued or significantly modified or a health care provider shall reconsider the diagnosis. The evaluation of the effectiveness of the treatment modality may be delegated to another health care provider.

(10) Medication management.

(a) Prescription of controlled substance medications scheduled under ch. 450, Stats., including opioids and narcotics, are indicated primarily for the treatment of severe acute pain. These medications are not recommended in the treatment of patients with persistent regional neck pain.

(b) Patients with radicular pain may require longer periods of treatment.

(11) Specific treatment guidelines for regional neck pain.

(a) A health care provider shall use initial nonsurgical treatment for the first phase of treatment for all patients with regional neck pain under sub. (1) (b) 1.

The active, passive, injection, durable medical equipment, and medication treatment modalities and procedures in subs. (3), (4), (5), (8), and (10), may be used in sequence or simultaneously during the period of initial nonsurgical management depending on the severity of the condition.
The only therapeutic injections necessary for patients with regional neck pain are trigger point injections, facet joint injections, facet nerve blocks, and epidural blocks, and their use must meet the guidelines of sub. (5).
After the first week of treatment, initial nonsurgical treatment shall at all times contain active treatment modalities according to the guidelines of sub. (4).
Initial nonsurgical treatment shall be provided in the least intensive setting consistent with quality health care practices.
Except as otherwise provided in sub. (3), passive treatment modalities in a clinic setting or requiring attendance by a health care provider are not necessary beyond 12 weeks after any passive modality other than bedrest or bracing is first initiated.

(b) Surgical evaluation or chronic management is necessary if the patient continues with symptoms and physical findings after the course of initial nonsurgical management and if the patient’s condition prevents the resumption of the regular activities of daily life, including regular vocational activities. The purpose of surgical evaluation is to determine whether surgery is necessary in the treatment of a patient who has failed to recover with initial nonsurgical care. If the patient is not a surgical candidate, then chronic management is necessary.

Surgical evaluation if necessary may begin as soon as 8 weeks after, but shall begin no later than 12 weeks after, beginning initial nonsurgical management. An initial recommendation or decision against surgery does not preclude surgery at a later date.
Surgical evaluation may include the use of appropriate medical imaging techniques. The imaging technique shall be chosen on the basis of the suspected etiology of the patient’s condition but a health care provider shall follow the guidelines of s. DWD 81.05. Medical imaging studies that do not meet these guidelines are not necessary.
Surgical evaluation may also include diagnostic blocks and injections. These blocks and injections are only necessary if their use is consistent with the guidelines of sub. (1) (j).
Surgical evaluation may also include personality or psychosocial evaluation, consistent with the guidelines of sub. (1) (i).
Consultation with other health care providers may be appropriate as part of the surgical evaluation. The need for consultation and the choice of consultant will be determined by the findings on medical imaging, diagnostic analgesic blocks, and injections, if performed, and the patient’s ongoing subjective complaints and physical findings.
The only surgical procedure necessary for patients with regional neck pain only is cervical arthrodesis, with or without instrumentation, which shall meet the guidelines in sub. (6). For patients with failed surgery, spinal cord stimulators or intrathecal drug delivery systems may be necessary consistent with the guidelines of sub. (6) (d).

b. If surgery is not necessary or if the patient does not wish to proceed with surgical therapy, then the patient is a candidate for chronic management.

(c) If the patient continues with symptoms and objective physical findings after surgery has been rendered or the patient refuses surgery or the patient was not a candidate for surgery, and if the patient’s condition prevents the resumption of the regular activities of daily life including regular vocational activities, then the patient may be a candidate for chronic management under s. DWD 81.13.

(12) Specific treatment guidelines for radicular pain, with or without regional neck pain, with no or static neurologic deficits.

(a) Initial nonsurgical treatment is appropriate for all patients with radicular pain, with or without regional neck pain, with no or static neurologic deficits under sub. (1) (b) 2., and shall be the first phase of treatment. It shall be provided within the guidelines of sub. (11) (a), with the following modifications: Epidural blocks, nerve root, and peripheral nerve blocks are the only therapeutic injections necessary for patients with radicular pain only. If there is a component of regional neck pain, therapeutic facet joint injections, facet nerve blocks, and trigger point injections may also be necessary.

(b) Surgical evaluation or chronic management is necessary if the patient continues with symptoms and physical findings after the course of initial nonsurgical care and if the patient’s condition prevents the resumption of the regular activities of daily life, including regular vocational activities. It shall be provided within the guidelines of sub. (11) (b), with the following modifications: The only surgical procedures necessary for patients with radicular pain are decompression of a cervical nerve root which shall meet the guidelines of sub. (6) and s. DWD 81.12 (1) (c) and cervical arthrodesis, with or without instrumentation. For patients with failed surgery, spinal cord stimulators or intrathecal drug delivery systems may be necessary consistent with sub. (6) (d).

(c) If the patient continues with symptoms and objective physical findings after surgical therapy has been rendered or the patient refused surgical therapy or the patient was not a candidate for surgical therapy, and if the patient’s condition prevents the resumption of the regular activities of daily life including regular vocational activities, then the patient may be a candidate for chronic management. Any course or program of chronic management for patients with radicular pain, with or without regional neck pain, with static neurologic changes shall be provided under the guidelines of s. DWD 81.13.

(13) Specific treatment guidelines for radicular pain, with or without regional neck pain, with progressive neurologic deficits.

(a) Patients with radicular pain, with or without regional neck pain, with progressive neurologic deficits may require immediate or emergency evaluation at any time during the course of their overall treatment. A health care provider may make the decision to proceed with surgical evaluation based on the type of neurologic changes observed, the severity of the changes, the rate of progression of the changes, and the response to any nonsurgical treatments. Surgery, if necessary, may be performed at any time during the course of treatment. Surgical evaluation and surgery shall be provided within the guidelines of sub. (11) (b), with the following modifications:

Surgical evaluation and surgical therapy may begin at any time.
The only surgical procedures necessary for patients with radicular pain are decompression of a cervical nerve root that shall meet the guidelines of sub. (6) and s. DWD 81.12 (1) (c), or cervical arthrodesis, with or without instrumentation. For patients with failed back surgery, spinal cord stimulators or intrathecal drug delivery systems may be necessary consistent with the guidelines of sub. (6) (d).

(b) If a health care provider decides to proceed with a course of nonsurgical care for a patient with radicular pain with progressive neurologic changes, it shall follow the guidelines of sub. (12) (a).

(c) If the patient continues with symptoms and objective physical findings after surgical therapy has been rendered or the patient refuses surgical therapy or the patient was not a candidate for surgical therapy, and if the patient’s condition prevents the resumption of the regular activities of daily life including regular vocational activities, then the patient may be a candidate for chronic management. Any course or program of chronic management for patients with radicular pain, with or without regional neck pain, with progressive neurologic changes at first presentation shall be provided under the guidelines of s. DWD 81.13.

(14) Specific treatment guidelines for myelopathy.

(a) Patients with myelopathy may require emergency surgical evaluation at any time during the course of their overall treatment. A health care provider may make the decision to proceed with surgical evaluation based on the type of neurologic changes observed, the severity of the changes, the rate of progression of the changes, and the response to any nonsurgical treatments. Surgery, if necessary, may be performed at any time during the course of treatment. Surgical evaluation and surgery shall be provided within the guidelines of sub. (6) (b), with the following modifications:

Surgical evaluation and surgical therapy may begin at any time.
The only surgical procedures necessary for patients with myelopathy are anterior or posterior decompression of the spinal cord, or cervical arthrodesis with or without instrumentation. For patients with failed back surgery, spinal cord stimulators or intrathecal drug delivery systems may be necessary consistent with the guidelines of sub. (6) (d).

(b) If a health care provider decides to proceed with a course of nonsurgical care for a patient with myelopathy, it shall follow the guidelines of sub. (12) (a).

(c) If the patient continues with symptoms and objective physical findings after surgical therapy has been rendered or the patient refuses surgical therapy or the patient was not a candidate for surgical therapy, and if the patient’s condition prevents the resumption of the regular activities of daily life including regular vocational activities, then the patient may be a candidate for chronic management. Any course or program of chronic management for patients with myelopathy shall be provided under the guidelines of s. DWD 81.13.

History

CR 07-019: cr. Register October 2007 No. 622, eff. 11-1-07.

Wis. Admin. Code § DWD 81.08 Thoracic back pain {#sec-dwd-81.08 omnilex-key=us-wi-regs-official--agency-dwd--DWD 81.08}

(1) Diagnostic procedures for treatment of thoracic back injury.

(a) A health care provider shall determine the nature of the thoracic back condition before initiating treatment.

(b) A health care provider shall perform and document an appropriate history and physical examination. Based on the history and physical examination, a health care provider shall assign the patient at each visit to the appropriate clinical category in subds. 1. to 3. A health care provider shall document the diagnosis in the medical record. For the purposes of subds. 2. and 3., “radicular pain” means pain radiating in a dermatomal distribution around the chest or abdomen. This section does not apply to fractures of the thoracic spine or thoracic back pain due to an infectious, immunologic, metabolic, endocrine, neurologic, visceral, or neoplastic disease process.

Regional thoracic back pain includes the diagnoses of thoracic strain, sprain, myofascial syndrome, musculoligamentous injury, soft tissue injury, and any other diagnosis for pain believed to originate in the discs, ligaments, muscles, or other soft tissues of the thoracic spine and that affects the thoracic region, including ICD-9-CM codes 720 to 720.9, 721 to 721.0, 721.5 to 721.90, 722.3 to 722.30, 722.4, 722.6, 722.9 to 722.91, 723 to 723.3, 723.5 to 723.9, 724.5, 724.8, 724.9, 732.0, 737 to 737.9, 738.4, 738.5, 739.1, 756.1 to 756.19, 847 to 847.0, 920, 922.3, 925, and 926.1 to 926.12.
Radicular pain, with or without regional thoracic back pain, includes the diagnoses of thoracic radiculopathy, radiculitis, or neuritis; displacement or herniation of intervertebral disc with radiculopathy, radiculitis, or neuritis; spinal stenosis with radiculopathy, radiculitis, or neuritis; and any other diagnoses for pain believed to originate with irritation of a nerve root in the thoracic spine, including ICD-9-CM codes 721.1, 721.91, 722 to 722.0, 722.2, 722.7 to 722.71, 723.4, and 724 to 724.00.
Thoracic compressive myelopathy, with or without radicular pain, is a condition characterized by weakness and spasticity in one or both legs and associated with any of the following: exaggerated reflexes, an extensor plantar response, bowel or bladder dysfunction, sensory ataxia, or bilateral sensory changes.

(c) A health care provider may not order laboratory tests in the evaluation of a patient with regional thoracic back pain, or radicular pain, except for any of the following:

When a patient’s history, age, or examination suggests infection, metabolic-endocrinologic disorders, tumorous conditions, systemic musculoskeletal disorders, such as rheumatoid arthritis or ankylosing spondylitis.
To evaluate potential adverse side effects of medications.
As part of a preoperative evaluation.

(e) Medical imaging evaluation of the thoracic spine shall be based on the findings of the history and physical examination and may not be ordered prior to a health care provider’s clinical evaluation of the patient. Medical imaging may not be performed as a routine procedure and shall comply with the guidelines in s. DWD 81.05. A health care provider shall document the appropriate indications for any medical imaging studies obtained.

(f) A health care provider may not order electromyography and nerve conduction studies for regional thoracic back pain and radicular pain under par. (b) 1. to 3.

(g) A health care provider may not order the use of any of the following procedures or tests for the diagnosis of any of the clinical categories in par. (b) 1. to 3.:

Surface electromyography or surface paraspinal electromyography.
Thermography.
Plethysmography.
Electronic X-ray analysis of plain radiographs.
Diagnostic ultrasound of the spine.
Somatosensory evoked potentials and motor evoked potentials.

(h) A health care provider may not order computerized range of motion or strength measuring tests during the period of initial nonsurgical care, but may order these tests during a period of chronic management when used in conjunction with a computerized exercise program, work hardening program, or work conditioning program. During the period of initial nonoperative care computerized range of motion or strength testing may be performed but shall be done in conjunction with an office visit with a health care provider’s evaluation or treatment, or physical or occupational therapy evaluation or treatment.

Is symptom magnification occurring?
Does the patient exhibit an emotional reaction to the injury, such as depression, fear, or anger, that is interfering with recovery?
Are there other personality factors or disorders that are interfering with recovery?
Is the patient chemically dependent?
Are there any interpersonal conflicts interfering with recovery?
Does the patient have a chronic pain syndrome or psychogenic pain?
In cases in which surgery is a possible treatment, are psychological factors likely to interfere with the potential benefit of the surgery?

These procedures are used to localize the source of pain prior to surgery and to diagnose conditions that fail to respond to initial nonoperative care.
These blocks and injections are invasive and when done as diagnostic procedures only are not necessary unless noninvasive procedures have failed to establish the diagnosis.
Selection of patients, choice of procedure, and localization of the level of injection may be determined by documented clinical findings indicating possible pathologic conditions and the source of pain symptoms.
These blocks and injections may also be used as therapeutic modalities and are subject to the guidelines in sub. (5).

A functional capacity assessment or evaluation is not necessary during the period of initial nonoperative care.
Functional capacity assessment or evaluation is necessary in any of the following circumstances:

a. To identify the patient’s permanent activity restrictions and capabilities.

b. To assess the patient’s ability to do a specific job.

(L) Consultations with other health care providers may be initiated at any time by a treating health care provider consistent with standard medical practice.

(2) General treatment guidelines for thoracic back pain.

(a) All medical care for thoracic back pain, appropriately assigned to a category of sub. (1) (b) 1. to 3. is determined by the diagnosis and clinical category that the patient has been assigned. General guidelines for treatment modalities are set forth in subs. (3) to (10). Specific treatment guidelines for each clinical category are set forth in subs. (11), (12), and (13) as follows:

Subsection (11) governs regional thoracic back pain.
Subsection (12) governs radicular pain.
Subsection (13) governs myelopathy.

(b) A health care provider shall, at each visit, reassess the appropriateness of the clinical category assigned and reassign the patient if warranted by new clinical information including symptoms, signs, results of diagnostic testing and opinions, and information obtained from consultations with other health care providers. When the clinical category is changed the treatment plan shall be appropriately modified to reflect the new clinical category. A change of clinical category may not in itself allow a health care provider to continue a therapy or treatment modality past the maximum duration specified in this section or to repeat a therapy or treatment previously provided for the same injury.

First, all patients with thoracic back problems, except patients with myelopathy under sub. (1) (b) 3., shall be given initial nonoperative care that may include active and passive treatment modalities, injections, durable medical equipment, and medications. These modalities and guidelines are described in subs. (3), (4), (5), (8), and (10). The period of initial nonsurgical treatment begins with the first clinical passive, active, injection, durable medical equipment, or medication modality initiated. Initial nonsurgical treatment shall result in progressive improvement as specified in sub. (9).
Second, for patients with persistent symptoms, initial nonsurgical management is followed by a period of surgical evaluation. This evaluation shall be completed in a timely manner. Surgery, if necessary, shall be performed as expeditiously as possible consistent with sound medical practice and subs. (6), (11), (12), (13), and s. DWD 81.12 (1). A treating health care provider may do the evaluation or may refer the patient to another health care provider.

a. Patients with myelopathy may require immediate surgical therapy.

c. Surgery shall follow the guidelines in subs. (6), (11), (12), (13), and s. DWD 81.12 (1).

d. A decision against surgery at any particular time does not preclude a decision for surgery made at a later date in light of new clinical information.

Third, for those patients who are not candidates for or refuse surgical therapy, or who do not have complete resolution of their symptoms with surgery, a period of chronic management may be necessary. Chronic management modalities are described in s. DWD 81.13 and may also include durable medical equipment as described in sub. (8).

(d) A treating health care provider may refer the patient for a consultation at any time during the course of treatment consistent with accepted medical practice.

(3) Passive treatment modalities.

The patient is released to work or is permanently totally disabled and the additional passive treatment shall result in progressive improvement in, or maintenance of, functional status achieved during the initial 12 weeks of passive care.
The treatment is not given on a regularly scheduled basis.
A health care provider documents in the medical record a plan to encourage the patient’s independence and decreased reliance on health care providers.
Management of the patient’s condition includes active treatment modalities during this period.
The additional 12 visits for passive treatment does not delay the required surgical or chronic pain evaluation required by this chapter.
Passive care is not necessary while the patient has chronic pain syndrome.

Time for treatment response is 3 to 5 treatments.
Maximum treatment frequency is up to 5 times per week for the first one to 2 weeks decreasing in frequency until the end of the maximum treatment duration period in subd. 3.
Maximum treatment duration is 12 weeks.

(d) Thermal treatment. For purposes of this paragraph, “thermal treatment” includes all superficial and deep heating modalities and cooling modalities. Superficial thermal modalities include hot packs, hot soaks, hot water bottles, hydrocollators, heating pads, ice packs, cold soaks, infrared, whirlpool, and fluidotherapy. Deep thermal modalities include diathermy, ultrasound, and microwave. All of the following guidelines apply to thermal treatment:

Treatment given in a clinical setting:

a. Time for treatment response is 2 to 4 treatments.

b. Maximum treatment frequency is up to 5 times per week for the first one to 3 weeks decreasing in frequency until the end of the maximum treatment duration period in subd. 1. c.

c. Maximum treatment duration is 12 weeks of treatment in a clinical setting but only if given in conjunction with other therapies.

Home use of thermal modalities may be prescribed at any time during the course of treatment. Home use may only involve hot packs, hot soaks, hot water bottles, hydrocollators, heating pads, ice packs, and cold soaks that can be applied by the patient without health care provider assistance. Home use of thermal modalities may not require any special training or monitoring, other than that usually provided by a health care provider during an office visit.

(e) Electrical muscle stimulation. For purposes of this paragraph “electrical muscle stimulation” includes galvanic stimulation, transcutaneous electrical nerve stimulation, interferential, and microcurrent techniques. All of the following guidelines apply to electrical muscle stimulation:

Electrical muscle stimulation given in a clinical setting:

a. Time for treatment response is 2 to 4 treatments.

b. Maximum treatment frequency is up to 5 times per week for the first one to 3 weeks decreasing in frequency until the end of the maximum treatment duration period in subd. 1. c.

c. Maximum treatment duration is 12 weeks of treatment in a clinical setting but only if given in conjunction with other therapies.

Home use of an electrical stimulation device may be prescribed at any time during a course of treatment. Initial use of an electrical stimulation device shall be in a supervised setting in order to ensure proper electrode placement and patient education. All of the following guidelines apply to home use of an electrical stimulation device:

a. Maximum time for patient education and training is up to 3 sessions.

(f) Mechanical traction. All of the following guidelines apply to mechanical traction:

Treatment given in a clinical setting:

a. Time for treatment response is 3 treatments.

b. Maximum treatment frequency is up to 3 times per week for the first one to 3 weeks decreasing in frequency until the end of the maximum treatment duration period in subd. 1. c.

c. Maximum treatment duration is 12 weeks in a clinical setting but only if used in conjunction with other therapies.

Home use of a mechanical traction device may be prescribed as follow-up to use of traction in a clinical setting if it has proven to be effective treatment and is expected to continue to be effective treatment. Initial use of a mechanical traction device shall be in a supervised setting in order to ensure proper patient education. All of the following guidelines apply to home use of a mechanical traction device:

a. Maximum time for patient education and training is one session.

Time for treatment response is 3 to 5 sessions.
Maximum treatment frequency is up to 3 times per week for one to 3 weeks and decreasing in frequency until the end of the maximum treatment duration period in subd. 3.
Maximum treatment duration is 12 weeks.

Time for treatment response is 3 to 5 treatments.
Maximum treatment frequency is up to 5 times per week for the first one to 2 weeks decreasing in frequency until the end of the maximum treatment duration period in subd. 3.
Maximum treatment duration is 12 weeks.

(i) Phoresis. For purposes of this paragraph, “phoresis” includes iontophoresis and phonophoresis. All of the following guidelines apply to phoresis:

Time for treatment response is 3 to 5 sessions.
Maximum treatment frequency is up to 3 times per week for the first one to 3 weeks and decreasing in frequency until the end of the maximum treatment duration period in subd. 3.
Maximum treatment duration is 12 weeks.

(j) Bedrest. Prolonged restriction of activity and immobilization are detrimental to a patient’s recovery. Bedrest may not be prescribed for more than 7 days.

(k) Spinal braces and other movement restricting appliances. Spinal braces and other movement-restricting appliances required for longer than 2 weeks shall be accompanied by active muscle strengthening exercise to avoid deconditioning and prolonged disability. All of the following guidelines apply to spinal braces and other movement-restricting appliances:

Time for treatment response is 3 days.
Maximum treatment frequency is limited to intermittent use during times of increased physical stress or prophylactic use at work.
Maximum continuous duration is 3 weeks unless patient is status postfusion.

(4) Active treatment modalities.

(a) Active treatment modalities shall be used as set forth in pars. (b) to (f). A health care provider’s use of active treatment modalities may extend past the 12-week limit on passive treatment modalities, so long as the maximum durations for the active treatment modalities are not exceeded.

(c) Posture and work method training shall instruct the patient in the proper performance of job activities. Topics include proper positioning of the trunk, back and arms, use of optimum biomechanics in performing job tasks, and appropriate pacing of activities. Methods may include didactic sessions, demonstrations, exercises, and simulated work tasks. The maximum number of treatments is 3 visits.

(e) Exercise, which is important to the success of an initial nonsurgical treatment program and a return to normal activity, shall include active patient participation in activities designed to increase flexibility, strength, endurance, or muscle relaxation. Exercise shall, at least in part, be specifically aimed at the musculature of the thoracic spine. Aerobic exercise and extremity strengthening may be performed as adjunctive treatment but may not be the primary focus of the exercise program.

‘Guidelines for supervised exercise.’ One goal of an exercise program shall be to teach the patient how to maintain and maximize any gains experienced from exercise. Self-management of the condition shall be promoted. All of the following guidelines apply to supervised exercise:

a. Maximum treatment frequency is 3 times per week for 3 weeks and may decrease with time until the end of the maximum treatment duration period in subd. 1. b.

b. Maximum duration is 12 weeks.

‘Guidelines for unsupervised exercise.’ Unsupervised exercise shall be provided in the least intensive setting appropriate to the goals of the exercise program and may supplement or follow the period of supervised exercise. All of the following guidelines apply to unsupervised exercise:

a. Maximum treatment frequency is one to 3 visits for instruction and monitoring.

b. There is no limit on the duration and frequency of exercise at home.

(5) Therapeutic injections.

(a) Injection modalities are necessary as set forth in pars. (b) to (d). A health care provider’s use of injections may extend past the 12-week limit on passive treatment modalities, so long as the maximum treatment for injections is not exceeded.

(b) For purposes of this subsection, “therapeutic injections” include trigger points injections, facet joint injections, facet nerve blocks, sympathetic nerve blocks, epidurals, nerve root blocks, and peripheral nerve blocks. Therapeutic injections may only be given in conjunction with active treatment modalities directed to the same anatomical site.

All of the following guidelines apply to trigger point injections:

a. Time for treatment response is within 30 minutes.

c. Maximum treatment is 4 injections to any one site.

All of the following guidelines apply to facet joint injections and facet nerve blocks:

a. Time for treatment response is within one week.

c. Maximum treatment is 3 injections or blocks to any one site.

All of the following guidelines apply to nerve root blocks:

a. Time for treatment response is within one week.

b. Maximum treatment frequency may permit repeat injection 2 weeks after the previous injection if there is a positive response to the first block. Only 3 injections per patient visit.

c. Maximum treatment is 2 blocks to any one site.

All of the following guidelines apply to epidural injections:

a. Time for treatment response is within one week.

b. Maximum treatment frequency is once every 2 weeks if there is a positive response to the first injection. If subsequent injections demonstrate diminishing control of symptoms or fail to facilitate objective functional gains, then injections shall be discontinued. Only one injection per patient visit.

c. Maximum treatment is 3 injections.

Time for treatment response is within one week.
Optimum treatment frequency may repeat once for any site.
Maximum duration is 2 injections to any one site.

(d) Prolotherapy and botulinum toxin injections are not necessary in the treatment of thoracic back problems.

(6) Surgery including decompression procedures.

(a) A health care provider may perform surgery only if it meets the specific guidelines of subs. (11), (12), (13), and s. DWD 81.12 (1).

(b) In order to optimize the beneficial effect of surgery, postoperative therapy with active and passive treatment modalities may be provided, even if these modalities had been used in the preoperative treatment of the condition. In the postoperative period the maximum treatment duration with passive treatment modalities in a clinical setting from the initiation of the first passive modality used, except bedrest or bracing, is as follows:

Eight weeks following decompression or implantation of a spinal cord stimulator or intrathecal drug delivery system.
Twelve weeks following arthrodesis.

(d) The surgical therapies in subds. 1. and 2. have very limited application and require a personality or psychosocial evaluation that indicates the patient is likely to benefit from the treatment.

Spinal cord stimulator may be necessary for a patient who has neuropathic pain and has had a favorable response to a trial screening period.
Intrathecal drug delivery system may be necessary for a patient who has somatic or neuropathic pain and has had a favorable response to a trial screening period.

(7) Chronic management. Chronic management of thoracic back pain shall be provided according to the guidelines of s. DWD 81.13.

(8) Durable medical equipment.

(a) A health care provider may direct the use of durable medical equipment only in certain specific situations as specified in pars. (b) to (e).

(b) Braces or supports may be necessary within the guidelines of sub. (3) (k).

(c) For patients using electrical muscle stimulation or mechanical traction devices at home, the device and any required supplies are necessary within the guidelines of sub. (3) (e) and (f).

(d) Exercise equipment for home use, including bicycles, treadmills, and stairclimbers, are necessary only as part of an approved chronic management program. This equipment is not necessary during initial nonoperative care or during reevaluation and surgical therapy. If the employer has an appropriate exercise facility on its premises with the prescribed equipment, the insurer may mandate the use of that facility instead of authorizing purchase of equipment for home use.

‘Indications.’ The patient is deconditioned and requires reconditioning that may be accomplished only with the use of the prescribed exercise equipment. A health care provider shall document specific reasons why the exercise equipment is necessary and may not be replaced with other activities.
‘Requirements.’ The use of the equipment shall have specific goals and there shall be a specific set of prescribed activities.

(e) All of the following durable medical equipment is not necessary for home use for thoracic back pain conditions:

Whirlpools, Jacuzzis, hot tubs, or special bath or shower attachments.
Beds, waterbeds, mattresses, chairs, recliners, or loungers.

(9) Evaluation of treatment by health care provider.

(a) A health care provider shall evaluate at each visit whether the treatment is medically necessary and shall evaluate whether initial nonsurgical management is effective according to pars. (b) to (e). No later than the time for treatment response established for the specific modality in subs. (3) to (5), a health care provider shall evaluate whether the passive, active, injection, or medication treatment modality is resulting in progressive improvement in pars. (b) to (e).

(c) The objective clinical findings are progressively improving, as evidenced by documentation in the medical record of resolution or objectively measured improvement in physical signs of injury.

(10) Medication management.

(b) Patients with radicular pain may require longer periods of treatment.

(11) Specific treatment guidelines for regional thoracic back pain.

(a) A health care provider shall use initial nonsurgical treatment for the first phase of treatment for all patients with regional thoracic back pain under sub. (1) (b) 1.

The active, passive, injection, durable medical equipment, and medication treatment modalities and procedures in subs. (3), (4), (5), (8), and (10) may be used in sequence or simultaneously during the period of initial nonsurgical management, depending on the severity of the condition.
The only therapeutic injections necessary for patients with regional thoracic back pain are trigger point injections, facet joint injections, facet nerve blocks, and epidural blocks, and their use shall meet the guidelines of sub. (5).
After the first week of treatment, initial nonsurgical management shall at all times contain active treatment modalities according to the guidelines of sub. (4).
Initial nonsurgical treatment shall be provided in the least intensive setting consistent with quality health care practices.
Except as provided in sub. (3), passive treatment modalities in a clinic setting or requiring attendance by a health care provider are not necessary beyond 12 weeks after any passive modality other than bedrest or bracing is first initiated.

(b) Surgical evaluation or chronic management is necessary if the patient continues with symptoms and objective physical findings after the course of initial nonsurgical care and if the patient’s condition prevents the resumption of the regular activities of daily life, including regular vocational activities. The purpose of surgical evaluation is to determine whether surgery is necessary in the treatment of a patient who has failed to recover with initial nonsurgical care. If the patient is not a surgical candidate, then chronic management is necessary.

Surgical evaluation, if necessary, may begin as soon as 8 weeks after, but shall begin no later than 12 weeks after, beginning initial nonsurgical management. An initial recommendation or decision against surgical therapy does not preclude surgery at a later date.
Surgical evaluation may include the use of appropriate medical imaging techniques. The imaging technique shall be chosen on the basis of the suspected etiology of the patient’s condition, but a health care provider shall follow the guidelines in s. DWD 81.05. Medical imaging studies that do not meet these guidelines are not necessary.
Surgical evaluation may also include diagnostic blocks and injections. These blocks and injections are only necessary if their use is consistent with the guidelines of sub. (1) (j).
Surgical evaluation may also include personality or psychosocial evaluation, consistent with the guidelines of sub. (1) (i).
Consultation with other health care providers may be appropriate as part of the surgical evaluation. The need for consultation and the choice of consultant will be determined by the findings on medical imaging, diagnostic analgesic blocks, and injections, if performed, and the patient’s ongoing subjective complaints and objective physical findings.
The only surgical procedure necessary for patients with regional thoracic back pain only is thoracic arthrodesis with or without instrumentation, which shall meet the guidelines of sub. (6) and s. DWD 81.12 (1) (d). For patients with failed surgery, spinal cord stimulators or intrathecal drug delivery systems may be necessary consistent with sub. (6) (d).

a. If surgery is necessary, it shall be offered to the patient as soon as possible. If the patient agrees to the proposed surgery it shall be performed as expeditiously as possible consistent with sound medical practice.

b. If surgery is not necessary or if the patient does not wish to proceed with surgery, then the patient is a candidate for chronic management.

(c) If the patient continues with symptoms and objective physical findings after surgery has been rendered, or the patient refuses surgery, or the patient was not a candidate for surgery, and if the patient’s condition prevents the resumption of the regular activities of daily life including regular vocational activities, then the patient may be a candidate for chronic management under s. DWD 81.13.

(12) Specific treatment guidelines for radicular pain.

(a) Initial nonsurgical treatment is appropriate for all patients with radicular pain under sub. (1) (b) 2., and shall be the first phase of treatment. It shall be provided within the guidelines of sub. (11) (a), with the following modifications: Epidural blocks and nerve root and peripheral nerve blocks are the only therapeutic injections necessary for patients with radicular pain only. If there is a component of regional thoracic back pain, therapeutic facet joint injections, facet nerve blocks, and trigger point injections may also be necessary.

(b) Surgical evaluation or chronic management is necessary if the patient continues with symptoms and physical findings after the course of initial nonsurgical care and if the patient’s condition prevents the resumption of the regular activities of daily life, including regular vocational activities. It shall be provided within the guidelines of sub. (11) (b), with the following modifications: The only surgical procedures necessary for patients with radicular pain are decompression or arthrodesis. For patients with failed surgery, spinal cord stimulators or intrathecal drug delivery systems may be necessary consistent with sub. (6) (d).

(c) If the patient continues with symptoms and objective physical findings after surgical therapy has been rendered or the patient refused surgical therapy or the patient was not a candidate for surgical therapy, and if the patient’s condition prevents the resumption of the regular activities of daily life including regular vocational activities, then the patient may be a candidate for chronic management. Any course or program of chronic management for patients with radicular pain, with or without regional thoracic back pain shall be provided under the guidelines of s. DWD 81.13.

(13) Specific treatment guidelines for myelopathy.

(a) Patients with myelopathy may require emergency surgical evaluation at any time during the course of their overall treatment. The health care provider may decide to proceed with surgical evaluation based on the type of neurologic changes observed, the severity of the changes, the rate of progression of the changes, and the response to any nonsurgical treatments. Surgery, if necessary, may be performed at any time during the course of treatment. Surgical evaluation and surgery shall be within the guidelines of sub. (11) (b), with the following modifications:

Surgical evaluation and surgical therapy may begin at any time.
The only surgical procedures necessary for patients with myelopathy are decompression and arthrodesis. For patients with failed surgery, spinal cord stimulators or intrathecal drug delivery systems may be necessary consistent with sub. (6) (d).

(b) If the health care provider decides to proceed with a course of nonsurgical care for a patient with myelopathy, it shall follow the guidelines of sub. (12) (a).

(c) If the patient continues with symptoms and objective physical findings after surgical therapy has been rendered or the patient refuses surgical therapy or the patient was not a candidate for surgical therapy, and if the patient’s condition prevents the resumption of the regular activities of daily life including regular vocational activities, then the patient may be a candidate for chronic management. Any course or program of chronic management for patients with myelopathy shall be provided under the guidelines of s. DWD 81.13.

History

CR 07-019: cr. Register October 2007 No. 622, eff. 11-1-07.

Wis. Admin. Code § DWD 81.09 Upper extremity disorders {#sec-dwd-81.09 omnilex-key=us-wi-regs-official--agency-dwd--DWD 81.09}

(1) Diagnostic procedures for treatment of upper extremity disorders.

(a) A health care provider shall determine the nature of an upper extremity disorder before initiating treatment.

(b) A health care provider shall perform and document an appropriate history and physical examination. Based on the history and physical examination a health care provider shall at each visit assign the patient to the appropriate clinical category according to subds. 1. to 6. A health care provider shall document the diagnosis in the medical record. Patients may have multiple disorders requiring assignment to more than one clinical category. This section does not apply to upper extremity conditions due to a visceral, vascular, infectious, immunological, metabolic, endocrine, systemic neurologic, or neoplastic disease process, fractures, lacerations, amputations, or sprains or strains with complete tissue disruption.

‘Epicondylitis.’ This clinical category includes medial epicondylitis and lateral epicondylitis, including ICD-9-CM codes 726.31 and 726.32.
‘Tendonitis of the forearm, wrist, and hand.’ This clinical category encompasses any inflammation, pain, tenderness, or dysfunction or irritation of a tendon, tendon sheath, tendon insertion, or musculotendinous junction in the upper extremity at or distal to the elbow due to mechanical injury or irritation, including the diagnoses of tendonitis, tenosynovitis, tendovaginitis, peritendinitis, extensor tendinitis, de Quervain’s syndrome, intersection syndrome, flexor tendinitis, and trigger digit, including ICD-9-CM codes 726.4, 726.5, 726.8, 726.9, 726.90, 727, 727.0, 727.00, 727.03, 727.04, 727.05, and 727.2.
‘Nerve entrapment syndromes.’ This clinical category encompasses any compression or entrapment of the radial, ulnar or median nerves, or any of their branches, including carpal tunnel syndrome, pronator syndrome, anterior interosseous syndrome, cubital tunnel syndrome, Guyon’s canal syndrome, radial tunnel syndrome, posterior interosseous syndrome, and Wartenburg’s syndrome, including ICD-9-CM codes 354, 354.0, 354.1, 354.2, 354.3, 354.8, and 354.9.
‘Muscle pain syndromes.’ This clinical category encompasses any painful condition of any of the muscles of the upper extremity, including the muscles responsible for movement of the shoulder and scapula, characterized by pain and stiffness, including the diagnoses of chronic nontraumatic muscle strain, repetitive strain injury, cervicobrachial syndrome, tension neck syndrome, overuse syndrome, myofascial pain syndrome, myofasciitis, nonspecific myalgia, fibrositis, fibromyalgia, and fibromyositis, including ICD-9-CM codes 723.3, 729.0, 729.1, 729.5, 840, 840.3, 840.5, 840.6, 840.8, 840.9, 841, 841.8, 841.9, and 842.
‘Shoulder impingement syndromes, including tendonitis, bursitis, and related conditions.’ This clinical category encompasses any inflammation, pain, tenderness, dysfunction, or irritation of a tendon, tendon insertion, tendon sheath, musculotendinous junction, or bursa in the shoulder due to mechanical injury or irritation, including the diagnoses of impingement syndrome, supraspinatus tendonitis, infraspinatus tendonitis, calcific tendonitis, bicipital tendonitis, subacromial bursitis, subcoracoid bursitis, subdeltoid bursitis, and rotator cuff tendinitis, including ICD-9-CM codes 726.1 to 726.2, 726.9, 726.90, 727 to 727.01, 727.2, 727.3, 840, 840.4, 840.6, 840.8, and 840.9.
‘Traumatic sprains or strains of the upper extremity.’ This clinical category encompasses an instantaneous or acute injury that occurred as a result of a single precipitating event to the ligaments or the muscles of the upper extremity including ICD-9-CM codes 840 to 842.19. Injuries to muscles as a result of repetitive use, or occurring gradually over time without a single precipitating trauma, are considered muscle pain syndromes under subd. 4. Injuries with complete tissue disruption are not subject to this section.

(c) A health care provider may order certain laboratory tests in the evaluation of a patient with upper extremity disorder to rule out infection, metabolic-endocrinologic disorders, tumorous conditions, systemic musculoskeletal disorders such as rheumatoid arthritis, or side effects of medications. Laboratory tests may be ordered at any time a health care provider suspects any of these conditions, but a health care provider shall justify the need for the tests ordered with clear documentation of the indications.

(d) Medical imaging evaluation of upper extremity disorders shall be based on the findings of the history and physical examination and may not be ordered before a health care provider’s clinical evaluation of the patient. Medical imaging may not be performed as a routine procedure and shall comply with the guidelines in s. DWD 81.05. A health care provider shall document the appropriate indications for any medical imaging studies obtained.

(e) Electromyography and nerve conduction studies are only necessary for nerve entrapment disorders and recurrent nerve entrapment after surgery.

(f) A health care provider may not order the use of any of the following diagnostic procedures or tests for diagnosis of upper extremity disorders:

Surface electromyography.
Thermography.
Somatosensory evoked potentials and motor evoked potentials.

(g) All of the following diagnostic procedures or tests are considered adjuncts to the physical examination and are not necessary separately from the office visit:

Vibrometry.
Neurometry.
Semmes-Weinstein monofilament testing.
Algometry.

(i) A health care provider may order personality or psychosocial evaluations for evaluating patients who continue to have problems despite appropriate initial nonsurgical care. A treating health care provider may perform this evaluation or may refer the patient for consultation with another health care provider in order to obtain a psychological evaluation. These evaluations may be used to assess the patient for a number of psychological conditions that may interfere with recovery from the injury. Since more than one of these psychological conditions may be present in a given case, a health care provider performing the evaluation shall consider all of the following:

Is symptom magnification occurring?
Does the patient exhibit an emotional reaction to the injury, such as depression, fear, or anger, that is interfering with recovery?
Are there other personality factors or disorders that are interfering with recovery?
Is the patient chemically dependent?
Are there any interpersonal conflicts interfering with recovery?
Does the patient have a chronic pain syndrome or psychogenic pain?
In cases in which surgery is a possible treatment, are psychological factors likely to interfere with the potential benefit of the surgery?

(j) Diagnostic analgesic blocks and injection studies are used to localize the source of pain and to diagnose conditions which fail to respond to appropriate initial nonsurgical management. All of the following guidelines apply to diagnostic analgesic blocks and injection studies:

Selection of patients, choice of procedure, and localization of the site of injection shall be determined by documented clinical findings indicating possible pathologic conditions and the source of pain symptoms.
These blocks and injections may also be used as therapeutic modalities and as such are subject to the guidelines of sub. (5).

Functional capacity assessment or evaluation is not necessary during the first 12 weeks of initial nonsurgical treatment.
Functional capacity assessment or evaluation is necessary after the first 12 weeks of care in any of the following circumstances:

a. To identify the patient’s activity restrictions and capabilities.

b. To assess the patient’s ability to return to do a specific job.

A functional capacity evaluation is not necessary to establish baseline performance before treatment or for subsequent assessments to evaluate change during or after treatment.
Only one completed functional capacity evaluation is necessary per injury.

(L) Consultations with other health care providers may be initiated at any time by a treating health care provider consistent with accepted medical practice.

(2) General treatment guidelines for upper extremity disorders.

(a) All medical care for upper extremity disorders, appropriately assigned to a category of sub. (1) (b) 1. to 6., is determined by the diagnosis and clinical category that the patient has been assigned. General guidelines for treatment modalities are set forth in subs. (3) to (10). Specific treatment guidelines for each clinical category are set forth in subs. (11) to (16) as follows:

Subsection (11) governs epicondylitis.
Subsection (12) governs tendonitis of the forearm, wrist, and hand.
Subsection (13) governs upper extremity nerve entrapment syndromes.
Subsection (14) governs upper extremity muscle pain syndromes.
Subsection (15) governs shoulder impingement syndromes.
Subsection (16) governs traumatic sprains and strains of the upper extremity.

(b) A health care provider shall at each visit reassess the appropriateness of the clinical category assigned and reassign the patient if warranted by new clinical information including symptoms, signs, results of diagnostic testing and opinions, and information obtained from consultations with other health care providers. When the clinical category is changed the treatment plan shall be appropriately modified to reflect the new clinical category. The health care provider shall record any clinical category and treatment plan changes in the medical record. A change of clinical category may not in itself allow a health care provider to continue a therapy or treatment modality past the maximum duration specified in subs. (3) to (10) or to repeat a therapy or treatment previously provided for the same injury, unless the treatment or therapy is subsequently delivered to a different part of the body.

(c) When treating more than one clinical category or body part for which the same treatment modality is appropriate, then the treatment modality shall be applied simultaneously, if possible, to all necessary areas.

(d) In general, a course of treatment shall be divided into the following 3 phases:

First, all patients with an upper extremity disorder shall be given initial nonsurgical management, unless otherwise specified. Initial nonsurgical management may include any combination of the passive, active, injection, durable medical equipment, and medication treatment modalities listed in subs. (3), (4), (5), (8), and (10), appropriate to the clinical category. The period of initial nonsurgical treatment begins with the first passive, active, injection, durable medical equipment, or medication modality initiated. Initial nonsurgical treatment shall result in progressive improvement as specified in sub. (9).
Second, for patients with persistent symptoms, initial nonsurgical management is followed by a period of surgical evaluation. This evaluation shall be completed in a timely manner. Surgery, if necessary, shall be performed as expeditiously as possible consistent with sound medical practice and subs. (6), (11) to (16), and s. DWD 81.12 (2). A treating health care provider may do the evaluation or may refer the patient to another health care provider.

a. Any patient who has had surgery may require postoperative therapy with active and passive treatment modalities. This therapy may be in addition to any received during the period of initial nonsurgical management.

b. Surgery shall follow the guidelines in subs. (6), (11) to (16), and s. DWD 81.12 (2).

c. A decision against surgery at any particular time does not preclude a decision for surgery made at a later date.

Third, for those patients who are not candidates for surgery or refuse surgery, or who do not have complete resolution of their symptoms with surgery, a period of chronic management may be necessary. Chronic management modalities are described in s. DWD 81.13 and may include durable medical equipment as described in sub. (8).

(e) A treating health care provider may refer the patient for a consultation at any time during the course of treatment consistent with accepted medical practice.

(3) Passive treatment modalities.

The patient is released to work or is permanently totally disabled and the additional passive treatment may result in progressive improvement in, or maintenance of, functional status achieved during the initial 12 weeks of passive care.
The treatment is not given on a regularly scheduled basis.
A health care provider documents in the medical record a plan to encourage the patient’s independence and decreased reliance on health care providers.
Management of the patient’s condition includes active treatment modalities during this period.
The additional 12 visits for passive treatment does not delay the required surgical or chronic pain evaluation required by this chapter.
Passive care is not necessary while the patient has chronic pain syndrome.

Time for treatment response is 3 to 5 treatments.
Maximum treatment frequency is up to 5 times per week for the first one to 2 weeks decreasing in frequency until the end of the maximum treatment duration period in subd. 3.
Maximum treatment duration is 12 weeks.

Treatment given in a clinical setting:

a. Time for treatment response is 2 to 4 treatments.

b. Maximum treatment frequency is up to 5 times per week for the first one to 3 weeks, decreasing in frequency until the end of the maximum treatment duration period in subd. 1. c.

c. Maximum treatment duration is 12 weeks of treatment in a clinical setting but only if given in conjunction with other therapies.

Home use of thermal modalities may be prescribed at any time during the course of treatment. Home use may only involve hot packs, hot soaks, hot water bottles, hydrocollators, heating pads, ice packs, and cold soaks that can be applied by the patient without health care provider assistance. Home use of thermal modalities may not require any special training or monitoring, other than that usually provided by a health care provider during an office visit.

(e) Electrical muscle stimulation. For purposes of this paragraph, “electrical muscle stimulation” includes galvanic stimulation, transcutaneous electrical nerve stimulation, interferential and microcurrent techniques. All of the following guidelines apply to electrical muscle stimulation:

Treatment given in a clinical setting:

a. Time for treatment response is 2 to 4 treatments.

b. Maximum treatment frequency is up to 5 times per week for the first one to 3 weeks, decreasing in frequency until the end of the maximum treatment duration period in subd. 1. c.

c. Maximum treatment duration is 12 weeks of treatment in a clinical setting but only if given in conjunction with other therapies.

Home use of an electrical muscle stimulation device may be prescribed at any time during a course of treatment. Initial use of an electrical stimulation device shall be in a supervised setting in order to ensure proper electrode placement and patient education. All of the following guidelines apply to home use of an electrical stimulation device:

a. Time for patient education and training is one to 3 sessions.

b. Patient may use the electrical stimulation device unsupervised for one month, at which time effectiveness of the treatment shall be reevaluated by a health care provider before continuing home use of the device.

(f) Acupuncture treatments. For purposes of this paragraph, “acupuncture treatments” include endorphin-mediated analgesic therapy that includes classic acupuncture and acupressure. All of the following guidelines apply to acupuncture treatments:

Time for treatment response is 3 to 5 sessions.
Maximum treatment frequency is up to 3 times per week for the first one to 3 weeks, decreasing in frequency until the end of the maximum treatment duration period in subd. 3.
Maximum treatment duration is 12 weeks.

(g) Phoresis. For purposes of this paragraph, “phoresis” includes phonopheresis and iontophoresis. All of the following guidelines apply to phoresis:

Time for treatment response is 3 to 5 sessions.
Maximum treatment frequency is up to 3 times per week for the first one to 3 weeks, decreasing in frequency until the end of the maximum treatment duration period in subd. 3.
Maximum treatment duration is 9 sessions of either iontophoresis or phonophoresis, or combination, to any one site, with a maximum duration of 12 weeks for all treatment.

(h) Manual therapy. For purposes of this paragraph, “manual therapy” includes soft tissue and joint mobilization and therapeutic massage. All of the following guidelines apply to manual therapy:

Time for treatment response is 3 to 5 treatments.
Maximum treatment frequency is up to 5 times per week for the first one to 2 weeks decreasing in frequency until the end of the maximum treatment duration period in subd. 3.
Maximum treatment duration is 12 weeks.

(i) Splints, braces, and other movement-restricting appliances. Bracing required for longer than 2 weeks shall be accompanied by active motion exercises to avoid stiffness and prolonged disability. All of the following guidelines apply to splints, braces, and other movement-restricting appliances:

Time for treatment response is 10 days.
Maximum treatment frequency is limited to intermittent use during times of increased physical stress or prophylactic use at work.
Maximum continuous duration is 8 weeks. Prophylactic use is allowed indefinitely.

(j) Rest. Prolonged restriction of activity and immobilization are detrimental to a patient’s recovery. Total restriction of use of an affected body part may not be prescribed for more than 2 weeks, unless rigid immobilization is required. In cases of rigid immobilization, active motion exercises at adjacent joints shall begin no later than 2 weeks after application of the immobilization.

(4) Active treatment modalities.

(a) A health care provider shall use active treatment modalities as set forth in pars. (b) to (f). A health care provider’s use of active treatment modalities may extend past the 12-week limitation on passive treatment modalities so long as the maximum treatment for the active treatment modality is not exceeded.

(b) Education shall teach the patient about pertinent anatomy and physiology as it relates to upper extremity function for the purpose of injury prevention. Education includes training on posture, biomechanics, and relaxation. The maximum number of treatments is 3 visits which include an initial education and training session, and 2 follow-up visits.

(e) Exercise, which is important to the success of a nonsurgical treatment program and a return to normal activity, shall include active patient participation in activities designed to increase flexibility, strength, endurance, or muscle relaxation. Exercise shall, at least in part, be specifically aimed at the musculature of the upper extremity. While aerobic exercise may be performed as adjunctive treatment, this shall not be the primary focus of the exercise program.

(f) Exercises shall be evaluated to determine if the desired goals are being attained. Strength, flexibility, or endurance shall be objectively measured. A health care provider may objectively measure the treatment response as often as necessary for optimal care after the initial evaluation. Subdivisions 1. and 2. govern supervised and unsupervised exercise, except for computerized exercise programs and health clubs, which are governed by s. DWD 81.13.

‘Guidelines for supervised exercise.’ One goal of an exercise program shall be to teach the patient how to maintain and maximize any gains experienced from exercise. Self-management of the condition shall be promoted. All of the following guidelines apply to supervised exercise:

a. Maximum treatment frequency is up to 3 times per week for 3 weeks and shall decrease with time until the end of the maximum treatment duration period in subd. 1. b.

b. Maximum duration is 12 weeks.

‘Guidelines for unsupervised exercise.’ Unsupervised exercise shall be provided in the least intensive setting and may supplement or follow the period of supervised exercise.

(5) Therapeutic injections.

(a) For purposes of this subsection, “therapeutic injections” include injections of trigger points, sympathetic nerves, peripheral nerves, and soft tissues. A health care provider may only give therapeutic injections in conjunction with active treatment modalities directed to the same anatomical site. A health care provider’s use of injections may extend past the 12-week limitation on passive modalities, so long as the maximum treatment for injections in pars. (b) to (d) is not exceeded.

(b) All of the following guidelines apply to trigger point injections:

Time for treatment response is within 30 minutes.
Maximum treatment frequency is once per week to any one site if there is a positive response to the first injection at that site. If subsequent injections at that site demonstrate diminishing control of symptoms or fail to facilitate objective functional gains, trigger point injections shall be redirected to other areas or discontinued. Only 3 injections to different sites per patient visit.
Maximum treatment is 4 injections to any one site over the course of treatment.

(c) For purposes of this paragraph, “soft tissue injections” include injections of a bursa, tendon, tendon sheath, ganglion, tendon insertion, ligament, or ligament insertion. All of the following guidelines apply to soft tissue injections:

Time for treatment response is within one week.
Maximum treatment frequency is once per month to any one site if there is a positive response to the first injection. If subsequent injections demonstrate diminishing control of symptoms or fail to facilitate objective functional gains, then injections shall be discontinued. Only 3 injections to different sites per patient visit.
Maximum treatment is 3 injections to any one site over the course of treatment.

(d) All of the following guidelines apply to injections for median nerve entrapment at the carpal tunnel:

Time for treatment response is within one week.
Maximum treatment frequency may permit repeat injection in one month if there is a positive response to the first injection. Only 3 injections to different sites per patient visit.
Maximum treatment is 2 injections to any one site over the course of treatment.

(6) Surgery.

(a) A health care provider may perform surgery if it meets applicable guidelines in subs. (11) to (16) and s. DWD 81.12 (2).

(b) In order to optimize the beneficial effect of surgery, postoperative therapy with active and passive treatment modalities may be provided, even if these modalities had been used in the preoperative treatment of the condition. In the postoperative period the maximum treatment duration with passive treatment modalities in a clinical setting from initiation of the first passive modality used, except bedrest or bracing, is as follows:

Sixteen weeks for rotator cuff repair, acromioclavicular ligament repair, or any surgery for a clinical category in this section that requires joint reconstruction.
Eight weeks for all other surgery for clinical categories in this section.

(7) Chronic management. Chronic management of upper extremity disorders shall be provided according to the guidelines in s. DWD 81.13.

(8) Durable medical equipment.

(a) A health care provider may direct the use of durable medical equipment only in the situations specified in pars. (b) to (e).

(b) Splints, braces, straps, or supports may be necessary as specified in sub. (3) (i).

(c) For patients using an electrical muscle stimulation device at home, the device and any required supplies are necessary within the guidelines of sub. (3) (e).

(d) Exercise equipment for home use, including bicycles, treadmills, and stairclimbers, are necessary only as part of an approved chronic management program. This equipment is not necessary during initial nonsurgical care or during reevaluation and surgical therapy. If the employer has an appropriate exercise facility on its premises with the prescribed equipment the insurer may mandate use of that facility instead of authorizing purchase of the equipment for home use.

‘Indications.’ The patient is deconditioned and requires reconditioning that can be accomplished only with the use of the prescribed exercise equipment. A health care provider shall document specific reasons why the exercise equipment is necessary and may not be replaced with other activities.
‘Requirements.’ The use of the equipment shall have specific goals and there shall be a specific set of prescribed activities.

(e) All of the following durable medical equipment is not necessary for home use for the upper extremity disorders specified in subs. (11) to (16):

Whirlpools, Jacuzzis, hot tubs, and special bath or shower attachments.
Beds, waterbeds, mattresses, chairs, recliners, and loungers.

(9) Evaluation of treatment by health care provider.

(a) A health care provider shall evaluate at each visit whether the treatment is medically necessary and whether initial nonsurgical treatment is effective according to pars. (b) to (e). No later than the time for treatment response established for the specific modality in subs. (3) to (5), a health care provider shall evaluate whether the passive, active, injection, or medication treatment modality is resulting in progressive improvement as specified in pars. (b) to (e).

(c) The objective clinical findings are progressively improving as evidenced by documentation in the medical record of resolution or objectively measured improvement in physical signs of injury.

(10) Medication management.

(a) Prescription of controlled substance medications scheduled under ch. 450, Stats., including opioids and narcotics, are necessary primarily for the treatment of severe acute pain. Therefore, these medications are not generally recommended in the treatment of patients with upper extremity disorders.

(b) A health care provider shall document the rationale for the use of any scheduled medication. Treatment with nonscheduled medication may be appropriate during any phase of treatment and intermittently after all other treatment has been discontinued. The prescribing health care provider shall determine that ongoing medication is effective treatment for the patient’s condition.

(11) Specific treatment guidelines for epicondylitis.

(a) A health care provider shall use initial nonsurgical management for all patients with epicondylitis and this shall be the first phase of treatment.

The passive, active, injection, durable medical equipment, and medication treatment modalities and procedures specified in subs. (3), (4), (5), (8), and (10) may be used in sequence or simultaneously during the period of initial nonsurgical management depending on the severity of the condition. After the first week of treatment, initial nonsurgical care shall at all times include active treatment modalities under sub. (4).
Initial nonsurgical management shall be provided in the least intensive setting consistent with quality health care practices.
Except as provided in sub. (3), the use of passive treatment modalities in a clinic setting or requiring attendance by a health care provider for a period in excess of 12 weeks is not necessary.
Use of home-based treatment modalities with monitoring by the treating health care provider may continue for up to 12 months. At any time during this period the patient may be a candidate for chronic management if surgery is ruled out as an appropriate treatment.

(b) If the patient continues with symptoms and objective physical findings after initial nonsurgical management and if the patient’s condition prevents the resumption of the regular activities of daily life, including regular vocational activities, then surgical evaluation or chronic management is necessary. The purpose and goal of surgical evaluation is to determine whether surgery is necessary for the patient who has failed to recover with appropriate nonsurgical care or chronic management.

Surgical evaluation, if necessary, shall begin no later than 12 months after beginning initial nonsurgical management.
Surgical evaluation may include the use of appropriate laboratory and electrodiagnostic testing within the guidelines of sub. (1), if not already obtained during the initial evaluation. Repeat testing is not necessary unless there has been an objective change in the patient’s condition that in itself would warrant further testing. Failure to improve with therapy does not, by itself, warrant further testing.
Plain films may be appropriate if there is a history of trauma, infection, or inflammatory disorder and are subject to the general guidelines in s. DWD 81.05 (1). Other medical imaging studies are not necessary.
Surgical evaluation may also include personality or psychological evaluation consistent with the guidelines of sub. (1) (i).
Consultation with other health care providers is an important part of surgical evaluation of a patient who fails to recover with appropriate initial nonsurgical management. The need for consultation and the choice of consultant will be determined by the diagnostic findings and the patient’s condition.
If surgery is necessary, it may be performed after initial nonsurgical management fails.
If surgery is not necessary or if the patient does not wish to proceed with surgery, then the patient is a candidate for chronic management. An initial recommendation or decision against surgery does not preclude surgery at a later date.

(c) If the patient continues with symptoms and objective physical findings after surgery or the patient refused surgery or the patient was not a candidate for surgery, and if the patient’s condition prevents the resumption of the regular activities of daily life including regular vocational activities, then the patient may be a candidate for chronic management under s. DWD 81.13.

(12) Specific treatment guidelines for tendinitis of forearm, wrist, and hand.

(a) Except as provided in par. (b) 3., a health care provider shall use initial nonsurgical management for all patients with tendonitis and this shall be the first phase of treatment. Any course or program of initial nonsurgical management shall meet all of the guidelines of sub. (11) (a).

(b) If the patient continues with symptoms and objective physical findings after initial nonsurgical management and if the patient’s condition prevents the resumption of the regular activities of daily life, including regular vocational activities, then surgical evaluation or chronic management is necessary. Surgical evaluation and surgical therapy shall meet all of the guidelines of sub. (11) (b), with the following modifications:

For patients with a specific diagnosis of de Quervain’s syndrome, surgical evaluation and surgical therapy, if necessary, may begin after only 2 months of initial nonsurgical management.
For patients with a specific diagnosis of trigger finger or trigger thumb, surgical evaluation and potential surgical therapy may begin after only one month of initial nonsurgical management.
For patients with a locked finger or thumb, surgery may be necessary immediately without any preceding nonsurgical management.

(c) If the patient continues with symptoms and objective physical findings after surgery, or the patient refused surgery or the patient was not a candidate for surgery, and if the patient’s condition prevents the resumption of the regular activities of daily life including regular vocational activities, then the patient may be a candidate for chronic management. Any course or program of chronic management for patients with tendonitis shall be provided under the guidelines of s. DWD 81.13.

(13) Specific treatment guidelines for nerve entrapment syndromes.

(a) A health care provider shall use initial nonsurgical management for all patients with nerve entrapment syndromes, except as specified in par. (b) 2., and this shall be the first phase of treatment. Any course or program of initial nonsurgical management shall meet all of the guidelines of sub. (11) (a), with the following modifications: Nonsurgical management may be inappropriate for patients with advanced symptoms and signs of nerve compression, such as abnormal two-point discrimination, motor weakness, or muscle atrophy, or for patients with symptoms of nerve entrapment due to acute trauma. In these cases, immediate surgical evaluation may be necessary.

(b) If the patient continues with symptoms and objective physical findings after 12 weeks of initial nonsurgical management and if the patient’s condition prevents the resumption of the regular activities of daily life, including regular vocational activities, then surgical evaluation or chronic management is necessary. Surgical evaluation and surgical therapy shall meet all of the guidelines of sub. (11) (b), with the following modifications:

Surgical evaluation may begin and surgical therapy may be provided, if necessary, after 12 weeks of initial nonsurgical management, except where immediate surgical evaluation is necessary under par. (a).
Surgery is necessary if an electromyography confirms the diagnosis or if there has been temporary resolution of symptoms lasting at least 7 days with local injection.
If there is neither a confirming electromyography nor appropriate response to local injection or if surgery has been previously performed at the same site, surgery is not necessary.

(c) If the patient continues with symptoms and objective physical findings after all surgery, or the patient refused surgery therapy, or the patient was not a candidate for surgery therapy, and if the patient’s condition prevents the resumption of the regular activities of daily life including regular vocational activities, then the patient may be a candidate for chronic management. Any course or program of chronic management for patients with nerve entrapment syndromes shall be provided under the guidelines of s. DWD 81.13.

(14) Specific treatment guidelines for muscle pain syndromes.

(a) A health care provider shall use initial nonsurgical management for all patients with muscle pain syndromes and this shall be the first phase of treatment. Any course or program of initial nonsurgical management shall meet all of the guidelines of sub. (11) (a).

(b) Surgery is not necessary for the treatment of muscle pain syndromes.

(c) If the patient continues with symptoms and objective physical findings after initial nonsurgical management and if the patient’s condition prevents the resumption of the regular activities of daily life, including regular vocational activities, then the patient may be a candidate for chronic management. Any course or program of chronic management for patients with muscle pain syndromes shall be provided under the guidelines of s. DWD 81.13.

(15) Specific treatment guidelines for shoulder impingement syndromes.

(a) A health care provider shall use initial nonsurgical management for all patients with shoulder impingement syndromes without clinical evidence of rotator cuff tear, and this shall be the first phase of treatment. Any course or program of initial nonsurgical management shall meet all of the guidelines of sub. (11) (a), except for the following:

Continued nonsurgical management may be inappropriate, and early surgical evaluation may be necessary, for patients with any of the following:

a. Clinical findings of rotator cuff tear.

b. Acute rupture of the proximal biceps tendon.

Use of home-based treatment modalities with monitoring by a health care provider may continue for up to 6 months. At any time during this period the patient may be a candidate for chronic management if surgery is ruled out as necessary treatment.

(b) If the patient continues with symptoms and objective physical findings after 6 months of initial nonsurgical management and if the patient’s condition prevents the resumption of the regular activities of daily life, including regular vocational activities, then surgical evaluation or chronic management is necessary. Surgical evaluation and surgical therapy shall meet all of the guidelines of sub. (11) (b), with any of the following modifications:

Surgical evaluation shall begin no later than 6 months after beginning initial nonsurgical management.
Diagnostic injection, arthrography, computed tomography-arthrography, or magnetic resonance imaging scanning may be necessary as part of the surgical evaluation.
The only surgical procedures necessary for patients with shoulder impingement syndromes and related conditions are rotator cuff repair, acromioplasty, excision of distal clavicle, excision of bursa, removal of adhesion, or repair of proximal biceps tendon, all of which shall meet the guidelines of s. DWD 81.12 (2).

(c) If the patient continues with symptoms and objective physical findings after surgery, or the patient refused surgery or was not a candidate for surgery, and if the patient’s condition prevents the resumption of the regular activities of daily life including regular vocational activities, then the patient may be a candidate for chronic management. Any course or program of chronic management for patients with shoulder impingement syndromes shall be provided under the guidelines of s. DWD 81.13.

(16) Specific treatment guidelines for traumatic sprains and strains of the upper extremity.

(a) A health care provider shall use initial nonsurgical management for the first phase of treatment for all patients with traumatic sprains and strains of the upper extremity without evidence of complete tissue disruption. Any course or program of initial nonsurgical management shall meet all of the guidelines of sub. (11).

(b) Surgery is not necessary for the treatment of traumatic sprains and strains, unless there is clinical evidence of complete tissue disruption. Patients with complete tissue disruption may need immediate surgery.

(c) If the patient continues with symptoms and objective physical findings after 12 weeks of initial nonsurgical management and if the patient’s condition prevents the resumption of the regular activities of daily life, including regular vocational activities, then the patient may be a candidate for chronic management. Any course or program of chronic management for patients with traumatic sprains and strains shall be provided under the guidelines of s. DWD 81.13.

History

CR 07-019: cr. Register October 2007 No. 622, eff. 11-1-07.

Wis. Admin. Code § DWD 81.10 Complex regional pain syndrome of the upper and lower extremities {#sec-dwd-81.10 omnilex-key=us-wi-regs-official--agency-dwd--DWD 81.10}

(1) Scope.

(a) Complex regional pain syndrome of the upper and lower extremities encompasses any condition of the upper or lower extremity characterized by findings in all of the following categories:

One or more findings reported by the patient in 3 or more of the following categories:

a. Positive sensory abnormalities, which include spontaneous pain, mechanical hyperalgesia, thermal hyperalgesia, and deep somatic hyperalgesia.

b. Vascular abnormalities, which include vasodilation, vasoconstriction, skin temperature asymmetries, and skin color changes.

c. Swelling or sweating abnormalities.

d. Motor and trophic changes, which include motor weakness, tremor, abnormal movements, coordination deficits, nail changes, hair changes, skin atrophy, joint stiffness, and soft tissue changes.

One or more findings observed by the health care provider in 2 or more of the following categories:

a. Positive sensory abnormalities, which include spontaneous pain, mechanical hyperalgesia, thermal hyperalgesia, and deep somatic hyperalgesia.

b. Vascular abnormalities, which include vasodilation, vasoconstriction, skin temperature asymmetries, and skin color changes.

c. Edema or sweating abnormalities, which include swelling, hyperhidrosis, and hypohidrosis.

d. Motor and trophic changes, which include motor weakness, tremor, abnormal movements, coordination deficits, nail changes, hair changes, skin atrophy, joint stiffness, and soft tissue changes.

(b) Complex regional pain syndrome of the upper and lower extremities includes the diagnoses of complex regional pain syndrome, reflex sympathetic dystrophy, causalgia, Sudek’s atrophy, algoneurodystrophy, shoulder-hand syndrome, including ICD-9-CM codes 337.9, 354.4, and 733.7.

(c) Complex regional pain syndrome occurs as a complication of another preceding injury. The treatment guidelines of this section refer to the treatment of the body part affected by the complex regional pain syndrome. The treatment for any condition not affected by complex regional pain syndrome continues to be subject to whatever treatment guidelines otherwise apply. Any treatment under this section for complex regional pain syndrome may be in addition to treatment received for the original condition.

(d) Thermography may be used in the diagnosis of complex regional pain syndrome and is considered an adjunct to physical examination.

(e) For a patient with continued clinical signs and symptoms of complex regional pain syndrome, further diagnostic testing may be appropriate.

(2) Initial nonsurgical involvement.

(a) A health care provider shall use initial nonsurgical management for all patients with complex regional pain syndrome and this shall be the first phase of treatment. Any course or program of initial nonsurgical management is limited to the modalities specified in pars. (b) to (i).

(b) The only therapeutic injection modalities necessary for complex regional pain syndrome are sympathetic block, intravenous infusion of steroids or sympatholytics, or epidural block.

Unless medically contraindicated, sympathetic blocks or the intravenous infusion of steroids or sympatholytics shall be used if complex regional pain syndrome has continued for 4 weeks and the patient remains disabled as a result of the complex regional pain syndrome. All of the following guidelines apply to therapeutic injection modalities:

a. Time for treatment response is within 30 minutes.

b. Maximum treatment frequency permits a repeat injection at a site if there was a positive response to the first injection. If subsequent injections demonstrate diminishing control of symptoms or fail to facilitate objective functional gains, then injections shall be discontinued. Only 3 injections to different sites per patient visit.

c. Maximum treatment duration may be continued as long as injections control symptoms and facilitate objective functional gains if the period of improvement is progressively longer with each injection.

Epidural block may only be performed in patients who had an incomplete improvement with sympathetic block or intravenous infusion of steroids or sympatholytics.

(c) Only the passive treatment modalities set forth in pars. (d) to (g) are necessary. These passive treatment modalities in a clinical setting or requiring attendance by a health care provider are not necessary beyond 12 weeks from the first modality initiated for treatment of complex regional pain syndrome.

(d) For purposes of this paragraph, “thermal treatment” includes all superficial and deep heating and cooling modalities. Superficial thermal modalities include hot packs, hot soaks, hot water bottles, hydrocollators, heating pads, ice packs, cold soaks, infrared, whirlpool, and fluidotherapy. Deep thermal modalities include diathermy, ultrasound, and microwave. All of the following guidelines apply to thermal treatment:

Treatment given in a clinical setting:

a. Time for treatment response is 2 to 4 treatments.

b. Maximum treatment frequency is up to 5 times per week for the first one to 3 weeks, decreasing in frequency until the end of the maximum treatment duration period in subd. 1. c.

c. Maximum treatment duration is 12 weeks of treatment in a clinical setting but only if given in conjunction with other therapies specified in this subsection.

Home use of thermal modalities may be prescribed at any time during the course of treatment. Home use may only involve hot packs, hot soaks, hot water bottles, hydrocollators, heating pads, ice packs, and cold soaks that can be applied by the patient without professional assistance. Home use of thermal modalities may not require any special training or monitoring, other than that usually provided by a health care provider during an office visit.

(e) For purposes of this paragraph, “desensitizing procedures” includes stroking or friction massage, stress loading, and contrast baths. All of the following guidelines apply to desensitizing procedures:

Time for treatment response is 3 to 5 treatments.
Maximum treatment frequency in a clinical setting is up to 5 times per week for the first one to 2 weeks decreasing in frequency until the end of the maximum treatment duration period in subd. 3.
Maximum treatment duration in a clinical setting is 12 weeks. Home use of desensitizing procedures may be prescribed at any time during the course of treatment.

(f) For purposes of this paragraph, “electrical stimulation” includes galvanic stimulation, transcutaneous electrical nerve stimulation, interferential, and microcurrent techniques. All of the following guidelines apply to electrical stimulation treatment:

Treatment given in a clinical setting:

a. Time for treatment response is 2 to 4 treatments.

b. Maximum treatment frequency is up to 5 times per week for the first one to 3 weeks, decreasing in frequency until the end of the maximum treatment duration period in subd. 1. c.

c. Maximum treatment duration is 12 weeks of treatment in a clinical setting, but only if given in conjunction with other therapies.

Home use of an electrical stimulation device may be prescribed at any time during a course of treatment. Initial use of an electrical stimulation device shall be in a supervised setting in order to ensure proper electrode placement and patient education. All of the following guidelines apply to home use of an electrical stimulation device:

a. Time for patient education and training is one to 3 sessions.

(g) For purposes of this paragraph, “acupuncture treatments” include endorphin-mediated analgesic therapy that includes classic acupuncture and acupressure. All of the following guidelines apply to acupuncture treatments:

Time for treatment response is 3 to 5 sessions.
Maximum treatment frequency is up to 3 times per week for the first one to 3 weeks, decreasing in frequency until the end of the maximum treatment duration period in subd. 3.
Maximum treatment duration is 12 weeks.

(h) Active treatment includes supervised and unsupervised exercise. After the first week of treatment, initial nonsurgical management shall include exercise. Exercise is essential for a return to normal activity and shall include active patient participation in activities designed to increase flexibility, strength, endurance, or muscle relaxation. Exercise shall be specifically aimed at the involved musculature. Exercises shall be evaluated to determine if the desired goals are being attained. Strength, flexibility, or endurance shall be objectively measured. A health care provider may objectively measure the treatment response as often as necessary for optimal care.

‘Guidelines for supervised exercise.’ One goal of a supervised exercise program shall be to teach the patient how to maintain and maximize any gains experienced from exercise. Self-management of the condition shall be promoted. All of the following guidelines apply to supervised exercise:

a. Maximum treatment frequency is up to 5 times per week for 3 weeks and shall decrease in frequency until the end of the maximum treatment duration period in subd. 1. b.

b. Maximum duration is 12 weeks.

‘Guidelines for unsupervised exercise.’ Unsupervised exercise shall be provided in the least intensive setting and may supplement or follow the period of supervised exercise. Maximum duration is unlimited.

(i) Oral medications may be necessary in accordance with accepted medical practice.

(3) Surgery.

(a) Surgical sympathectomy may only be performed on a patient who had a sustained but incomplete improvement with sympathetic blocks by injection.

(b) There shall be appropriate psychological assessment prior to implantation of a spinal cord stimulator or intrathecal drug delivery system to determine whether the patient is a suitable candidate for this type of treatment.

(4) Chronic management. If the patient continues with symptoms and objective physical findings after surgery, or the patient refuses surgery, or the patient was not a candidate for surgery, and if the patient’s condition prevents the resumption of the regular activities of daily life including regular vocational activities, then the patient may be a candidate for chronic management. Any course or program of chronic management for patients with complex regional pain syndrome shall be provided under the guidelines of s. DWD 81.13.

History

CR 07-019: cr. Register October 2007 No. 622, eff. 11-1-07.

Wis. Admin. Code § DWD 81.11 Inpatient hospitalization guidelines {#sec-dwd-81.11 omnilex-key=us-wi-regs-official--agency-dwd--DWD 81.11}

(1) General principles.

(a) For purposes of this chapter, hospitalization is characterized as inpatient if the patient spends at least one night in a hospital, except for a patient in outpatient short stay status recovering after surgery for less than 24 hours or a patient in observation status.

(b) Unless a patient’s condition requires special care, only ward or semiprivate accommodations are necessary. The admitting health care provider shall document the patient’s special care needs.

(c) Admission before the day of surgery is necessary only if it is medically necessary to stabilize the patient before surgery. Admission before the day of surgery to perform any part of a preoperative work-up that could have been completed as an outpatient is not necessary.

(d) Inpatient hospitalization solely for physical therapy, bedrest, or administration of injectable drugs is necessary only if the treatment is otherwise necessary and the patient’s condition makes the patient unable to perform the activities of daily life and participate in the patient’s own treatment and self-care.

(e) Discharge from the hospital shall be at the earliest possible date consistent with proper health care.

(2) Specific guidelines for hospital admission of patients with low back pain.

(a) A health care provider shall direct hospitalization for low back pain in the circumstances in pars. (b) to (e).

(b) When the patient experiences incapacitating pain as evidenced by inability to mobilize for activities of daily living, for example unable to ambulate to the bathroom, and, in addition, the intensity of service during admission meets any of the following:

Physical therapy is necessary at least twice daily for assistance with mobility. Heat, cold, ultrasound, and massage therapy alone do not meet this criterion.
Muscle relaxants or narcotic analgesics are necessary intramuscularly or intravenously for a minimum of 3 injections in 24 hours. Need for parenteral analgesics is determined by any of the following:

a. An inability to take oral medications or diet by mouth.

b. An inability to achieve relief with aggressive oral analgesics.

(c) For surgery that is otherwise necessary according to s. DWD 81.12 (1) and is appropriately scheduled as an inpatient procedure.

(d) For evaluation and treatment of cauda equina syndrome according to s. DWD 81.06 (13).

(e) For evaluation and treatment of foot drop or progressive neurologic deficit according to s. DWD 81.06 (13).

History

CR 07-019: cr. Register October 2007 No. 622, eff. 11-1-07.

Wis. Admin. Code § DWD 81.12 Guidelines for surgical procedures {#sec-dwd-81.12 omnilex-key=us-wi-regs-official--agency-dwd--DWD 81.12}

(1) Spinal surgery.

(a) General. In addition to this section, initial nonsurgical, surgical and chronic management guidelines are also in s. DWD 81.06, relating to low back pain; s. DWD 81.07, relating to neck pain; and s. DWD 81.08, relating to thoracic back pain.

(b) Surgical decompression of lumbar nerve root or roots. Surgical decompression of a lumbar nerve root or roots includes all of the following lumbar procedures: laminectomy, laminotomy, discectomy, microdiscectomy, percutaneous discectomy, or foraminotomy. The procedure at each nerve root is subject independently to the requirements of subds. 1. and 2.

A health care provider may perform surgical decompression of a lumbar nerve root for any of the following diagnoses:

a. Intractable and incapacitating regional low back pain with positive nerve root tension signs and an imaging study showing displacement of lumbar intervertebral disc that impinges significantly on a nerve root or the thecal sac, ICD-9-CM code 722.10.

b. Sciatica, ICD-9-CM code 724.3.

c. Lumbosacral radiculopathy or radiculitis, ICD-9-CM code 724.4.

Any of the following conditions in this subdivision and any of the conditions in subd. 3. shall be satisfied to indicate that the surgery is reasonably required. For the response to nonsurgical care, the patient’s condition includes one of the following:

a. Failure to improve with a minimum of 8 weeks of initial nonsurgical care.

b. Cauda equina syndrome, ICD-9-CM code 344.6, 344.60, or 344.61.

c. Progressive neurological deficits.

The patient exhibits one of the clinical findings of subd. 3. a. in combination with the test results of subd. 3. b. or, in the case of diagnosis in subd. 1. a., a decompression of the lumbar nerve root is the appropriate treatment for the patient’s condition.

a. Subjective sensory symptoms in a dermatomal distribution that may include radiating pain, burning, numbness, tingling, or paresthesia, or objective clinical findings of nerve root specific motor deficit, including foot drop or quadriceps weakness, reflex changes, or positive electromyography.

b. Medical imaging test results that correlate with the level of nerve root involvement consistent with both the subjective and objective findings.

(c) Surgical decompression of a cervical nerve root. Surgical decompression of a cervical nerve root or roots includes all of the following cervical procedures: laminectomy, laminotomy, discectomy, foraminotomy with, or without, fusion. For decompression of multiple nerve roots, the procedure at each nerve root is subject to the guidelines of subds. 1. and 2.

A health care provider may perform surgical decompression of a cervical nerve root for any of the following diagnoses:

a. Displacement of cervical intervertebral disc, ICD-9-CM code 722.0, excluding fracture.

b. Cervical radiculopathy or radiculitis, ICD-9-CM code 723.4, excluding fracture.

Any of the requirements in this subdivision and any of the requirements in subd. 3. shall be satisfied to indicate that surgery is reasonably required. For the response to nonsurgical care, the patient’s condition includes any of the following:

a. Failure to improve with a minimum of 8 weeks of initial nonsurgical care.

b. Cervical compressive myelopathy.

c. Progressive neurologic deficits.

The patient exhibits one of the clinical findings of subd. 3. a. in combination with the test results of subd. 3. b.

a. Subjective sensory symptoms in a dermatomal distribution that may include radiating pain, burning, numbness, tingling or paresthesia, or objective clinical findings of nerve root specific motor deficit, reflex changes, or positive electromyography.

b. Medical imaging test results that correlate with the level of nerve root involvement consistent with both the subjective and objective findings.

(d) Lumbar arthrodesis with or without instrumentation. A health care provider may perform surgery for a lumbar arthrodesis when any of the following diagnoses are present to indicate that the surgery is reasonably required:

Unstable lumbar vertebral fracture, ICD-9-CM codes 805.4, 805.5, 806.4, and 806.5.
For a second or third surgery only, documented reextrusion or redisplacement of lumbar intervertebral disc, ICD-9-CM code 722.10, after previous successful disc surgery at the same level and new lumbar radiculopathy with or without incapacitating back pain, ICD-9-CM code 724.4. Documentation under this subdivision shall include a magnetic resonance imaging scan or computed tomography scan or a myelogram.
Traumatic spinal deformity including a history of compression or wedge fracture or fractures, ICD-9-CM code 733.1, and demonstrated acquired kyphosis or scoliosis, ICD-9-CM codes 737.1, 737.10, 737.30, 737.41, and 737.43.
Incapacitating low back pain, ICD-9-CM code 724.2, for longer than 3 months, and any of the following conditions involving lumbar segments L-3 and below is present:

a. For the first surgery only, degenerative disc disease, ICD-9-CM code 722.4, 722.5, 722.6, or 722.7, with postoperative documentation of instability created or found at the time of surgery, or positive discogram at one or 2 levels.

b. Pseudoarthrosis, ICD-9-CM code 733.82.

c. For the second or third surgery only, previously operated disc.

d. Spondylolisthesis.

A health care provider may not perform a lumbar arthrodesis as the first primary surgical procedure for a new, acute lumbosacral disc herniation with unilateral radiating leg pain in a radicular pattern with or without neurological deficit.

(2) Upper extremity surgery.

(a) General. Initial nonsurgical, surgical, and chronic management guidelines for upper extremity disorders are set forth in s. DWD 81.09 (1) to (16).

(b) Rotator cuff repair. A health care provider may perform rotator cuff surgery for any of the following diagnoses:

Rotator cuff syndrome of the shoulder, ICD-9-CM code 726.1, and allied disorders, including unspecified disorders of shoulder bursae and tendons, ICD-9-CM code 726.10; calcifying tendinitis of shoulder, ICD-9-CM code 726.11; bicipital tenosynovitis, ICD-9-CM code 726.12; and other specified disorders, ICD-9-CM code 726.19.
Tear of rotator cuff, ICD-9-CM code 727.61.

(c) Criteria and indications for rotator cuff repair. In addition to one of the diagnoses in par. (b), both of the following conditions shall be satisfied to indicate that surgery for rotator cuff repair is necessary:

The patient’s condition failed to improve in response to nonsurgical care with adequate initial nonsurgical treatment.
The patient’s clinical findings exhibit any of the following:

a. Severe shoulder pain and inability to elevate the shoulder.

b. Weak or absent abduction and tenderness over rotator cuff or pain relief obtained with an injection of anesthetic for diagnostic or therapeutic trial.

c. Positive findings in arthrogram, magnetic resonance imaging scan, or ultrasound, or positive findings on previous arthroscopy, if performed.

(d) Acromioplasty diagnosis. A health care provider may perform acromioplasty for the diagnosis of acromial impingement syndrome, ICD-9-CM codes 726.0 to 726.2. In addition to the diagnosis in this paragraph, both of the following conditions shall be satisfied to indicate that surgery is necessary:

The patient’s condition has failed to improve in response to nonsurgical care after adequate initial nonsurgical care.
The patient’s clinical findings exhibit pain with active elevation from 90 to 130 degrees, pain at night, and a positive impingement test.

(e) Repair of acromioclavicular or costoclavicular ligaments. A health care provider may perform surgical repair of acromioclavicular or costoclavicular ligaments for the diagnosis of acromioclavicular separation, ICD-9-CM codes 831.04 to 831.14.

In addition to the diagnosis in this paragraph, the guidelines in subds. 2. and 3. shall be satisfied for repair of acromioclavicular or costoclavicular ligaments.
The patient’s condition or response to nonsurgical care includes any of the following:

a. Failure to improve after at least a one-week trial period in a support brace.

b. Separation cannot be reduced and held in a brace.

c. Grade III separation has occurred.

The patient’s clinical findings exhibit localized pain at the acromioclavicular joint and prominent distal clavicle and radiographic evidence of separation at the acromioclavicular joint.

(f) Excision of distal clavicle diagnosis. A health care provider may perform excision of the distal clavicle for any of the following diagnoses specified in subd. 1. to 3.:

Acromioclavicular separation, ICD-9-CM codes 831.01 to 831.14.
Osteoarthrosis of the acromioclavicular joint, ICD-9-CM codes 715.11, 715.21, and 715.31.
Shoulder impingement syndrome.

(g) Criteria and indications for excision of distal clavicle. In addition to one of the diagnosis in par. (f), all of the following conditions shall be satisfied for excision of distal clavicle:

The patient’s condition failed to improve in response to nonsurgical care with adequate initial nonsurgical care.
The patient’s clinical findings exhibit any of the following:

a. Pain at the acromioclavicular joint, with aggravation of pain with motion of shoulder or carrying weight.

b. Confirmation that separation of the acromioclavicular joint is unresolved and prominent distal clavicle, or pain relief obtained with an injection of anesthetic for diagnostic or therapeutic trial.

c. Separation at the acromioclavicular joint with weight-bearing films or severe degenerative joint disease at the acromioclavicular joint noted on X-rays.

(h) Repair of shoulder dislocation or subluxation, any procedure.

A health care provider may perform surgical repair of a shoulder dislocation for any of the following diagnoses:

a. Recurrent dislocations, ICD-9-CM code 718.31.

b. Recurrent subluxations.

c. Persistent instability following traumatic dislocation.

In addition to one of the diagnoses in this paragraph, all of the following clinical findings shall exist for repair of a shoulder dislocation:

a. The patient exhibits a history of multiple dislocations or subluxations that inhibit activities of daily living.

b. X-ray findings are consistent with multiple dislocations or subluxations.

(i) Repair of proximal biceps tendon.

A health care provider may perform surgical repair of a proximal biceps tendon for the diagnosis of proximal rupture of the biceps, ICD-9-CM code 727.62 or 840.8.
In addition to the diagnosis in subd. 1., both of the following conditions shall be satisfied for repair of proximal biceps tendon:

a. The procedure may be done alone or in conjunction with another necessary repair of the rotator cuff.

b. The patient’s clinical findings exhibit pain that does not resolve with attempt to use arm and palpation of “bulge” in upper aspect of arm.

(j) Epicondylitis. Specific guidelines for surgery for epicondylitis are included in s. DWD 81.09 (11).

(k) Tendinitis. Specific guidelines for surgery for tendinitis are included in s. DWD 81.09 (12).

(L) Nerve entrapment syndromes. Specific guidelines for nerve entrapment syndromes are included in s. DWD 81.09 (13).

(m) Muscle pain syndromes. Surgery is not necessary for muscle pain syndromes.

(n) Traumatic sprains and strains. Surgery is not necessary for the treatment of traumatic sprains and strains, unless there is clinical evidence of complete tissue disruption. Patients with complete tissue disruption may need immediate surgery.

(3) Lower extremity surgery.

(a) Anterior cruciate ligament reconstruction.

A health care provider may perform surgical repair of the anterior cruciate ligament, including arthroscopic repair, for any of the following diagnoses:

a. Old disruption of anterior cruciate ligament, ICD-9-CM code 717.83.

b. Sprain of cruciate ligament of knee, ICD-9-CM code 844.2.

In addition to one of the diagnoses in this paragraph, all of the conditions in subd. 2. a. to c. shall be satisfied for anterior cruciate ligament reconstruction. Pain alone is not an indication.

a. The patient gives a history of instability of the knee described as “buckling or giving way” with significant effusion at time of injury, or description of injury indicates a rotary twisting or hyperextension occurred.

b. There are objective clinical findings of positive Lachman’s sign, positive pivot shift, or positive anterior drawer.

c. There are positive diagnostic findings with arthrogram, magnetic resonance imaging scan, or arthroscopy, and there is no evidence of severe compartmental arthritis.

(b) Patellar tendon realignment.

A health care provider may perform patellar tendon realignment for the diagnosis of dislocation of patellar, open, ICD-9-CM code 836.3; or closed, ICD-9-CM code 836.4; or chronic residuals of dislocation.
In addition to the diagnosis in this paragraph, all of the following conditions shall be satisfied for a patellar tendon realignment:

a. The patient gives a history of rest pain as well as pain with patellofemoral movement, and recurrent effusion, or recurrent dislocation.

b. There are objective clinical findings of patellar apprehension, synovitis, lateral tracking, or Q angle greater than 15 degrees.

A health care provider may perform a knee joint replacement for degeneration of articular cartilage or meniscus of knee, ICD-9-CM codes 717.1 to 717.4.
In addition to the diagnosis in this paragraph, all of the following conditions shall be satisfied for a knee joint replacement:

a. The patient exhibits limited range of motion, night pain in the joint, or pain with weight-bearing, and no significant relief of pain with an adequate course of initial nonsurgical care.

b. The patient’s diagnostic findings confirm there is significant loss or erosion of cartilage to the bone, and positive findings of advanced arthritis, and joint destruction with standing films, magnetic resonance imaging scan, or arthroscopy.

(d) Fusion; ankle, tarsal, metatarsal.

A health care provider may perform an ankle, tarsal, or metatarsal fusion for either of the following diagnoses:

a. Malunion or nonunion of fracture of ankle, tarsal, or metatarsal, ICD-9-CM code 733.81 or 733.82.

b. Traumatic arthritis, arthropathy, ICD-9-CM code 716.17.

In addition to one of the diagnoses in this paragraph, the following conditions shall be satisfied for an ankle, tarsal, or metatarsal fusion. For initial nonsurgical care the patient shall have failed to improve with an adequate course of initial nonsurgical care that included any of the following:

a. Immobilization, which may include casting, bracing, shoe modification, or other orthotics.

b. Anti-inflammatory medications.

The patient’s clinical findings exhibit both of the following and subd. 4.:

a. The patient gives a history of pain which is aggravated by activity and weight-bearing, and relieved by xylocaine injection.

b. There are objective findings on physical examination of malalignment or specific joint line tenderness, and decreased range of motion.

The patient’s diagnostic findings include medical imaging studies confirming the presence of any of the following:

a. Loss of articular cartilage and joint space narrowing.

b. Bone deformity with hypertrophic spurring and sclerosis.

c. Nonunion or malunion of a fracture.

(e) Lateral ligament ankle reconstruction.

A health care provider may perform ankle reconstruction surgery involving the lateral ligaments for any of the following diagnoses:

a. Chronic ankle instability, ICD-9-CM code 718.87.

b. Grade III sprain, ICD-9-CM codes 845.0 to 845.09.

In addition to one of the diagnoses in subd. 1., all of the clinical findings in subd. 3. shall be satisfied for a lateral ligament ankle reconstruction. For initial nonsurgical care, the patient shall have received an adequate course of initial nonsurgical care, including one of the following:

a. Immobilization with support, cast, or ankle brace.

b. A physical rehabilitation program that follows immobilization with support, cast, or ankle brace.

The patient’s clinical findings shall include all of the following:

a. The patient gives a history of ankle instability and swelling.

b. There is a positive anterior drawer sign on examination.

c. There are positive stress X-rays identifying motion at ankle or subtalar joint with at least a 15 degree lateral opening at the ankle joint, or demonstrable subtalar movement, and negative to minimal arthritic joint changes on X-ray, or ligamentous injury is shown on magnetic resonance imaging scan.

Prosthetic ligaments are not necessary for the treatment of lateral ligament ankle reconstruction.

History

CR 07-019: cr. Register October 2007 No. 622, eff. 11-1-07.

Wis. Admin. Code § DWD 81.13 Chronic management {#sec-dwd-81.13 omnilex-key=us-wi-regs-official--agency-dwd--DWD 81.13}

(1) Scope. This section applies to chronic management of all types of physical injuries, even if the injury is not specifically governed by this chapter. If a patient continues with symptoms and physical findings after all appropriate initial nonsurgical and surgical treatment has been rendered, and if the patient’s condition prevents the resumption of the regular activities of daily life including regular vocational activities, then the patient may be a candidate for chronic management. The purpose of chronic management is twofold: the patient should be made independent of health care providers in the ongoing care of a chronic condition; and the patient shall be returned to the highest functional status reasonably possible.

(a) Personality or psychological evaluation may be necessary for patients who are candidates for chronic management. A treating health care provider may perform this evaluation or may refer the patient for consultation with another health care provider in order to obtain a psychological evaluation. These evaluations may be used to assess the patient for a number of psychological conditions that may interfere with recovery from the injury. Since more than one of these psychological conditions may be present in a given case, a health care provider performing the evaluation shall consider all of the following:

Is symptom magnification occurring?
Does the patient exhibit an emotional reaction to the injury, such as depression, fear, or anger, that is interfering with recovery?
Are there other personality factors or disorders that are interfering with recovery?
Is the patient chemically dependent?
Are there any interpersonal conflicts interfering with recovery?
Does the patient have a chronic pain syndrome or psychogenic pain?
In cases in which surgery is a possible treatment, are psychological factors likely to interfere with the potential benefit of the surgery?

(b) Any of the chronic management modalities of sub. (2) may be used singly or in combination as part of a program of chronic management.

(c) No further passive treatment modalities or therapeutic injections are necessary, except as otherwise provided in ss. DWD 81.06 (3) (b), 81.07 (3) (b), 81.08 (3) (b), and 81.09 (3) (b).

(d) No further diagnostic evaluation is necessary unless there is the development of symptoms or physical findings that would in themselves warrant diagnostic evaluation.

(e) A program of chronic management shall include appropriate means by which use of scheduled medications can be discontinued or severely limited.

(2) Chronic management modalities.

(a) Home-based exercise programs. Home-based exercise programs consist of aerobic conditioning, stretching, and flexibility exercises, and strengthening exercises done by the patient on a regular basis at home without the need for supervision or attendance by a health care provider. Maximum effectiveness may require the use of certain durable medical equipment that may be prescribed within any applicable treatment guidelines in ss. DWD 81.06 to 81.10.

‘Indications.’ Exercise is necessary on a long-term basis to maintain function.
‘Guidelines.’ The patient shall receive specific instruction and training in the exercise program. Repetitions, durations, and frequencies of exercises shall be specified.
‘Treatment.’ Treatment period is one to 3 visits for instruction and monitoring.

(b) Health clubs.

‘Indications.’ The patient is deconditioned and requires a structured environment to perform prescribed exercises. A health care provider shall document the reasons why reconditioning may not be accomplished with a home-based program of exercise.
‘Guidelines.’ The program shall have specific prescribed exercises stated in objective terms, for example “30 minutes riding stationary bicycle three times per week.” There shall be a specific set of prescribed activities and a specific timetable of progression in those activities, designed so that the goals can be achieved in the prescribed time. There shall be a prescribed frequency of attendance and the patient shall maintain adequate documentation of attendance. There shall be a prescribed duration of attendance.
‘Treatment.’ Treatment period is 13 weeks. Additional periods of treatment at a health club are not necessary unless there is documentation of attendance and progression in activities during the preceding period of treatment. If the employer has an appropriate exercise facility on its premises the insurer may mandate use of that facility instead of providing a health club membership.

(c) Computerized exercise programs. Computerized exercise programs utilize computer-controlled exercise equipment that allows for the isolation of specific muscle groups and the performance of graded exercise designed to increase strength, tone, flexibility, and range of motion. In combination with computerized range of motion or strength measuring tests, these programs allow for quantitative measurement of effort and progress.

‘Indications.’ The patient is deconditioned and requires a structured environment to accomplish rehabilitation goals. A health care provider shall document the reasons why reconditioning may not be accomplished with a home-based program of exercise.
‘Guidelines.’ The program shall have specific goals stated in objective terms, for example “improve strength of back extensors 50%.” There shall be a specific set of prescribed activities and a specific timetable of progression in those activities, designed so that the goals may be achieved in the prescribed time. There shall be a prescribed frequency and duration of attendance.
‘Treatment.’ Treatment period is 6 weeks. Additional periods of treatment are not necessary unless there is documentation of attendance and progression in activities during the preceding period of treatment.

(d) Work conditioning and work hardening programs. Work conditioning and work hardening programs are intensive, highly structured, job oriented, individualized treatment plans based on an assessment of the patient’s work setting or job demands, and designed to maximize the patient’s return to work. These programs shall include real or simulated work activities. Work conditioning is designed to restore an individual’s neuromusculoskeletal strength, endurance, movement, flexibility, motor control, and cardiopulmonary function. Work conditioning uses physical conditioning and functional activities related to the individual’s work. Services may be provided by one discipline of health care provider. Work hardening is designed to restore an individual’s physical, behavioral, and vocational functions within an interdisciplinary model. Work hardening addresses the issues of productivity, safety, physical tolerances, and work behaviors. An interdisciplinary team includes professionals qualified to evaluate and treat behavioral, vocational, physical, and functional needs of the individual.

‘Indications.’ The patient is disabled from usual work and requires reconditioning for specific job tasks or activities and the reconditioning cannot be done on the job. A health care provider shall document the reasons why work hardening cannot be accomplished through a structured return to work program. Work conditioning is necessary when only physical and functional needs are identified. Work hardening is necessary when, in addition to physical and functional needs, behavioral, and vocational needs are also identified that are not otherwise being addressed.
‘Guidelines.’ The program shall have specific goals stated in terms of work activities, for example “able to type for 30 minutes.” There shall be an individualized program of activities and the activities shall be chosen to simulate required work activities or to enable the patient to participate in simulated work activities. There shall be a specific timetable of progression in those activities, designed so that the goals may be achieved in the prescribed time. There shall be a set frequency and hours of attendance and the program shall maintain adequate documentation of attendance. There shall be a set duration of attendance. Activity restrictions shall be identified at completion of the program.
‘Treatment.’ The treatment period for a work conditioning or work hardening program is 6 weeks. Additional periods of treatment are not necessary unless there is documentation of attendance and progression in activities during the preceding period of treatment or unless there has been a change in the patient’s targeted return to work job that necessitates a redesign of the program.

(e) Chronic pain management programs. A chronic pain management program consists of a multidisciplinary team who provides coordinated, goal-oriented services to reduce pain, disability, improve functional status, promote return to work, and decrease dependence on the health system of persons with chronic pain syndrome. A pain management program shall provide physical rehabilitation, education on pain, relaxation training, psychosocial counseling, medical evaluation, and, if necessary, chemical dependency evaluation. The program of treatment shall be individualized and based on an organized evaluative process for screening and selecting patients. Treatment may be provided in an inpatient setting, outpatient setting, or both as appropriate.

‘Indications.’ The patient is diagnosed as having a chronic pain syndrome.
‘Guidelines.’ An admission evaluation shall be performed by a health care provider. The evaluation shall confirm the diagnosis of chronic pain syndrome and a willingness and ability of the patient to benefit from a pain management program. There shall be a specific set of prescribed activities and treatments and a specific timetable of progression in those activities. There shall be a set frequency and hours of attendance and the program shall maintain adequate documentation of attendance. There shall be a set duration of attendance.
‘Treatment.’ Treatment period is for initial treatment, a maximum of 20 eight-hour days, though fewer or shorter days may be used, and a maximum duration of 4 weeks no matter how many or how long the days prescribed. For aftercare, a maximum of 12 sessions is allowed. Only one completed pain management program is necessary for an injury.

(f) Individual or group psychological or psychiatric counseling.

‘Indications.’ A personality or psychosocial evaluation has revealed one or more of the problems listed in sub. (1) (a) that interfere with recovery from the physical injury, but the patient does not need or is not a candidate for a pain management program.
‘Guidelines.’ There shall be a specific set of goals based on the initial personality or psychosocial evaluation and a timetable for achieving those goals within the prescribed number of treatment or therapy sessions. There shall be a prescribed frequency of attendance and a treating health care provider shall maintain adequate documentation of attendance. There shall be a prescribed duration of treatment.
‘Treatment.’ Treatment period is a maximum of 12 sessions. Only one completed program of individual or group psychological or psychiatric counseling is necessary for an injury.

History

CR 07-019: cr. Register October 2007 No. 622, eff. 11-1-07.

Wis. Admin. Code § DWD 81.14 Health care provider advisory committee {#sec-dwd-81.14 omnilex-key=us-wi-regs-official--agency-dwd--DWD 81.14}

(1) The department shall establish a health care services provider committee to advise the department and the council on worker’s compensation on modification of the treatment standards under this chapter. The administrator of the worker’s compensation division shall serve as chairperson. The committee shall consist of 14 members, including 6 medical doctors of different specialties, 2 chiropractors, 2 hospital representatives, one registered nurse, one physical therapist, and 2 at-large members, all of whom are licensed in and practicing in Wisconsin and provide treatment under s. 102.42, Stats. The appointments to the committee shall be made from a consensus list of 24 names submitted by the Wisconsin Medical Society, Wisconsin Chiropractic Association, and the Wisconsin Hospital Association, except for the 2 at-large members, who shall be selected by the department.

(2) In modifying this chapter, the committee shall consider the following:

(a) Clarifying the description of the guidelines under this chapter.

(b) Updating the guidelines at least every 4 years to include new modalities of treatment, procedures, and treatment options for classes of injuries included in the guidelines.

History

CR 07-019: cr. Register October 2007 No. 622, eff. 11-1-07.

Chapter DWD 100 DEFINITIONS

Wis. Admin. Code § DWD 100.01 General rule {#sec-dwd-100.01 omnilex-key=us-wi-regs-official--agency-dwd--DWD 100.01}

Except as otherwise provided or where the context clearly requires otherwise, the definitions in ch. 108, Stats., shall apply to the terms used in chs. DWD 100 to 150.

History

1-2-56; renum. to be ILHR 100.01 under s. 13.93 (2m) (b) 1. and 2., Stats., Register, August, 1987, No. 380; am. Register, October, 1994, No. 466, eff. 11-1-94, am. Register, September, 1995, No. 477, eff. 10-1-95.

Wis. Admin. Code § DWD 100.02 Definitions {#sec-dwd-100.02 omnilex-key=us-wi-regs-official--agency-dwd--DWD 100.02}

In chs. DWD 100 to 150, the following words and phrases have the designated meanings unless a different meaning is expressly provided or the context clearly indicates a different meaning:

(3) “Agricultural labor” has the meaning specified in s. 108.02 (2), Stats.

(4) “Asset” means any resource of the transferor used in the business, whether owned or not and whether tangible or intangible, including real estate, inventories, machinery and equipment, furniture and fixtures, contracts, franchises, licenses, goodwill, accounts receivable, contracts for leased employees and customer lists. The outstanding shares of stock of an employer which is a corporation are not assets of the issuing corporation for purposes of s. 108.16 (8), Stats.

(5) “Base period” has the meaning specified in s. 108.02 (4), Stats.

(6) “Benefit year” has the meaning specified in s. 108.02 (5), Stats.

(7) “Business activity” includes the product or the service provided by a business.

(8) “Carrier” means a person engaged in the hauling of passengers or freight by motor vehicle and includes a person engaged as a “common motor carrier”, under s. 194.01 (1), Stats., as a “contract motor carrier”, under s. 194.01 (2), Stats., or as a “private motor carrier”, under s. 194.01 (11), Stats.

(9) “Commission” means the labor and industry review commission.

(11) “Constructively paid” means credited to or set apart for an employee without any substantial limitation or restriction as to the time or manner of payment or condition upon which payment may be made, such that the amounts so credited or set aside are available for the employee to draw upon at any time.

(12) “Contract operator” means an individual who contracts to lease a motor vehicle to a carrier for use in the carrier’s business.

(13) “Contribution report” means the written document or electronic transmission, submitted in the manner prescribed by the department, in which an employer makes a quarterly report of total employment or wages or both to the department.

(14) “Covered wages” means wages less the exclusion under s. 108.02 (15) (L), Stats., and any applicable exclusions under s. 108.02 (15) (f) to (k), Stats., unless the wages attributed to an exclusion under s. 108.02 (15) (f) to (k), Stats., are subject to a tax under the Federal Unemployment Tax Act and are not subject to a tax under any other unemployment insurance law.

(15) “Customary occupation” means the occupation for which a claimant is most qualified based on the claimant’s skills, abilities, training, education and work experience.

(15m) “Decision” means a written resolution by an appeal tribunal of an appeal from a determination or a written resolution of a petition for review by the commission or a written resolution of an action for judicial review by a court of competent jurisdiction.

(16) “Department” means the department of workforce development.

(16f) “Determination” means an initial determination issued under s. 108.09, 108.095, or 108.10 (1), Stats.

(16m) ‘‘Disaster” means a fire, flood, or other physical occurrence beyond the employer’s control that is caused naturally or accidentally.

(18) “Employee” has the meaning specified in s. 108.02 (12), Stats.

(19) “Employer” has the meaning specified in s. 108.02 (13), Stats.

(20) “Employer’s account” has the meaning specified in s. 108.02 (14), Stats.

(21) “Employing unit” means any employer or any other person who engages one or more individuals to perform services for pay, whether or not that person is subject to the reimbursement financing or contribution requirements of ch. 108, Stats.

(22) “Employment” has the meaning specified in s. 108.02 (15), Stats.

(23) “Employment relationship” means a relationship between an employee and an employer in which the employee performs services for pay for the employer under an informal or formal agreement of employment and which continues when the employment is temporarily suspended for a definite, discernible period of time.

(24) “FUTA” means the federal unemployment tax act, subtitle C, ch. 23 of the internal revenue code, 26 USC 3301 to 3311.

(27) “Forest products manufacturer” means a business engaged in the processing of logs, and includes pulp mills, saw mills or other manufacturing plants.

(29) “Government unit” has the meaning specified in s. 108.02 (17), Stats.

(35) “Labor market area” means a geographical area in which there are jobs deemed to be suitable work for the claimant and which encompasses the geographical area in which workers with similar occupational skills customarily travel to obtain or perform suitable work.

(36) “Lag period” means the period between the end of the base period and the valid new claim week under s. 108.02 (25m), Stats.

(37) “Logging contractor” means a person who contracts for the cutting of timber, the hauling of logs or the skidding of logs, purchases timber to cut, or sells unmanufactured forest products.

(38) “Motor vehicle” has the meaning designated in s. 194.01 (7), Stats.

(39) “Multiemployer benefit plan” means a benefit plan maintained pursuant to one or more collective bargaining agreements between 2 or more employers and one or more employee organizations under which each employer makes contributions to provide sickness or accident disability payments through the plan to eligible employees or their dependents.

(40) “Nonprofit organization” has the meaning specified in s. 108.02 (19), Stats.

(41) “Partial unemployment” and “partially unemployed” have the meaning designated in s. 108.02 (20), Stats.

(42) “Payroll” has the meaning specified in s. 108.02 (21), Stats.

(43) “Payroll base” means the applicable amount under s. 108.02 (21) (b) or (c), Stats., paid by an employer during a calendar year to an individual, including any wages paid for any work covered by the unemployment insurance law of any other state, which is payroll under s. 108.02 (21), Stats.

(44) “Penalty” includes any tardy payment fee or late filing fee provided for in ch. 108, Stats., and a forfeiture assessed under s. 108.04 (11) (c), Stats., but does not include any fine or restitution arising under s. 108.24, Stats.

(45) “Piece cutter” means a person who fells timber, removes branches from timber, saws timber into logs, or stacks logs.

(47) “Public housing agency” means any state, county, municipality, or other governmental entity or public body, or agency or instrumentality thereof, which is authorized by the U.S. department of housing and urban development to engage in or assist in the development or operation of low-income housing.

(48) “Quarter” has the meaning designated in s. 108.02 (21m), Stats.

(49) “Reemployment services” means job search assistance and job placement services, such as: assessment, testing, counseling, provision of occupational and labor market information, job search workshops, referrals to potential employers, and other similar services.

(50) “Representative of the department” means any person employed by the department of workforce development who has job duties involving the taking, processing or adjudication of benefit claims.

(56) “Shipper” means a customer of the carrier who arranges or contracts for the transportation of goods.

(57) “Sickness or accident disability payment” means any payment made on account of sickness or accident disability which is considered wages under s. 108.02 (26), Stats.

(58) “Similar work” means work in a claimant’s labor market which, when compared with a particular job, has substantially equivalent duties and responsibilities and requires substantially equivalent skills, abilities and knowledge.

(59) “Skidding operator” means a person who removes logs from the woods to a roadside landing or other collection point for hauling.

(60) “Successor” means the transferee when a transfer of a business has occurred under ch. DWD 115 and ch. 108, Stats., and when either the department finds successorship status under s. 108.16 (8) (c), (d) or (e), Stats., or the transferee requests successorship status under s. 108.16 (8) (b), Stats.

(61) “Suitable work” means work that is reasonable considering the claimant’s training, experience, and duration of unemployment as well as the availability of jobs in the labor market.

(67) “Unemployment insurance record” means any material that contains, records, or preserves written, drawn, printed, spoken, visual, digital, or electromagnetic information, regardless of physical form or characteristics:

(a) Relating to the wages earned by a worker from one or more employing units including supporting data, and which has been created or is being kept by the department in connection with the administration of ch. 108, Stats., or as required by federal law, and also includes the record on which an employer makes a quarterly report of total employment or wages or both to the department;

(b) Relating to records kept by the department in connection with the processing of a claim for benefits under ch. 108, Stats., or for other benefits or allowances under similar programs administered by the department pursuant to federal law; and

(c) Relating to records kept by the department concerning employers and employing units including but not limited to audit records, coverage records, successorship records, rating records, collection records, and related correspondence.

(70) “Wages” has the meaning designated in s. 108.02 (26), Stats.

(71) “Week” has the meaning designated in s. 108.02 (27), Stats.

History

Renum. (2) (a), (b) and (d) from ILHR 101.001 (1), (2) and (4), cr. (1) and (2) (c), Register, October, 1994, No. 466, eff. 11-1-94, r. (2), (intro.), (b) and (c), cr. (25), (26) and (33), renum. (1) (a) to (j) to be (2), (5), (6), (15), (16), (19), (28), (34), (35) and (36), (1) (l) to (41), (1) (n) and (o) to (49) and (50), (1) (q) to (u) to be (61), (62), (70), (71) and (72), (2) (a) and (d) to (3) and (24), renum. (1) (intro.), (k), (m), (p) to 100.02 (intro.), (66), (46), (58) and am., renum. (11), (13) (14) and (21) from 110.001 (1), (7), (2) and (8) and am., renum. (60) and (63) from 115.001(9) and (10) and am., renum. (53) and (54) from 132.001 (7) and (8) and am., renum. (1) and (32) from 140.001 (1) and (5) and am., renum. (18), (20), (22), (29), (39), (40), (42) and (57) from 110.001 (4), (6) and (9) to (14), renum. (4), (7), (43), (64) and (65) from 115.001 (1), (2), (8), (11) and (12), renum. (23), (31) and (55) from 132.001 (5), (6) and (9), renum. (8), (12), (38) and (56) from 105.001 (1), (2), (4) and (5), renum. (27), (37), (45) and (59) from 107.001 (2) through (5), renum. (48), (68) and (69) from 111.001 (8) to (10), renum. (9) and (10) from 113.001 (2) and (3), renum. (9), (10), (44), (51) and (52) from 113.001 (2), (3), (8), (9) and (10), renum. (64) and (65) from 115.001 (1) and (2), renum. (30) and (17) from 140.19 (1) (a) and (b), renum. (47) and (67) from 149.001 (6) and (7), Register, September, 1995, No. 477, eff. 10-1-95; renum. (44m) from (30) and am., Register, June, 1997, No. 498, eff. 7-1-97; corrections in (51) made under s. 13.93 (2m) (b) 7., Stats., Register, September, 2000, No. 537; am. (14), (32), (43), (46), (50), (51), (66) and (67) (intro.), cr. (16m), r. (34), Register, September, 2000, No. 537, eff. 10-1-00; CR 02-137: am. (28) Register April 2006 No. 604, eff. 5-1-06; CR 08-019: am. (67) (intro.) Register July 2008 No. 631, eff. 8-1-08; CR 18-033: r. (1), renum. (2) to DWD 140.001 (2) (c) and am., renum. (10) to DWD 113.001 (2) (bm) and am., (15m) renum. from DWD 113.001 (2) (b) and am., cr. (16f), renum. (17) to DWD 140.001 (2) (f), r. (25), (26), renum. (28) to DWD 128.001 (2) (a), renum. (31) to DWD 132.001 (2) (a), renum. (32) to DWD 140.001 (2) (g) and am., renum. (33) to DWD 101.001 (2) (b) and am., am. (43), renum. (44m) to DWD 140.001 (2) (h), r. (46), renum. (51) to DWD 113.001 (2) (e) and am., renum. (52) to DWD 113.001 (2) (f), renum. (53) to DWD 132.001 (2) (b) and am., renum. (54) to DWD 132.001 (2) (c) and am., renum. (55) to DWD 128.001 (2) (b), renum. (62) to DWD 128.001 (2) (c) and am., renum. (63) to DWD 115.001 (2) (a) and am., renum. (64) to DWD 115.001 (2) (b), renum. (65) to DWD 115.001 (2) (c), r. (66), renum. (68) to DWD 111.001 (2) (a) and am., renum. (69) to DWD 111.001 (2) (b), renum. (72) to DWD 128.001 (2) (d) and am. Register May 2019 No. 761, eff. 6-1-19.

Chapter DWD 101 WAGES FOR CONTRIBUTION AND BENEFIT PURPOSES

Wis. Admin. Code § DWD 101.001 Definitions {#sec-dwd-101.001 omnilex-key=us-wi-regs-official--agency-dwd--DWD 101.001}

(1) In general. Except as provided in sub. (2), unless the context clearly indicates a different meaning, the definitions in ch. DWD 100 apply to this chapter.

(2) In this chapter:

(a) “Employer” means any person who is or becomes subject to the reimbursement financing or contribution requirements of ch. 108, Stats., including multiemployer benefit plans and other third-party payors which become liable under s. DWD 110.06.

(b) “Informant” means an individual who is receiving a reward or payment for information relating to or assisting in an investigation of a possible violation of law, but not an undercover agent or other individual who is paid for the performance of investigative services or who receives such payment regardless of whether information relating to or assisting in an investigation of a possible violation of law is actually provided.

History

Emerg. cr. (intro.) to (3), (5), (7) and (10), (4) renum. from ILHR 110.001 (9), (6) and (8) renum. from ILHR 110.12 (1) (a) and (b), (9) renum. from ILHR 110.001 (15) and am., eff. 2-19-93; cr. (intro.) to (3), (5), (7) and (10), (4) renum. from ILHR 110.001 (9), (6) and (8) renum. from ILHR 110.12 (1) (a) and (b), (9) renum. from ILHR 110.001 (15) and am., Register, May, 1993, No. 449, eff. 6-1-93; renum. (1) and (2) to be ILHR 100.02 (2) (a) and (b), (3) to be (1), (4) to be ILHR 100.02 (2) (d), r. (5) to (10), Register, October, 1994, No. 466, eff. 11-1-94; r. (intro.), renum. (1) to be (2) and am., cr. (1), Register, September, 1995, No. 477, eff. 10-1-95; CR 18-033: renum. (2) to (2) (intro.), (2) (b) renum. from DWD 100.02 (33) Register May 2019 No. 761, eff. 6-1-19.

Wis. Admin. Code § DWD 101.01 Purpose {#sec-dwd-101.01 omnilex-key=us-wi-regs-official--agency-dwd--DWD 101.01}

The definition of wages in s. 108.02 (26), Stats., is patterned after the FUTA definition of wages found in 26 USC 3306(b). This chapter clarifies how the department shall apply the definition of wages in s. 108.02 (26), Stats., for benefit purposes and to assess employer contributions to the unemployment insurance reserve fund. This chapter also specifies changes to the definition of wages in s. 108.02 (26), Stats., and provides interpretations which may be inconsistent with those applied to 26 USC 3306(b), under the authority granted in s. 108.015, Stats.

History

Emerg. cr. eff. 2-19-93; cr. Register, May, 1993, No. 449, eff. 6-1-93; am. Register, October, 1994, No. 466, eff. 11-1-94; am. Register, September, 2000, No. 537, eff. 10-1-00; CR 18-033: am. Register May 2019 No. 761, eff. 6-1-19.

Wis. Admin. Code § DWD 101.02 Remuneration excluded from the definition of wages {#sec-dwd-101.02 omnilex-key=us-wi-regs-official--agency-dwd--DWD 101.02}

Notwithstanding s. 108.02 (26), Stats., wages shall not include remuneration paid to an informant by any federal law enforcement agency or law enforcement agency of the state or any of its political subdivisions for information provided by the individual to the agency.

History

Emerg. cr. eff. 2-19-93; cr. Register, May, 1993, No. 449, eff. 6-1-93; renum. (intro.) and am., r. (1) to (4), Register, October, 1994, No. 466, eff. 11-1-94; am. Register, September, 1995, No. 477, eff. 10-1-95; CR 18-033: am. Register May 2019 No. 761, eff. 6-1-19.

Wis. Admin. Code § DWD 101.03 Remuneration included in the definition of wages {#sec-dwd-101.03 omnilex-key=us-wi-regs-official--agency-dwd--DWD 101.03}

Notwithstanding s. 108.02 (26), Stats., wages shall include all cash and non-cash remuneration paid for agricultural labor.

History

Emerg. cr. eff. 2-19-93; cr. Register, May, 1993, No. 449, eff. 6-1-93; renum. (intro.) and (1) and am., r. (2) to (5), Register, October, 1994, No. 466, eff. 11-1-94.

Wis. Admin. Code § DWD 101.04 Prospective application of federal interpretations {#sec-dwd-101.04 omnilex-key=us-wi-regs-official--agency-dwd--DWD 101.04}

A final federal interpretation about whether certain payments constitute wages, either generally or as to a particular case, which differs from an earlier departmental interpretation regarding those payments or kinds of payments shall only be applied prospectively. The department may not retroactively change either its interpretation or a determination based on that interpretation due to a subsequent and different federal interpretation.

History

Emerg. cr. eff. 2-19-93; cr. Register, May, 1993, No. 449, eff. 6-1-93; renum. from ILHR 101.05, Register, October, 1994, No. 466, eff. 11-1-94.

Wis. Admin. Code § DWD 101.05 Value of room and meals {#sec-dwd-101.05 omnilex-key=us-wi-regs-official--agency-dwd--DWD 101.05}

For purposes of s. 108.02 (26), Stats., the employer shall value lodging and meals at the actual value or, if the actual value is not available, the employer shall make a reasonable estimate of the value. If the actual value or reasonable estimate is not available, the department shall value lodging and meals as follows:

(1) Lodging - $105.00 per week or $15.00 per day.

(2) Meals - $86.00 per week, $12.30 per day or $4.10 per meal.

History

Cr. Register, June, 1990, No. 414, eff. 7-1-90; emerg. renum. from ILHR 110.08 and am., eff. 2-19-93; renum. from ILHR 110.08 and am., Register, May, 1993, No. 449, eff. 6-1-93; renum. from ILHR 101.09 and am., Register, October, 1994, No. 466, eff. 11-1-94; CR 18-033: am. (1) Register May 2019 No. 761, eff. 6-1-19.

Wis. Admin. Code § DWD 101.06 Internal revenue code requirements {#sec-dwd-101.06 omnilex-key=us-wi-regs-official--agency-dwd--DWD 101.06}

When s. 108.02 (26), Stats., or FUTA requires that a payment must meet the requirements of a particular section of the internal revenue code in order to not be considered wages, the employer shall demonstrate to the satisfaction of the department that the payment meets such requirements.

History

Emerg. cr. eff. 2-19-93; cr. Register, May, 1993, No. 449, eff. 6-1-93; renum. from ILHR 101.10, Register, October, 1994, No. 466, eff. 11-1-94.

Chapter DWD 102 CONTRIBUTION RATES

Wis. Admin. Code § DWD 102.001 Definitions {#sec-dwd-102.001 omnilex-key=us-wi-regs-official--agency-dwd--DWD 102.001}

Unless the context clearly indicates a different meaning, the definitions in ch. DWD 100 apply to this chapter.

History

Cr. Register, September, 1995, No. 477, eff. 10-1-95.

Wis. Admin. Code § DWD 102.01 Purpose {#sec-dwd-102.01 omnilex-key=us-wi-regs-official--agency-dwd--DWD 102.01}

This chapter specifies the initial contribution rates for certain categories of employers.

History

Emerg. cr. eff. 2-19-93; cr. Register, May, 1993, No. 449, eff. 6-1-93.

Wis. Admin. Code § DWD 102.02 New construction industry employers; initial contribution rates {#sec-dwd-102.02 omnilex-key=us-wi-regs-official--agency-dwd--DWD 102.02}

(1) Under s. 108.18 (2) (c), Stats., the department shall determine the contribution rate for the first 3 calendar years for an employer engaged in the construction of roads, bridges, highways, sewers, water mains, utilities, public buildings, factories, housing, or similar construction projects.

(2) The department shall examine the factors enumerated in this section to determine whether an employer is engaged in the construction of roads, bridges, highways, sewers, water mains, utilities, public buildings, factories, housing or similar construction projects within the meaning of s. 108.18 (2) (c), Stats. The department shall first determine whether the employer’s primary type of business activity is one of the activities specified in Figure DWD 102.02 (2), which enumerates certain business activities listed in the 2022 version of the North American Industry Classification System, Sector 23 – Construction. [See Figure DWD 102.02 (2) following]

(3)

(a) If the employer’s primary type of business activity is specified in Figure DWD 102.02 (2), the department may not consider the employer as being within the provisions of s. 108.18 (2) (c), Stats.

(am) The department shall determine that the provisions of s. 108.18 (2) (c), Stats., apply to an employer whose primary type of business activity in this state is listed in the 2022 version of the North American Industry Classification System, Sector 23 – Construction but not in Figure DWD 102.02 (2), if any of the following factors apply:

The primary business activity of the employer in this state involves the improvement of real property rather than improvement or refurbishing of personal property.
Employers within the same listing in the 2022 version of the North American Industry Classification System, Sector 23 – Construction as the employer customarily suspend or significantly curtail business operations in this state for regularly recurring periods because of climatic conditions or because of the seasonal nature of the employment.

Note: The North American Industry Classification System standard is available at https://www.census.gov/naics/. The 2022 version is on file with the legislative reference bureau and with the bureau of legal affairs of the department’s division of unemployment insurance at 201 E. Washington Ave, E-300, Madison, Wisconsin 53703.

History

Cr. Register, June, 1990, No. 414, eff. 7-1-90; emerg. renum. from ILHR 110.15, eff. 2-19-93; renum. from ILHR 110.15, Register, May, 1993, No. 449, eff. 6-1-93; am. (1), Register, September, 2000, No. 537, eff. 10-1-00; CR 18-033: am. (1), (3) (a) 1. and 2., renum. (3) (a) (intro.) to (3) (am) (intro.) and am., r. (3) (b) Register May 2019 No. 761, eff. 6-1-19; correction in numbering of (3) (a) 1. and 2. made under s. 13.92 (4) (b) 1., Stats., Register May 2019 No. 761; CR 22-010: am. (2), r. and recr. Figure 2, am. (3) (am) (intro.), 2. Register June 2022 No. 798, eff. 7-1-22.

Wis. Admin. Code § DWD 102.03 Payors of sickness or accident disability payments: contribution rates {#sec-dwd-102.03 omnilex-key=us-wi-regs-official--agency-dwd--DWD 102.03}

A person not previously subject to the contribution requirements under ch. 108, Stats., which becomes an employer subject to these provisions because of sickness or accident disability payments under s. DWD 110.06, shall be subject to the initial contribution rate under s. 108.18, Stats., for each of the first 3 calendar years.

History

Emerg. renum. from ILHR 110.11 (8) and am., eff. 2-19-93; renum. from ILHR 110.11 (8) and am., Register, May, 1993, No. 449, eff. 6-1-93; am. Register, September, 2000, No. 537, eff. 10-1-00.

Chapter DWD 103 EXCLUDED EMPLOYMENTS

Wis. Admin. Code § DWD 103.001 Definitions {#sec-dwd-103.001 omnilex-key=us-wi-regs-official--agency-dwd--DWD 103.001}

Unless the context clearly indicates a different meaning, the definitions in ch. DWD 100 apply to this chapter.

History

Cr. Register, September, 1995, No. 477, eff. 10-1-95.

Wis. Admin. Code § DWD 103.01 Certain excluded employments {#sec-dwd-103.01 omnilex-key=us-wi-regs-official--agency-dwd--DWD 103.01}

All of the following provisions shall apply in interpreting s. 108.02 (15), Stats.:

(1) Unpaid corporation or association officers and mere directors excluded. Under s. 108.02 (15) (k) 8., Stats., service as an unpaid officer of a corporation or association is not “employment”, but all paid officers of any association or corporation are in “employment” under ch. 108, Stats., subject to s. 108.02 (15) (L), Stats. Mere“directors”, however, who perform no paid duties for a corporation or association other than attendance at directors’ meetings shall not be deemed in an “employment” or be deemed the employer’s “employees” for the purposes of ch. 108, Stats. Directors who perform multiple paid duties for a corporation or association, including attendance at directors’ meetings, shall not be considered “employees” in “employment” when attending directors’ meetings but shall be considered “employees” in “employment” when performing other paid duties.

(2) Unpaid managers of a limited liability company. Under s. 108.02 (15) (k) 8., Stats., service as an unpaid manager of a limited liability company is not “employment”, but all paid managers of a limited liability company are in “employment” under ch. 108, Stats., subject to ss. 108.02 (12), 108.02 (15) (L), and 108.068, Stats.

History

1-2-56; r. (2), Register, September, 1968, No. 153, eff. 10-1-68; emerg. am. eff. 2-19-93; am. Register, May, 1993, No. 449, eff. 6-1-93; CR 18-033: am. (intro.), (1), cr. (2) Register May 2019 No. 761, eff. 6-1-19; CR 22-010: am. (2) Register June 2022 No. 798, eff. 7-1-22.

Chapter DWD 105 RELATIONSHIP OF CARRIERS AND CONTRACT OPERATORS

Wis. Admin. Code § DWD 105.001 Definitions {#sec-dwd-105.001 omnilex-key=us-wi-regs-official--agency-dwd--DWD 105.001}

Unless the context clearly indicates a different meaning, the definitions in ch. DWD 100 apply to this chapter:

History

Cr. Register, June, 1985, No. 354, eff. 7-1-85; am. (intro.), renum (1), (2), (4) and (5) to 100.02 (8), (12), (38) and (56), r. (3), Register, September, 1995, No. 477, eff. 10-1-95.

Wis. Admin. Code § DWD 105.01 Purpose {#sec-dwd-105.01 omnilex-key=us-wi-regs-official--agency-dwd--DWD 105.01}

The purpose of this chapter is to establish standards for determining whether a contract operator performs services in an independently established business free from the carrier’s direction or control so as not to be deemed an “employee” of a carrier under s. 108.02 (12), Stats.

History

Cr. Register, June, 1985, No. 354, eff. 7-1-85.

Wis. Admin. Code § DWD 105.02 Requirements of shipper or law; department policy {#sec-dwd-105.02 omnilex-key=us-wi-regs-official--agency-dwd--DWD 105.02}

In determining whether the carrier exercises direction or control and whether the contract operator is engaged in an independently established business, the department may not use as evidence any factor to the extent that it is specified by the shipper or required by state or federal laws or regulations. The department believes it is unreasonable to consider mandates of law or specifications of shippers as evidence because they have not been imposed on the relationship between the contract operator and the carrier by those parties of their own volition.

History

Cr. Register, June, 1985, No. 354, eff. 7-1-85.

Wis. Admin. Code § DWD 105.03 Contract operators; direction and control {#sec-dwd-105.03 omnilex-key=us-wi-regs-official--agency-dwd--DWD 105.03}

(1) The department shall examine the factors enumerated in this section to determine, both under contract and in fact, whether the contract operator is free from a carrier’s direction or control, while the contract operator performs services for the carrier. The department shall determine whether:

(a) The contract operator owns the motor vehicle or holds the vehicle under a bona fide lease arrangement with any person other than the carrier;

(b) The contract operator is responsible for the maintenance of the motor vehicle;

(c) The contract operator bears the principal burden of the motor vehicle operating costs including such items as fuel, repairs, supplies, insurance and personal expenses while on the road;

(d) The contract operator supplies, or is responsible for supplying, the necessary personal services to operate the motor vehicle;

(e) The contract operator determines the details and means of performance, namely, the type of equipment, assignment of driver, loading, routes and number of stops to be made during the haul, as well as starting, completion and elapsed times;

(f) The contract operator may refuse to make a haul when requested by the carrier;

(g) The contract operator may terminate the lease at any time after reasonable notice; and

(h) The contract operator is compensated on a division of the gross revenue or by a fee based upon the distance of the haul, the weight of the goods, the number of deliveries, or any combination of these factors.

(2) If the department determines that all of the factors under sub. (1) (a) to (h) are present in the relationship between the contract operator and the carrier, the contract operator shall be deemed to be free from the carrier’s direction and control in the performance of services under s. 108.02 (12) (c) 1., Stats. If one or more of the factors under sub. (1) (a) to (h) are not present in the relationship between the contract operator and the carrier, the department shall consider additional factors of the relationship, both under contract and in fact, including whether:

(a) The contract operator may negotiate with the carrier to determine the method, frequency and regularity of payments made to the contract operator;

(b) The contract operator has the authority to discharge any driver whom he or she employs;

(c) The carrier requires decals, lettering, signs, emblems or other markings on the contract operator’s motor vehicle for the purpose of advertising the carrier’s name or business;

(d) The carrier requires the contract operator to submit reports;

(e) The carrier requires the contract operator to obey any work rules or policies; and

(f) The carrier requires any deductions from payments owing to the contract operator for federal or state income taxes or taxes under the federal insurance contributions act.

(3) If the contract operator is found to be under the carrier’s direction or control under subs. (1) and (2), the contract operator shall be deemed to be an employee of the carrier under s. 108.02 (12) (c) 1., Stats.

History

Cr. Register, June, 1985, No. 354, eff. 7-1-85; CR 07-009: am. (2) (intro.) and (3) Register June 2007 No. 618, eff. 7-1-07.

Wis. Admin. Code § DWD 105.04 Contract operators; independently established business; customarily engaged {#sec-dwd-105.04 omnilex-key=us-wi-regs-official--agency-dwd--DWD 105.04}

(1) If the department determines that a contract operator is free from a carrier’s direction or control in the performance of services under s. DWD 105.03, the department shall examine the following factors to determine whether a contract operator who performs services for a carrier is performing these services in an independently established business in which the contract operator is customarily engaged. The department shall determine whether:

(a) The contract operator owns the motor vehicle or holds the vehicle under a bona fide lease arrangement with any person other than the carrier;

(b) The contract operator is free to hire another person as a driver in the performance of services for the carrier; and

(2) If the department determines that all of the factors under sub. (1) (a) to (c) are present in the relationship between the contract operator and the carrier, the contract operator shall be deemed to be performing services in an independently established business in which the contract operator is customarily engaged under s. 108.02 (12) (c) 2., Stats. If one or more of the factors under sub. (1) (a) to (c) are not present in the relationship between the contract operator and the carrier, the department shall consider additional factors including whether:

(a) The contract operator’s business may provide a means of livelihood that is separate and apart from the livelihood gained from services performed for a particular carrier;

(b) The business would continue if the relationship with the carrier were terminated; and

(c) The contract operator has an ownership interest in a business that the contract operator alone may sell or give away without restriction from the carrier.

(3) If the contract operator is found to be free from the carrier’s direction or control but not engaged in an independently established business under subs. (1) and (2), the contract operator shall be deemed to be an employee of the carrier under s. 108.02 (12) (c) 1. and 2., Stats. If the contract operator is found to be free from the carrier’s direction or control and engaged in an independently established business, the contract operator shall be deemed to be an independent contractor and not an employee of the carrier under s. 108.02 (12) (c) 1. and 2., Stats.

History

Cr. Register, June, 1985, No. 354, eff. 7-1-85; CR 07-009: am. (2) (intro.) and (3) Register June 2007 No. 618, eff. 7-1-07.

Chapter DWD 107 EMPLOYMENT RELATIONSHIPS IN THE LOGGING INDUSTRY

Wis. Admin. Code § DWD 107.001 Definitions {#sec-dwd-107.001 omnilex-key=us-wi-regs-official--agency-dwd--DWD 107.001}

Unless the context clearly indicates a different meaning, the definitions in ch. DWD 100 apply to this chapter.

History

Cr. Register, November, 1991, No. 431, eff. 12-1-91; am. (intro.), r. (1), renum. (2) through (5) to be 100.02 (27), (37), (45) and (59), Register, September, 1995, No. 477, eff. 10-1-95; correction made under s. 13.93 (2m) (b) 7., Stats., Register, November, 1999, No. 527.

Wis. Admin. Code § DWD 107.01 Purpose {#sec-dwd-107.01 omnilex-key=us-wi-regs-official--agency-dwd--DWD 107.01}

The purpose of this chapter is to establish standards for determining whether a piece cutter or skidding operator performs services in an independently established business free from a logging contractor’s or forest products manufacturer’s direction or control so as not to be deemed an “employee” of a logging contractor or forest products manufacturer under s. 108.02 (12), Stats.

History

Cr. Register, November, 1991, No. 431, eff. 12-1-91.

Wis. Admin. Code § DWD 107.02 Requirements of law; department policy {#sec-dwd-107.02 omnilex-key=us-wi-regs-official--agency-dwd--DWD 107.02}

In determining whether the logging contractor or forest products manufacturer exercises direction or control over the work of a piece cutter or skidding operator and whether the piece cutter or skidding operator is engaged in an independently established business, the department may not use as evidence any requirements of state or federal law governing the logging industry. The department believes it is unreasonable to consider mandates of law as evidence because they have not been imposed on the relationship between the parties of their own volition.

History

Cr. Register, November, 1991, No. 431, eff. 12-1-91.

Wis. Admin. Code § DWD 107.03 Effect {#sec-dwd-107.03 omnilex-key=us-wi-regs-official--agency-dwd--DWD 107.03}

If a piece cutter or skidding operator has been found, under ss. DWD 107.04 and 107.05, to be free from the direction and control of a logging contractor or forest products manufacturer and to be engaged in an independently established business, the piece cutter or skidding operator is an independent contractor and not an employee of the logging contractor or forest products manufacturer under s. 108.02 (12) (c), Stats.

History

Cr. Register, November, 1991, No. 431, eff. 12-1-91; CR 07-009: am. Register June 2007 No. 618, eff. 7-1-07.

Wis. Admin. Code § DWD 107.04 Direction and control {#sec-dwd-107.04 omnilex-key=us-wi-regs-official--agency-dwd--DWD 107.04}

(1) The department shall examine the factors enumerated in this section to determine, both under contract and in fact, whether a piece cutter or skidding operator is free from a logging contractor’s or forest products manufacturer’s direction or control while the piece cutter or skidding operator performs services for the logging contractor or forest products manufacturer. The department shall determine whether:

(a) The piece cutter or skidding operator is responsible for providing and maintaining all of the equipment, supplies and tools necessary to meet the contract obligations;

(b) The piece cutter or skidding operator supplies or is responsible for supplying the necessary personal services to meet the contract obligations and may engage the services of individuals, including other piece cutters and skidding operators, without the knowledge or consent of the logging contractor or forest products manufacturer;

(c) The piece cutter or skidding operator may refuse to contract for work, may refuse to perform work not covered by the contract when requested by the logging contractor or forest products manufacturer or may refuse to extend a contract for services;

(d) The logging contractor or forest products manufacturer may not supervise, either directly or indirectly, the piece cutter or skidding operator in the performance of services; and

(e) The logging contractor or forest products manufacturer may not discipline or reprimand the piece cutter or skidding operator or impose work rules to be obeyed by the piece cutter or skidding operator.

(2) If the department determines that all of the factors under sub. (1) (a) to (e) are present in the relationship between the piece cutter or skidding operator and the logging contractor or forest products manufacturer, the piece cutter or skidding operator shall be deemed to be free from the direction and control of the logging contractor or forest products manufacturer in the performance of services under s. 108.02 (12) (c) 1., Stats. If one or more of the factors under sub. (1) (a) to (e) are not present, the department shall consider additional factors of the relationship, both under contract and in fact, including whether:

(a) The piece cutter or skidding operator sets the hours of the day and the days of the week the contract services are to be performed;

(b) The piece cutter or skidding operator does not require training by the logging contractor or forest products manufacturer in order to perform the contract services;

(c) The logging contractor or forest products manufacturer may not discharge the piece cutter or skidding operator except for breach of contract; and

(d) The rate of compensation for services is set by the piece cutter or skidding operator, or is determined through bona fide negotiations with the logging contractor or forest products manufacturer, or the piece cutter and skidding operator are free to reject the rate of compensation offered by the logging contractor or forest products manufacturer.

(3) If the department determines that all of the factors under sub. (2) (a) to (d) are present in the relationship between the piece cutter or skidding operator and the logging contractor or forest products manufacturer, the piece cutter or skidding operator shall be deemed to be free from the direction and control of the logging contractor or forest products manufacturer in the performance of services under s. 108.02 (12) (c) 1., Stats. If one or more of the factors under sub. (2) (a) to (d) are not present, the piece cutter or skidding operator may be deemed to be free from the direction and control of the logging contractor or forest products manufacturer under s. 108.02 (12) (c) 1., Stats.

(4) If the piece cutter or skidding operator is found to be under the direction or control of the logging contractor or forest products manufacturer under subs. (1) and (2), the piece cutter or skidding operator shall be deemed to be an employee of the logging contractor or forest products manufacturer under s. 108.02 (12) (c) 1., Stats.

History

Cr. Register, November, 1991, No. 431, eff. 12-1-91; CR 07-009: am. (2) (intro.), (3) and (4) Register June 2007 No. 618, eff. 7-1-07.

Wis. Admin. Code § DWD 107.05 Independently established business; customarily engaged {#sec-dwd-107.05 omnilex-key=us-wi-regs-official--agency-dwd--DWD 107.05}

(1) If the department determines that a piece cutter or skidding operator is free from a logging contractor’s or forest products manufacturer’s direction or control in the performance of services under s. DWD 107.04, the department shall examine the following factors to determine whether a piece cutter or skidding operator who performs services for a logging contractor or forest products manufacturer is performing these services in an independently established business in which the piece cutter or skidding operator is customarily engaged. The department shall determine whether:

(a) The piece cutter or skidding operator negotiated a contract with the logging contractor or forest products manufacturer for the right to cut timber or the right to skid logs;

(b) The piece cutter or skidding operator negotiated the compensation to be paid for cutting timber or skidding logs;

(c) The piece cutter or skidding operator has an ownership interest in a business. In determining whether the piece cutter or skidding operator has an ownership interest in a business, the department shall consider whether the piece cutter or skidding operator:

May sell or give away the business without restriction from the logging contractor or forest products manufacturer;
Has an expectation of profit or bears the risk of loss while performing services for the logging contractor or forest products manufacturer; and
Has a monetary investment in the trade, such as tools, equipment and inventory, which are usual and customary in the industry.

(d) The piece cutter or skidding operator is represented to logging contractors and forest products manufacturers as a person who provides timber cutting or log skidding services;

(e) The piece cutter or skidding operator is free to solicit contracts, enter into contracts and perform services under contract for more than one logging contractor or forest products manufacturer at or about the same time; and

(f) The piece cutter or skidding operator determines the rate of pay, is liable for paying the wages, and actually pays the wages of individuals, including other piece cutters and skidding operators, engaged by the piece cutter or skidding operator to meet the contract obligations.

(2) If the department determines that all of the factors under sub. (1) (a) to (f) are present in the relationship between the piece cutter or skidding operator and the logging contractor or forest products manufacturer, the piece cutter or skidding operator shall be deemed to be performing services in an independently established business in which the piece cutter or skidding operator is customarily engaged under s. 108.02 (12) (c) 2., Stats. If one or more of the factors under sub. (1) (a) to (f) are not present in the relationship between the piece cutter or skidding operator and logging contractor or forest products manufacturer, the department shall consider additional factors including whether:

(a) The business of the piece cutter or skidding operator could continue when the contractual relationship with the logging contractor or forest products manufacturer ends;

(b) The piece cutter or skidding operator is free to perform services for other logging contractors or forest products manufacturers while performing services for the logging contractor or forest products manufacturer;

(c) The piece cutter or skidding operator bears the principal burden of maintaining personal expenses such as meals, lodging and transportation, while performing services;

(d) The piece cutter or skidding operator has a reputation in the community generally on which to rely for business as a piece cutter or skidding operator; and

(e) The piece cutter or skidding operator may incur liability for damages if there is a breach of contract by the piece cutter or skidding operator.

(3) If the department determines that all of the factors under sub. (2) (a) to (e) are present in the relationship between the piece cutter or skidding operator and the logging contractor or forest products manufacturer, the piece cutter or skidding operator shall be deemed to be performing services in an independently established business in which the piece cutter or skidding operator is customarily engaged under s. 108.02 (12) (c) 2., Stats. If one or more of the factors under sub. (2) (a) to (e) are not present, the piece cutter or skidding operator may be deemed to be performing services in an independently established business in which the piece cutter or skidding operator is customarily engaged under s. 108.02 (12) (c) 2., Stats.

History

Cr. Register, November, 1991, No. 431, eff. 12-1-91; CR 07-009: am. (2) (intro.) and (3) Register June 2007 No. 618, eff. 7-1-07.

Wis. Admin. Code § DWD 110.001 Definitions {#sec-dwd-110.001 omnilex-key=us-wi-regs-official--agency-dwd--DWD 110.001}

(1) In general. Except as provided in sub. (2), unless the context clearly indicates a different meaning, the definitions in ch. DWD 100 apply to this chapter.

(2) Notwithstanding ch. DWD 100 and unless the context clearly indicates a different meaning, in this chapter “employer” means any person who is or becomes subject to the reimbursement financing or contribution requirements of ch. 108, Stats., including multiemployer benefit plans and other third party payors.

History

Cr. Register, June, 1990, No. 414, eff. 7-1-90; emerg. renum. (5m) to (8), (16) and (17) to be (6) to (9), (15) and (16), renum. (9) and (15) to be ILHR 101.001 (4) and (9) and am. (9), r. and recr. (14), eff. 2-19-93; renum. (5m) to (8), (16) and (17) to be (6) to (9), (15) and 16., renum. (9) and (15) to be ILHR 101.001 (4) and (9) and am. (9), r. and recr. (14), Register, May, 1993, No. 449, eff. 6-1-93; r. (intro.), (3), (15) and (16), renum. (4), (6) and (9) to (14) to be 100.02 (18), (20), (22), (29), (39), (40), (42) and (57), renum. (1), (2), (7), (8) to be 100.02 (11), (14), (13) and (21) and am., renum. (5) to be (2) and am., cr. (1), Register, September, 1995, No. 477, eff. 10-1-95.

Wis. Admin. Code § DWD 110.01 Purpose {#sec-dwd-110.01 omnilex-key=us-wi-regs-official--agency-dwd--DWD 110.01}

This chapter requires employing units to maintain work records for individuals who perform services for them and to submit such records for the department’s inspection and submit and file other reports requested by the department to determine the employing unit’s status and contribution liability under ch. 108, Stats. The chapter specifies the department’s investigative powers and enumerates the dates by which certain records and reports are to be submitted to the department.

History

Cr. Register, June, 1990, No. 414, eff. 7-1-90; emerg. renum. (1) to be ILHR 110.01, r. (2), eff. 2-19-93; renum. (1) to be ILHR 110.01, r. (2), Register, May, 1993, No. 449, eff. 6-1-93.

Wis. Admin. Code § DWD 110.02 Required records to retain; retention periods; department’s investigative powers {#sec-dwd-110.02 omnilex-key=us-wi-regs-official--agency-dwd--DWD 110.02}

(1) Pursuant to s. 108.21, Stats., each employing unit shall maintain a true and accurate work record for every individual who performs services for that employing unit so that the department may determine the employing unit’s status and contribution liability under ch. 108, Stats.

(2) The work record shall include all of the following:

(a) The full name, address and social security number of each individual who performs services for the employing unit.

(b) The dates that each individual performed services.

(d) The dates that the wages were paid to each individual.

(3) Under s. 108.21, Stats., the department may, at any reasonable time, inspect the work records and any other records of an employing unit, or any entity the department believes may be an employing unit, which may show payments for personal services.

(4) Each employing unit shall preserve the work records and any other records which may show payments for personal services for 6 years from the date on which each individual last performed services for the employing unit.

History

Cr. Register, June, 1990, No. 414, eff. 7-1-90; CR 18-033: am. (2) (intro.), (a) to (d), (3) Register May 2019 No. 761, eff. 6-1-19.

Wis. Admin. Code § DWD 110.03 Required records and reports to submit {#sec-dwd-110.03 omnilex-key=us-wi-regs-official--agency-dwd--DWD 110.03}

Pursuant to ss. 108.14 and 108.21, Stats., each employing unit shall submit any work records and any other records and reports concerning the services performed by individuals for the employing unit which the department may request. The department may require the employing unit to make either verbal or written reports or both.

History

Cr. Register, June, 1990, No. 414, eff. 7-1-90.

Wis. Admin. Code § DWD 110.04 Conditions for coverage and liability; reporting requirements {#sec-dwd-110.04 omnilex-key=us-wi-regs-official--agency-dwd--DWD 110.04}

Any employing unit which is not subject to the reimbursement financing or contribution provisions under ch. 108, Stats., becomes subject if the employing unit meets the coverage requirements under ch. 108, Stats. Any employing unit which meets the coverage requirements under ch. 108, Stats., shall notify the department and accurately and completely report its employment and wages so that the department may determine the employing unit’s status and contribution liability. The employing unit shall submit this report to the department within 30 days after meeting the coverage requirements under ch. 108, Stats.

History

Cr. Register, June, 1990, No. 414, eff. 7-1-90.

Wis. Admin. Code § DWD 110.05 Conditions for status as a nonprofit organization; reporting requirements {#sec-dwd-110.05 omnilex-key=us-wi-regs-official--agency-dwd--DWD 110.05}

Except as further provided in this section, no employing unit may be considered to be a nonprofit organization eligible to apply for reimbursement financing until the date that the department receives a copy of the letter issued by the internal revenue service determining that the employing unit is exempt from taxation under section 501 (c) (3) of the internal revenue code. If an employing unit receives such a letter from the internal revenue service after the employing unit becomes an employer under s. 108.02 (13) (d) or (e), Stats., the department shall consider the employing unit to be a nonprofit organization beginning on January 1 of the year after the year in which the internal revenue service issues the letter. The department shall consider the employing unit to be a nonprofit organization as of the date specified by the internal revenue service if all of the following apply:

(1) The employing unit has filed a written notice with the department electing reimbursement financing under s. 108.151 (2), Stats.

(2) The employing unit acted diligently in requesting such a determination from the internal revenue service.

(3) Any delays concerning such a determination are attributable solely to the internal revenue service.

(4) There is no overpayment of benefits to any claimant due to the department adopting the date specified by the internal revenue service.

History

Cr. Register, June, 1990, No. 414, eff. 7-1-90; CR 18-033: am. Register May 2019 No. 761, eff. 6-1-19.

Wis. Admin. Code § DWD 110.06 Liability due to sickness or accident disability payments {#sec-dwd-110.06 omnilex-key=us-wi-regs-official--agency-dwd--DWD 110.06}

(1) Policy. Under s. 108.02 (13) (j), Stats., an employer includes a person who makes sickness or accident disability payments if the person is classified as an employer under rules promulgated by the department. This section specifies the circumstances under which persons who make sickness or accident disability payments are to be considered employers for contribution purposes under ch. 108, Stats. This section also specifies the procedures such employers shall follow in reporting payments and making contributions.

(2) Amounts included as taxable wages. The department shall treat as wages for contribution purposes under ch. 108, Stats., any sickness or accident disability payments whether made by an employer, a third party payor, or a multiemployer benefit plan. Whichever employer, third party payor or multiemployer benefit plan is liable for payment of contributions under this section shall report these payments as wages on the contribution report for the quarter in which the payments are made.

(3) Payments made directly by employers. An employer which makes sickness or accident disability payments directly to an employee or his or her dependents shall be treated as the employer for contribution purposes under ch. 108, Stats., with respect to these payments.

(4) Payments by third party payors and multiemployer benefit plans.

(a) General rule for third party payors. Except as provided in pars. (b) to (f), a third party payor which makes sickness or accident disability payments shall be treated as the employer for contribution purposes under ch. 108, Stats., with respect to these payments.

(b) Notice by third party payors to shift tax. If a third party payor timely notifies the employer for which services are normally performed of the amount of the sickness or accident disability payments made during any quarter, the employer shall be treated as the employer for contribution purposes under ch. 108, Stats. The third party payor shall notify the employer, in writing, by the 15th day of the month after the end of the quarter in which the payments are made. In this paragraph, the employer for which services are normally performed is the last employer which made contributions on behalf of the employee to the plan or system under which the sickness or accident disability payments are being made and for which the employee worked prior to the sickness or disability.

(c) Third party payors as agents or insurers. A third party payor which makes sickness or accident disability payments as an agent for the employer or directly to the employer may not be treated as the employer for contribution purposes under ch. 108, Stats., unless the agency agreement so provides. The determining factor as to whether a third party payor is an agent of the employer is whether the third party payor bears any insurance risk and is reimbursed on a cost plus fee basis. If the third party payor bears no insurance risk and is reimbursed on a cost plus fee basis, the third party payor is an agent of the employer even if the third party payor is responsible for determining eligibility of the employee or dependent for sickness or accident disability payments. If the third party payor is paid an insurance premium and is not reimbursed on a cost plus fee basis, the third party payor is not an agent of the employer but rather a third party insurer and shall be treated as the employer for contribution purposes under ch. 108, Stats., unless the third party insurer complies with par. (b).

(d) Relationship among third party insurers, multiemployer benefit plans and employers. A third party insurer under a contract of insurance with a multiemployer benefit plan which is required to make sickness or accident disability payments pursuant to a collective bargaining agreement shall be treated as the employer for contribution purposes under ch. 108, Stats., with respect to these payments unless the third party insurer notifies the multiemployer benefit plan of the amount of these payments, in writing, by the 15th day of the month after the end of the quarter in which the payments are made. If such timely notice is given, the multiemployer benefit plan shall be treated as the employer unless, within 6 business days after receipt of the notice, the multiemployer benefit plan notifies the employer for which services are normally performed of the amount of the sickness or accident disability payments made during the quarter. If the multiemployer benefit plan gives such timely notice, the employer for which services are normally performed shall be treated as the employer for contribution purposes under ch. 108, Stats. In this paragraph, the employer for which services are normally performed is the last employer which made contributions on behalf of the employee to the plan or system under which the sickness or accident disability payments are being made and for which the employee worked prior to the sickness or disability.

(e) Multiemployer benefit plans as insurers. If the multiemployer benefit plan is the insurer under par. (d), the multiemployer benefit plan shall be treated as the employer for contribution purposes under ch. 108, Stats., unless the plan notifies the employer of the amount of the sickness or accident disability payments, in writing, by the 15th day of the month after the end of the quarter in which the payments are made.

(f) Third party administrators for multiemployer benefit plans. A third party administrator which makes sickness or accident disability payments as an agent for a multiemployer benefit plan may not be treated as the employer for contribution purposes under ch. 108, Stats.

(5) Required records to retain; department’s powers.

(a) Under s. 108.21, Stats., each payor of sickness or accident disability payments shall maintain a true and accurate payment record for every individual who receives such payments so that the department may determine the payor’s status and contribution liability under ch. 108, Stats.

(b) The payment record shall include all of the following:

The full name, address and social security number of each individual who receives a sickness or accident disability payment.
The date that the payment was made.
The amount of the payment.

(c) Under s. 108.21, Stats., the department may, at any reasonable time, inspect the records of a payor, or any entity the department believes may be a payor, which may show sickness or accident disability payments so the department may determine the payor’s status and contribution liability under ch. 108, Stats.

(d) Each payor shall preserve the sickness or accident disability payment records for 6 years from the date the last payment was made.

(6) Required records and reports to submit. Pursuant to ss. 108.14 and 108.21, Stats., each payor of sickness or accident disability payments shall submit any records and reports concerning these payments which the department may request so that the department may determine the payor’s status and contribution liability under ch. 108, Stats. The department may require the payor to make verbal or written reports or both.

(7) Applicable provisions. The provisions of ss. DWD 110.04, 110.05, 110.07 and 110.08 as these provisions relate to employers and employing units shall also apply to payors of sickness or accident disability payments.

History

Cr. Register, June, 1990, No. 414, eff. 7-1-90; emerg. renum. from ILHR 110.11 and am. (1) and (7), eff. 2-19-93; renum. from ILHR 110.11 and am. (1) and (7), Register, May, 1993, No. 449, eff. 6-1-93; CR 18-033: am. (5) (a), (b) (intro.), 1., 2., (c), (d) Register May 2019 No. 761, eff. 6-1-19.

Wis. Admin. Code § DWD 110.07 Due date for certain reports; contribution reports; reimbursement financing {#sec-dwd-110.07 omnilex-key=us-wi-regs-official--agency-dwd--DWD 110.07}

(1) Newly subject employers; payment of contributions. Under s. 108.17 (1m), Stats., an employer which becomes newly subject to the contribution provisions of ch. 108, Stats., based on employment during any year shall pay contributions based on payroll for all quarters beginning with the first quarter in the year in which the employer became subject to ch. 108, Stats. The employer shall pay such contributions by the close of the month next following the first full quarter occurring after the quarter during which the liability was incurred except that the due date may not be later than January 31 of the succeeding year.

(2) Election of reimbursement financing; notices and assurances.

(a) Any notice of election of reimbursement financing by an employer other than a newly subject employer under sub. (1) and any assurance of reimbursement are delinquent unless the department receives the notice or assurance by its due date. If the due date of the notice or assurance would otherwise be a Saturday, Sunday or legal holiday under state or federal law, the due date is the next following day which is not a Saturday, Sunday or legal holiday under state or federal law.

(b) A nonprofit organization which discontinues participation in a group reimbursement account under s. 108.151 (6), Stats., may elect reimbursement financing in its own name by filing a notice of election of reimbursement financing with the department on or before December 31 of the year in which the group reimbursement account is terminated.

(3) Filing of contribution reports; general due dates.

(a) Each employer, including employers subject to reimbursement financing under s. 108.15, 108.151 or 108.152, Stats., shall file a contribution report with the department for each quarter the employer is subject to ch. 108, Stats., whether or not any contributions or reimbursement payments are due for each quarter. Each employer shall pay any required contributions to the department when filing the report, except that employers subject to reimbursement financing shall submit reimbursement payments when billed by the department. The department may exempt any employer whose account the department has placed on inactive status from the filing requirements of this subsection. The department may also exempt any employer whose business reflects a seasonal pattern from the filing requirements of this subsection for quarters in which the employer customarily has no payroll.

(b) Except as otherwise provided in this section, under s. 108.17 (2), Stats., the due dates for each contribution report are as follows:

The first quarterly report covering the months of January, February and March is due on the following April 30th;
The second quarterly report covering the months of April, May and June is due on the following July 31st;
The third quarterly report covering the months of July, August and September is due on the following October 31st;
The fourth quarterly report covering the months of October, November and December is due on the following January 31st.

(4) Due dates falling on weekends and holidays. Under s. 108.22 (1) (b) and (c), Stats., any contribution report or payment is delinquent unless the department receives the report or payment by its due date. If the due date of the report or payment would otherwise be a Saturday, Sunday or legal holiday under state or federal law, the due date is the next following day which is not a Saturday, Sunday or legal holiday under state or federal law.

(6) Monthly reporting in certain cases. The department may require an employer which is delinquent in submitting a contribution report or payment required under this chapter or under ch. 108, Stats., to submit succeeding contribution reports on a monthly basis until the department again approves a return to quarterly reporting. The employer shall submit the payments by the close of the month next following the end of each month.

(8) Payments. An employer shall remit contributions and any other payments due under ch. 108, Stats., as directed by the department.

History

Cr. Register, June, 1990, No. 414, eff. 7-1-90; emerg. renum. from ILHR 110.06 eff. 2-19-93; renum. from ILHR 110.06, Register, May, 1993, No. 449, eff. 6-1-93; am. (8), Register, September, 2000, No. 537, eff. 10-1-00; CR 18-033: am. (3) (a), (4), r. (5), (7), am. (8) Register May 2019 No. 761, eff. 6-1-19; republished to correct a transcription error in (8) Register May 2020 No. 773.

Wis. Admin. Code § DWD 110.08 General provisions relating to reporting wages on the employer’s contribution report {#sec-dwd-110.08 omnilex-key=us-wi-regs-official--agency-dwd--DWD 110.08}

(1) Wisconsin total wages. Each employer shall report all covered wages paid or constructively paid during the applicable quarter on the employer’s contribution report.

(2) Defined taxable payroll. An employer’s defined taxable payroll is the amount of covered wages of the payroll base and shall be reported on the contribution report.

History

Cr. Register, June, 1990, No. 414, eff. 7-1-90; emerg. renum. from ILHR 110.07 eff. 2-19-93; renum. from ILHR 110.07, Register, May, 1993, No. 449, eff. 6-1-93; CR 18-033: am. (2) Register May 2019 No. 761, eff. 6-1-19.

Wis. Admin. Code § DWD 110.09 Termination of coverage {#sec-dwd-110.09 omnilex-key=us-wi-regs-official--agency-dwd--DWD 110.09}

(1) Procedure. Under s. 108.02 (13) (i), Stats., the department may, on its own motion or on application by the employer, terminate coverage and close the employer’s account if any of the following apply:

(a) The employer ceases to exist.

(b) The employer transfers its entire business.

(c) The employer has not met the minimum payroll or employment requirements or is not otherwise subject under s. 108.02 (13) (b) to (g), Stats., for a calendar year.

(2) Effective dates of termination. If the termination of coverage is based on an employer’s application, the department shall terminate coverage and close the employer’s account at the close of the quarter in which the department received the application. If the department terminates an employer’s coverage on its own motion, the department shall close the account as of the date specified in the notice of termination.

(3) Employers of agricultural labor or domestic service.

(a) The department may make a refund of any contributions paid on employment excluded under s. 108.02 (15) (k) 1. or 2., Stats., by an employer of agricultural labor or domestic service whose coverage has been terminated, unless the department paid benefits based on this excluded employment.

(b) An employer of agricultural labor or domestic service which no longer meets the minimum payroll or employment requirements under s. 108.02 (13) (c) or (d), Stats., shall continue to report all payroll to the department as long as the employer is subject under another provision of s. 108.02 (13), Stats.

History

Cr. Register, June, 1990, No. 414, eff. 7-1-90; emerg. rn. from ILHR 110.16 eff. 2-19-93; rn. from ILHR 110.16, Register, May, 1993, No. 449, eff. 6-1-93; CR 18-033: am. (1) Register May 2019 No. 761, eff. 6-1-19.

Wis. Admin. Code § DWD 110.10 Reactivating employer accounts {#sec-dwd-110.10 omnilex-key=us-wi-regs-official--agency-dwd--DWD 110.10}

(1) If the balance in the employer’s account is to be or has been credited to the balancing account under s. 108.16 (6) (c), Stats., the department may reactivate the employer’s account, on its own motion or at the employer’s request, as of the date of coverage if any of the following apply:

(a) The employer had payroll within 6 months of the effective date of a determination terminating coverage under s. 108.02 (13) (i), Stats.

(b) The account was closed because the employer failed to report any payroll.

History

Cr. Register, June, 1990, No. 414, eff. 7-1-90; emerg. renum. from ILHR 110.17, eff. 2-19-93; renum. from ILHR 110.17, Register, May, 1993, No. 449, eff. 6-1-93; CR 18-033: am. (1) (intro.), (a) Register May 2019 No. 761, eff. 6-1-19.

Chapter DWD 111 QUARTERLY WAGE REPORTING PROCEDURES

Wis. Admin. Code § DWD 111.001 Definitions {#sec-dwd-111.001 omnilex-key=us-wi-regs-official--agency-dwd--DWD 111.001}

(1) Unless the context clearly indicates a different meaning, the definitions in ch. DWD 100 apply to this chapter.

(2) In this chapter:

(a) “Wage report” has the meaning specified in s. 108.205, Stats.

(b) “Wage reporting” means the procedure by which employers comply with the wage reporting requirements under s. 108.205, Stats.

History

Cr. Register, February, 1989, No. 398, eff. 3-1-89, renum. (intro.) to be 111.001 and am., renum. (8) to (10) to be 100.02 (48), (68) and (69), r. (1) to (7), Register, September, 1995, No. 477, eff. 10-1-95; CR 18-033: renum. to (1), cr. (2) (intro.), (2) (a) renum. from DWD 100.02 (68) and am., (2) (b) renum. from DWD 100.02 (69) Register May 2019 No. 761, eff. 6-1-19.

Wis. Admin. Code § DWD 111.01 Purpose {#sec-dwd-111.01 omnilex-key=us-wi-regs-official--agency-dwd--DWD 111.01}

(1) Federal law requires every state to have a system for employers to file quarterly wage reports with an agency of each state. 1987 Wis. Act 38 implemented the federal wage reporting requirements by requiring each employer to file with the department, in such form as the department by rule may require, a quarterly wage report for each employee who is employed by the employer during the applicable quarter.

(2) This chapter specifies the procedures by which employers may comply with the quarterly wage reporting requirements. The chapter also considers such matters as the information required in the various reports, the methods by which employers make corrections to reports, and fees assessed for violation of the reporting requirements.

History

Cr. Register, February, 1989, No. 398, eff. 3-1-89.

Wis. Admin. Code § DWD 111.02 Wage reporting procedures; due dates {#sec-dwd-111.02 omnilex-key=us-wi-regs-official--agency-dwd--DWD 111.02}

(1) Under s. 108.205, Stats., each employer shall submit a wage report to the department. The wage report shall contain the name, social security number, and the amount of covered wages paid or constructively paid to each employee who is employed by the employer during the quarter. Each employer shall ensure that the amount specified as covered wages in the contribution report equals the total wages reported for all employees in the wage report.

(2) Under s. 108.205, Stats., the due date for each wage report is as follows:

(a) The wage report covering the months of January, February and March is due on the following April 30th.

(b) The wage report covering the months of April, May and June is due on the following July 31st.

(d) The wage report covering the months of October, November and December is due on the following January 31st.

(3) A wage report which is delivered other than by mail is timely under sub. (2), if it is received by the department no later than the due date or, if the due date falls on a Saturday, Sunday or legal holiday under state or federal law, by the next following day which is not a Saturday, Sunday or legal holiday under state or federal law. A wage report which is mailed is timely if it is either postmarked by the due date or received by the department no later than 3 days after the due date.

History

Cr. Register, February, 1989, No. 398, eff. 3-1-89; CR 18-033: renum. (1) (a) to (1) and am., r. (1) (b), am. (2) (intro.), (a) to (c), r. (4) Register May 2019 No. 761, eff. 6-1-19; correction in (title) made under s. 13.92 (4) (b) 2., Stats., Register May 2019 No. 761.

Wis. Admin. Code § DWD 111.03 Processing of reports {#sec-dwd-111.03 omnilex-key=us-wi-regs-official--agency-dwd--DWD 111.03}

Each employer shall submit a wage report as prescribed by the department.

Note: For assistance filing a wage report, contact the department by telephone at (608) 266-6877 or email WageNet@dwd.wisconsin.gov.

History

Cr. Register, February, 1989, No. 398, eff. 3-1-89; CR 18-033: renum. from (1) and am., r. (2) Register May 2019 No. 761, eff. 6-1-19.

Wis. Admin. Code § DWD 111.06 Correcting prior wage reports {#sec-dwd-111.06 omnilex-key=us-wi-regs-official--agency-dwd--DWD 111.06}

(1) Each employer shall notify the department of any corrections to wage reports. An employer may consult the departmental booklet, Unemployment Insurance Handbook for Employers, for guidance regarding wage report corrections.

(2) Employers with corrections to reports shall submit wage report corrections as directed by the department.

Note: For assistance filing a wage adjustment report, contact the department by telephone at (608) 266-6877 or email WageNet@dwd.wisconsin.gov.

History

Cr. Register, February, 1989, No. 398, eff. 3-1-89; am. (1) and (2), Register, September, 2000, No. 537, eff. 10-1-00; CR 18-033: am. (1), (2), r. (3) Register May 2019 No. 761, eff. 6-1-19.

Chapter DWD 113 SETTLEMENT OF DISPUTES AND COMPROMISE OF LIABILITIES

Wis. Admin. Code § DWD 113.001 Definitions {#sec-dwd-113.001 omnilex-key=us-wi-regs-official--agency-dwd--DWD 113.001}

(1) Except as provided in sub. (2), unless the context clearly indicates a different meaning, the definitions in ch. DWD 100 apply to this chapter.

(2) In this chapter:

(a) “Action” means a circuit court proceeding for judicial review of a commission decision or an appeal to either the court of appeals or the supreme court.

(ar) “Bureau of legal affairs” means legal counsel in the unemployment insurance division within the department.

(bm) “Compromise” means department agreement to accept payment of less than the full amount of contributions, payments in lieu of contributions, interest, penalties and costs, as applicable, owed by an employer, former employer, or a person liable for an employing unit’s liabilities, in complete fulfillment of the outstanding liability.

(d) “Employer”, in addition to the meaning specified in s. 108.02 (13), Stats., includes an employing unit which was formerly an employer under s. 108.02 (13), Stats.

(e) “Same business or operation” means operation under the same unemployment insurance employer account, including any account transferred under s. 108.16 (8), Stats., with no intervening final determination of account termination under s. 108.02 (13) (i), Stats., provided that “same business or operation” shall not be deemed to extend beyond the date the account would have been terminated under s. 108.02 (13) (i), Stats., and s. DWD 110.09 but for an unpaid liability, unless the account was reopened under s. DWD 110.10.

(f) “Settle” means to resolve a pending determination, decision or action by agreement.

History

Cr. Register, February, 1994, No. 458, eff. 3-1-94, r. (intro.), (5), renum. (1), (4), (6) and (7) to be (2) (a), (b), (c) and (d), renum. (2), (3), (8), (9) and (10) to be 110.02 (9), (10), (44), (51) and (52), cr. (1), (2), Register, September, 1995, No. 477, eff. 10-1-95; CR 18-033: am. (1), (2) (intro.), renum. (2) (b) to DWD 100.02 (15m) and am., cr. (2) (ar), (2) (bm) renum. from DWD 100.02 (10) and am., am. (2) (d), (2) (e) renum. from DWD 100.02 (51) and am., (2) (f) renum. from DWD 100.02 (52) Register May 2019 No. 761, eff. 6-1-19; correction in (2) (bm) made under s. 35.17, Stats., Register May 2019 No. 761.

Wis. Admin. Code § DWD 113.01 Purposes {#sec-dwd-113.01 omnilex-key=us-wi-regs-official--agency-dwd--DWD 113.01}

(1) This chapter establishes standards for the following circumstances:

(a) The settlement of disputes between the department and parties to determinations, decisions or actions.

(b) The compromise of liabilities for contributions, reimbursements in lieu of contributions, interest, penalties and costs assessed under ch. 108, Stats.

(c) In limited circumstances, waiving or decreasing the interest charged under s. 108.22 (1) (a) or 108.17 (2c) (c), Stats.

(2) This chapter does not affect the application of s. 108.10 (1) and (6), Stats.

History

Cr. Register, February, 1994, No. 458, eff. 3-1-94; CR 13-106: am. (1) (intro.), cr. (1) (c) Register July 2014 No. 703, eff. 8-1-14.

Wis. Admin. Code § DWD 113.02 Settlement {#sec-dwd-113.02 omnilex-key=us-wi-regs-official--agency-dwd--DWD 113.02}

(1) Under s. 108.10 (8), Stats., the department may settle in whole or in part:

(a) Any determination that has been appealed, has not become final and has been referred from the bureau of tax and accounting to the bureau of legal affairs.

(b) Any decision or action that has not become final.

(2) Settlement shall be based upon advice of the bureau of legal affairs, who shall certify that, after having fully investigated the matter, it is the opinion of the bureau of legal affairs that one or more of the following conditions exists:

(a) The department has made an error of law or fact which, if corrected, would negate or change the determination issued in the case.

(b) Given the available evidence, there is significant doubt that the department will prevail in the dispute on specific issues and there is little or no likelihood of producing sufficient additional evidence in favor of the department regarding the issues before or at a hearing under s. 108.10 (2), Stats.

(c) Before a hearing under s. 108.10 (2), Stats., the department has discovered additional relevant and material evidence that would negate or change the determination in the case.

(d) Given the evidence in the record or the nature of a decision at a lower level, or both, there is significant doubt that the department will prevail on appeal on one or more specific issues.

(e) All or part of any interest liability was incurred as a result of undue delay on the part of the department such that there is valid reason to cancel that liability.

(f) There are valid legal defenses of estoppel or laches against the department as to all or part of the determination.

(3) A settlement may be implemented by any of the following methods:

(a) Under s. 108.10 (1), Stats., the department may amend any determination affected by the settlement before a hearing on the determination.

(b) Under s. 108.10 (1), Stats., the department may set aside the applicable determination before a hearing on the determination and issue a new determination as necessary to reflect the terms of the settlement.

(c) The department and the appellant may enter into a written stipulation which sets forth the terms of the settlement. The stipulation is subject to the requirements of s. DWD 140.12 (1).

(d) The appellant may withdraw all or part of the appeal of the determination.

History

Cr. Register, February, 1994, No. 458, eff. 3-1-94; CR 18-033: am. (1) (a), (b), (2) (intro.), (a) to (d), (f), (3) Register May 2019 No. 761, eff. 6-1-19.

Wis. Admin. Code § DWD 113.025 Waiver of interest {#sec-dwd-113.025 omnilex-key=us-wi-regs-official--agency-dwd--DWD 113.025}

(1) Except as provided in s. DWD 113.02 or 113.03, the department may grant a waiver or decrease of interest owed by an employer if the employer satisfies all of the following conditions:

(a) The employer pays the full payment of any taxes and assessments due within 30 days following resolution of all issues. Until the employer pays all of the correct amount of taxes and assessments due, the department may not waive or decrease any of the interest owed by the employer.

(b) The employer files any wage or tax report due within 30 days following resolution of all issues. Until the employer files all of the wage or tax reports that are due, the department may not waive or decrease any of the interest owed by the employer.

(d) The employer was determined within the last year to be subject to ch. 108, Stats., or has a history of timely filing required reports, including wage and contribution reports, and of making payments in a timely manner.

(e) The employer or a business for which the employer is a successor, under the requirements of s. 108.16 (8), Stats., has never received a waiver or decrease in interest charged under s. 108.22 (1) (a) or 108.17 (2c) (c), Stats.

(f) There has not been a hearing on an appeal under s. 108.10, Stats., regarding the tax liability associated with the interest.

(2) If all of the conditions of sub. (1) are satisfied, the department may waive or decrease the interest charged under s. 108.22 (1) (a) or 108.17 (2c) (c), Stats., if the interest charged resulted from any of the following circumstances:

(a) The employer failed to pay taxes or underpaid taxes by the required due date established by the department as a result of excusable neglect. An erroneous contention regarding the unemployment insurance law or misunderstanding of the obligations under the law shall not constitute excusable neglect.

Note: The following are examples of excusable neglect:

Embezzlement by an accountant or an employee who is not related to the employer such that the embezzlement caused the interest to be due.

Inaccurate written communication given to the employer by the Wisconsin Division of Unemployment Insurance that affirmatively misled the employer as to its duties and obligations such that the inaccurate written communication caused the interest to be due.

(b) An inadvertent mathematical miscalculation by the employer of the amount of tax due resulting in a de minimis underpayment of taxes.

(3) A denial of a request for a waiver or decrease of interest under sub. (2) and s. 108.22 (1) (cm), Stats., is not an appealable decision.

History

CR 13-106: cr. Register July 2014 No. 703, eff. 8-1-14; CR 18-033: am. (1) (c) to (f) Register May 2019 No. 761, eff. 6-1-19.

Wis. Admin. Code § DWD 113.03 Compromise of employer liability {#sec-dwd-113.03 omnilex-key=us-wi-regs-official--agency-dwd--DWD 113.03}

(1) Under s. 108.10 (8), Stats., the department may compromise the liability of any employer as established in any final determination, decision or action, together with any subsequent collection costs, if all of the following apply:

(a) The employer makes a sworn application for the compromise of the employer’s liability to the department, including a financial statement if requested, in a form prescribed by the department.

(b) The employer is not a government unit.

(c) The employer is not a debtor in a case under title 11 of the United States Code with respect to any liability under ch. 108, Stats., which is not dischargeable in bankruptcy unless any of the following apply:

In a case under chapter 7 of title 11 of the United States Code, there are insufficient assets to pay the liability in full under the statutory order of distribution.
In a case under chapter 11 or 12 of title 11 of the United States Code, the confirmed plan of reorganization provides for the sale of or distribution to creditors of all of the property of the employer and there are insufficient assets to pay the liability.

(d) If the employer is a nonprofit organization that incurred all or part of its liability when it was subject to reimbursement financing status under s. 108.151 (2), Stats., the employer’s assurance of reimbursement has either been applied to the liability or the application for compromise provides for such assurance.

(e) The department finds that the employer is unable to pay the full amount of the contributions or payments in lieu of contributions, interest, penalties and costs. If the employer is still in the same business or operation as when the liability sought to be compromised was incurred, and all of the following apply:

The employer’s application for compromise offers payment in an amount not less than the unpaid contributions or unpaid payments in lieu of contributions, including any contributions owed as a successor under s. 108.16 (8) (f), Stats.
The required payment of all interest, penalties or costs would pose an immediate threat to the financial viability of the employer.
The employer is paying all current contributions or payments in lieu of contributions.

(2) If the conditions of sub. (1) are satisfied, the department shall determine the amount that the employer is able to pay and may issue an acceptance of the application for compromise in the determined amount.

(3) Notwithstanding sub. (1) (e), the department may compromise unpaid contributions on wages for domestic service arising under s. 108.02 (13) (d), Stats., for any time period before the effective date of the existence of a fiscal agent or fiscal intermediary under s. 46.272 (7) (e) or 47.035, Stats.

(4) Notwithstanding sub. (1) (e), in determining the amount of the accepted compromise, the department may consider the following:

(a) A portion of any interest liability was incurred as a result of undue delay on the part of the department such that there is valid reason to compromise the interest liability.

(b) In the opinion of the bureau of legal affairs, the employer could have raised valid legal defenses of estoppel or laches against the department.

History

Cr. Register, February, 1994, No. 458, eff. 3-1-94; CR 18-033: am. (1), (3), (4) (intro.), (a), (b) Register May 2019 No. 761, eff. 6-1-19: correction in (3) made under s. 13.92 (4) (b) 7., Stats., Register March 2023 No. 807.

Wis. Admin. Code § DWD 113.04 Compromise of personal liability {#sec-dwd-113.04 omnilex-key=us-wi-regs-official--agency-dwd--DWD 113.04}

(1) The department may compromise the personal liability of a person whose liability for the unpaid contributions, interest, penalties and costs of an employer has been finally established under s. 108.22 (9), Stats., if all of the following apply:

(a) The person submits a sworn application to the department for the compromise of the person’s liability, including a financial statement if requested, in a form prescribed by the department.

(b) The person is not the debtor in a case under title 11 of the United States Code with respect to any liability under ch. 108, Stats., which is not dischargeable in bankruptcy unless any of the following apply:

In a case under chapter 7 of title 11 of the United States Code, there are insufficient assets to pay the liability in full under the statutory order of distribution.
In a case under chapter 11 or 12 of title 11 of the United States Code, the confirmed plan of reorganization provides for the sale of or distribution to creditors of all of the property of the person and there are insufficient assets to pay the liability.

(2) If the conditions of sub. (1) are satisfied, the department shall determine the amount that the person is able to pay and may issue an acceptance of the application for compromise in the determined amount.

(3) In making its finding that the person is unable to pay the full amount of the liability under sub. (1) (c) and its determination of the amount that the person is able to pay, the department shall consider the person’s present and prospective income.

(4) The department’s acceptance of a compromise under this section shall not affect the liability of any other person against which the department may issue or has issued a determination of liability for the unpaid contributions of the same employer.

(5) In an application for compromise under this section, a person liable or potentially liable at the time of application for the liabilities of more than one employer under s. 108.22 (9), Stats., shall disclose all such liabilities, including any liabilities which are not final. Failure to make such disclosure shall make the person ineligible for compromise of the undisclosed liability in any later application for compromise under this section.

(6) A person granted a compromise under this section shall not be eligible for a compromise of any liabilities incurred for tax periods after the acceptance of the compromise.

History

Cr. Register, February, 1994, No. 458, eff. 3-1-94; CR 18-033: am. (1) to (6) Register May 2019 No. 761, eff. 6-1-19; correction in (1) (b) 2. made under s. 35.17, Stats., Register May 2019 No. 761.

Wis. Admin. Code § DWD 113.05 General procedural provisions {#sec-dwd-113.05 omnilex-key=us-wi-regs-official--agency-dwd--DWD 113.05}

(1) The department may request additional information and may also examine the employer and any other person as it deems necessary, under oath, regarding the employer’s or person’s application.

(2) The department shall acknowledge in writing the receipt of an application for compromise within 30 days of such receipt. The department’s acceptance of the application for compromise shall be in writing and be issued with the concurrence of the treasurer of the unemployment insurance fund or the treasurer’s designee. The acceptance shall be effective only if the amount determined in the acceptance is paid to the department within 30 days from the date of the acceptance, except as otherwise provided under an installment arrangement under sub. (3). The department shall prescribe the payment form.

(3) The department may allow payment of the determined amount by installment payments upon such conditions as the department shall prescribe. In the event of failure to make any installment payment when due, which failure is not excused in writing by the department, the department may declare its acceptance of the application for compromise to be null and void and may proceed to collect the balance of the original liability using whatever remedies are available to it by law.

(4) The submission of an application for compromise shall not operate to stay collection proceedings. The department may defer collection during the pendency of an application if it is satisfied that the interests of the state will not be jeopardized.

(5) Frivolous or incomplete applications and applications submitted for the purpose of delaying collection of the liability shall be immediately rejected.

History

Cr. Register, February, 1994, No. 458, eff. 3-1-94; CR 18-033: am. (1), (2), (4) Register May 2019 No. 761, eff. 6-1-19.

Wis. Admin. Code § DWD 113.06 Disposition of warrants {#sec-dwd-113.06 omnilex-key=us-wi-regs-official--agency-dwd--DWD 113.06}

Upon timely payment of the amount set forth in the department’s acceptance of compromise, the department shall issue a release of any outstanding warrant against the employer or person.

History

Cr. Register, February, 1994, No. 458, eff. 3-1-94; CR 18-033: am. Register May 2019 No. 761, eff. 6-1-19.

Wis. Admin. Code § DWD 113.07 Reopening compromised liability {#sec-dwd-113.07 omnilex-key=us-wi-regs-official--agency-dwd--DWD 113.07}

The department may declare a compromise void at any time if any of the following apply:

(1) The employer or person submitted a materially false application for compromise.

(2) Before the department accepted the application for compromise, the employer or person concealed or disposed of income or property which could have been used to pay any part of the original liability.

History

Cr. Register, February, 1994, No. 458, eff. 3-1-94; CR 18-033: am. Register May 2019 No. 761, eff. 6-1-19.

Chapter DWD 114 LICENSE REVOCATION AND FINANCIAL RECORD MATCHING PROGRAM

Wis. Admin. Code § DWD 114.01 Definitions {#sec-dwd-114.01 omnilex-key=us-wi-regs-official--agency-dwd--DWD 114.01}

(1) Except as provided in sub. (2), the definitions in ch. DWD 100 apply to this chapter.

(2) Notwithstanding ch. DWD 100, in this chapter:

(a) “Applicant for a license” means an employer as defined in s. 108.02 (13), Stats., or any individual who is found personally liable under s. 108.22 (2) and (9), Stats., and applies for a license as defined in s. 108.227 (1) (e), Stats.

(b) “Contribution” has the meaning given in s. 108.227 (1) (a), Stats.

(c) “Delinquent” means a license holder or applicant for a license who is liable for any contributions or assessments which remain unpaid after the applicable due date.

(d) “Liable for delinquent contributions” has the meaning given in s. 108.227 (1) (d), Stats.

(f) “License holder” means an employer as defined in s. 108.02 (13), Stats., or any individual who is found personally liable under s. 108.22 (2) and (9), Stats., and possesses a license as defined in s. 108.227 (1) (e), Stats.

(fm) “Licensing department” has the meaning given in s. 108.227 (1) (f), Stats.

(g) “Nondelinquency certificate” has the meaning given in s. 108.227 (1) (g), Stats.

History

CR 13-106: cr. Register July 2014 No. 703, eff. 8-1-14; correction in (2) made under s. 13.92 (4) (b) 1., Stats., Register May 2019 No. 761.

Wis. Admin. Code § DWD 114.10 Purpose {#sec-dwd-114.10 omnilex-key=us-wi-regs-official--agency-dwd--DWD 114.10}

This chapter specifies all of the following:

(1) Procedures to be used before taking action under ss. 102.17 (1) (ct), 103.275 (2) (bt), 103.34 (10) (d), 103.91 (4) (d), 103.92 (8), 104.07 (7), 105.13 (4), or 108.227 (3) (b), Stats., with respect to a person whose license or credential is to be denied, not renewed, discontinued, suspended, or revoked based on delinquent unemployment insurance tax contributions.

(2) Procedures under which the department shall enter into agreements with financial institutions doing business in this state to operate the financial record matching program under s. 108.223, Stats.

History

CR 13-106: cr. Register July 2014 No. 703, eff. 8-1-14.

Wis. Admin. Code § DWD 114.20 Certification of delinquency {#sec-dwd-114.20 omnilex-key=us-wi-regs-official--agency-dwd--DWD 114.20}

(1) After the department has issued a determination under s. 108.10, Stats., finding a license holder or applicant for a license delinquent in making contributions under s. 108.227 (1) (d), Stats., and after all potential appeals by the license holder or applicant for a license are exhausted, the department shall do any of the following:

(a) Issue a warrant under s. 108.22 (2) and (3), Stats., unless the department previously issued a warrant.

(b) Issue and provide by personally serving or mailing by certified mail to the last known address of the license holder or applicant for a license, a certified notice of liability that includes all of the following information:

The mailing date of the notice.
The payment amount demanded.
A statement that the department may issue a certificate of delinquency to a licensing department that may result in the license or credential being denied, not renewed, discontinued, suspended, or revoked.
A statement that the license holder or applicant for a license has 14 calendar days from the date of mailing of the notice to submit the full payment identified under subd. 2. or to enter into an installment payment plan schedule that is established by the department under s. DWD 114.30.

(2) Upon request of any license holder or applicant for a license who has paid the full amount demanded, has entered into and complied with an installment payment plan, or is otherwise not liable for delinquent contributions, the department shall issue a nondelinquency certificate to the license holder or applicant for a license and any licensing department that received a certificate of delinquency.

(3) The department shall issue a certificate of delinquency to a licensing department if all of the following apply:

(a) The department complied with the requirements under sub. (1) (a) and (b).

(b) The department received a request for a certification from a licensing department as to whether a license holder or an applicant for a license is liable for delinquent contributions.

(c) The license holder or applicant for a license has not paid the full payment demanded or entered into and complied with an installment payment plan.

History

CR 13-106: cr. Register July 2014 No. 703, eff. 8-1-14; CR 18-033: am. (1) (intro.), (a) Register May 2019 No. 761, eff. 6-1-19.

Wis. Admin. Code § DWD 114.30 Installment payment plans {#sec-dwd-114.30 omnilex-key=us-wi-regs-official--agency-dwd--DWD 114.30}

(1) Any license holder or applicant for a license who is unable to pay the full amount of the delinquent unemployment insurance contributions, costs, penalties, and interest may negotiate with the department to pay such contributions, costs, penalties, and interest in installments through a payment plan. The license holder or applicant for a license shall provide a statement of the reasons such contributions, costs, penalties, and interest cannot be paid in full and shall set forth the plan of installment payments proposed by the license holder or applicant for a license. Upon approval of such plan by the department and the timely payment of installments set forth in the plan, collection proceedings with respect to such contributions, costs, penalties, and interest shall be withheld. If the license holder or applicant for a license fails to make any installment payment as scheduled, the department may cancel the installment payment plan and proceed to collect the unpaid portion of such contributions, costs, penalties, and interest in the manner provided by law, and after providing 7 days’ notice to the license holder or applicant for a license, issue a certificate of delinquency. The department may require license holders or applicants for a license who make installment payments under this paragraph to do so by electronic funds transfer.

(2) A delinquent license holder or applicant for a license may enter into an installment payment plan that will allow the delinquent license holder or applicant for a license to make full payment of all delinquencies. The installment payment plan shall provide sufficient time and payment terms of the license holder or applicant for a license to be able to pay all delinquencies and shall consider the ability of the license holder or applicant for a license to be able to pay all delinquencies.

(3) A license holder or applicant for a license in an active installment payment plan shall pay current and subsequent quarterly contributions in full and on the date specified by the department.

History

CR 13-106: cr. Register July 2014 No. 703, eff. 8-1-14; CR 18-033: am. (1) Register May 2019 No. 761, eff. 6-1-19.

Wis. Admin. Code § DWD 114.40 Other enforcement actions not prohibited {#sec-dwd-114.40 omnilex-key=us-wi-regs-official--agency-dwd--DWD 114.40}

Certifying a license holder or applicant for a license liable for delinquent contributions does not limit the department from taking other actions required or permitted by law to collect contributions from the license holder or applicant for a license.

History

CR 13-106: cr. Register July 2014 No. 703, eff. 8-1-14.

Wis. Admin. Code § DWD 114.50 Financial record matching program {#sec-dwd-114.50 omnilex-key=us-wi-regs-official--agency-dwd--DWD 114.50}

A financial institution doing business in this state shall enter into an agreement with the department to participate in the exchange of data on a quarterly basis. To the extent feasible, the information required under this agreement shall be submitted by electronic means as prescribed by the department. The financial institution shall sign the agreement and return the agreement to the department within 20 business days of receipt of the agreement. The department shall review the agreement and, if all conditions under s. 108.223, Stats., have been met, shall sign the agreement and provide the financial institution with a copy of the signed agreement. Any changes to the conditions of the agreement shall be submitted by the financial institution or the department at least 60 days before the effective date of the change.

History

CR 13-106: cr. Register July 2014 No. 703, eff. 8-1-14; CR 18-033: am. Register May 2019 No. 761, eff. 6-1-19.

Chapter DWD 115 BUSINESS TRANSFERS

Wis. Admin. Code § DWD 115.001 Definitions {#sec-dwd-115.001 omnilex-key=us-wi-regs-official--agency-dwd--DWD 115.001}

(1) In general. Except as provided in sub. (2), unless the context clearly indicates a different meaning, the definitions in ch. DWD 100 apply to this chapter.

(2) In this chapter:

(b) “Transferee” means the person to whom an asset or business activity is transferred, whether or not that person is an employer before the transfer.

(d) “Transfer percentage” means the percent of the transferor’s total payroll for a recent and representative period preceding the transfer date, which is properly assignable to the transferred business. The recent and representative period shall be the 4 most recently completed calendar quarters preceding the transfer date, except that the period may be expanded to include the partial quarter immediately preceding the transfer if the transfer date did not fall on a quarter ending date and there was no payroll assignable to the transferred portion of the business in the 4 most recently completed quarters.

History

Cr. Register, January, 1992, No. 433, eff. 2-1-92, r. (intro.), (3), (5) to (7), renum. (1), (2), (8), (11) and (12) to be 100.02 (4), (7), (43), (64) and (65), renum. (9) and (10) to be 100.02 (60) and (63) and am., renum. (4) to be (2) and am., cr. (1), Register, September, 1995, No. 477, eff. 10-1-95; CR 18-033: renum. (2) to (2) (intro.) and am., (a) renum. from 100.02 (63) and am., (b) renum. from 100.02 (64), (c) renum. from 100.02 (65) Register May 2019 No. 761, eff. 6-1-19; correction in (2) made under s. 13.92 (4) (b) 1., Stats., Register May 2019 No. 761.

Wis. Admin. Code § DWD 115.01 Business transfer; methods used in business transfers and in the ordinary course of business; transfer of an asset; transfer of a business activity; total or partial transfer {#sec-dwd-115.01 omnilex-key=us-wi-regs-official--agency-dwd--DWD 115.01}

(1) Business transfer. Under s. 108.16 (8) (a), Stats., a transfer of business occurs when any asset or business activity is transferred in whole or in part by a transferor to a transferee by any method other than in the ordinary course of business.

(2) Methods used in business transfers. Methods of transferring assets or business activities include gift, sale, lease, inheritance, foreclosure, termination or cancellation of lease, bankruptcy sale, reorganization, merger or consolidation and receivership.

(3) Events which are not business transfers. Corporate name changes, the election or cancellation of subchapter S status under section 1362 of the internal revenue code by a corporation, the transfer of payroll function only and the transfer of employees between an employee service company and its clients or customers are not transfers of a business. The transfer of shares of corporate stock by a stockholder is not a transfer of business for the corporation which issued the shares. Sale of used equipment or furniture and fixtures which are being replaced or no longer being used are considered transfers in the ordinary course of business rather than business transfers under ch. 108, Stats.

(4) Transfer of an asset. An asset is transferred if ownership, possession or use changes from the transferor to the transferee.

(5) Transfer of a business activity. For a transfer of a business activity to be a business transfer under this section and s. 108.16 (8) (a), Stats., the business activity after the transfer shall be similar to the business activity before the transfer. In determining whether a business activity has been transferred, continued or resumed, the department shall consider factors which suggest a similarity in business activity including any of the following:

(a) The existence of the same customers or the same type of customer after the transfer.

(b) The closeness of the transferee’s business location to that of the transferor when location is important to the business.

(d) A lapse in operation of 6 months or less unless extensive remodeling is involved or the business is seasonal in nature but in no event shall the lapse be considered if greater than 2 years.

(e) Few if any changes in the product or in brand names after the transfer.

(f) The similarity in days and hours of the business under both the transferor and transferee.

(g) The transfer of inventory, expensive plant machinery, heavy equipment or unique assets as opposed to general office furniture and fixtures.

(h) The transfer of key employees or employees with highly technical professional skills.

(i) The transfer of goodwill.

(j) The existence of a noncompetition clause in the contract prohibiting the transferor from engaging in the same kind of business activity in the area.

(k) The transfer of a license or a franchise.

(6) Total or partial transfer. The transfer of a business may be a total transfer or a partial transfer. If only a portion of a business is transferred, the department shall compute and apply the transfer percentage under s. DWD 115.09.

History

Cr. Register, January, 1992, No. 433, eff. 2-1-92; CR 18-033: am. (5) (intro.), (a) to (j), (6) Register May 2019 No. 761, eff. 6-1-19.

Wis. Admin. Code § DWD 115.02 Determining date of transfer {#sec-dwd-115.02 omnilex-key=us-wi-regs-official--agency-dwd--DWD 115.02}

The effective date of a transfer of business shall be the date on which the transferee first has actual operating control over business assets and business activities. In determining the effective date of a transfer of business, the department shall consider all of the following:

(1) Legal documents related to the transfer.

(2) Any statements or documents tending to show that actual operating control was transferred on a date earlier than that reflected in legal documents related to the transfer.

(3) Any other relevant evidence.

History

Cr. Register, January, 1992, No. 433, eff. 2-1-92; CR 18-033: am. (intro.), (1), (2) Register May 2019 No. 761, eff. 6-1-19.

Wis. Admin. Code § DWD 115.03 Notice to the department of a business transfer; required information to submit; department’s investigative powers; resolution of issues {#sec-dwd-115.03 omnilex-key=us-wi-regs-official--agency-dwd--DWD 115.03}

(1) Any time a business is transferred under s. DWD 115.01, the transferor and transferee shall notify the department in writing within 30 days after the date of transfer under s. 108.16 (8) (k), Stats.

(2) The transferor and transferee shall submit in writing any information requested by the department relating to the transfer, or to any transaction that may be a transfer. The department shall determine if the transaction is a transfer of business and if the transaction is a total or partial transfer under this chapter and ch. 108, Stats.

(3) The department may use any other relevant information, however obtained, in order to make a determination regarding a business transfer under this section. Under ss. 108.14 (2) and (2m) and 108.21, Stats., the department may, at any reasonable time, inspect the work records and any other records of an employing unit, or of any entity which the department has reason to believe may be an employing unit, which may show payments for personal services so that the department may determine the status and contribution liability of the employing unit or entity under ch. 108, Stats.

(4) The department may issue determinations, computations, recomputations and appeal tribunal decisions as necessary under ss. 108.09, 108.095, and 108.10, Stats., in connection with any issue arising under this chapter.

History

Cr. Register, January, 1992, No. 433, eff. 2-1-92; CR 18-033: am. (2), (4) Register May 2019 No. 761, eff. 6-1-19.

Wis. Admin. Code § DWD 115.04 Transferee as successor; non-successor transferee {#sec-dwd-115.04 omnilex-key=us-wi-regs-official--agency-dwd--DWD 115.04}

(1) Standard for successor. The transferee becomes a successor under s. 108.16 (8), Stats., if all of the following apply:

(a) A transfer of business has occurred under s. DWD 115.01.

(b) The department determines that the transferee is a successor under ss. DWD 115.05 to 115.07.

(2) Non-successor transferee. If the transferee is not a successor under sub. (1), s. DWD 115.11 applies.

History

Cr. Register, January, 1992, No. 433, eff. 2-1-92;.CR 18-033: am. (1) (intro.), (a), (b) Register May 2019 No. 761, eff. 6-1-19.

Wis. Admin. Code § DWD 115.05 Mandatory successor {#sec-dwd-115.05 omnilex-key=us-wi-regs-official--agency-dwd--DWD 115.05}

The department shall determine that a transferee is a mandatory successor under s. 108.16 (8) (e), Stats., if the business transfer satisfies s. DWD 115.01 and all of the following apply:

(1) At the time of business transfer, the transferor and the transferee are owned, managed, or controlled in whole or in substantial part under s. DWD 115.08, either directly or indirectly by legally enforceable means or otherwise, by the same interest or interests under s. DWD 115.08.

(2) The transferee has continued or resumed the business of the transferor either in the same establishment or elsewhere, or the transferee has employed substantially the same employees under s. DWD 115.08 as those the transferor had employed in connection with the business transferred.

(3) The same financing provisions under s. 108.15, 108.151, 108.152, or 108.18, Stats., apply to the transferee as applied to the transferor on the date of the transfer.

History

Cr. Register, January, 1992, No. 433, eff. 2-1-92; CR 18-033: am. (intro.), (1) to (3) Register May 2019 No. 761, eff. 6-1-19.

Wis. Admin. Code § DWD 115.06 Transfers involving fiduciaries {#sec-dwd-115.06 omnilex-key=us-wi-regs-official--agency-dwd--DWD 115.06}

(1) Transfer to a fiduciary. The department shall find that a transferee is a mandatory successor under s. 108.16 (8) (c), Stats., if all of the following apply:

(a) The transferee is a legal representative, trustee in bankruptcy or a receiver or trustee of a person, partnership, limited liability company, association or corporation, or a guardian of the estate of a person, or legal representative of a deceased person.

(b) The transferee has continued or resumed the business of the transferor, either in the same establishment or elsewhere, or the transferee has employed substantially the same employees under s. DWD 115.08 as those the transferor had employed in connection with the business transferred.

(c) The same financing provisions under s. 108.15, 108.151, 108.152 or 108.18, Stats., apply to the transferee as applied to the transferor on the date of the transfer.

(2) Transfer from a fiduciary. If the business of a successor employer specified in sub. (1) is transferred, the transferee is deemed a successor under s. 108.16 (8) (d), Stats., if the transferee would have been a successor under s. DWD 115.04 except for the intervening existence of the successor employer under sub. (1).

History

Cr. Register, January, 1992, No. 433, eff. 2-1-92; CR 18-033: am. (1) Register May 2019 No. 761, eff. 6-1-19.

Wis. Admin. Code § DWD 115.07 Optional successor {#sec-dwd-115.07 omnilex-key=us-wi-regs-official--agency-dwd--DWD 115.07}

(1) Standard. A transferee may elect to become a successor under s. 108.16 (8) (b), Stats., if the business transfer satisfies s. DWD 115.01 and all of the following apply:

(a) The transfer included at least a transfer percentage of 25% of the transferor’s total business as determined under s. DWD 115.09.

(b) The same financing provisions under s. 108.15, 108.151, 108.152 or 108.18, Stats., apply to the transferee as applied to the transferor on the date of the transfer.

(c) The transferee has continued or resumed the business of the transferor either in the same establishment or elsewhere, or the transferee has employed substantially the same employees under s. DWD 115.08 as those the transferor had employed in connection with the business transferred.

(d) The department received a timely written application from the transferee requesting successorship status.

(2) Written application; timely receipt; withdrawal.

(a) The department shall consider as timely under sub. (1) (d) any written application from the transferee or its representative received by the department on or before: July 31 of the year in which the transfer date is January 1 to March 31; October 31 of the year in which the transfer date is April 1 to June 30; January 31 of the year following the year in which the transfer date is July 1 to September 30; and April 30 of the year following the year in which the transfer date is October 1 to December 31, unless par. (b) applies. The department shall accept a late application received no more than 90 days after its due date if the transferee satisfies the department that the application was late as a result of excusable neglect.

(b) If the due date of the written application would otherwise be a Saturday, Sunday or legal holiday under state or federal law, the due date is the next following day which is not a Saturday, Sunday or legal holiday under state or federal law.

(c) A transferee may withdraw its application requesting successor status if a written withdrawal is received by the department before the issuance of a determination regarding its application or within 21 days after issuance.

History

Cr. Register, January, 1992, No. 433, eff. 2-1-92; CR 13-106: am. (2) (a) Register July 2014 No. 703, eff. 8-1-14; CR 18-033: am. (1), (2) (a) to (c) Register May 2019 No. 761, eff. 6-1-19.

Wis. Admin. Code § DWD 115.08 Owned, managed, or controlled in substantial part; the same interest or interests; employed substantially the same employees {#sec-dwd-115.08 omnilex-key=us-wi-regs-official--agency-dwd--DWD 115.08}

(1) Owned, managed, or controlled in substantial part. The conditions of s. DWD 115.05 (1) are satisfied if 50% or more of both entities are owned, managed, or controlled, either directly or indirectly, by the same interest or interests.

(2) The same interest or interests. The department shall presume, unless shown to the contrary, that the same interest or interests includes the spouse, child or parent of the individual who owned, managed, or controlled the business, or any combination of more than one of them. To overcome the presumption that these are the same interest or interests, all of the following shall be established:

(a) Usual and customary sales procedures were followed.

(b) All transactions were at fair market value and similar to those available to unrelated parties under similar circumstances.

(c) The spouse, child or parent of the individual who owned, managed, or controlled the business was not employed by the business in the 12-month period before the transfer in a position in which the spouse, child or parent of the individual was able to make management decisions.

(d) The individual who owned, managed, or controlled the business before the transfer has no ownership interest, either directly or indirectly, in the transferee.

(e) The individual who owned, managed, or controlled the business before the transfer is not employed by the transferee in a position in which the individual is able to make management decisions.

(3) Employed substantially the same employees. The conditions of s. DWD 115.05 (2), 115.06 (1) (b) or 115.07 (1) (c) that the transferee has employed substantially the same employees as those the transferor had employed are met if 50% or more of the employees employed by the transferor in connection with the business transferred work for the transferee.

History

Cr. Register, January, 1992, No. 433, eff. 2-1-92; CR 18-033: am. (title), (1), (2) Register May 2019 No. 761, eff. 6-1-19.

Wis. Admin. Code § DWD 115.09 Determining transfer percentage; minimum transfer percentage; estimating transfer percentage; applying transfer percentage {#sec-dwd-115.09 omnilex-key=us-wi-regs-official--agency-dwd--DWD 115.09}

(1) Determining transfer percentage. The transfer percentage is computed by dividing the payroll in the transferred portion of the transferor’s business before the transfer date by the transferor’s total payroll. The transfer percentage is not based on the number of employees taken over by the transferee, but rather on the payroll incurred in the transferred portion before the transfer date. The payroll for overhead and combined positions shall be allocated in the same proportion as the direct payrolls involved, or on such other reasonable basis as may better correspond with and reflect the facts of the transfer.

(2) Minimum transfer percentage. Optional successorship requires a minimum transfer percentage of 25%. Mandatory successorship does not require any minimum transfer percentage.

(3) Estimating the transfer percentage. When the transferor does not provide information at the department’s request or the information provided is not sufficiently specific or accurate, the department shall estimate the transfer percentage based on the best available information.

(4) Applying the transfer percentage. For any partial transfer, whether optional or mandatory, the department shall do all of the following:

(a) Apply the transfer percentage to the positive or negative balance in the employer’s account of the transferor as of the transfer date and to the appropriate June 30 balances of the transferor.

(b) Apply the transfer percentage to the transferor’s payroll before the transfer date as needed to correctly calculate the transferee’s contribution rates.

History

Cr. Register, January, 1992, No. 433, eff. 2-1-92; CR 18-033: am. (1), (4) (intro.), (a), (b) Register May 2019 No. 761, eff. 6-1-19.

Wis. Admin. Code § DWD 115.10 Effects of successorship {#sec-dwd-115.10 omnilex-key=us-wi-regs-official--agency-dwd--DWD 115.10}

(1) Employer status.

(a) A transferor which is no longer an employer after a transfer of business has occurred shall submit contribution reports and payments which may be outstanding on the date of transfer or which become due subsequent to that date for a quarter including the transfer date.

(b) If not already an employer, a successor becomes an employer subject to ch. 108, Stats., on the date of transfer and is liable for contributions or payments in lieu of contributions, whichever is applicable, from that date.

(2) Transfer of employer’s account balance.

(a) Total successorship. When a transfer of business results in a total successorship, the successor shall take over and continue the transferor’s account, including its positive or negative balance under s. 108.16 (8) (f), Stats.

(b) Partial successorship. When a transfer of business results in a partial successorship, the successor shall take over and continue the transferor’s account, including its positive or negative balance, in an amount determined by the transfer percentage under s. 108.16 (8) (f), Stats.

(3) Transfer of rate experience.

(a) Successor not an employer at time of transfer. If the successor was not an employer at the time of transfer under ch. 108, Stats., the department shall assign to the successor, as of the date of transfer, the contribution rate assigned or assignable to the transferor on the date of transfer under s. 108.16 (8) (g), Stats. If more than one transfer of business occurs on the same date of transfer to a single successor, the contribution rate assigned to the successor may not be higher than the highest contribution rate that applied to any of the transferors for the year in which the transfer occurred.

(b) Successor an employer at time of transfer. If the successor was an employer at the time of transfer under ch. 108, Stats., the successor shall retain the assigned rate for the calendar year of the transfer. For subsequent years as required by s. 108.18, Stats., the department shall assign a contribution rate which reflects the combined experience of the transferor and successor. For the purposes of s. 108.18, Stats., the department shall determine the experience of the successor’s account by allocating to that account the respective proportions of the transferor’s payroll and benefits properly assignable to the business transferred.

(4) Payroll base. For the calendar year of the transfer, employment in the transferred business becomes employment performed for the successor under s. 108.16 (8) (i), Stats. The successor shall compute exclusions in excess of the payroll base as though only one employer existed for that entire year.

(5) Transfer of liability for contributions or payments in lieu of contributions. The transferor and successor shall be jointly and severally liable for any of the transferor’s liability for contributions or payments in lieu of contributions at the time of the transfer under s. 108.16 (8) (f), Stats. The liability of the successor shall be proportioned to the extent of the transferred business as determined by the transfer percentage.

(6) Transfer of benefit liability.

(a) Total successorship. When a transfer of business results in a total successorship, all benefits paid after the transfer date shall be charged to the employer’s account of the successor, even though based on prior services for the transferor in the transferred business under s. 108.16 (8) (i), Stats.

(b) Partial successorship. When a transfer of business results in a partial successorship, any benefits charged to the transferor after the transfer date for employees of the transferred business shall be credited to the employer’s account of the transferor and recharged to the employer’s account of the successor.

History

Cr. Register, January, 1992, No. 433, eff. 2-1-92; CR 18-033: am. (3) (a), (b) Register May 2019 No. 761, eff. 6-1-19.

Wis. Admin. Code § DWD 115.11 Non-successor transferee {#sec-dwd-115.11 omnilex-key=us-wi-regs-official--agency-dwd--DWD 115.11}

(1) Standard. A transferee that is not a successor under ch. 108, Stats., and this chapter becomes an employer as of the date of transfer under s. 108.16 (8) (j), Stats., when all of the following conditions are met:

(a) A transfer of business has occurred under s. DWD 115.01.

(b) The transferee is not currently an employer subject to ch. 108, Stats.

(2) Effects of a transfer without successorship.

(a) The transferee becomes subject to ch. 108, Stats., on the date of transfer and is liable for contributions or payments in lieu of contributions, whichever is applicable, from that date.

(b) The transferee shall be assigned an initial rate as a new employer for the first 3 years as prescribed under s. 108.18 (2), Stats.

(c) The first contribution report shall be due from the transferee on the due date under s. DWD 110.07 (3) and (4) for the quarter following the quarter in which the transfer occurred or January 31 for those becoming liable in the fourth quarter of the preceding year.

History

Cr. Register, January, 1992, No. 433, eff. 2-1-92; CR 18-033: am. (1) (intro.), (a), (2) (b), (c) Register May 2019 No. 761, eff. 6-1-19; correction in (2) (c) made under s. 35.17, Stats., Register May 2019 No. 761.

Chapter DWD 120 NOTICES AS TO BENEFITS

Wis. Admin. Code § DWD 120.001 Definitions {#sec-dwd-120.001 omnilex-key=us-wi-regs-official--agency-dwd--DWD 120.001}

Unless the context clearly indicates a different meaning, the definitions in ch. DWD 100 apply to this chapter.

History

Cr. Register, September, 1995, No. 477, eff. 10-1-95.

Wis. Admin. Code § DWD 120.01 Notice-posters as to claiming unemployment benefits {#sec-dwd-120.01 omnilex-key=us-wi-regs-official--agency-dwd--DWD 120.01}

Each covered employer shall keep employees informed about unemployment insurance under ch.108, Stats., by posting appropriate notice-posters supplied by the unemployment insurance division. The notices shall be permanently posted by each such employer at suitable points in each of the employer’s work-places and establishments in Wisconsin. Suitable points for posting the notices include: on bulletin boards, near time clocks, and other places where all employees will readily see them.

Note: A copy of the notice to employees about applying for unemployment benefits is available online at https://dwd.wisconsin.gov/dwd/publications/ui/notice.htm and may be posted on an employer’s work website that is accessible by all employees or distributed by electronic mail.

History

1-2-56; am. Register, September, 1968, No. 153, eff. 10-1-68; corrections made under s. 13.93 (2m) (b) 5., Stats., Register, October, 1994, No. 466; am. Register, November, 1999, No. 527, eff. 12-1-99.

Wis. Admin. Code § DWD 120.03 Special notices for certain seasonal employees {#sec-dwd-120.03 omnilex-key=us-wi-regs-official--agency-dwd--DWD 120.03}

(1) Under s. 108.02 (15) (k) 19., Stats., if an individual has received special written notice from an employer which has been designated by the department as a seasonal employer, work for that employer is excluded employment unless the individual is employed by the seasonal employer for at least 90 days in a season that includes any portion of the individual’s base period or the individual has earned at least $500 from another employer during the applicable base period. Failure to provide the special notice negates the exclusion and the employment is included in covered employment for unemployment insurance purposes.

(2) The special written notice shall be provided by the seasonal employer, on either the division’s form UCB-9381-P or an equivalent, prior to the individual’s performance of services. The special notice shall inform the employee of the possibility that wages earned in seasonal employment will be excluded from consideration when determining his or her eligibility for unemployment insurance benefits.

Note: A copy of the seasonal employer notice under this section is available online at https://dwd.wisconsin.gov/dwd/publications/ui/ucb-9381-p.pdf.

History

Cr. Register, November, 1999, No. 527, eff. 12-1-99.

Chapter DWD 123 BENEFIT REPORTS FILED BY EMPLOYERS

Wis. Admin. Code § DWD 123.001 Definitions {#sec-dwd-123.001 omnilex-key=us-wi-regs-official--agency-dwd--DWD 123.001}

Unless the context clearly indicates a different meaning, the definitions in ch. DWD 100 apply to this chapter.

History

Cr. Register, September, 1995, No. 477, eff. 10-1-95.

Wis. Admin. Code § DWD 123.01 Purpose {#sec-dwd-123.01 omnilex-key=us-wi-regs-official--agency-dwd--DWD 123.01}

Pursuant to ss. 108.04 (13), 108.09 (1), and 108.14 (2), Stats., in order to determine benefit claims, the department requires employers to provide information about claimants’ employment separations, dates of work, wages and other payments, and other issues that may be disqualifying. This chapter specifies the benefit reports that must be filed by employers and the filing requirements for those reports.

History

1-2-56; r. (4) (b), Register, August, 1957, No. 20, eff. 9-1-57; am. (1), (2), (3) (a), (4), (5) and (6), Register, September, 1968, No. 153, eff. 10-1-68; am. Register, January, 1975, No. 229, eff. 2-1-75; corrections made under s. 13.93 (2m) (b) 5., Stats., Register, October, 1994, No. 466; correction in (6) made under s. 13.93 (2m) (b) 7., Stats., Register, September, 2000, No. 537; CR 07-038: r. and recr. Register October 2007 No. 622, eff. 11-1-07.

Wis. Admin. Code § DWD 123.02 Filing a benefit report {#sec-dwd-123.02 omnilex-key=us-wi-regs-official--agency-dwd--DWD 123.02}

(1) In general. The department shall consider a benefit report to be filed by an employer when it is completed and returned to the department as set forth in this chapter. Returning an incomplete report, even if it is received within the time limit, constitutes a failure to file the required report within the meaning of s. 108.04 (13) (c) or (f), Stats. Failure to file a required report as set forth in this chapter shall be considered an admission by the employer that no eligibility question exists regarding that claimant. Eligibility issues raised after the due date of a required report will be resolved in accordance with ss. 108.09 (2) (b) and 108.04 (13), Stats.

(2) Time and place of filing. An employer shall file each benefit report requested by the department within the time limit and at the department location specified on the report.

History

CR 07-038: cr. Register October 2007 No. 622, eff. 11-1-07.

Wis. Admin. Code § DWD 123.03 Types of benefit reports {#sec-dwd-123.03 omnilex-key=us-wi-regs-official--agency-dwd--DWD 123.03}

(1) Separation notice. The department shall send the separation notice to an employer when a new benefit claim is initiated and the employer is identified as having employed the claimant in the base or lag period of the claim, or when a benefit claim is resumed and the employer is identified as having employed the claimant after the last claimed week. The employer shall complete and return the separation notice to the department if any of the following apply:

(a) Any information on the notice is incorrect.

(b) There is vacation, dismissal, or holiday pay assigned to any period beyond the claimant’s last day of work.

(d) The claimant did not work for the employer.

(2) Wage verification/eligibility report. The department shall send the wage verification/eligibility report to an employer while a benefit claim is in progress to verify partial wages earned from the employer as reported by the claimant on weekly claim certifications and to verify the claimant’s continuing eligibility for benefits. The employer shall complete and return the wage verification/eligibility report to the department if any of the following apply:

(a) Information on the form report is missing or incorrect.

(b) An eligibility issue applies to the claim.

(3) Urgent request for wages. The department shall send the urgent request for wages to an employer when the claimant reports having been paid wages by the employer during the base period or an alternate base period, and the department has no record of such wages. The employer shall complete and return the urgent request for wages to the department.

History

1-2-56; r. and recr. Register, September, 1968, No. 153, eff. 10-1-68; am. Register, January, 1975, No. 229, eff. 2-1-75; corrections made under s. 13.93 (2m) (b) 5., Stats., Register, October, 1994, No. 466; CR 07-038: r. and recr. Register October 2007 No. 622, eff. 11-1-07.

Chapter DWD 126 WORK REGISTRATION

Wis. Admin. Code § DWD 126.001 Definitions {#sec-dwd-126.001 omnilex-key=us-wi-regs-official--agency-dwd--DWD 126.001}

Unless the context clearly indicates a different meaning, the definitions in ch. DWD 100 apply to this chapter.

History

Cr. Register, September, 1995, No. 477, eff. 10-1-95.

Wis. Admin. Code § DWD 126.01 Eligibility {#sec-dwd-126.01 omnilex-key=us-wi-regs-official--agency-dwd--DWD 126.01}

Except as waived by the department under this chapter, a claimant who is unemployed is eligible for unemployment benefits for any given week only if the claimant has registered for work.

History

Cr. Register, October, 1994, No. 466, eff. 11-1-94; EmR1316: emerg. am. eff. 9-29-13; CR 13-081: am. Register April 2014 No. 700, eff. 5-1-14.

Wis. Admin. Code § DWD 126.02 Registration {#sec-dwd-126.02 omnilex-key=us-wi-regs-official--agency-dwd--DWD 126.02}

A claimant shall be considered registered for work with respect to any given week if the claimant has filed an application to establish a benefit year pursuant to s. DWD 129.02, and has completed and submitted, by computer-based programs or other methods approved by the department, all information for registration for work as prescribed by the department and within a time-frame specified by the department. The department shall consider alternate forms of submittal of completed information by a claimant on an individual basis when there is good cause for the claimant’s inability to use a computer-based program. Good cause for failure to use a computer-based program as prescribed by the department shall include any of the following:

(1m) The claimant possesses physical, mental, educational, or linguistic limitations.

(2m) The claimant has unusual or unavoidable circumstances beyond the claimant’s control.

Note: The department shall notify claimants that it will consider alternate methods for work registration if there is good cause for the claimant’s inability to use a computer-based program. In addition, the department shall provide claimants with information about how to request work registration assistance.

History

Cr. Register, October, 1994, No. 466, eff. 11-1-94; am. (3), Register, March, 1995, No. 471, eff. 4-1-95; am. (3), Register, September, 2000, No. 537, eff. 10-1-00; EmR1316: emerg. renum. (1) to 126.02 and am., r. (2) to (4) eff. 9-29-13; CR 13-081: renum. (1) to (intro.) and am., cr. (1m), (2m), r. (2) to (4) Register April 2014 No. 700, eff. 5-1-14.

Wis. Admin. Code § DWD 126.03 Waiver of work registration requirement {#sec-dwd-126.03 omnilex-key=us-wi-regs-official--agency-dwd--DWD 126.03}

The department shall waive a claimant’s work registration requirement for any given week if any of the following apply:

(2) The claimant is currently laid off from employment with an employer but the employer has verified with the department there is a reasonable expectation that the claimant will be returning to employment within a period of 8 weeks, which may be extended an additional 4 weeks but may not exceed a total of 12 weeks. If the employer does not verify the claimant’s employment status, the department may consider any of the following:

(am) The history of layoffs and reemployments by the employer.

(bm) Any information that the employer furnished to the individual concerning the claimant’s anticipated reemployment date.

(cm) Whether the claimant has recall rights with the employer under the terms of any applicable collective bargaining agreement.

(3) The claimant has a reasonable expectation of starting employment with a new employer within 4 weeks and the employer has verified the anticipated starting date with the department. The waiver shall not exceed 4 weeks.

(4) The claimant has been laid off from work and routinely obtains work through a union referral and all of the following apply:

(a) The union is the primary method used by workers to obtain employment in the claimant’s customary occupation.

(b) The union maintains a record of unemployed members, and the referral activities of these members, and allows the department to inspect such records.

(c) The union provides, upon the request of the department, any information regarding a claimant’s registration with the union or any referrals for employment it has made to the claimant.

(d) Prospective employers of the claimant seldom place orders with the public employment office for jobs requiring occupational skills similar to those of the claimant.

(e) The claimant is registered for work with a union and satisfies the requirements of the union relating to job referral procedures, and maintains membership in good standing with the union.

(f) The union enters into an agreement with the department regarding the requirements of this subsection.

(5) The claimant is summoned to serve as a prospective or impaneled juror.

(6) The claimant is enrolled in and satisfactorily participating in a course of approved training under s. 108.04 (16), Stats., in a work share program under s. 108.062 (10m), Stats., in a self-employment assistance program, or another program enacted by the Wisconsin or federal legislature and the program includes that claimants who participate in the program shall be waived by the department from work registration requirements.

(7) The claimant is unable to complete registration due to circumstances which the department determines are beyond the claimant’s control.

Note: This section is shown as affected by CR 13-081 effective June 1, 2015, in accordance with the requirements of section 47 of CR 13-081, which provides:

With respect to changes to ss. DWD 126.03 and 127.02, the rule will take effect when the Secretary determines the department has the technological ability to implement the changes. as determined by the secretary of the department determines the department has the technological ability to implement the changes.

Note: The department published the following notice in Register May 26, 2015 No. 713B:

Effective June 1, 2015, Secretary Reginald Newson of the Wisconsin Department of Workforce Development (DWD), determined that DWD has the technological ability to implement the changes made by Clearinghouse Rule No. 13-081 to ss. DWD 126.03 and 127.02 (intro.), and (2) to (11), Wis. Adm. Code. The requirements of these provisions will be enforced beginning June 14, 2015.

History

Cr. Register, October, 1994, No. 466, eff. 11-1-94; am. (intro.), (2) (b), (c), Register, March, 1995, No. 471, eff. 4-1-95; am. (2) (b) and (c), Register, September, 2000, No. 537, eff. 10-1-00; EmR1316: emerg. am. (intro.), r. (1), am. (2) (intro.), r. (2) (a) to (c), cr. (3) to (7) eff. as noted above; CR 13-081: am. (intro.), r. (1), am. (2) (intro.), r. (2) (a) to (c), cr. (2) (am) to (cm), (3) to (7) Register April 2014 No. 700, eff. as noted above.

Chapter DWD 127 WORK SEARCH AND REEMPLOYMENT SERVICES

Wis. Admin. Code § DWD 127.001 Definitions {#sec-dwd-127.001 omnilex-key=us-wi-regs-official--agency-dwd--DWD 127.001}

Unless the context clearly indicates a different meaning, the definitions in ch. DWD 100 apply to this chapter.

History

Cr. Register, September, 1995, No. 477, eff. 10-1-95.

Wis. Admin. Code § DWD 127.01 Work search; policy; requirements {#sec-dwd-127.01 omnilex-key=us-wi-regs-official--agency-dwd--DWD 127.01}

(1) A claimant shall be eligible for unemployment benefits for any given week when the department finds that the claimant has completed at least 4 actions to search for suitable work within that week. Upon request of the department, a claimant shall provide verification of conducting at least 4 work search actions that are reasonably designed to secure work. Registration for work under ch. DWD 126 does not establish that the claimant is making a reasonable search for suitable work. It is essential that the claimant personally and diligently search for suitable work. The reasonableness of a search for work will, in part, depend on the employment opportunities in the claimant’s labor market area. A work search which may be appropriate in a labor market area with limited opportunities may be totally unacceptable in an area with greater opportunities. Unreasonable limitations by a claimant as to salary, hours, or conditions of work indicate that a claimant is not making a reasonable search for suitable work. The department expects claimants to conduct themselves as would a prudent person who is out of work and seeking work.

(2) Any of the following actions by a claimant shall constitute a reasonable work search action:

(a) Applying for work with employers who may reasonably be expected to have openings for suitable work, except that applications submitted to the same employer more than once in a 4-week period are not credited as a work search action unless a new job is posted by the employer or available, or the employer’s customary practices or circumstances encourage the submission of additional applications or the provisions under s. 108.04 (2) (i), Stats., apply.

(cm) Taking examinations for suitable work in the civil service of a governmental unit.

(d) Registering for suitable work with a public or private placement facility, including a union.

(em) Following the recommendations of a public employment office or similar reemployment services, including participation in reemployment services.

(j) Other actions the department may determine as constituting a reasonable work search action.

Note: The department shall include in the UCB-10 Handbook for Claimants examples of reasonable work search actions. In addition, the department shall include information on how claimants can contact the department with questions related to work search actions.

(3) Unless the department waives the work search requirement, a claimant is ineligible for unemployment benefits in any given week in which the department determines the claimant did not conduct at least 4 actions to search for suitable work within that week.

History

Cr. Register, July, 1984, No. 343, eff. 8-1-84; CR 06-072: am. (1) and (2) (b), r. and recr. (2) (intro.) Register December 2006 No. 612, eff. 1-1-07; EmR1316: emerg. am. (1), (2) (intro.), (a), r. (2) (b), am. (2) (c) to (d), cr. (2) (em), r. (2) (f) to (i),r. and recr. (2) (j), am. (3) eff. 9-29-13; CR 13-081: am. (1), (2) (intro.), (a), r. (2) (b), am. (2) (c) to (d), r. (2) (e) to (i), cr. (2) (em), r. and recr. (2) (j), am. (3) Register April 2014 No. 700, eff. 5-1-14; CR 18-033: am. (3) Register May 2019 No. 761, eff. 6-1-19.

Wis. Admin. Code § DWD 127.02 Waiver of work search requirements {#sec-dwd-127.02 omnilex-key=us-wi-regs-official--agency-dwd--DWD 127.02}

The department shall waive a claimant’s requirement to conduct at least 4 actions to search for suitable work if any of the following apply:

(1) The claimant performs any work for his or her customary employer.

Note: Sub. (1) is amended by CR 13-081 effective when the secretary of the department determines the department has the technological ability to implement the changes made by CR 13-081 to read:

(1) The claimant performs at least 20 hours of work for any employer in that week.

(2) The claimant is currently laid off from employment with an employer but there is a reasonable expectation that the claimant will be returning to employment within a period of 8 weeks, which may be extended an additional 4 weeks but may not exceed a total of 12 weeks. In determining whether the claimant has a reasonable expectation of reemployment by the employer, the department shall request the employer to verify the claimant’s employment status. If the employer does not verify the claimant’s employment status, the department may consider any of the following:

(a) The history of layoffs and reemployments by the employer.

(b) Any information that the employer furnished to the individual concerning the claimant’s anticipated reemployment date.

(c) Whether the claimant has recall rights with the employer under the terms of any applicable collective bargaining agreement.

(4) The claimant has been laid off from work and routinely obtains work through a union referral and all of the following apply:

(a) The union is the primary method used by workers to obtain employment in the claimant’s customary occupation.

(b) The union maintains a record of unemployed members, and the referral activities of these members, and allows the department to inspect such records.

(c) The union provides, upon the request of the department, any information regarding a claimant’s registration with the union or any referrals for employment it has made to the claimant.

(d) Prospective employers of the claimant seldom place orders with the public employment office for jobs requiring occupational skills similar to those of the claimant.

(e) The claimant is registered for work with a union and satisfies the requirements of the union relating to job referral procedures, and maintains membership in good standing with the union.

(f) The union enters into an agreement with the department regarding the requirements of this subsection.

(6) The claimant is summoned to serve as a prospective or impaneled juror.

(7) The claimant is enrolled in and satisfactorily participating in a course of approved training under s. 108.04 (16), Stats., in a work share program under s. 108.062 (10m), Stats., or in a self-employment assistance program or another program that has been enacted by the Wisconsin or federal legislature and the program includes that claimants who participate in the program shall be waived by the department from work search requirements.

(8) The claimant has not made a search for suitable work because of an error made by personnel of the department.

(9) The claimant’s most recent employer failed to post appropriate notice posters as to claiming unemployment benefits as required under s. DWD 120.01 and the claimant was not aware of the work search requirement.

(11) The claimant has been referred for reemployment services, is participating in such services, or is not participating in such services, but has justifiable cause for failure to participate. Justifiable cause includes that the claimant is unable to participate due to any of the following:

(a) The claimant is summoned to serve as a prospective or impaneled juror.

(b) The claimant is enrolled and satisfactorily participating in a course of training approved by the department, in a work share program under s. 108.062 (10m), Stats., or in a self-employment assistance program or another program that has been enacted by the Wisconsin or federal legislature and the program includes that claimants who participate in the program shall be waived by the department from work search requirements.

(d) The claimant is attending a job interview.

(e) Circumstances which the department determines are beyond the claimant’s control.

Note: This section, except sub. (1) as noted above, is shown as affected by CR 13-081 effective June 1, 2015, in accordance with the requirements of section 47 of CR 13-081, which provides:

Note: The department published the following notice in Register May 26, 2015 No. 713B:

History

Cr. Register, July, 1984, No. 343, eff. 8-1-84; CR 06-072: (6) to (11) renum. from DWD 127.03 (1) to (6) and am. (9), am. (intro.) and (3) (intro.), r. and recr. (2), Register December 2006 No. 612, eff. 1-1-07; EmR1316: emerg. am. (intro.), (1), renum. (2) (intro.) to (2) and am., r. (2) (a) to (c), renum. (3) (intro.) to (3) and am., r. (3) (a) to (c), am. (4), r. (5), am. (7), (9), r. (10), am. (11), cr. (12) eff. 9-29-13; CR 13-081: am. (intro.), (1), (2) (intro.), (b), renum. (3) (intro.) to (3) and am., r. (3) (a) to (c), am. (4), r. (5), am. (7), (9), r. (10), cons. and renum. (11) (intro.) and (d) to (11) and am., r. (11) (a), (b) Register April 2014 No. 700, eff. 4-1-15, except (1), as noted above.

Wis. Admin. Code § DWD 127.04 Claimants to present verification of work search actions {#sec-dwd-127.04 omnilex-key=us-wi-regs-official--agency-dwd--DWD 127.04}

(1) Upon request, a claimant shall provide verification of conducting at least 4 work search actions to the department by computer-based programs or other methods approved by the department. The department shall consider alternate forms of submittal of completed information by a claimant on an individual basis when there is good cause for the claimant’s inability to use a computer-based program. Good cause for failure to use a computer-based program as prescribed by the department shall include any of the following:

(am) The claimant possesses physical, mental, educational, or linguistic limitations.

(bm) The claimant has unusual or unavoidable circumstances beyond the claimant’s control.

Note: The department shall notify claimants that it will consider alternate methods to verify a claimant’s work search actions if there is good cause for the claimant’s inability to use a computer-based program. In addition, the department shall provide claimants with information about how to request assistance with providing work search verification.

(1m) A claimant shall retain verification of all work search actions for 52 weeks following the week in which the work search actions occurred. Items used for verification shall include any of the following:

(a) Applications for work including the date on which the claimant made an employer contact; if available, the name and address of the employer and the name of the employer representative contacted; the type of work applied for; the method used to contact the employer and the results of the contact; or other verifiable information of the application.

(b) Civil service examinations: the date on which the claimant took an examination, the location of the examination, and the position for which the examination was taken.

(c) Registration with a union and placement facilities: the date on which the claimant registered and the name and address of the facility.

(d) Any reemployment services used at a public employment office: the date of the visit, the name and address of the public employment office, training program, or similar reemployment office, and the name of the person with whom the claimant met.

(e) If approved by the department, any other type of work search activity reasonably expected to result in the claimant becoming employed.

(2) A claimant may be ineligible for unemployment benefits in any given week in which the claimant fails to provide satisfactory verification of work search actions when requested by the department.

History

Cr. Register, July, 1984, No. 343, eff. 8-1-84; CR 06-072: am. (1) (intro.) Register December 2006 No. 612, eff. 1-1-07; EmR1316: emerg. am. (title), rn. (1) (intro.) to (1) and (1m) (intro.) and am., renum. (1) (a) to (d) to (1m) (a) to (d) and am., cr. (1m) (e), am. (2) eff. 9-29-13; CR 13-081: am. (title), (1) (intro.), cr. (1) (am), (bm), renum. (1) (a) to (d) to (1m) (a) to (d) and am., cr. (1m) (intro.), (e), am. (2) Register April 2014 No. 700, eff. 5-1-14.

Wis. Admin. Code § DWD 127.05 Certification as to work search {#sec-dwd-127.05 omnilex-key=us-wi-regs-official--agency-dwd--DWD 127.05}

The department may require a claimant to certify that work search actions were made each week as part of the claim filing procedure under ch. DWD 129.

History

Cr. Register, July, 1984, No. 343, eff. 8-1-84; CR 06-072: r. (2) and (3) Register December 2006 No. 612, eff. 1-1-07; EmR1316: emerg. am. eff. 9-29-13; CR 13-081: am. Register April 2014 No. 700, eff. 5-1-14.

Wis. Admin. Code § DWD 127.06 Added efforts to secure work {#sec-dwd-127.06 omnilex-key=us-wi-regs-official--agency-dwd--DWD 127.06}

(1) In addition to the requirements under s. DWD 127.01 (2), if a claimant has been unemployed for 7 or more consecutive weeks, a claimant may be required to perform any of the following:

(a) Conduct 5 work search actions within any given week when the department determines a claimant’s employment history or conduct indicates that the claimant is placing unreasonable limitations as to salary, hours, or conditions of work in accepting new work or is not engaging in work search efforts as would a prudent person who is out of work and is seeking work.

(b) Develop a work search plan for approval by the department. The plan may include a requirement to complete 5 work search actions per week. The plan shall consider the number of job opportunities available in the labor market area where the claimant usually works.

(2) A claimant shall be ineligible for benefits in any given week in which the department determines that the claimant failed, without good cause, to comply with the requirements under sub. (1). Good cause under this section shall include any of the following:

(a) The claimant is summoned to serve as a prospective or impaneled juror.

(b) The claimant is enrolled in and satisfactorily participating in a course of training approved by the department, in a work share program under s. 108.062 (10m), Stats., in a self-employment assistance program, or in another program established under state or federal law and the program provides that claimants who participate in the program shall be waived by the department from work search requirements.

(d) The claimant is attending a job interview.

(e) Circumstances that the department determines are beyond the claimant’s control.

(3) A claimant who is claiming extended benefits under s. 108.141, Stats., shall comply with any requirements imposed by the department under sub. (1). A claimant who fails to comply with the requirements under this subsection shall be ineligible for benefits until the claimant has again worked within at least 4 subsequent weeks and earned wages equal to at least 4 times the claimant’s extended weekly benefit rate.

History

Cr. Register, July, 1984, No. 343, eff. 8-1-84; emerg. r. (3) eff. 3-6-93; r. (3), Register, July, 1993, No. 451, eff. 8-1-93; cr. (3), Register, October, 1994, No. 466, eff. 11-1-94; EmR1316: emerg. renum. (1) to (1) (intro.), (a), (b) and am., cr. (1) (c), am. (2), (3), eff. 9-29-13; CR 13-081: renum. (1) to (1) (intro.), (a) and am., cr. (1) (b), am. (2), (3) Register April 2014 No. 700, eff. 5-1-14; CR 18-033: renum. (2) to (2) (intro.), cr. (2) (a) to (e) Register May 2019 No. 761, eff. 6-1-19.

Wis. Admin. Code § DWD 127.07 Reemployment services {#sec-dwd-127.07 omnilex-key=us-wi-regs-official--agency-dwd--DWD 127.07}

(1) The department may require a claimant to participate in a public employment office workshop, training program, or similar reemployment services which offers instruction in improving the claimant’s skills for finding and obtaining employment. The claimant shall be ineligible for benefits for any given week for which the department determines that the claimant failed, without good cause, to participate in such a workshop, training program, or similar reemployment services.

(2) The department may find that a claimant has good cause for failure to participate in reemployment services in any given week. For the purposes of this section, good cause for failure to participate in reemployment services includes that the claimant is unable to participate due to any of the following:

(a) The claimant is summoned to serve as a prospective or impaneled juror.

(b) The claimant is enrolled and satisfactorily participating in a course of training approved by the department, in a work share program under s. 108.062 (10m), Stats., in a self-employment assistance program, or another program designed to assist individuals to become employed that has been enacted by the Wisconsin or federal legislature.

(d) The claimant is attending a job interview.

(e) Circumstances which the department determines are beyond the claimant’s control.

History

Cr. Register, July, 1984, No. 343, eff. 8-1-84; EmR1316: emerg. am., (title), (1), r. and recr. (2) eff. 9-29-13; CR 13-081: am. (title), (1), r. and recr. (2) Register April 2014 No. 700, eff. 5-1-14; CR 18-033: am. (2) (intro.) Register May 2019 No. 761, eff. 6-1-19.

Chapter DWD 128 ABILITY TO WORK AND AVAILABILITY FOR WORK

Wis. Admin. Code § DWD 128.001 Definitions {#sec-dwd-128.001 omnilex-key=us-wi-regs-official--agency-dwd--DWD 128.001}

(1) Unless the context clearly indicates a different meaning, the definitions in ch. DWD 100 apply to this chapter.

(2) In this chapter:

(a) “Full-time” means work which is performed for 32 or more hours in a week.

(b) “Shift” means the arrangement of hours a claimant is required to work. “First shift” means a work period which begins and ends between 6 a.m. and 6 p.m.

(d) “Weekly certification” means the method used by a claimant to submit information regarding the claimant’s employment status and availability for work and to establish a basis for the payment of unemployment benefits.

History

Cr. Register, September, 1995, No. 477, eff. 10-1-95; CR 18-033: renum. to (1), cr. (2) (intro.), (2) (a) renum. from DWD 100.02 (28), (2) (b) renum. from DWD 100.02 (55), (2) (c) renum. from DWD 100.02 (62) and am., (2) (d) renum. from DWD 100.02 (72) and am. Register May 2019 No. 761, eff. 6-1-19.

Wis. Admin. Code § DWD 128.01 Able to work and available for work {#sec-dwd-128.01 omnilex-key=us-wi-regs-official--agency-dwd--DWD 128.01}

(1) Applicability. Under s. 108.04 (2), Stats., a claimant shall be eligible for unemployment benefits for any week of total unemployment only if the claimant is able to perform suitable work and available for suitable work. Under s. 108.04 (1) (b), (7) (c), and (8), Stats., a claimant shall be eligible for unemployment benefits only if the claimant is able to perform suitable work and is available for suitable work. The department may determine the claimant’s ability to perform suitable work and availability for suitable work at any time through questioning of the claimant and other procedures.

(2) Presumption. Unless evidence is obtained that in the relevant week the claimant was not able to work or available for work, a claimant is presumed able to work and available for work for any week that all of the following conditions are met:

(a) The claimant has registered for work and has complied with s. DWD 126.02, or registration is waived under s. DWD 126.03.

(b) The claimant has complied with the work search requirements of s. 108.04 (2) (a) 3., Stats., and ch. DWD 127, or a work search is waived or excused under ch. DWD 127.

(3) Able to work.

(a) Able to work means that the claimant maintains an attachment to the labor market and has the physical and psychological ability to engage in some substantial gainful employment in suitable work. During any week, a claimant is not able to work if the claimant is unable to perform suitable work due to a physical or psychological condition. In determining whether the claimant is attached to the labor market and able to perform suitable work, the department shall consider all factors relevant to the circumstances of the case, which may include the following:

The claimant’s usual or customary occupation.
The nature of the restrictions caused by the claimant’s physical or psychological condition.
Whether the claimant is qualified to perform other work within the claimant’s restrictions considering the claimant’s education, training, and experience.
Occupational information and employment conditions data and reports available to the department showing whether and to what extent the claimant is able, within his or her restrictions, to perform suitable work in his or her labor market area.

(4) Available for work.

(a) Withdrawal from labor market. Available for work means that the claimant maintains an attachment to the labor market and is ready to perform full-time suitable work in the claimant’s labor market area. An individual who has a physical or psychological restriction and is found able to work under sub. (3) shall not be considered unavailable for work solely because of inability to work, provided the individual is available for suitable work for the number of hours the individual is able to work. During any week, a claimant is not available for suitable work if he or she has withdrawn from the labor market due to restrictions on his or her availability for work. In determining whether a claimant has withdrawn from the labor market, the department shall consider one or more of the following factors:

Example 1: A claimant has a number of physical restrictions due to recent surgery, including a restriction to work no more than 20 hours per week for 2 months. With the restrictions, the claimant cannot perform the duties of his or her usual occupation but is able to perform a number of jobs for which he or she has prior training and experience. The claimant is willing to do these jobs and is willing to work 20 hours per week. The claimant has no other restrictions to availability. Benefits will not be denied solely because of the inability to work full-time.

Example 2: A claimant is restricted to working 30 hours per week due to medical problems. The claimant is still able to perform the duties of his or her usual occupation. However, the claimant is unwilling to work more than 20 hours per week because the claimant is receiving Social Security benefits and more than 20 hours of work would reduce those benefits. Benefits will be denied until the claimant is available for 30 hours of work per week.

‘Salary or wages.’ A claimant is considered to have withdrawn from the labor market if he or she is not available for full-time suitable work at a wage reasonably comparable to the usual wage that was paid to the claimant while working in the claimant’s usual occupation. The claimant’s usual wage is determined by evaluating the wage rates that were paid to the claimant in one or more previous jobs since the start of the claimant’s base period. The claimant’s usual occupation is determined by considering the claimant’s training and experience as evidenced by the claimant’s employment since the start of the claimant’s base period.
‘Shift and time restrictions.’ A claimant is considered to have withdrawn from the labor market if he or she is not available for full-time suitable work during the standard hours in which work is performed in the occupations in which the claimant usually works or has prior training or experience. In determining the standard hours in which work is performed in the occupations, the department shall include the hours and the shift that the claimant worked in an occupation in one or more previous jobs since the start of the claimant’s base period. For purposes of this subdivision, a claimant whose availability is restricted by an immediate family member’s medical or health condition or other infirmity requiring care that is provided by the claimant is not considered to have withdrawn from the labor market, provided that the claimant remains available for full-time suitable work, regardless of the shift or hours.
‘Travel and transportation.’ A claimant is considered to have withdrawn from the labor market if he or she is either not willing or not able to travel a reasonable distance and time to and from work. In making this determination, the department may consider the wage sought, the modes of available transportation, commuting costs, and the claimant’s commuting history.
‘Incarceration.’ A claimant who is incarcerated for more than 48 hours during any week is considered to have withdrawn from the labor market for that week unless the claimant has work release privileges that allow the claimant to meet all requirements related to availability for work.
‘Absence from the labor market.’ A claimant who is absent from his or her labor market area for more than 48 hours during any week is considered to have withdrawn from the labor market for that week, unless the claimant shows that he or she remains continuously attached to the labor market during the absence or that the primary purpose of the absence was to seek suitable work. A claimant may show continuous attachment to the labor market by the claimant’s availability to timely receive and respond to offers of work by phone or other means of communication and willingness and ability to return to the labor market within 24 hours.
‘Types of work sought.’ A claimant is considered to have withdrawn from the labor market if the claimant does not broaden his or her availability for work to additional types of suitable work as the period of his or her unemployment lengthens.
‘Other unreasonable restrictions on working conditions.’ A claimant is considered to have withdrawn from the labor market if he or she places other unreasonable restrictions on working conditions.
‘Occupational information and employment conditions data.’ Occupational information and employment conditions data and reports available to the department showing the extent to which full-time suitable jobs exist in the claimant’s labor market area within his or her restrictions.

(b) Standards for suitable work distinguished. Nothing in par. (a) may prevent the department from denying benefits to a claimant who fails, without good cause, to accept suitable work when offered, as provided in s. 108.04 (8) (a), Stats., or to a claimant who fails, without good cause, to return to suitable work with a former employer that recalls the claimant within 52 weeks after the claimant last worked for the employer, as provided in s. 108.04 (8) (c), Stats. The standards for determining a claimant’s availability for suitable work and a claimant’s failure, without good cause, to accept suitable work are different standards.

(5) Lawful resident. To be considered available for suitable work for a week, an alien must be legally authorized to work that week in the United States by the appropriate agency of the federal government. In determining whether an alien is legally authorized to work in the United States, the department will follow the requirements of 42 USC 1320b-7 (d) (2), which relates to verification of and determination of an alien’s status.

Note: 42 USC 1320b-7 (d) (2) is Section 1137 (d) of the Social Security Act.

(6) Jury duty. The department shall consider a claimant to be available for suitable work during the time that the claimant responds to and remains under a summons for jury service, whether or not impaneled on a jury. Jury duty shall be good cause for not reporting for an eligibility review under s. DWD 128.03.

History

Cr. Register, July, 1984, No. 343, eff. 8-1-84; am. (5), Register, September, 2000, No. 537, eff. 10-1-00; CR 01-039: am. (2) (b); Register September 2001 No. 549 eff. 10-1-01; CR 07-054: r. and recr. Register March 2008 No. 627, eff. 4-1-08; CR 10-017: am. (3), (4) (a) (intro.) and 2., r. (7) Register September 2010 No. 657, eff. 10-1-10; EmR1316: emerg. am. (2) (a) eff. 9-29-13; CR 13-081: am. (2) (a) Register April 2014 No. 700, eff. 5-1-14; CR 18-033: am. (1) Register May 2019 No. 761, eff. 6-1-19.

Wis. Admin. Code § DWD 128.03 Eligibility review {#sec-dwd-128.03 omnilex-key=us-wi-regs-official--agency-dwd--DWD 128.03}

(1) The department may periodically review the records of any individual claiming unemployment benefits to determine whether the claimant meets the continuing eligibility requirements of chs. DWD 126 to 128 and s. 108.04, Stats. A claimant shall respond as required when notified by the department of a review of the claimant’s continuing eligibility for benefits.

(2) The eligibility review may include any of the following:

(a) An interview with the claimant conducted by a representative of the department.

(b) A review of the appropriateness of the claimant’s registration or waiver of registration under ch. DWD 126.

(c) A determination as to whether the claimant is able to perform suitable work and available for suitable work under this chapter.

(d) An assessment of the claimant’s work search efforts under ch. DWD 127.

(e) A determination as to whether the claimant is making satisfactory progress under s. 108.04 (16), Stats., if the claimant is participating in approved training.

(f) A review of any reemployment services the claimant has received.

(g) Preparation of a reemployment plan as reasonably necessary to assist the claimant in his or her efforts to obtain work.

(3) If the claimant fails to participate in an eligibility review interview under sub. (2) (a) without good cause, the claimant shall be ineligible for benefits for the week in which the interview was scheduled.

History

Cr. Register, July, 1984, No. 343, eff. 8-1-84; CR 07-054: r. and recr. Register March 2008 No. 627, eff. 4-1-08.

Chapter DWD 129 BENEFIT CLAIMING PROCEDURES

Wis. Admin. Code § DWD 129.001 Definitions {#sec-dwd-129.001 omnilex-key=us-wi-regs-official--agency-dwd--DWD 129.001}

Unless the context clearly indicates a different meaning, the definitions in ch. DWD 100 apply to this chapter.

History

Cr. Register, September, 1995, No. 477, eff. 10-1-95.

Wis. Admin. Code § DWD 129.01 Notice of unemployment {#sec-dwd-129.01 omnilex-key=us-wi-regs-official--agency-dwd--DWD 129.01}

(1) Initiating a claim. A claimant is not eligible under s. 108.08, Stats., for benefits for any week of total or partial unemployment unless the claimant notifies the department during that week or within 7 days after the close of that week, of the claimant’s intent to initiate the claim and the claimant complies with the department’s procedures for initiating and continuing claims. If the department provides for a single method for initiating a claim and a claimant has good cause for the claimant’s inability to use that method, the department shall provide reasonable accommodations for the claimant to be able to complete the claim. Good cause for failure to initiate a claim as prescribed by the department shall include, if it prevents the claimant from using the method prescribed by the department, any of the following:

(a) The claimant possesses physical, mental, educational, or linguistic limitations.

(b) The claimant has unusual or unavoidable circumstances beyond the claimant’s control.

Note: The department shall notify claimants that it will consider alternate methods for initiating a claim if there is good cause for the claimant’s inability to use a computer-based program. In addition, the department shall provide claimants with information about how to request assistance with initiating a claim.

(2) Continuing a claim by filing a weekly certification.

(a) A claimant is not eligible for benefits for any week of total or partial unemployment unless the claimant files a timely weekly certification with the department. If the department provides for a single method for a claimant to continue a claim by filing a weekly certification and a claimant has good cause for the claimant’s inability to use that method, the department shall provide a reasonable accommodation for the claimant to be able to complete the claim. Good cause for failure to file a weekly certification as prescribed by the department shall include, if it prevents the claimant from using the method prescribed by the department, any of the following:

The claimant possesses physical, mental, educational, or linguistic limitations.
The claimant has unusual or unavoidable circumstances beyond the claimant’s control.

Note: The department shall notify claimants that it will consider alternate methods to file the weekly certification if there is good cause for the claimant’s inability to use a computer-based program. In addition, the department shall provide claimants with information about how to request assistance with weekly claim certification.

(b) The department shall consider a weekly certification to be filed when the certification is complete and submitted in compliance with the applicable requirements for the methods authorized by the department:

A claimant may continue a claim only by filing timely weekly certifications no later than 14 days following the end of the week for which benefits are claimed. If the method prescribed by the department for notification for the claimant to use is the internet or telephone, the department shall notify the claimant for which weeks the claimant may file a weekly certification and at the end of the transaction whether the weekly certification has been accepted. The department shall consider a weekly certification to be filed when the certification is complete, timely submitted, and accepted by the department.
A claimant may not file a weekly certification for any week unless a weekly certification for the immediately preceding week was timely filed or an initial claim was timely filed for the week.

Note: Example 1:

Week 1 Weekly certification filed timely

Week 2 No weekly claim filed

Week 3 No weekly claim filed

Week 4 Weekly certification for week 2 can still be filed. However, a weekly certification for week 3 cannot be filed until a weekly certification for week 2 is filed. If the claimant wants to file a weekly certification for week 3, but not for week 2, an initial claim must be filed for week 3 by the close of week 4.

Example 2:

Week 1 Weekly certification filed timely

Week 2 No weekly claim filed

Week 3 No weekly claim filed

Week 4 No weekly claim filed

Week 5 Weekly certification for week 2 can no longer be filed because the 14-day period has expired. Weekly certification for week 3 cannot be filed because a weekly certification for the immediately preceding week has not been filed and a timely initial claim can no longer be filed for week 3. Weekly claim for week 4 can be filed if an initial claim is filed by the close of week 5.

(4) Waiver; exceptional circumstances. The department shall waive the requirements of this section if exceptional circumstances exist. Exceptional circumstances include any of the following:

(a) An error made by an employee of the department when providing notice to the claimant or a reasonable misunderstanding by the claimant based on information given to the claimant by the department.

(b) Action by an employer, in any manner, directly or indirectly, instructing, warning, or persuading the claimant not to file a benefit claim.

(c) The claimant did not comply because the claimant was not aware of the duty to notify the department, and the claimant’s most recent employer failed to post and maintain the notice on claiming unemployment benefits that was supplied to the employer under s. DWD 120.01.

(d) The claimant performed services as a school year employee in other than an instructional, research, or principal administrative capacity and had reasonable assurance of performing services for the employer in a similar capacity in the 2nd academic year or term but was subsequently not offered the opportunity to perform such services.

(f) Other exceptional circumstances over which the claimant has no control.

History

Cr. Register, July, 1984, No. 343, eff. 8-1-84; emerg. am. (1), eff. 2-2-93; am. (1), Register, July, 1993, No. 451, eff. 8-1-93; correction in (3) (e) made under s. 13.93 (am) (b) 7., Stats., Register, July, 1993, No. 451; am. (1) and (2) (a), cr. (2) (a) 1. and 2., r. and recr. (2) (b), (3) (a) and (b), r. (2) (c), (3) (g) and (4), renum. (2) (d), (3) (intro.), (c) to (f) to be (2) (c), (4) (intro.) to (d) and am. (4) (intro.), (a), (c) and (d), Register, December, 1995, No. 480, eff. 1-1-96; cr. (4) (e), Register, November, 1999, No. 527, eff. 12-1-99; correction in (2) (b) 2. made under s. 13.93 (2m) (b) 7., Stats., Register, September, 2000, No. 537; am. (2) (a) (intro.), Register, September, 2000, No. 537, eff. 10-1-00; emerg. am. (1), eff. 4-14-02; CR 02-088: am. (1) Register November 2002 No. 563, eff. 12-1-02; CR 06-073: am. (1), (4) (intro.), (a) (b), (c), (d) and (e), r. and recr. (2) (a), (b) and (c), and (3), r. (a) 1. and 2., cr. (4) (f), Register December 2006 No. 612, eff. 1-1-07; correction in (2) (b) 3. made under s. 13.93 (2m) (b) 7., Stats., Register June 2007 No. 618; CR 10-018: am. (1) and (2) (a), r. and recr. (2) (b) 1. and 2., r. (2) (b) 3., 4., (c) and (3) Register September 2010 No. 657, eff. 10-1-10; EmR1316: emerg. renum. (1) to (1) (intro.) and am., cr. (1) (a), (b), renum. (2) (a) to (2) (a) (intro.) and am., cr. (2) (a) 1., 2., am. (2) (b) eff. 9-29-13; CR 13-081: renum. (1) to (1) (intro.) and am., cr. (1) (a), (b), renum. (2) (a) to (2) (a) (intro.) and am., cr. (2) (a) 1., 2., am. (2) (b) Register April 2014 No. 700, eff. 5-1-14; CR 18-033: am. (4) (intro.), (a), r. (4) (e) Register May 2019 No. 761, eff. 6-1-19.

Wis. Admin. Code § DWD 129.02 Establishment of benefit year {#sec-dwd-129.02 omnilex-key=us-wi-regs-official--agency-dwd--DWD 129.02}

(1) In order to establish a benefit year under s. 108.06 (2) (a), Stats., a claimant shall:

(a) Comply with the notification and filing requirements under s. DWD 129.01; and

(b) Have the minimum amount of wages in the claimant’s base period as required under s. 108.04 (4) (a), Stats.

(2) A claimant establishing a second or subsequent benefit year shall, in addition to the requirements of sub. (1), comply with the earnings requirement of s. 108.04 (4) (c), Stats.

History

Cr. Register, November, 1989, No. 407, eff. 12-1-89; emerg. am. (1) (a), eff. 2-2-93; am. (1) (a), Register, July, 1993, No. 451, eff. 8-1-93; r. and recr. (1) (a), am. (1) (b), r. (2) and (3), cr. (2), Register, December, 1995, No. 480, eff. 1-1-96.

Wis. Admin. Code § DWD 129.03 Backdating of benefit year; circumstances {#sec-dwd-129.03 omnilex-key=us-wi-regs-official--agency-dwd--DWD 129.03}

Under s. 108.06 (2) (bm), Stats., a claimant’s benefit year begins on the Sunday of the week in which the claimant meets the requirements to establish a benefit year under s. DWD 129.02, except that the department may, by rule, permit a claimant to begin a benefit year before that time. The department shall permit the backdating of a benefit year if an exceptional circumstance exists. Exceptional circumstances include those listed in s. DWD 129.01 (4).

History

Cr. Register, November, 1989, No. 407, eff. 12-1-89; renum. (1) to be 129.03 and am., r. (2), Register, December, 1995, No. 480, eff. 1-1-96; CR 06-073: am. Register December 2006 No. 612, eff. 1-1-07; CR 18-033: am. Register May 2019 No. 761, eff. 6-1-19.

Wis. Admin. Code § DWD 129.04 Department set aside of benefit year {#sec-dwd-129.04 omnilex-key=us-wi-regs-official--agency-dwd--DWD 129.04}

(1) Request to set aside a benefit year. Under s. 108.06 (2) (d), Stats., a claimant may request the department to set aside a benefit year.

(2) Granting a request to set aside a benefit year. Under s. 108.06 (2) (d), Stats., the department shall grant the claimant’s request and cancel the benefit year if the request is voluntary, benefits have not been paid to the claimant, and at the time the department acts upon the request for that benefit year the claimant’s benefits eligibility is not suspended. If the claimant does not meet all of the requirements under s. 108.06 (2) (d), Stats., the department may set aside the benefit year if the conditions in both pars. (a) and (b) are met:

(a) The department has recovered, or has waived the recovery of, all benefits paid to the claimant for that benefit year or offsets this amount against benefits the claimant would otherwise be eligible to receive at the time the request to set aside a benefit year is made.

(b) Any of the following exceptional circumstances apply to the claim:

The department terminates coverage of an employer previously subject to ch. 108, Stats., for whom the claimant performed services in the base period and the claimant could not have foreseen this termination of coverage.
The department makes an error relating to the establishment of the claimant’s benefit year.
The wage data used by the department to establish the benefit year is erroneous.
The claimant established a benefit year in the two weeks immediately preceding the first full week of a new calendar quarter, but a benefit year established as of the first full week of the new calendar quarter would give the claimant a higher weekly benefit rate or a higher maximum benefit amount.
The claimant’s first payment in the benefit year was made after an additional initial claim was filed.
The claimant is eligible to start a benefit year in another state.
The cancellation of wage credits under s. 108.04 (5), Stats., reduces the claimant’s maximum benefit amount to less than 5 times the weekly benefit rate.
Other exceptional circumstances exist over which the claimant has no control that are related to establishing a benefit year.

History

Cr. Register, November, 1989, No. 407, eff. 12-1-89; am. (1) (intro.), (2) (a) (intro.), 2., 3. and (b) 1., r. (1) (a) to (c), cr. (2) (a) 4., Register, December, 1995, No. 480, eff. 1-1-96; CR 06-073: am. (1), r. and recr. (2), Register December 2006 No. 612, eff. 1-1-07.

Wis. Admin. Code § DWD 129.05 Payment of benefits {#sec-dwd-129.05 omnilex-key=us-wi-regs-official--agency-dwd--DWD 129.05}

(1) Method of payment. The department shall pay benefits by checks mailed to the claimant’s address of record with the department, by electronic deposit to a claimant’s designated bank account, or by debit card issued by the department or its designee, unless the benefits are applied by the department for overpayments, forfeitures, child support payments under s. 108.13, Stats., or other assignments permitted under state or federal law.

(2) Charging of payment. The department shall charge each benefit payment against an account in the unemployment reserve fund or the administrative account and shall periodically send each employer a record of each payment charged against its account in the fund.

History

Cr. Register, November, 1989, No. 407, eff. 12-1-89; am. Register, December, 1995, No. 480, eff. 1-1-96; CR 10-018: am. (1) Register September 2010 No. 657, eff. 10-1-10.

Chapter DWD 131 PRE-EMPLOYMENT DRUG TESTING, SUBSTANCE ABUSE TREATMENT PROGRAM AND JOB SKILLS ASSESSMENT

Wis. Admin. Code § DWD 131.001 Definitions {#sec-dwd-131.001 omnilex-key=us-wi-regs-official--agency-dwd--DWD 131.001}

(1) Except as provided in sub. (2), the definitions in ch. DWD 100 apply to this chapter.

(2) In this chapter:

(a) “Controlled substances” has the meaning given under s. 108.133 (1) (ar), Stats.

Note: Section 108.133 (1) (ar), Stats., states “Notwithstanding s. 108.02 (9), “controlled substances” has the meaning given in 21 USC 802.”

(b) “Positive test results” means a test outcome that confirms the unlawful use of one or more controlled substances and which is conducted or confirmed by a laboratory certified by the substance abuse and mental health services administration of the United States department of health and human services.

(d) “Substance abuse treatment program” means the services offered by a substance abuse treatment provider, beginning with an assessment.

(e) “Substance abuse treatment provider” means an individual or organization that is licensed by a government unit to administer substance abuse treatment services to individuals that use controlled substances.

History

EmR1617: emerg. cr., eff. 5-1-16; EmR1702: emerg. cr., eff. 1-30-17; CR 16-036: cr. Register April 2017 No. 736, eff. 5-1-17; CR 18-033: am. (2) (intro.), (b) Register May 2019 No. 761, eff. 6-1-19; correction in (2) made under s. 13.92 (4) (b) 1., Stats., Register May 2019 No. 761; correction in (2) (a) made under s. 13.92 (40 (b) 7., Stats., Register March 2020 No. 771.

Wis. Admin. Code § DWD 131.10 Pre-employment testing for the unlawful use of controlled substances {#sec-dwd-131.10 omnilex-key=us-wi-regs-official--agency-dwd--DWD 131.10}

(1) Positive test results; applicability. An employing unit may report to the department an individual’s positive test results if all of the following apply:

(a) The test for the unlawful use of controlled substances was conducted as a condition of an offer of employment and the employing unit informed the individual, before testing, that positive test results may be submitted to the department.

(b) The individual tested positive for one or more controlled substances without evidence of a valid prescription for each controlled substance.

(2) Reporting positive test results to the department. To report positive test results to the department, the employing unit shall provide all of the following information, on a form prescribed by the department, within 3 business days after the date on which the employing unit received the positive test results:

(a) The name, address, and telephone number of the employing unit, and, if applicable, the unemployment insurance account number of the employing unit.

(b) The name, address, telephone number, and social security number of the individual that tests positive for the unlawful use of controlled substances.

(c) The following information related to the conditional offer of employment that the employing unit offered to the individual:

Documentation of the conditional offer of employment.
The date on which the employing unit extended the conditional offer of employment to the individual.
The date on which employment would begin, the rate of pay offered to the individual, the number and arrangement of hours, and the kind of work that would be performed.
The date and manner in which the employing unit informed the individual that, as a condition of the offer of employment, the individual must submit to a test for the unlawful use of controlled substances.

(d) The date and manner in which the employing unit informed the individual that positive test results may be submitted to the department.

(e) The following information related to the administration of the test and the positive test results:

The name, address, and telephone number of the laboratory that conducted the test.
The date on which the individual submitted to the test.
The controlled substances detected in the test.
A copy of the laboratory’s report.

(f) The date on which the employing unit received the results of the test from the laboratory.

(g) The date and manner in which the employing unit withdrew the conditional offer of employment after the employing unit received the positive test results.

(h) Any additional information requested by the department.

Note: To obtain a form under this section, contact the Department of Workforce Development, Division of Unemployment Insurance, 201 E. Washington Avenue, P.O. Box 7905, Madison, WI 53707 by telephone at (414) 438-7705 or access the form online at https://dwd.wisconsin.gov/dwd/forms/ui/ucb-18102-e.htm.

(3) Individual declining to submit to a test for the unlawful use of controlled substances. An employing unit may notify the department that an individual declined to submit to a test for the unlawful use of controlled substances if all of the following apply:

(a) The test for the unlawful use of controlled substances was required as a condition of an offer of employment and the employing unit informed the individual, before testing, that the employing unit may notify the department if the individual declines to submit to the test.

(b) The employing unit complies with all of the provisions of this chapter.

(4) Notification to department of individual declining test. To notify the department that an individual declined to submit to a test for the unlawful use of controlled substances, the employing unit shall provide all of the following information, on a form prescribed by the department, within 3 business days after the date on which the individual declined to submit to the test:

(a) The name, address, and telephone number of the employing unit, and if applicable, the unemployment insurance account number of the employing unit.

(b) The name, address, telephone number, and social security number of the individual that declined to submit to a test for the unlawful use of controlled substances.

Documentation of the conditional offer of employment.
The date on which the employing unit extended the conditional offer of employment to the individual.
The date on which employment would begin, the individual’s pay rate, the number and arrangement of hours, and the kind of work that would be performed.
The date and manner in which the employing unit informed the individual that, as a condition of the offer of employment, the individual must submit to a test for the unlawful use of controlled substances.

(d) The date and manner in which the employing unit informed the individual that the employing unit may notify the department if the individual declined to submit to a test for the unlawful use of controlled substances.

(e) The following information related to the individual declining to submit to a test for the unlawful use of controlled substances:

The date on which the individual declined to submit to a test.
Documentation that the individual declined to submit to the test.
The date on which the employing unit received notification that the individual declined to submit to the test.

(f) The date and manner the employing unit withdrew the conditional offer of employment after the employing unit received notice that the individual declined to submit to a test for the unlawful use of controlled substances.

(g) Any additional information requested by the department.

Note: To obtain a form under this section, contact the Department of Workforce Development, Division of Unemployment Insurance, 201 E. Washington Avenue, P.O. Box 7905, Madison, WI 53707, by telephone at (414) 438-7705 or access the form online at https://dwd.wisconsin.gov/dwd/forms/ui/ucb-18102-e.htm.

(5) Department determination of an individual receiving benefits.

(a) The department shall determine, after receiving the information submitted by an employing unit under sub. (2) or (4), whether the individual is receiving benefits under ch. 108, Stats.

(b) If the department determines the individual is receiving benefits under par. (a), the department shall use the information reported under sub. (2) or (4) to determine eligibility under s. 108.04 (8) (b), Stats. The department shall provide information regarding the documentation submitted by an employing unit under sub. (2) or (4) to the individual.

(6) Rebuttable presumption for failure to accept suitable work.

(a) If the department determines an individual is receiving benefits under sub. (5) (a), the department shall provide the individual an opportunity to overcome the presumption that the individual failed, without good cause, to accept suitable work when offered under s. 108.04 (8) (b), Stats.

(b) An individual may overcome the presumption that the individual failed, without good cause, to accept suitable work when offered under s. 108.04 (8) (b), Stats., if the individual tested positive for the unlawful use of one or more controlled substances, and the individual establishes by a preponderance of the evidence, any of the following:

The employing unit did not extend an offer of employment contingent on the individual submitting to a test for the unlawful use of controlled substances.
The employing unit withdrew the offer of employment before the employing unit received the positive test results.
The individual held a valid prescription at the time of the test for each controlled substance detected in the test.
The test for the unlawful use of controlled substances was not conducted or confirmed by a laboratory certified by the substance abuse and mental health services administration of the United States department of health and human services.
The requirements under s. 108.04 (9), Stats., apply to the work offered.
Any circumstances which the department determines are beyond the individual’s control.

(c) The individual may overcome the presumption that the individual failed, without good cause, to accept suitable work when offered under s. 108.04 (8) (b), Stats., by declining to submit to a test for the unlawful use of controlled substances if the individual establishes by a preponderance of the evidence, any of the following:

The employing unit did not extend an offer of employment contingent on the individual submitting to a test for the unlawful use of controlled substances.
The individual was unable to complete a test for the unlawful use of controlled substances due to medical reasons.
The individual accepted an offer of employment from another employing unit before or at the time the individual declined to submit to the test under sub. (3).
The employing unit required the individual to pay for the test.
The requirements under s. 108.04 (9), Stats., apply to the work offered.
Any circumstances which the department determines are beyond the individual’s control.

(7) Period of ineligibility and requalification requirements for benefits.

(a) An individual under this section who has failed, without good cause, to accept suitable work due to positive test results without presenting evidence of a valid prescription, is ineligible to receive benefits until the individual earns wages after the week in which the failure occurs equal to at least 6 times the individual’s weekly benefit rate under s. 108.05 (1), Stats., in employment or other work covered by the unemployment insurance law of any state or the federal government.

(b) Notwithstanding par. (a), an individual under this section who has failed, without good cause, to accept suitable work due to positive test results without presenting evidence of a valid prescription, may maintain eligibility for benefits under ch. 108, Stats., by enrolling in and complying with a substance abuse treatment program under s. DWD 131.30 and completing a job skills assessment as prescribed under s. DWD 131.40.

(c) An individual under this section who has failed, without good cause, to accept suitable work by declining to submit to a test for the unlawful use of controlled substances, is ineligible to receive benefits until the individual earns wages after the week in which the failure occurs equal to at least 6 times the individual’s weekly benefit rate under s. 108.05 (1), Stats., in employment or other work covered by the unemployment insurance law of any state or the federal government.

History

EmR1617: emerg. cr., eff. 5-1-16; EmR1702: emerg. cr., eff. 1-30-17; CR 16-036: cr. Register April 2017 No. 736, eff. 5-1-17; CR 18-033: am. (title), (1) (intro.), (a), (2) (intro.), (b), (c) 4., (d), (e) (intro.), (g), (3) (intro.), (a), (4) (intro.), (b), (c) 4., (d), (e) (intro.), (f), (6) (b) (intro.), 1., 2., 4., (c) (intro.), 1., 2., (7) (a) to (c) Register May 2019 No. 761, eff. 6-1-19.

Wis. Admin. Code § DWD 131.30 Substance abuse treatment program {#sec-dwd-131.30 omnilex-key=us-wi-regs-official--agency-dwd--DWD 131.30}

(1) Eligibility.

(a) An individual whose positive test results are reported under s. DWD 131.10 (2) may enroll in a substance abuse treatment program if all of the following apply:

The individual is otherwise eligible for benefits under ch. 108, Stats.
The services offered by a substance abuse treatment program are administered by a substance abuse treatment provider approved by the department.

(b) An individual eligible under par. (a) may enroll in a substance abuse treatment program one time per benefit year.

(2) Authorization to release records. An individual who is eligible to enroll in a substance abuse treatment program under sub. (1) shall provide written authorization to the department for the disclosure of the individual’s records by the substance abuse treatment provider.

(3) Assessment. A substance abuse treatment provider shall use an assessment conducted under this chapter in order to determine the extent and severity of the individual’s use of controlled substances, and to determine the type of intervention necessary to address the individual’s use of controlled substances.

(4) Substance abuse treatment plan. The substance abuse treatment provider shall develop a substance abuse treatment plan that identifies the goals, objectives, resources, and dates of treatment for the individual. The substance abuse treatment provider shall provide a copy of the substance abuse treatment plan to the department.

(5) Substance abuse treatment program enrollment. Within 5 working days of being directed by the department, an individual shall contact an approved substance abuse treatment provider to schedule an assessment. An individual is considered to be enrolled in a substance abuse treatment program if any of the following apply:

(a) The individual schedules an assessment for the earliest date that is available with a substance abuse treatment provider.

(b) The individual requests placement on a waitlist maintained by the department for an assessment if the individual is unable to schedule an assessment with a substance abuse treatment provider. An individual who requests placement on a waitlist shall certify on a weekly basis, in a manner prescribed by the department, that the individual will schedule an assessment when services first become available with a substance abuse treatment program provider.

(6) Substance abuse treatment program compliance.

(a) An individual shall comply with all requirements of a substance abuse treatment plan as prescribed in sub. (4). Compliance in a substance abuse treatment program shall be satisfied by any of the following:

The substance abuse treatment provider informs the department on a weekly basis, in a manner prescribed by the department, of an individual’s compliance with the substance abuse treatment plan.
The individual certifies to the department on a weekly basis, in a manner prescribed by the department, that the individual is placed on a waitlist for a substance abuse treatment program and will comply with a substance abuse treatment plan when services first become available with a substance abuse treatment provider.

(b) An individual who fails to comply with the substance abuse treatment plan under par. (a) is ineligible to receive benefits until the individual earns wages after the week in which the failure occurs equal to at least 6 times the individual’s weekly benefit rate under s. 108.05 (1), Stats., in employment or other work covered by the unemployment insurance law of any state or the federal government.

(7) Successful completion of substance abuse treatment program.

(a) A substance abuse treatment provider shall notify the department, as directed, when an individual successfully completes the requirements of the substance abuse treatment program.

(b) An individual may complete a substance abuse treatment program with an alternate substance abuse treatment provider with advance department approval.

(8) Substance abuse treatment program costs.

(a) The department shall pay for reasonable costs of the services provided by the substance abuse treatment provider as set forth in the individual’s substance abuse treatment plan for each week the individual is eligible for benefits under ch. 108, Stats.

(b) Notwithstanding par. (a), the department shall pay for reasonable costs of the services provided by the substance abuse treatment provider as set forth in the substance abuse treatment plan if the individual is determined ineligible for benefits under ch. 108, Stats., solely due to the individual complying with the requirements of the individual’s substance abuse treatment plan.

History

EmR1617: emerg. cr., eff. 5-1-16; EmR1702: emerg. cr., eff. 1-30-17; CR 16-036: cr. Register April 2017 No. 736, eff. 5-1-17; CR 18-033: am. (1) (a) (intro.) Register May 2019 No. 761, eff. 6-1-19.

Wis. Admin. Code § DWD 131.40 Jobs skills assessment {#sec-dwd-131.40 omnilex-key=us-wi-regs-official--agency-dwd--DWD 131.40}

(1) An individual whose positive test results are reported under s. DWD 131.10 (2) and who elects to enroll in and comply with a substance abuse treatment plan under s. DWD 131.30 shall complete a job skills assessment as directed by the department.

(2) The department may require an individual to participate in reemployment services under s. DWD 127.07 in order to complete the job skills assessment.

(3) An individual who fails to participate in a job skills assessment under this section as directed by the department is ineligible to receive benefits until the individual earns wages after the week in which the failure occurs equal to at least 6 times the individual’s weekly benefit rate under s. 108.05 (1), Stats., in employment or other work covered by the unemployment insurance law of any state or the federal government.

History

EmR1617: emerg. cr., eff. 5-1-16; EmR1702: emerg. cr., eff. 1-30-17; CR 16-036: cr. Register April 2017 No. 736, eff. 5-1-17; CR 18-033: am. (1) Register May 2019 No. 761, eff. 6-1-19.

Chapter DWD 132 DETERMINING ELIGIBILITY FOR BENEFITS

Wis. Admin. Code § DWD 132.001 Definitions {#sec-dwd-132.001 omnilex-key=us-wi-regs-official--agency-dwd--DWD 132.001}

(1) Except as provided in this chapter, unless the context clearly indicates a different meaning, the definitions in ch. DWD 100 apply to this chapter.

(2) In this chapter:

(a) “Health care facility” means any nursing home, community-based residential facility, hospital, clinic, office of a physician or other health care professional, mental health institute, center for the developmentally disabled, alcohol or drug treatment center or other facility providing inpatient or outpatient health care to patients, whether licensed, approved or exempted under state law or certified under federal law.

(b) “Sexual contact” has the meaning specified in s. 940.225 (5) (b), Stats.

History

Cr. Register, August, 1987, No. 380, eff. 9-1-87; renum. (6) to (8) to be (9) to (11), cr. (6) to (8), Register, January, 1989, No. 397, eff. 2-1-89, r. (intro.), (2) to (4), (10) and (11), renum. (1) to be (2) and am., renum. (5), (6) and (9) to be 100.02 (23), (31) and (55), renum. (7) and (8) to be 100.02 (53) and (54) and am., cr. (1), Register, September, 1995, No. 477, eff. 10-1-95; renum. (1) to be DWD 132.001, r. (2), Register, May, 1997, No. 497, eff. 6-1-97; CR 18-033: renum. to (1), cr. (2) (intro.), (2) (a) renum. from DWD 100.02 (31), (2) (b) renum. from DWD 100.02 (53) and am., (2) (c) renum. from DWD 100.02 (54) and am. Register May 2019 No. 761, eff. 6-1-19.

Wis. Admin. Code § DWD 132.01 Purpose {#sec-dwd-132.01 omnilex-key=us-wi-regs-official--agency-dwd--DWD 132.01}

The purpose of this chapter is to provide standards for determining a claimant’s eligibility for benefits under certain provisions of s. 108.04, Stats.

History

Cr. Register, August, 1987, No. 380, eff. 9-1-87.

Wis. Admin. Code § DWD 132.04 Educational employees: reasonably similar terms and conditions {#sec-dwd-132.04 omnilex-key=us-wi-regs-official--agency-dwd--DWD 132.04}

(1) Scope. Under s. 108.04 (17) (a) to (i), Stats., a claimant is ineligible for benefits based upon services provided to or on behalf of an educational institution for weeks of unemployment which occur between academic years or terms or during an established and customary vacation period or holiday recess if the claimant performed the services in the first such year or term or in the year or term immediately before the vacation period or holiday recess and if there is reasonable assurance that the claimant will perform such services for any educational institution in the year or term immediately following the academic year, term, vacation period or holiday recess.

(2) Standard. Except as provided under sub. (3), the terms and conditions of the employment for which the claimant receives assurance from an educational institution under s. 108.04 (17) (a) to (i), Stats., for the academic year or term immediately following the weeks of unemployment which occurred between academic years or terms or during an established and customary vacation period or holiday recess are reasonably similar if all of the following apply:

(a) The claimant will earn at least 90% of the amount the claimant earned in the academic year or term which preceded the weeks of unemployment.

(c) The employment involves substantially the same skill level and knowledge as the employment in the academic year or term which preceded the weeks of unemployment.

(3) Effect on eligibility.

(a) If the employment for which the claimant receives assurance is not reasonably similar under sub. (2), the claimant is eligible for benefits based on services provided to or on behalf of an educational institution between academic years or terms or during established and customary vacation periods or holiday recesses under s. 108.04 (17) (a) to (i), Stats., if otherwise qualified.

(b) If the employment for which the claimant receives assurance is reasonably similar under sub. (2), the claimant is not eligible for benefits based on services to or on behalf of an educational institution between academic years or terms or during established and customary vacation periods or holiday recesses under s. 108.04 (17) (a) to (i), Stats.

History

Cr. Register, August, 1987, No. 380, eff. 9-1-87; r. (3); renum. (3) to be (4) and am., Register, July, 1993, No. 451, eff. 8-1-93; CR 18-033: am. (1), (2) (intro.), (a), r. (2) (b) Register May 2019 No. 761, eff. 6-1-19; CR 22-010: am. (1), (2) (intro.), (3) Register June 2022 No. 798, eff. 7-1-22.

Wis. Admin. Code § DWD 132.05 Misconduct: abuse of a patient of a health care facility {#sec-dwd-132.05 omnilex-key=us-wi-regs-official--agency-dwd--DWD 132.05}

(1) Scope.

(a) After an employee has been discharged by an employing unit for misconduct connected with the employee’s employment, as defined under s. 108.04 (5), Stats., the employee is not eligible to receive unemployment benefits under s. 108.04 (5), Stats.

(b) This section provides a standard by which to determine if misconduct exists under s. 108.04 (5), Stats., when an employee is discharged for alleged abuse of a patient of a health care facility. This standard also applies to suspensions for misconduct under s. 108.04 (6), Stats.

(c) At any hearing involving this section, the health care facility shall prove by competent evidence that the alleged conduct for which the employee was discharged actually occurred. Section DWD 140.16 regarding the admissibility of evidence applies in all hearings involving alleged abuse of a patient.

(2) Standard. Discharge of an employee by an employing unit for misconduct connected with the employee’s employment under s. 108.04 (5), Stats., may include the discharge of an employee by a health care facility for abuse of a patient. Abuse of a patient may include any of the following:

(a) Except when required for treatment, care or safety, any single or repeated intentional act or threat through contact or communication involving force, violence, harassment, deprivation, withholding care, sexual contact, sexual intercourse, or mental pressure, which causes physical pain or injury, or which reasonably could cause physical pain or injury, fear or severe emotional distress.

(b) Any gross or repeated failure to provide treatment or care without good cause which reasonably could adversely affect a patient’s health, comfort or well-being.

(c) Any intentional act which subjects a patient to gross insult, ridicule or humiliation, or repeated failure to treat a patient with dignity and respect.

(d) Knowingly permitting another person to do any of the acts in pars. (a) to (c) or knowingly failing to take reasonable steps to prevent another person from doing any of the acts in pars. (a) to (c).

(3) Effect on eligibility.

(a) If a claimant was discharged for conduct which the health care facility alleges was abuse of a patient and that conduct is determined not to be misconduct under this section, the claimant is eligible to receive benefits, if otherwise qualified.

(b) If a claimant was discharged for conduct which the health care facility alleges was abuse of a patient and that conduct is determined to be misconduct under this section, the claimant is not eligible to receive benefits until 7 weeks have elapsed since the end of the week in which the discharge occurs and the employee earns wages after the week in which the discharge occurs equal to at least 14 times the employee’s weekly benefit rate in employment or other work covered by the unemployment insurance law of any state or the federal government. For purposes of requalification, the employee’s weekly benefit rate shall be that rate which would have been paid had the discharge not occurred. The wages paid to the employee by the health care facility shall be excluded from the employee’s base period wages for purposes of benefit entitlement, as provided in s. 108.04 (5), Stats.

History

Cr. Register, January, 1989, No. 397, eff. 2-1-89; am. (1) (a) and (c), r. (3) (b), renum. (3) (c) to be (3) (b) and am., Register, September, 2000, No. 537, eff. 10-1-00; correction in (1) (b) made under s. 13.93 (2m) (b) 7., Stats., Register, September, 2000, No. 537; CR 18-033: am. (1) (a), (b), (2) Register May 2019 No. 761, eff. 6-1-19; corrections in (1) (a) and (2) (d) made under s. 35.17, Stats., Register May 2019 No. 761.

Chapter DWD 133 TEMPORARY HELP EMPLOYERS

Wis. Admin. Code § DWD 133.001 Definitions {#sec-dwd-133.001 omnilex-key=us-wi-regs-official--agency-dwd--DWD 133.001}

(1) Except as provided in sub. (2) and unless the context clearly indicates a different meaning, the definitions in ch. DWD 100 apply to this chapter.

(2) Notwithstanding ch. DWD 100 and unless the context clearly indicates a different meaning, in this chapter:

(a) “Assignment” means work assigned by an employer to an employee to be performed for a client company of the employer. An assignment ends when it is completed or when the employee is removed from the assignment.

(b) “Client company” means an entity that contracts with an employer for the employer to provide labor for a determinate or indeterminate time.

(c) “Employer” has the same meaning given “temporary help company,” in s. 108.02 (24m), Stats., and does not include a “professional employer organization” as defined in s. 108.02 (21e), Stats.

Note: Section 108.02 (24m), Stats., provides that “temporary help company” means “an entity which contracts with a client to supply individuals to perform services for the client on a temporary basis to support or supplement the workforce of the client in situations such as personnel absences, temporary personnel shortages, and workload changes resulting from seasonal demands or special assignments or projects, and which, both under contract and in fact:

(a) Negotiates with clients for such matters as time, place, type of work, working conditions, quality, and price of the services;

(b) Determines assignments or reassignments of individuals to its clients, even if the individuals retain the right to refuse specific assignments;

(c) Sets the rate of pay of the individuals, whether or not through negotiation;

(d) Pays the individuals from its account or accounts; and

(e) Hires and terminates individuals who perform services for the clients.”

History

CR 06-032: cr. Register July 2007 No. 619, eff. 8-1-07.

Wis. Admin. Code § DWD 133.01 Purpose {#sec-dwd-133.01 omnilex-key=us-wi-regs-official--agency-dwd--DWD 133.01}

The purpose of this chapter is to recognize that the employment relationship between a temporary help employer and an employee is, in limited circumstances, unlike that of other employment relationships. An employee of a temporary help employer commonly performs multiple assignments for one or more client companies. An assignment may end with little or no advance notice. While the employer and employee may intend to continue the employment relationship, the employer may not immediately be able to provide a new assignment to the employee. This chapter establishes standards for determining whether the employment relationship continues or is terminated for the purpose of unemployment insurance benefit eligibility.

History

CR 06-032: cr. Register July 2007 No. 619, eff. 8-1-07.

Wis. Admin. Code § DWD 133.02 Employment relationship {#sec-dwd-133.02 omnilex-key=us-wi-regs-official--agency-dwd--DWD 133.02}

(1) Continuation of employment relationship. When an assignment ends, the employment relationship between an employer and an employee shall be considered a continuing relationship if all of the following conditions are met:

(a) Before the end of the second full business day after the end of the assignment, the employee contacts the employer, or the employer contacts the employee, and informs the other that the assignment has ended or will end on a certain date. The department may waive the requirement for the deadline or notice, or both, if it determines that the employee’s failure to so contact the employer was for good cause and the employer and employee have otherwise acted in a manner consistent with the continuation of the employment relationship.

(b) Before the end of the second full business day after the end of the assignment, or prior to the end of the first full business day after the date notice was given under par. (a) if the deadline for the notice was waived, the employer informs the employee that the employer will provide a new assignment that will begin within 7 days and any of the following occur:

The employer provides a new assignment that begins within 7 days of the date of the notice.
A new assignment does not begin within the 7-day period specified in par. (b) (intro.), but within that same 7-day period, the employer notifies the employee that the start of the assignment will be delayed for a period not to exceed an additional 7 days. The delayed assignment begins within 7 days of the date that the employer notified the employee of the delay.
A new assignment does not begin within the 7-day period specified in par. (b) (intro.), but within that same 7-day period, the employer notifies the employee that the employer will provide another assignment that will begin within 7 days. This assignment begins within 7 days of the date that the employer notified the employee of the assignment.

(c) The assignment offered by the employer meets the conditions under which the individual offered to work, including the type of work, rate of pay, days and hours of availability, distance willing to travel to work, and available modes of transportation, as set forth in the individual’s written application for employment with the employer submitted before the first assignment, or as subsequently amended by mutual agreement. The employer shall have the burden of proof to show that the assignment meets the requirements of this paragraph. If the employer offers an assignment that does not conform to the requirements of this paragraph, the employment relationship ends under sub. (2).

(2) Separation of employment by employer. If the employment relationship does not continue under sub. (1), the employment shall be considered separated by the employer unless the employee has voluntarily separated from the employment under sub. (3).

(3) Separation of employment by employee.

(a) An employee voluntarily separates from the employment when any of the following occur:

The employee fails to notify the employer that an assignment has ended if the employer’s policy requires the notification prescribed by sub. (1) (a) and the employee had notice of this policy prior to the end of the assignment, provided that the employer is not aware that the assignment has ended, and provided that the notice requirement was not waived under sub. (1) (a).
The employee refuses an assignment while the employment relationship continues.
The employee fails to respond to an offer of work by the employer within a reasonable time period, while the employment relationship continues.
The employer is unable to communicate an offer of work to the employee because of the employee’s failure to provide the employer with his or her correct address, telephone number, or other contact information while the employment relationship continues.

(b) Nothing in this chapter shall preclude the application of other provisions of ch. 108, Stats., to determine whether the employee separated from the employment.

History

CR 06-032: cr. Register July 2007 No. 619, eff. 8-1-07; CR 18-033: am. (1), (a), (b) (intro.), (c) Register May 2019 No. 761, eff. 6-1-19.

Wis. Admin. Code § DWD 133.03 Treatment of time between assignments {#sec-dwd-133.03 omnilex-key=us-wi-regs-official--agency-dwd--DWD 133.03}

An employee shall be eligible for unemployment insurance benefits while the employment relationship continues between assignments pursuant to s. DWD 133.02 (1), if the employee is otherwise qualified for those benefits.

History

CR 06-032: cr. Register July 2007 No. 619, eff. 8-1-07.

Wis. Admin. Code § DWD 133.04 Relationship following termination {#sec-dwd-133.04 omnilex-key=us-wi-regs-official--agency-dwd--DWD 133.04}

When an employee’s employment relationship with an employer terminates, his or her application for employment with that employer shall expire. If the employee returns to work for the employer, a new written application for employment shall be required for this chapter to be applicable. If the employee agrees in writing, the original application may be treated as a new application for employment.

History

CR 06-032: cr. Register July 2007 No. 619, eff. 8-1-07.

Chapter DWD 135 WAIVER OF RECOVERY OF TRA AND OTHER TAA OVERPAYMENTS

Wis. Admin. Code § DWD 135.001 Definitions {#sec-dwd-135.001 omnilex-key=us-wi-regs-official--agency-dwd--DWD 135.001}

(1) In general. Except as provided in sub. (2), unless the context clearly indicates a different meaning, the definitions in ch. DWD 100 apply to this chapter.

(2) In this chapter. Notwithstanding ch. DWD 100, the following words and phrases have the designated meanings unless the context clearly indicates a different meaning:

(a) “Benefits” means any payment made under the trade adjustment assistance for workers program under 19 USC 2271 to 2319, including Trade Readjustment Allowances and other forms of Trade Adjustment Assistance.

(b) “Overpayment” means a payment of benefits to which a claimant was not entitled under the trade adjustment assistance for workers program under 19 USC 2271 to 2319 and federal regulations promulgated thereunder at 20 CFR part 617.

History

Cr. Register, June, 1991, No. 426, eff. 7-1-91, r. (intro.), renum. (1) and (3) to be (2) (a) and (b), cr. (1), r. and recr. (2), Register, September, 1995, No. 477, eff. 10-1-95.

Wis. Admin. Code § DWD 135.01 Purpose {#sec-dwd-135.01 omnilex-key=us-wi-regs-official--agency-dwd--DWD 135.01}

(1) The department administers the trade adjustment assistance for workers program as an agent for the U. S. department of labor. In administering this program, the department is required to apply the applicable federal laws and regulations specified at 19 USC 2271 to 2319 and 20 CFR part 617. Section 106.19, Stats., requires the department to establish a policy for waiving recovery of overpayments of benefits made under the trade adjustment assistance for workers program under 19 USC 2271 to 2319. This chapter implements this statutory directive and specifies the conditions under which the department may grant such waivers.

History

Cr. Register, June, 1991, No. 426, eff. 7-1-91; correction in (1) made under s. 13.93 (2m) (b) 7., Stats., Register, September, 2000, No. 537.

Wis. Admin. Code § DWD 135.02 Waiver of recovery of overpayments {#sec-dwd-135.02 omnilex-key=us-wi-regs-official--agency-dwd--DWD 135.02}

(1) If the department determines that a claimant received an overpayment of benefits, he or she shall be liable to reimburse the department for the amount of the overpayment.

(2) Under 19 USC 2315 and s. 106.19, Stats., the department shall waive recovery of the overpayment if:

(a) The overpayment was made without fault on the part of the claimant who received the overpayment; and

(b) Recovery of the overpayment would be contrary to equity and good conscience.

(3) In determining whether an overpayment was made without fault on the part of the claimant and whether recovery of the overpayment would be contrary to equity and good conscience, the department shall incorporate and adhere to the federal regulations promulgated by the U. S. department of labor at 20 CFR 617.55. The department shall furnish a claimant who so requests with a copy of the federal regulations.

History

Cr. Register, June, 1991, No. 426, eff. 7-1-91; correction in (2) made under s. 13.93 (2m) (b) 7., Stats., Register, September, 2000, No. 537.

Wis. Admin. Code § DWD 135.03 Departmental notice of waiver {#sec-dwd-135.03 omnilex-key=us-wi-regs-official--agency-dwd--DWD 135.03}

The department shall issue a written notice to any claimant to whom benefits have been overpaid of the claimant’s right to request a waiver of the recovery of an overpayment.

History

Cr. Register, June, 1991, No. 426, eff. 7-1-91.

Wis. Admin. Code § DWD 135.04 Application for waiver; procedure {#sec-dwd-135.04 omnilex-key=us-wi-regs-official--agency-dwd--DWD 135.04}

(1) A claimant may request the department to waive the recovery of an overpayment which the department has assessed against the claimant. The claimant shall file the application for waiver on forms furnished by the department and may submit the application to a representative of the department at any time. The claimant may obtain an application for waiver by sending a request to: Department of Workforce Development, Unemployment Insurance Division, TRA Unit, P. O. Box 7905, Madison, Wisconsin, 53707.

(2) The department shall issue a determination after receiving an application with complete financial information. The department may not waive recovery of any part of an overpayment which has been recovered prior to the date of the determination.

(3) The department shall issue a determination within 15 days after receiving a completed application. The department’s determination is appealable under s. 108.09, Stats.

(4) After an application is filed, the department may not initiate any new collection activity until a determination is issued on the application, except that the department shall recover the overpayment by direct offset against any unemployment benefits payable under a state or federal law.

History

Cr. Register, June, 1991, No. 426, eff. 7-1-91; am. (1), Register, September, 2000, No. 537, eff. 10-1-00; CR 18-033: am. (1) Register May 2019 No. 761, eff. 6-1-19.

Chapter DWD 136 WAGES EXEMPT FROM LEVY

Wis. Admin. Code § DWD 136.001 Definitions {#sec-dwd-136.001 omnilex-key=us-wi-regs-official--agency-dwd--DWD 136.001}

(1) Unless the context clearly indicates a different meaning, the definitions in ch. DWD 100 apply to this chapter.

(2) In this chapter:

(a) “Disposable earnings” has the meaning specified in s. 108.225 (1) (d), Stats.

Note: Under s. 108.225 (1) (d), Stats., “Disposable earnings” means that part of the earnings of any individual after the deduction from those earnings of any amounts required by law to be withheld, any life, health, dental or similar type of insurance premiums, union dues, any amount necessary to comply with a court order to contribute to the support of minor children, and any levy, wage assignment or garnishment executed prior to the date of a levy under s. 108.225, Stats.

(b) “Federal minimum hourly wage” has the meaning specified in s. 108.225 (1) (e), Stats.

Note: Under s. 108.225 (1) (e), Stats., “Federal minimum hourly wage” means that wage prescribed by 29 USC 206 (a) (1).

(c) “Federal poverty guidelines” means the poverty guidelines updated periodically in the Federal Register by the U.S. department of health and human services under the authority of 42 USC 9902 (2) and in effect at the time an exemption is calculated.

(d) “Gross earnings” includes, but is not limited to, wages, tips, salary, commissions, bonuses, value of room and board, and periodic payments such as longevity pay or proceeds from a pension or retirement plan.

(e) “Household” means all people who reside together and share income and expenses, but does not include all members of cooperative housing, group homes, or similar group housing or care arrangements.

(f) “Levy” has the meaning specified in s. 108.225 (1) (f), Stats.

Note: Under s. 108.225 (1) (f), Stats., “Levy” means all powers of distraint and seizure.

History

CR 08-059: cr. Register November 2008 No. 635, eff. 12-1-08; CR 18-033: am. (2) (a), (b), (f) Register May 2019 No. 761, eff. 6-1-19.

Wis. Admin. Code § DWD 136.01 Purpose {#sec-dwd-136.01 omnilex-key=us-wi-regs-official--agency-dwd--DWD 136.01}

The purpose of this chapter is to prescribe a methodology for computing wages exempt from department levy under ss. 108.225 (16) (a) and (am), Stats., and as required by 15 USC 1673.

History

CR 08-059: cr. Register November 2008 No. 635, eff. 12-1-08.

Wis. Admin. Code § DWD 136.02 Levy to recover forfeitures {#sec-dwd-136.02 omnilex-key=us-wi-regs-official--agency-dwd--DWD 136.02}

In the case of an individual responsible for forfeitures imposed on an employing unit under s. 108.04 (11) (c), Stats., the individual is entitled to an exemption from department levy of 75% of the individual’s disposable earnings pursuant to s. 108.225 (16) (a), Stats. For purposes of computing the amount of the exemption, the department shall provide the third party employer with a worksheet to assist in computing the amount of the exemption that is based on earnings per pay period and provides as follows:

(1) The department may levy 25% of the individual’s disposable earnings unless any of the following apply:

(a) The total aggregate of all levies against an individual for the pay period will exceed 25% of the total of the individual’s disposable earnings plus prior levies for the pay period.

(b) The total aggregate of all levies against an individual for the pay period will exceed the amount by which the individual’s weekly disposable earnings exceed 30 times the federal minimum hourly wage. If the pay period is other than weekly, the department levy shall be calculated using the amount exempt for pay periods other than weekly under s. DWD 136.04.

(2) If the department may not levy 25% of the individual’s disposable earnings under sub. (1), the department may levy the lesser of the following:

(a) The difference between 25% of the total of the individual’s disposable earnings plus prior levies for the pay period, and the amount of prior levies in effect for the pay period.

(b) The difference between the individual’s weekly disposable earnings and 30 times the federal minimum hourly wage. If the pay period is other than weekly, the department levy shall be calculated using the amount exempt for pay periods other than weekly under s. DWD 136.04.

Note: Form UCT-8306-2-E is used to calculate the exemption. This form is available from the Unemployment Insurance Division, Department of Workforce Development, 201 East Washington Avenue, P.O. Box 7888, Madison, Wisconsin 53707-7888.

History

CR 08-059: cr. Register November 2008 No. 635, eff. 12-1-08.

Wis. Admin. Code § DWD 136.03 Levy to recover benefit overpayments {#sec-dwd-136.03 omnilex-key=us-wi-regs-official--agency-dwd--DWD 136.03}

(1) Except as provided in sub. (2), in the case of benefit overpayments, an individual is entitled to an exemption from department levy of 80% of the individual’s disposable earnings pursuant to s. 108.225 (16) (am) 1., Stats. For purposes of computing the amount of the exemption, the department shall provide the third party employer with a schedule of the federal poverty guidelines and a worksheet to assist the third party in computing the amount of the exemption that is based on earnings per pay period and that provides as follows:

(a) If the individual’s gross earnings for the pay period are below the federal poverty guidelines based on the individual’s household size, the individual’s wages are totally exempt from department levy. If the individual’s gross earnings are not below the federal poverty guidelines based on the individual’s household size, the individual’s disposable earnings shall be computed and the individual is entitled to an exemption from department levy of 80% of the individual’s disposable earnings.

(b) The department may levy 20% of the individual’s disposable earnings unless any of the following apply:

The individual’s gross earnings for the pay period minus the 20% department levy amount equal an amount less than the federal poverty guidelines for the individual’s household size.
The total aggregate of all levies against the individual for the pay period will exceed 25% of the total of the individual’s disposable earnings plus prior levies for the pay period.
The total aggregate of all levies against an individual for the pay period will exceed the amount by which the individual’s weekly disposable earnings exceed 30 times the federal minimum hourly wage. If the pay period is other than weekly, the department levy shall be calculated using the amount exempt for pay periods other than weekly under s. DWD 136.04.

(c) If the department may not levy 20% of the individual’s disposable earnings under par. (b), the department may levy the lesser of the following:

The difference between the individual’s gross earnings for the pay period and the federal poverty guidelines for the individual’s household size.
The difference between 25% of the total of the individual’s disposable earnings plus prior levies for the pay period, and the amount of prior levies in effect for the pay period.
The difference between the individual’s weekly disposable earnings and 30 times the federal minimum hourly wage. If the pay period is other than weekly, the department levy shall be calculated using the amount exempt for pay periods other than weekly under s. DWD 136.04.

Note: Form UCT-8306-E is used to calculate the exemption. This form is available from the Unemployment Insurance Division, Department of Workforce Development, 201 East Washington Avenue, P.O. Box 7888, Madison, Wisconsin 53707-7888.

(2) If a final determination has been issued under s. 108.09, Stats., or a judgment has been entered under s. 108.24 (1), Stats., in which the individual has been found guilty of making a false statement or representation to obtain benefits, the department shall calculate the exemption from levy as provided in sub. (1).

(3) The department shall use the federal poverty guidelines schedule for earnings exempt from garnishment adopted by the judicial conference annually under s. 812.34 (3), Stats., covering earnings commencing each July 1 to the following June 30. If the schedule under s. 812.34, Stats., is unavailable, the department shall prepare a comparable schedule using the federal poverty guidelines as published in the Federal Register.

History

CR 08-059: cr. Register November 2008 No. 635, eff. 12-1-08.

Wis. Admin. Code § DWD 136.04 Pay periods other than weekly {#sec-dwd-136.04 omnilex-key=us-wi-regs-official--agency-dwd--DWD 136.04}

In the case of earnings for a period paid other than weekly, the amount exempt from levy shall be computed so that it is equivalent to 30 times the federal minimum hourly wage for a week by using one of the following:

(1) An amount equal to 60 times the federal minimum hourly wage for a two-week pay period.

(2) An amount equal to 65 times the federal minimum hourly wage for a semi-monthly pay period.

(3) An amount equal to 130 times the federal minimum hourly wage for a monthly pay period.

History

CR 08-059: cr. Register November 2008 No. 635, eff. 12-1-08.

Chapter DWD 140 UNEMPLOYMENT INSURANCE APPEALS

Wis. Admin. Code § DWD 140.001 Definitions {#sec-dwd-140.001 omnilex-key=us-wi-regs-official--agency-dwd--DWD 140.001}

(1) In general. Except as provided in sub. (2), the definitions in ch. DWD 100 apply to this chapter.

(2) In this chapter. Notwithstanding ch. DWD 100, the following words and phrases have the designated meanings:

(a) “Affiant” means a person who swears to an affidavit.

(bm) “Affidavit” means a written statement sworn under oath before a notary public or other person authorized by law to verify sworn statements and must be based upon personal knowledge or upon information and belief.

(c) “Agent state” means any state other than Wisconsin in which a person files a claim for unemployment benefits from the state of Wisconsin.

(d) “Appeal tribunal” means an individual designated under s. 108.09 (3), Stats., to conduct hearings arising under ch. 108, Stats., and s. 103.06 (6), Stats.

(e) “Division” means the unemployment insurance division of the department of workforce development.

(f) “Ease of access” means the physical characteristics of a building which allow a person with a temporary or permanent incapacity or disability to enter, circulate within and leave the building and to use the public toilet facilities and passenger elevators in the building without assistance.

(g) “Hearing office” means an office of the division that is responsible for scheduling and conducting hearings arising under ch. 108, Stats., and s. 103.06 (6), Stats.

(h) “Person with a disability” means any person who, by reason of an impairment of sight, hearing or speech, may be hindered or prevented from communicating at a hearing as effectively as a person who does not have such an impairment.

(i) “Representative” means any attorney or agent who notifies the department they are authorized to represent any party.

History

Cr. Register, November, 1985, No. 359, eff. 12-1-85; r. and recr. (7), r. (8), Register, May, 1993, No. 449, eff. 6-1-93, r. (intro.), (2), (3) and (6), renum. (1) and (5) to 100.02 (1) and (32) and am., renum. (4) and (7) to (2) (a) and (b) and am. (b), cr. (1), (2) (title) and (intro.), Register, September, 1995, No. 477, eff. 10-1-95; am. (2) (a), Register, June, 1997, No. 498, eff. 7-1-97; CR 13-106: am. (1), (2) (intro.), renum. (2) (a) to (ar), cr. (2) (ag), (am) Register July 2014 No. 703, eff. 8-1-14; CR 18-033: renum. (2) (ag) and (am) to (2) (a) and (bm), cr. (2) (d), renum. (2) (ar) to (2) (e), renum. (2) (b) to (2) (i) and am., (2) (c) renum. from DWD 100.02 (2) and am., (2) (f) renum. from DWD 100.02 (17), (2) (g) renum. from DWD 100.02 (32) and am., (2) (h) renum. from DWD 100.02 (44m) Register May 2019 No. 761, eff. 6-1-19.

Wis. Admin. Code § DWD 140.01 Hearings and appeals {#sec-dwd-140.01 omnilex-key=us-wi-regs-official--agency-dwd--DWD 140.01}

(1) Appeal rights. Any party to a determination issued under s. 108.09, 108.095 or 108.10, Stats., has the right to an appeal. An appeal as to any matter in a determination is a request for hearing and shall be filed with an appeal tribunal by the appellant or its representative. An appeal is filed with an appeal tribunal when it is submitted to a hearing office or public employment office in an agent state under sub. (2) (b). Each determination issued under s. 108.09, 108.095 or 108.10, Stats., shall specify the time limit within which any appeal is required to be filed under ch. 108, Stats.

(2) Time limit and method for filing.

(a) An appeal shall be filed after a copy of the determination is electronically delivered, mailed or given to a party, whichever first occurs, as specified under s. 108.09, 108.095 or 108.10, Stats. If a party first receives a determination after the statutory appeal period has expired and through no fault of that party, the statutory appeal period as specified under s. 108.09, 108.095 or 108.10, Stats., shall extend from the date the party receives the determination. An appeal received within these time limits is timely filed. If the deadline for filing an appeal falls on a Saturday, Sunday, any of the holidays enumerated under ss. 230.35 (4) (a) and 995.20, Stats., or any other day on which mail is not delivered by the United States postal service, then the deadline shall be extended to include the next business day.

(b) An appeal shall be filed with any of the following:

A hearing office.
An appeal by an interstate claimant may be filed at a public employment office in the agent state under s. 108.14 (8), Stats., in the manner prescribed for timely filing with the department under this section.

The date a hearing office actually receives the written appeal.
If the appeal was mailed and bears only a United States postal service postmark, on the date of that postmark.
If the appeal was mailed and bears both a United States postal service postmark and a private meter mark, on the date of the United States postal service postmark.
If the appeal was mailed and bears only a private meter mark, on the date of the of the private meter mark.
If the appeal was mailed and bears no United States postal service postmark, no private meter mark, or an illegible mark, 2 business days before the date the appeal was actually received by a hearing office.
If the appeal was sent using a delivery service other than the United States postal service, on the date a hearing office actually receives the appeal.
If the appeal was filed by facsimile transmission, the date the facsimile is actually received by a hearing office is presumed to be the date of transmission.
The date the department receives an electronically-filed appeal.

History

Cr. Register, November, 1985, No. 359, eff. 12-1-85; r. and recr., Register, June, 1997, No. 498, eff. 7-1-97; correction in (2) (a) made under s. 13.93 (2m) (b) 7., Stats., Register, September, 2000, No. 537; correction in (2) (a) made under s. 13.93 (2m) (b) 7., Stats., Register June 2007 No. 618; CR 18-033: am. (1), (2) (title), (a), r. (2) (b) 1., 3., am. (2) (b) 4., (c) 1., 5. to 7., cr. (2) (c) 8. Register May 2019 No. 761, eff. 6-1-19.

Wis. Admin. Code § DWD 140.02 Representation of parties {#sec-dwd-140.02 omnilex-key=us-wi-regs-official--agency-dwd--DWD 140.02}

Any party may appear on the party’s own behalf at any hearing under this chapter or appear with or by a representative. The representative shall be presumed to have full authority to act on behalf of the party, including the authority to file or withdraw an appeal. The representative shall have authority to act on behalf of the party until the party or the representative terminates the representative’s authorization and notifies the department that such representation has ended. No attorney whose license is suspended or who has been otherwise disbarred and prohibited from practicing law by the courts or bar association of any state may be allowed to act as a representative at any hearing under this chapter.

History

Cr. Register, November, 1985, No. 359, eff. 12-1-85; am. (3) (intro.), (b) and (n), Register, November, 1988, No. 395, eff. 12-1-88; r. and recr., Register, June, 1997, No. 498, eff. 7-1-97.

Wis. Admin. Code § DWD 140.03 Notice of pending appeal {#sec-dwd-140.03 omnilex-key=us-wi-regs-official--agency-dwd--DWD 140.03}

The department shall promptly notify the parties in writing of the appeal after an appeal is received. The notice may also contain any information concerning the hearing which the department considers relevant.

History

Cr. Register, November, 1985, No. 359, eff. 12-1-85; am. Register, June, 1997, No. 498, eff. 7-1-97.

Wis. Admin. Code § DWD 140.04 Failure to file a timely appeal {#sec-dwd-140.04 omnilex-key=us-wi-regs-official--agency-dwd--DWD 140.04}

(1) The hearing office may schedule a hearing on the question of whether a late appeal was for a reason beyond the appellant’s control. The hearing office may also schedule a provisional hearing on any matter in the determination at the same time as the hearing on the appellant’s late appeal.

(2) The appeal tribunal shall issue a decision which makes ultimate findings of fact and conclusions of law as to whether or not the appellant’s late appeal was for a reason beyond the appellant’s control. If the appeal tribunal decides this question in favor of the appellant, the same or another appeal tribunal shall then make ultimate findings of fact and conclusions of law on the merits of the case. If the appeal tribunal decides that the late appeal was late for a reason within the appellant’s control, the appeal tribunal shall dismiss the appeal.

History

Cr. Register, November, 1985, No. 359, eff. 12-1-85; am. (3), Register, November, 1988, No. 395, eff. 12-1-88; r. and recr. Register, June, 1997, No. 498, eff. 7-1-97; CR 18-033: am. (2) Register May 2019 No. 761, eff. 6-1-19.

Wis. Admin. Code § DWD 140.05 Withdrawal of appeal and retraction {#sec-dwd-140.05 omnilex-key=us-wi-regs-official--agency-dwd--DWD 140.05}

(1) An appellant may withdraw an appeal at any time before the issuance of a decision on the merits by notifying the hearing office or by choosing not to continue to participate in a hearing. The appeal tribunal shall issue a withdrawal decision after determining that an appeal has been withdrawn.

(2) An appellant may submit a request to retract its withdrawal and reinstate an appeal. The retraction request shall be in writing and state the reason for the request. The appeal tribunal may not grant a request to retract a withdrawal unless the request establishes good cause for the retraction and is received within 21 days after the withdrawal decision was electronically delivered or mailed to the appellant.

(3) If the hearing office receives a retraction request before the issuance of a withdrawal decision and the request establishes good cause for the retraction, the appeal tribunal shall acknowledge the request in writing to the appellant. If a timely retraction request is received by the hearing office after issuance of the withdrawal decision and the request establishes good cause for the retraction, the appeal tribunal shall issue a decision setting aside the withdrawal decision and the hearing office shall schedule another hearing.

(4) If the hearing office receives a retraction request before or after the issuance of a withdrawal decision and the request does not establish good cause for the retraction, the appeal tribunal shall deny the request in writing to the appellant.

History

Cr. Register, November, 1985, No. 359, eff. 12-1-85; am. (1) to (3), cr. (4), Register, June, 1997, No. 498, eff. 7-1-97; CR 18-033: am. (1) to (4) Register May 2019 No. 761, eff. 6-1-19.

Wis. Admin. Code § DWD 140.06 Notice of hearing; contents; to whom sent; issues not on notice of hearing; consolidation of issues {#sec-dwd-140.06 omnilex-key=us-wi-regs-official--agency-dwd--DWD 140.06}

(1) The hearing office shall schedule a hearing at the earliest feasible time after the appeal is received.

(2) The notice of hearing shall state the time and place of the hearing, the department’s statutory authority for convening the hearing and the issues to be heard. The hearing office shall electronically deliver or mail the notice of hearing to the last-known address of each party not less than 6 calendar days before the hearing, unless all parties waive the notice requirement.

(3) The appeal tribunal may receive evidence and render a decision on issues not listed on the notice of hearing if all parties are notified at the hearing and do not object.

(4) The hearing office may consolidate, for hearing or decision, issues involving the same parties or issues involving more than one appellant or respondent and arising out of the same or similar circumstances.

History

Cr. Register, November, 1985, No. 359, eff. 12-1-85; am. (1) to (3), r. and recr. (4), Register, June, 1997, No. 498, eff. 7-1-97; CR 18-033: am. (1) to (3) Register May 2019 No. 761, eff. 6-1-19.

Wis. Admin. Code § DWD 140.07 Prehearing conference {#sec-dwd-140.07 omnilex-key=us-wi-regs-official--agency-dwd--DWD 140.07}

(1) After an appeal is filed, the appeal tribunal may direct the parties to appear before the appeal tribunal for a prehearing conference. In determining whether a prehearing conference is necessary, the appeal tribunal may consider any of the following criteria:

(a) The complexity of issues.

(b) The number of possible witnesses.

(d) The number of parties involved.

(e) Other facts which would tend to prolong the hearing.

(2) Prehearing conferences may be conducted in person, by telephone or by videoconference. The date and time for the prehearing conference shall be set by the hearing office. Parties shall have at least 10 calendar days’ notice of the prehearing conference. The appeal tribunal may adjourn the conference or order additional prehearing conferences.

(3) Following the prehearing conference, the appeal tribunal shall issue an order with respect to the course of the conference on any of the following matters:

(a) Definition and simplification of the issues of fact and law.

(b) Stipulations of fact and agreements concerning the identity of or authenticity of documents.

(d) Stipulations relating to alternative methods of evidence submission and acceptance.

(e) Such other matters as may aid in the disposition of the appeal.

(4) If a party fails to appear or is unprepared to participate in a prehearing conference, the appeal tribunal may conduct a conference and enter the prehearing order without participation by the party.

History

Cr. Register, June, 1997, No. 498, eff. 7-1-97; CR 18-033: am. (1) (intro.), (2), (3) (intro.), (4) Register May 2019 No. 761, eff. 6-1-19.

Wis. Admin. Code § DWD 140.08 Postponement of hearings {#sec-dwd-140.08 omnilex-key=us-wi-regs-official--agency-dwd--DWD 140.08}

(1) A party who requests a postponement of a hearing shall notify the hearing office as soon as the party becomes aware that a postponement is necessary. Unreasonable delay in requesting a postponement may be the basis for denial of the request.

(2) No postponements may be granted for the mere convenience of a party. All parties are expected to arrange time off from their everyday affairs, including management duties, work, and school, to attend hearings. The hearing office or the appeal tribunal scheduled to conduct the hearing may grant a postponement only for an exceptional reason. An exceptional reason may include any of the following circumstances:

(a) Serious illness of a party or a necessary witness.

(b) Death of an immediate family member of a party or a necessary witness.

(c) Weather conditions on the day of the hearing which make it hazardous for a party or a necessary witness to travel to the hearing location.

(d) Transportation difficulties arising suddenly which prevent a party or a necessary witness from traveling to the hearing location.

(e) A business meeting of a necessary witness which was scheduled before receipt of the hearing notice and cannot be rescheduled.

(f) Commitment of a representative which was scheduled before being retained and which cannot be rescheduled, if the party contacted the representative within a reasonable time after receipt of the hearing notice.

(g) An unavoidable delay on the day of the hearing which prevents the appeal tribunal from conducting the hearing as scheduled.

History

Cr. Register, November, 1985, No. 359, eff. 12-1-85; renum. from ILHR 140.07 and am., Register, June, 1997, No. 498, eff. 7-1-97; CR 18-033: am. Register May 2019 No. 761, eff. 6-1-19.

Wis. Admin. Code § DWD 140.09 Access to hearing files; limited discovery; inspection of records {#sec-dwd-140.09 omnilex-key=us-wi-regs-official--agency-dwd--DWD 140.09}

(1) Pre-hearing stage.

(a) The hearing office shall compile a hearing file for every case in which a request for hearing has been received which shall contain the papers, documents and departmental records relating to the issue of the hearing. Before the scheduled date of the hearing, a party to a hearing may inspect the hearing file and procure copies of file contents during regular hearing office hours at the hearing office or other convenient location approved by the hearing office. If requested, the hearing office may electronically deliver or mail copies of file contents to a party. The department may allow such inspection or release of file contents to a party’s representative, union agent or legislator, as prescribed under s. DWD 149.03 (2).

(b) Unless the appeal tribunal orders otherwise, the sole means of discovery available to a party or party’s representative before a hearing is inspection of the hearing file and procurement of copies of file contents. The appeal tribunal may also order a prehearing conference under s. DWD 140.07. The provisions of ch. 804, Stats., do not apply to hearings under ss. 108.09, 108.095 and 108.10, Stats.

(c) The appeal tribunal may deny a request to inspect the hearing file or procure copies of file contents on the day of the hearing if the inspection or procurement would delay or interfere with the hearing.

(2) Hearing stage. At the hearing, evidence and exhibits are open to inspection by any party or party’s representative except that the appeal tribunal may conduct a closed inspection of evidence and exhibits if the interests of justice so require. The appeal tribunal may sequester from the hearing any person, party or representative as part of the closed inspection. The appeal tribunal may also issue a protective order to prohibit the parties or the parties’ representatives from disclosing any evidence and exhibits listed as confidential in the protective order if the interests of justice so require.

(3) Post hearing stage. After the hearing is concluded, a party or a party’s representative may inspect any hearing file contents that the party or party’s representative may inspect under subs. (1) and (2), and also the hearing recording, written synopsis of testimony, and any transcript that is prepared at the department’s direction. Any person who is not a party or party’s representative at the hearing may inspect only the following and only if personally identifiable information, as defined in s. 19.62 (5), Stats., has been redacted from the documents:

(a) The initial determination.

(b) The exhibits submitted and marked as exhibits at the hearing, whether or not received by the appeal tribunal.

(d) The hearing recording.

(e) The written synopsis of testimony.

(f) The transcript of the testimony, if one is prepared at the department’s direction.

Note: Under s. 19.62 (5), Stats., “Personally identifiable information” means information that can be associated with a particular individual through one or more identifiers or other information or circumstances.

(4) Confidentiality of certain records at all stages of hearing.

(a) Notwithstanding subs. (1) to (3), neither an employing unit which is a party to a hearing nor its representative may inspect:

The individual’s unemployment insurance record as that record relates to work for another employing unit unless the appeal tribunal approves a request.
Department memoranda concerning unemployment tax litigation strategy.
The investigation reports of department auditors concerning the status and liability of employing units under ch. 108, Stats.

(b) Notwithstanding subs. (1) to (3), the appeal tribunal may declare all or parts of documents or other material that contains records or preserves information that the appeal tribunal examined in a closed inspection under sub. (2) to be, in whole or in part, confidential and closed to inspection by one or more parties, representatives or other persons.

(c) Notwithstanding subs. (1) to (3), evidence and exhibits declared to be confidential under a protective order issued by the appeal tribunal under sub. (2) are closed to inspection as stated in the order.

(d) Notwithstanding subs. (1) to (3), no party, party’s representative or other person, except a statutory reviewing body, as specified under ss. 108.09, 108.095 and 108.10, Stats., may inspect the notes made by the appeal tribunal at the hearing.

History

Cr. Register, November, 1985, No. 359, eff. 12-1-85; r. and recr. Register, May, 1993, No. 449, eff. 6-1-93; renum. from ILHR 140.08 and am., Register, June, 1997, No. 498, eff. 7-1-97; CR 08-019: am. (3) (intro.) and (d) Register July 2008 No. 631, eff. 8-1-08; CR 18-033: am. (1) (a) to (c), (2), (3) (intro.), (b), (4) (a) 1., (b) to (d) Register May 2019 No. 761, eff. 6-1-19.

Wis. Admin. Code § DWD 140.10 Subpoenas; issuance and service; modification {#sec-dwd-140.10 omnilex-key=us-wi-regs-official--agency-dwd--DWD 140.10}

(1) Only the department, an appeal tribunal or a party’s attorney of record may issue a subpoena to compel the attendance of any witness or the production of any books, papers, documents or other tangible things. A party may request, as soon as possible after receipt of the hearing notice, that the appeal tribunal issue a subpoena. Subpoenas issued by the department or an appeal tribunal shall be issued on completed department forms.

(2) Subpoenas shall only be issued when necessary to ensure fair adjudication of the issues of the hearing. The department or an appeal tribunal may refuse to issue any subpoena if any of the following occur:

(a) The evidence sought is not relevant or material.

(b) The evidence sought is hearsay.

(d) The evidence requested discloses business secrets.

(3) A party whose request for a subpoena has been denied may, at the hearing, request the presiding appeal tribunal to issue the subpoena. If the appeal tribunal grants the request for a subpoena, the appeal tribunal may adjourn the hearing to allow sufficient time for service of and compliance with the subpoena.

(4) The appeal tribunal scheduled to conduct a hearing for which a subpoena has been issued may quash or modify the subpoena if the appeal tribunal determines that the witness or tangible things subpoenaed are not necessary to a fair adjudication of the issues of the hearing or that the subpoena has not been served as required under sub. (5).

(5) The party at whose request a subpoena is issued shall serve the subpoena as provided under ch. 885 and s. 805.07 (5), Stats., and pay the witness fees and travel expenses specified under s. DWD 140.20 to the subpoenaed witness at or before the time of service. An attorney issuing a subpoena shall comply with the requirements of s. 108.14 (2m), Stats.

(6) The department may subpoena a witness for a party if the party is unable to prepay the witness fees and travel expenses. The department shall pay a witness as provided under s. DWD 140.20.

(7) If any witness fails to comply with a subpoena issued under this section, the department may petition a judge or court commissioner for a writ of attachment under s. 885.12, Stats.

History

Cr. Register, November, 1985, No. 359, eff. 12-1-85; am. (1), renum. (6) to be (7), cr. (6), Register, November, 1988, No. 395, eff. 12-1-88; renum. from ILHR 140.09 and am., Register, June, 1997, No. 498, eff. 7-1-97; CR 18-033: am. (1), (2) (intro.), (3), (4) Register May 2019 No. 761, eff. 6-1-19.

Wis. Admin. Code § DWD 140.11 Telephone and videoconference hearings {#sec-dwd-140.11 omnilex-key=us-wi-regs-official--agency-dwd--DWD 140.11}

(1) The appeal tribunal may conduct hearings in whole or in part by telephone or videoconference when it is impractical for the appeal tribunal to conduct an in-person hearing, when necessary to ensure a prompt hearing or when one or more of the parties would be required to travel an unreasonable distance to the hearing location. When 2 or more parties are involved, the evidence shall be presented during the same hearing unless the appeal tribunal determines that it is impractical to do so. A party scheduled to appear by telephone or videoconference may appear in person at the appeal tribunal’s location. The appeal tribunal may postpone or adjourn a hearing initially scheduled as a telephone or videoconference hearing and reschedule the hearing for an in-person appearance if circumstances make it impractical to conduct a telephone or videoconference hearing.

(2) If the appellant is scheduled to testify by telephone or videoconference and fails to provide the hearing office with the appellant’s telephone number or the name and telephone number of the appellant’s representative or fails to connect to the videoconference within a reasonable time before the hearing and if the appeal tribunal has made reasonable attempts to contact the appellant, the appeal tribunal shall dismiss the appeal. If the respondent fails to provide the hearing office with the telephone number or the name and telephone number of the respondent’s representative, or the representative fails to connect to the videoconference before the hearing, and if the appeal tribunal has made reasonable attempts to contact the respondent, the appeal tribunal shall proceed with the hearing.

(3) If the appellant is scheduled to appear by telephone or videoconference, the appeal tribunal shall, within 10 minutes after the starting time for the hearing, attempt to place at least two calls to the appellant’s telephone number of record or the telephone number furnished to the hearing office. One of the calls shall be attempted at or near the end of the 10 minute period unless the appeal tribunal determines after reasonable efforts that the appellant cannot be reached at that number. If, within 10 minutes after the starting time for the hearing, neither the appellant nor the appellant’s representative can be reached at the telephone number of record or the telephone number furnished to the hearing office, then the appeal tribunal shall dismiss the appeal.

(4) If the respondent is scheduled to appear by telephone or videoconference, the appeal tribunal shall proceed with the hearing if, within 10 minutes after the starting time for the hearing, neither the respondent nor the respondent’s representative can be reached at the respondent’s telephone number of record or the telephone number furnished to the hearing office. The appeal tribunal may refuse to allow a respondent to testify if the appeal tribunal is unable to reach the respondent or the respondent’s representative and neither the respondent nor the respondent’s representative have contacted the hearing office within 10 minutes after the starting time for the hearing. The respondent is considered to have failed to appear for the hearing if the appeal tribunal so refuses. The respondent may petition such a finding under s. 108.09 (6), Stats.

(5) All parties shall remain available for the hearing up to one hour after the scheduled starting time in the event of a delay in the prior hearings or other unforeseen circumstances. If the respondent cannot be contacted by telephone or connect by videoconference within one hour of the scheduled starting time of the hearing, the appeal tribunal shall proceed with the hearing if the appellant has appeared. If the appellant cannot be contacted within one hour of the scheduled starting time of the hearing, the appeal tribunal shall dismiss the appeal.

(6) The hearing office shall mark and electronically deliver or mail the potential exhibits for a telephone or videoconference hearing from the hearing file to all parties as soon as possible before the date of the telephone or videoconference hearing. A party may submit additional documents as potential exhibits by simultaneously electronically delivering or mailing those documents to the hearing office and copies to each party. A party may submit potential exhibits which are not documents in the manner designated by the hearing office to which the case is assigned. The appeal tribunal may refuse to consider any documents not received by the hearing office or each party at least 3 days before the hearing.

History

Cr. Register, November, 1985, No. 359, eff. 12-1-85; r. and recr., Register, June, 1997, No. 498, eff. 7-1-97; CR 18-033: am. Register May 2019 No. 761, eff. 6-1-19.

Wis. Admin. Code § DWD 140.12 Stipulations {#sec-dwd-140.12 omnilex-key=us-wi-regs-official--agency-dwd--DWD 140.12}

(1) After an appeal is filed, the parties may stipulate to relevant facts and request that the stipulation be used in lieu of a hearing. The appeal tribunal may accept the stipulation in lieu of a hearing only if all of the following occur:

(a) The parties entered into the stipulation voluntarily.

(b) The stipulation contains all the relevant and necessary facts to resolve the issues as determined by the appeal tribunal.

(2) If the appeal tribunal does not accept the stipulation of the parties, a hearing shall be held unless the appeal tribunal provides the parties with additional opportunities to submit an acceptable stipulation.

(3) At the hearing, the appeal tribunal may accept a partial stipulation of relevant facts not in dispute if the stipulation is entered into the hearing record and is agreed to on the record by the parties.

History

Cr. Register, November, 1988, No. 395, eff. 12-1-88; renum. from ILHR 140.125 and am., Register, June, 1997, No. 498, eff. 7-1-97; CR 18-033: am. Register May 2019 No. 761, eff. 6-1-19.

Wis. Admin. Code § DWD 140.13 Parties who fail to appear; general provisions {#sec-dwd-140.13 omnilex-key=us-wi-regs-official--agency-dwd--DWD 140.13}

All parties who are required to appear in person shall appear at the hearing location no later than the starting time listed on the notice of hearing. If the appellant does not appear within 10 minutes after the scheduled starting time of the hearing, the appeal tribunal shall dismiss the appeal. If the respondent does not appear within 10 minutes after the scheduled starting time of the hearing and the appellant is present, the appeal tribunal shall commence the hearing. The provisions of s. 108.09 (4), Stats., apply when a party fails to appear at a hearing under this chapter.

History

Cr. Register, November, 1985, No. 359, eff. 12-1-85; renum. from ILHR 140.14 and am., Register, June, 1997, No. 498, eff. 7-1-97; CR 18-033: am. Register May 2019 No. 761, eff. 6-1-19.

Wis. Admin. Code § DWD 140.15 Hearing procedure; order of witnesses; public hearing and exclusion of certain persons; oral decisions {#sec-dwd-140.15 omnilex-key=us-wi-regs-official--agency-dwd--DWD 140.15}

(1) All testimony shall be given under oath or affirmation. The appeal tribunal shall administer the oath or affirmation to each witness. No person who refuses to swear or affirm the veracity of their testimony may testify. Each party shall be given an opportunity to examine and cross-examine witnesses. The appeal tribunal may limit testimony to only those matters that are disputed. The appeal tribunal may not allow into the record, either on direct or cross-examination, redundant, irrelevant or repetitive testimony.

(2) The appeal tribunal has the responsibility to develop the facts and may call and examine any witness that the appeal tribunal deems necessary, determine the order that witnesses are called and the order of examination of each witness. The appeal tribunal may deny the request of any party to examine a witness adversely. The appeal tribunal may hear closing arguments from the parties and may limit the time of such arguments. The appeal tribunal may adjourn and continue a hearing to a future date when the hearing cannot be completed in the time scheduled.

(3) The appeal tribunal may, upon motion of a party or upon the appeal tribunal’s own motion, exclude witnesses from the hearing until called to testify and may instruct the excluded witnesses not to discuss the matter being heard until the hearing has been concluded. The appeal tribunal may close the hearing to any person to the extent necessary to protect the interests and rights of either party to a fair hearing. This subsection does not authorize exclusion of a party who is a natural person; one officer or employee of a party which is not a natural person; or a person whose presence is shown by a party to be essential to the presentation of the party’s case.

(4) The appeal tribunal may exclude any person who disrupts the hearing. The appeal tribunal may recess or adjourn the hearing if any person disrupts the hearing. The appeal tribunal may prohibit any excluded representative from representing a party at that hearing or any continuance. The appeal tribunal shall offer a party whose representative has been excluded or refused admittance an opportunity to secure another representative.

History

Cr. Register, November, 1985, No. 359, eff. 12-1-85; renum. from ILHR 140.10 and am. (1) and (4), Register, June, 1997, No. 498, eff. 7-1-97; CR 18-033: am. Register May 2019 No. 761, eff. 6-1-19.

Wis. Admin. Code § DWD 140.16 Admissibility of evidence; administrative notice {#sec-dwd-140.16 omnilex-key=us-wi-regs-official--agency-dwd--DWD 140.16}

(1) Statutory and common law rules of evidence and rules of procedure applicable to courts of record are not controlling with respect to hearings. The appeal tribunal shall secure the facts in as direct and simple a manner as possible. Evidence having reasonable probative value is admissible. Irrelevant, immaterial and repetitive evidence is not admissible. Hearsay evidence is admissible if it has reasonable probative value but no issue may be decided solely on hearsay evidence unless the hearsay evidence is admissible under ch. 908, Stats.

(2) The appeal tribunal may take administrative notice of any department records, generally recognized fact or established technical or scientific fact having reasonable probative value but the parties shall be given an opportunity to object and to present evidence to the contrary before the appeal tribunal issues a decision.

History

Cr. Register, November, 1985, No. 359, eff. 12-1-85; renum. from ILHR 140.12 and am., Register, June, 1997, No. 498, eff. 7-1-97; CR 18-033: am. Register May 2019 No. 761, eff. 6-1-19.

Wis. Admin. Code § DWD 140.17 Form of decision {#sec-dwd-140.17 omnilex-key=us-wi-regs-official--agency-dwd--DWD 140.17}

(1) The appeal tribunal may issue an oral decision at the hearing on the matters at issue but the appeal tribunal shall confirm the oral decision with a written decision. Only the written decision is appealable.

(2) The written decision of the appeal tribunal shall contain ultimate findings of fact and conclusions of law. The findings of fact shall consist of concise and separate findings necessary to support the conclusions of law. The decision shall contain the reasons and rationale which follow from the findings of fact to the conclusions of law.

(3) The decision of the appeal tribunal shall specify the time limit to file a petition for commission review with the commission under s. 108.09 (6), 108.095 (6) or 108.10 (2), Stats.

History

Cr. Register, November, 1985, No. 359, eff. 12-1-85; renum. from ILHR 140.13, am. (2) and cr. (3), Register, June, 1997, No. 498, eff. 7-1-97; CR 18-033: am. Register May 2019 No. 761, eff. 6-1-19.

Wis. Admin. Code § DWD 140.18 Fees for representation of parties {#sec-dwd-140.18 omnilex-key=us-wi-regs-official--agency-dwd--DWD 140.18}

No representative may charge or receive from a claimant for representation in a dispute concerning benefit eligibility or liability for overpayment of benefits, or in any administrative proceeding under ch. 108, Stats., concerning such a dispute, a fee which, in the aggregate, is more than 10% of the maximum benefits at issue unless the department has approved a specified higher fee before the claimant is charged. When a request for waiver of the 10% limitation is received, the department shall consider whether extended benefits or any other state or federal unemployment benefits are at issue. Any request for waiver of the 10% limitation on fees shall be submitted in writing to the central administrative office of the bureau of legal affairs in the division. Under s. 108.13, Stats., the department may not assign any past or future benefits for the collection of representative fees.

Note: Any request for a waiver under this section shall be submitted in writing to: Department of Workforce Development, Division of Unemployment Insurance, Central Administrative Office of the Bureau of Legal Affairs, 201 E. Washington Avenue, P.O. Box 8942, Madison, Wisconsin 53708-8942.

History

Cr. Register, November, 1985, No. 359, eff. 12-1-85; renum. and am. from ILHR 140.17, Register, June, 1997, No. 498, eff. 7-1-97; CR 18-033: am. 140.18 Register May 2019 No. 761, eff. 6-1-19.

Wis. Admin. Code § DWD 140.19 Departmental assistance for persons with disabilities and hearing impairments {#sec-dwd-140.19 omnilex-key=us-wi-regs-official--agency-dwd--DWD 140.19}

(1) The department may, at its own expense, provide a person to assist a person with a hearing impairment in communicating at a hearing, if the person with a hearing impairment notifies the hearing office within a reasonable time before the date of the hearing and the appeal tribunal determines that the impairment is of a type which may hinder or prevent the person from communicating.

(2) If the person with a hearing impairment makes arrangements on their own behalf to have a person assist them in communicating, the department may reimburse such person for fees and travel expenses at the rate specified for interpreters under s. DWD 140.20, if the appeal tribunal determines that such person is necessary to assist the person with the hearing impairment in communicating.

(3) The hearing office shall attempt to schedule hearings in buildings which have ease of access for any person with a temporary or permanent incapacity or disability. The appeal tribunal may reschedule any hearing in which such a person who is a party or a necessary witness to the hearing does not have ease of access into the building where the hearing is scheduled.

History

Cr. Register, November, 1985, No. 359, eff. 12-1-85, r. (1) (intro.), renum. (1) (a) and (b) to 100.02 (30) and (17), renum. (2), (3) and (4) to (1), (2) and (3), Register, September, 1995, No. 477, eff. 10-1-95; am. Register, June, 1997, No. 498, eff. 7-1-97; correction in (2) made under s. 13.93 (2m) (b) 7., Stats., Register, September, 2000, No. 537; CR 18-033: am. Register May 2019 No. 761, eff. 6-1-19.

Wis. Admin. Code § DWD 140.20 Witness and interpreter fees; travel expenses {#sec-dwd-140.20 omnilex-key=us-wi-regs-official--agency-dwd--DWD 140.20}

(1) The appeal tribunal may authorize reimbursement by the department to any witness subpoenaed by a party or any party who has already made reimbursement to such a witness for witness fees and travel expenses. The appeal tribunal may also require reimbursement for an interpreter who is necessary to interpret testimony of a witness offered at the hearing.

(2) The department may refuse to reimburse a witness subpoenaed on behalf of a party other than the department for witness fees or travel expenses if the appeal tribunal determines that the testimony was not relevant or material to the issue of the hearing.

(3) No witness subpoenaed on behalf of or requested to appear by the department is entitled to prepayment of witness fees or travel expenses but any such witness who appears at the hearing shall be paid the fees and travel expenses provided under sub. (4).

(4) The fees of witnesses and interpreters are:

(a) For witnesses, $16.00 per day.

(b) For expert witnesses, the rate set under s. 814.04 (2), Stats., plus the fees under pars. (a) and (d).

(d) For travel expenses, 20 cents per mile from the witness’ or interpreter’s residence in this state to the hearing site and back or, if without the state, from the point at which the witness or interpreter passes the state boundary to the hearing site, and back.

History

Cr. Register, November, 1985, No. 359, eff. 12-1-85; am. (1), (2), (4) (c) and (d), Register, June, 1997, No. 498, eff. 7-1-97; CR 18-033: am. (1), (2), (4) (c), (d) Register May 2019 No. 761, eff. 6-1-19.

Wis. Admin. Code § DWD 140.21 Transcripts and recordings {#sec-dwd-140.21 omnilex-key=us-wi-regs-official--agency-dwd--DWD 140.21}

(1) Copies of hearing transcripts may be obtained from the commission under s. LIRC 1.08.

(2) Under s. 108.09 (5), Stats., if testimony at a hearing is recorded, the department may furnish a person with a copy of the hearing recording. The fee is $7.00 per electronic recording. The department may waive this fee if the department is satisfied that the person is unable to pay.

Note: To request hearing recordings and waivers of fees contact the Department of Workforce Development, Division of Unemployment Insurance, Bureau of Legal Affairs, 201 E. Washington Avenue, P.O. Box 8942, Madison, Wisconsin 53708-8942 or telephone (608) 266-3174.

History

Cr. Register, November, 1985, No. 359, eff. 12-1-85; am. (2) and (3) and r. (4), Register, June, 1997, No. 498, eff. 7-1-97; correction in (1) made under s. 13.93 (2m) (b) 7., Stats., Register June 2007 No. 618; CR 08-019: am. (title) and (2), r. (3) Register July 2008 No. 631, eff. 8-1-08; CR 18-033: am. Register May 2019 No. 761, eff. 6-1-19; correction in (1) made under s. 13.92 (4) (b) 7., Stats., Register July 2022.

Wis. Admin. Code § DWD 140.22 Standard affidavit form {#sec-dwd-140.22 omnilex-key=us-wi-regs-official--agency-dwd--DWD 140.22}

(1) In general.

(a) Personal knowledge is the recognition of facts through firsthand observation or experience.

(b) Information and belief is not based on firsthand observation or experience but is based on secondhand information that is sworn as true.

(c) The department’s standard affidavit form for appeals under ss. 108.09, 108.095 and 108.10, Stats., is available at the department’s website or by requesting a copy from the hearing office.

Note: To obtain the department’s standard affidavit form, call (608) 266-8010 or visit the website https://dwd.wisconsin.gov/dwd/forms/ui/ucl-17500-e.htm.

(2) Affidavit requirements.

(a) An affidavit must contain all of the following information:

The name and address of the affiant.
The signature or mark of the affiant.
The date the statement was sworn.
The signature or mark of the notary public or other person authorized by law to verify sworn statements.
The county and state where the statement was sworn.

(b) An affidavit based upon information and belief must state the source of the information and the grounds for the belief.

(3) Procedure.

(a) A party may submit an affidavit as a potential exhibit by simultaneously delivering the affidavit to the hearing office and electronically delivering or mailing a copy to each party. The appeal tribunal conducting the hearing may refuse to consider an affidavit not received by the hearing office and each party at least 3 days before the hearing.

(b) At the hearing, the appeal tribunal may accept the affidavit as evidence as provided under s. DWD 140.16.

History

CR 13-106: cr. Register July 2014 No. 703, eff. 8-1-14; CR 18-033: am. (1) (c), (3) (a), (b) Register May 2019 No. 761, eff. 6-1-19.

Chapter DWD 142 STATE DIRECTORY OF NEW HIRES

Wis. Admin. Code § DWD 142.01 Purpose {#sec-dwd-142.01 omnilex-key=us-wi-regs-official--agency-dwd--DWD 142.01}

(1) 42 USC 653a(a)(1)(A) requires each state to establish a state directory of new hires that contains information reported by employers about each newly hired employee and requires employers to report this information. Section 103.05, Stats., implemented the federal new hire reporting requirements by creating a state directory of new hires and requiring employers to report information to the department about each newly hired employee.

(2) This chapter specifies the information that employers must provide, the procedures by which employers may comply with the new hire reporting requirements, and the penalties for violating this rule.

History

Cr. Register, April, 2001, No. 544, eff. 5-1-01.

Wis. Admin. Code § DWD 142.02 Definitions {#sec-dwd-142.02 omnilex-key=us-wi-regs-official--agency-dwd--DWD 142.02}

In this chapter:

(1) “Department” means the department of workforce development or its authorized agent.

(2) “Employee” means an individual who is an employee under 26 USC 3401 (c) but does not include an individual performing intelligence or counterintelligence functions for a federal or state agency if the head of the agency has determined that reporting under s. DWD 142.01 with respect to the individual could endanger the individual’s safety or compromise an ongoing investigation or intelligence mission.

Note: Under 26 USC 3401(c), an “employee” includes “an officer, employee, or elected official of the United States, a State, or any political subdivision thereof, or the District of Columbia, or any agency or instrumentality of any one or more of the foregoing. The term ‘employee’ also includes an officer of a corporation.”

(3) “Employer” means a person who is an employer under 26 USC 3401 (d) and includes any governmental entity and any labor organization.

Note: Under 26 USC 3401(d), an “employer” means “the person for whom an individual performs or performed any service, of whatever nature, as the employee of such person, except that:

(1) if the person for whom the individual performs or performed the services does not have control of the payment of the wages for such services, the term ‘employer’ (except for purposes of subsection (a)) means the person having control of the payment of such wages, and

(2) in the case of a person paying wages on behalf of a nonresident alien individual, foreign partnership, or foreign corporation, not engaged in trade or business within the United States, the term ‘employer’ (except for purposes of subsection (a)) means such person.”

(4) “Federal employer identification number” means the identifying number assigned to the employer under 26 USC 6109.

(5) “Labor organization” has the meaning specified in 42 USC 653a (a) (2) (B) (ii).

Note: 42 USC 653a (a) (2) (B) (ii) provides: The term “labor organization” shall have the meaning given such term in section 152(5) of title 29, and includes any entity (also known as a “hiring hall”) which is used by the organization and an employer to carry out requirements described in section 158(f)(3) of title 29 of an agreement between the organization and the employer.

(6) “Multi-state employer” means an employer that employs individuals in Wisconsin and in at least one other state.

(7) “Newly hired employee” means any of the following:

(a) An employee who reports for work for the first time.

(b) An employee, other than a poll worker or a substitute teacher, who is rehired, recalled, or returns to work after an unpaid absence of more than 60 days.

(d) A substitute teacher who performs services for the employer but who the employer has not reported to the state directory of new hires as newly hired during the current school year.

(8) “Poll worker” means a person who staffs a polling place on election day to assist in holding the election.

(9) “State directory of new hires” means an automated directory containing information supplied by employers about each newly hired employee, pursuant to s. 103.05, Stats.

History

Cr. Register, April, 2001, No. 544, eff. 5-1-01; CR 18-033: am. (2) to (5), (7) (b) Register May 2019 No. 761, eff. 6-1-19.

Wis. Admin. Code § DWD 142.03 Reporting requirements {#sec-dwd-142.03 omnilex-key=us-wi-regs-official--agency-dwd--DWD 142.03}

(1) Report contents. Except as provided in sub. (2) (b) and s. DWD 142.04 (1) (b), each employer that has one or more employees who perform services in Wisconsin shall file a report containing the following information with the department:

(a) Newly hired employee’s name.

(b) Newly hired employee’s address.

(d) Employer’s name.

(e) Employer’s payroll address for the newly hired employee.

(f) Employer’s federal employer identification number.

(g) Date the newly hired employee started work.

(h) Employee’s date of birth.

(2) Report format.

(a) An employer may file new hire reports in any of the following ways:

Electronically as authorized by the department.

Note: For further information on electronic reporting, see the “New Hire Reporting” section of the DWD web site at https://dwd.wisconsin.gov/uinh or call the toll free inquiry line at 1-888-300-HIRE (4473). Specialists are available to take calls Monday through Friday, 8:00 a.m. to 4:00 p.m. (CST).

On paper by submitting a copy of the newly hired employee’s completed WT-4 form (Employee’s Wisconsin Withholding Exemption Certificate/New Hire Reporting).
On paper by submitting a paper report containing all of the information required under sub. (1).
On paper by submitting a copy of the newly hired employee’s completed federal W-4 form (Employee’s Withholding Allowance Certificate).

(b) If an employer files a new hire report by submitting a copy of the newly hired employee’s W-4 that contains completed reporting requirements under sub. (1) (a) to (f), then the employer has satisfied the reporting requirement.

(3) Report due dates.

(a) Except as provided in par. (b), a report must be filed within 20 days after the newly hired employee starts work.

(b) If an employer is filing new hire reports electronically, reports must be filed twice monthly, not less than 12 days nor more than 16 days apart.

(c) If the deadline for filing a report falls on a Saturday, Sunday, any of the holidays enumerated under s. 230.35 (4) (a), Stats., or any other day on which mail is not delivered by the United States postal service, then the deadline shall be extended to include the next business day.

(4) The department may waive the requirement to report the date of birth of the newly hired employee if the employer is unable to provide it.

History

Cr. Register, April, 2001, No. 544, eff. 5-1-01; correction in (3) (c) made under s. 13.92 (4) (b) 7., Stats., Register November 2008 No. 635.

Wis. Admin. Code § DWD 142.04 Multi-state employers {#sec-dwd-142.04 omnilex-key=us-wi-regs-official--agency-dwd--DWD 142.04}

(1) Reporting options. Multi-state employers may choose to do either of the following:

(a) Report only the newly hired employees working in the state of Wisconsin as described in s. DWD 142.03 and report employees not working in Wisconsin to the respective states in which they work.

(b) Report all newly hired employees to a single state in which the multi-state employer has at least one employee working, regardless of where the other employees work. If the multi-state employer chooses Wisconsin as the single state to which it reports, that employer must file new hire reports electronically as provided in s. DWD 142.03 (2) (a) 1. In addition to containing all the information in s. DWD 142.03 (1), the electronically filed report for any newly hired employee not working in Wisconsin must also include the state in which the employee will work. Report due dates are the same as those provided in s. DWD 142.03 (3).

(2) Federal notice. Employers reporting under the option in sub. (1) (b) must submit a written notice to the secretary of the federal department of health and human services informing him or her of which state has been selected for new hire reporting.

(3) Report formats. The information to be supplied and the format used by multi-state employers to file new hire reports may vary according to the requirements of the state to which the new hire reports are being filed.

History

Cr. Register, April, 2001, No. 544, eff. 5-1-01.

Wis. Admin. Code § DWD 142.05 Penalties {#sec-dwd-142.05 omnilex-key=us-wi-regs-official--agency-dwd--DWD 142.05}

(1) Any person who violates any provision of this rule may be subject to the penalties provided under s. 103.05, Stats. No penalty may be imposed unless the person has been notified of the violation and has been provided with an opportunity to correct the violation.

(2) Pursuant to s. 103.005 (10), Stats., if a penalty is imposed it shall be subject to review in the manner provided in ch. 227, Stats.

History

Cr. Register, April, 2001, No. 544, eff. 5-1-01.

Chapter DWD 147 SEASONAL AGRICULTURAL EMPLOYERS

Wis. Admin. Code § DWD 147.001 Definitions {#sec-dwd-147.001 omnilex-key=us-wi-regs-official--agency-dwd--DWD 147.001}

Unless the context clearly indicates a different meaning, the definitions in ch. DWD 100 apply to this chapter.

History

Cr. Register, September, 1995, No. 477, eff. 10-1-95.

Wis. Admin. Code § DWD 147.01 Purpose {#sec-dwd-147.01 omnilex-key=us-wi-regs-official--agency-dwd--DWD 147.01}

(1) Under s. 108.066, Stats., an employer engaged in agricultural activities may apply to the department by May 31 for designation as a seasonal employer. The department shall issue an appealable determination regarding the application by June 30. The department shall grant seasonal employer designation if all of the requirements under s. 108.066 (3), Stats., are met.

(2) This chapter specifies the industries that the department shall consider to be primarily engaged in agricultural production, agricultural services, forestry, or commercial fishing, hunting, or trapping.

History

Cr. Register, October, 1994, No. 466, eff. 11-1-94; correction in (1) made under s. 13.93 (2m) (b) 1., Stats., Register, November 1999, No. 527; CR 18-033: renum. (intro.) to (1) and am., r. (1) (a) to (c) Register May 2019 No. 761, eff. 6-1-19; CR 22-010: am. (2) Register June 2022 No. 798, eff. 7-1-22.

Wis. Admin. Code § DWD 147.02 Affected employers {#sec-dwd-147.02 omnilex-key=us-wi-regs-official--agency-dwd--DWD 147.02}

An employer shall be considered to be primarily engaged in agricultural production, agricultural services, forestry, or commercial fishing, hunting, or trapping if the department determines that the employer’s primary type of business activity is one of those specified in the 2022 version of the North American Industry Classification System, Sector 11 – Agriculture, Forestry, Fishing and Hunting.

History

Cr. Register, October, 1994, No. 466, eff. 11-1-94; CR 22-010: am., r. Figure 2 Register June 2022 No. 798, eff. 7-1-22.

Chapter DWD 149 DISCLOSURE OF UNEMPLOYMENT INSURANCE RECORDS

Wis. Admin. Code § DWD 149.001 Definitions {#sec-dwd-149.001 omnilex-key=us-wi-regs-official--agency-dwd--DWD 149.001}

(1) In general. Except as provided in sub. (2), unless the context clearly indicates a different meaning, the definitions in ch. DWD 100 apply to this chapter.

(2) In this chapter. Notwithstanding ch. DWD 100 and unless the context clearly indicates a different meaning, in this chapter:

(a) “Claim information” means information about all of the following:

Whether an individual is receiving, has received, or has applied for unemployment insurance.
The amount of unemployment insurance the individual is receiving or is entitled to receive.
The individual’s current or most recent home address.
For purposes of s. DWD 149.04 (2) (h) to (m), “claim information” also includes all of the following:

a. Whether the individual has refused an offer of work and, if so, a description of the job offered including the terms, conditions, and rate of pay.

b. Any other information contained in the department’s unemployment insurance records that is needed by the requesting agency to verify eligibility for, and the amount of, benefits.

(b) “Government unit” has the meaning designated in s. 108.02 (17), Stats., and also includes any unit of the federal government and the governing body of a federally recognized American Indian tribe or band in this state.

Information about the organization of the department’s unemployment insurance division and the commission.
Federal and state unemployment insurance statutes, rules, regulations, statements of general policy, and interpretations of general applicability.
Interstate agreements and agreements with the department of labor relating to administration of the unemployment insurance program.
Decisions of the labor and industry review commission.

(d) “Public official” means an official, agency, or public entity within the executive branch of the federal, state, Indian tribal, or local government with responsibility for administering or enforcing a law, or an elected official in federal, state, Indian tribal, or local government and includes the meaning specified in 20 CFR 603.2 (d) (2) to (5).

Note: Under “20 CFR 603.2 (d) (2) to (5)” ‘public official’ means:

(2) Public postsecondary educational institutions established and governed under the laws of the State. These include the following:

(i) Institutions that are part of the State’s executive branch. This means the head of the institution must derive his or her authority from the Governor, either directly or through a State WDB (Workforce Development Board), commission, or similar entity established in the executive branch under the laws of the State.

(ii) Institutions which are independent of the executive branch. This means the head of the institution derives his or her authority from the State’s chief executive officer for the State education authority or agency when such officer is elected or appointed independently of the Governor.

(iii) Publicly governed, publicly funded community and technical colleges.

(3) Performance accountability and customer information agencies designated by the Governor of a State to be responsible for coordinating the assessment of State and local education or workforce training program performance and/or evaluating education or workforce training provider performance.

(4) The chief elected official of a local area as defined in WIOA (Workforce Innovation and Opportunity Act) sec. 3(9).

(5) A State educational authority, agency, or institution as those terms are used in the Family Educational Rights and Privacy Act, to the extent they are public entities.

(e) “Wage information” means information in the department’s unemployment insurance records about wages paid to an individual; the individual’s social security number; and name, address, state, and federal employer identification number of the employing unit that paid the wages to the individual.

History

Cr. Register, May, 1993, No. 449, eff. 6-1-93, r. (intro.), (1), (2), (3) and (4), cr. (1), renum. (5) to (2) and am., renum. (6) and (7) to 100.02 (47) and (67), Register, September, 1995, No. 477, eff. 10-1-95; CR 08-019: r. and recr. (2) Register July 2008 No. 631, eff. 8-1-08; CR 18-033: am. (2) (d) Register May 2019 No. 761, eff. 6-1-19; CR 22-010: am. (2) (c) 1. Register June 2022 No. 798, eff. 7-1-22.

Wis. Admin. Code § DWD 149.01 Purpose {#sec-dwd-149.01 omnilex-key=us-wi-regs-official--agency-dwd--DWD 149.01}

The purpose of this chapter is to implement s. 108.14 (7), Stats., and to comply with 20 CFR Part 603. Under s. 108.14 (7), Stats., the unemployment insurance records made or maintained by the department are confidential and shall be open to public inspection or disclosure only to the extent that the department permits in the interest of the unemployment insurance program. This chapter specifies the conditions and circumstances under which the department may permit unemployment insurance records to be disclosed. This chapter shall be interpreted and applied consistently with the requirements of 20 CFR Part 603.

History

Cr. Register, May, 1993, No. 449, eff. 6-1-93; CR 08-019: am. Register July 2008 No. 631, eff. 8-1-08.

Wis. Admin. Code § DWD 149.02 Confidentiality of records {#sec-dwd-149.02 omnilex-key=us-wi-regs-official--agency-dwd--DWD 149.02}

(1) Unemployment insurance records made or maintained by the department are confidential and not open to public inspection or disclosure, except as provided in subs. (2) and (3).

(2) The department may disclose the following unemployment insurance records if the disclosure is in the interest of the unemployment insurance program and does not interfere with the efficient administration of the program:

(a) Public domain information.

(b) Appeals records and decisions with personally identifiable information, as defined in s. 19.62 (5), Stats., redacted as provided in s. DWD 140.09.

(c) Any unemployment insurance record that has been screened to prevent identification of the individual or employing unit that is the subject of the record or which could foreseeably be combined with other publicly available information to reveal any identifying particulars of an individual or employing unit.

(d) Unemployment insurance records as provided in ss. DWD 149.03 and 149.05.

(3) The department shall disclose unemployment records as provided in s. DWD 149.04.

(4) The department shall notify every claimant at the time of application and periodically thereafter that confidential unemployment insurance information pertaining to the claimant may be requested and used for other governmental purposes, including verification of eligibility for other government programs.

(5) The department shall notify every employer subject to ch. 108, Stats., annually that wage information and other confidential unemployment insurance information may be requested and used for other governmental purposes, including verification of an individual’s eligibility for other government programs.

History

Cr. Register, May, 1993, No. 449, eff. 6-1-93; CR 08-019: r. and recr. Register July 2008 No. 631, eff. 8-1-08; CR 18-033: am. (2) (b) Register May 2019 No. 761, eff. 6-1-19.

Wis. Admin. Code § DWD 149.03 Disclosure of records to individuals, employing units, their agents, and authorized third parties {#sec-dwd-149.03 omnilex-key=us-wi-regs-official--agency-dwd--DWD 149.03}

(1) Claimants and employing units. Except as otherwise provided under s. DWD 140.09, the department shall make the following records available to the following persons upon request:

(a) An unemployment insurance record concerning an individual is available to that individual.

(b) An unemployment insurance record concerning an individual’s work for an employing unit is available to that employing unit.

(c) An unemployment insurance record concerning a determination to which an employing unit is identified as a party of interest under s. 108.09, Stats., is available to that employing unit.

(d) An unemployment insurance record concerning an employing unit’s status or liability under ch. 108, Stats., is available to that employing unit.

(2) Agents and attorneys.

(a) The department may disclose an unemployment insurance record to an attorney or agent of an individual or employing unit under sub. (1), only if the attorney or agent furnishes a written statement from the individual or employing unit authorizing release of the record or if the department verifies that the attorney or agent represents the individual or employing unit.

(b) An elected official or the elected official’s staff assistant is an agent when acting in response to a constituent’s inquiry about an unemployment insurance issue. The department may release only that portion of the records relating solely to the requesting constituent’s case.

(3) Authorized third parties.

(a) The department may disclose an unemployment insurance record to an authorized third party that is not an agent of an individual or employing unit if the third party provides a written release signed by the individual or employing unit to whom the information pertains. The release shall contain the following information:

The specific information sought.
The purpose for which the information is sought.
All parties who may receive the information.
A statement that the information obtained under the release will be used only for the purpose provided under subd. 2.
A statement that the department’s unemployment insurance files will be accessed to obtain the information.

(b) The department may disclose an unemployment insurance record under this subsection only if the purpose specified under par. (a) 2. is limited to one or more of the following:

Providing a service to the individual such that the individual expects to receive a benefit as a result of signing the release.
Carrying out administration or evaluation of a public program to which the release pertains.

History

Cr. Register, May, 1993, No. 449, eff. 6-1-93; am. (1) (intro.) and (2), Register, September, 2000, No. 537, eff. 10-1-00; CR 08-019: am. (title), (1) (a) to (d) and (2), cr. (2) (b) and (c), r. and recr. (3) Register July 2008 No. 631, eff. 8-1-08.

Wis. Admin. Code § DWD 149.04 Mandatory disclosure of unemployment insurance records {#sec-dwd-149.04 omnilex-key=us-wi-regs-official--agency-dwd--DWD 149.04}

(1) Disclosure required by law. The department shall disclose unemployment insurance records to any person or agency as required by state or federal law.

(2) Federally-mandated disclosures to certain agencies. The department shall disclose unemployment insurance records to the following:

(a) The internal revenue service for purposes of unemployment insurance tax administration.

(b) The U.S. citizenship and immigration services for purposes of verifying an individual’s immigration status.

(d) Wage and claim information to the U.S. department of health and human services for purposes of the National Directory of New Hires under 42 USC 653a.

(e) Any other state to properly administer its unemployment insurance program.

(f) The name, address, ordinary occupation, and employment status of each recipient of unemployment insurance and a statement of the recipient’s rights to further insurance under ch. 108, Stats., to any governmental unit for purposes of administering a program of public works or public assistance through public employment.

(g) The railroad retirement board.

(h) Wage and claim information to any government unit in the administration of a food stamp program under 7 USC 2011 to 2029 for purposes of determining an individual’s eligibility for and amount of benefits.

(i) Wage and claim information to any state or local child support enforcement agency for purposes of locating individuals owing child support obligations and establishing and collecting child support.

(j) Wage and claim information to the U. S. department of housing and urban development or representatives of a public housing agency for purposes of determining an individual’s eligibility for benefits or amount of benefits under a housing assistance program of the department of housing and urban development, provided the individual has signed a consent form.

(k) Wage and claim information to a government unit in the administration of a program funded under Temporary Assistance for Needy Families under 42 USC 601 to 619.

(L) Wage and claim information to any governmental unit administering the provisions of a Medicaid state plan approved under Title XIX of the Social Security Act.

(m) Wage and claim information to any governmental unit in the administration of Federal Old–Age, Survivors, and Disability Insurance and Supplemental Security Income for the Aged, Blind, and Disabled.

(3) Other required disclosures.

(a) The department shall disclose to the lottery board, upon request, information regarding any delinquency in the payment of contributions under ch. 108, Stats., by any person who desires to contract with the lottery board for the retail sale of lottery tickets as provided under s. 565.10 (3) (b), Stats.

(b) The department shall disclose wage and claim information to any government unit in the administration of a program of general relief or general assistance.

(c) The department shall disclose unemployment insurance records to the labor and industry review commission to perform its review functions.

History

Cr. Register, May, 1993, No. 449, eff. 6-1-93; am. (2) (intro.) and (a), Register, September, 2000, No. 537, eff. 10-1-00; CR 08-019: am. (title) and (1), r. and recr. (2) and (3) Register July 2008 No. 631, eff. 8-1-08.

Wis. Admin. Code § DWD 149.05 Permissive disclosure of unemployment insurance records {#sec-dwd-149.05 omnilex-key=us-wi-regs-official--agency-dwd--DWD 149.05}

(1) The department may disclose unemployment insurance records to any of the following persons or government units if the department approves the purposes for which the records are requested:

(a) The United States department of labor, including for purposes of the federal workforce innovation and opportunity act, and the bureau of labor statistics.

(b) The Unemployment Insurance Advisory Council when reasonably necessary in the course of its duties under s. 108.14 (5), Stats.

(c) A local, state, Indian tribal, or federal government official, other than a clerk of court on behalf of a litigant, with authority to obtain the information pursuant to a subpoena or court order.

(d) A public official or its agent or contractor for use in the performance of official duties, including any of the following:

Any division of the department or corresponding unit in another state agency, the government of another state, or the federal government.
Any legislative service agency listed under ch. 13, Stats.
Any taxing authority of the United States or of this state or any of its political subdivisions.
Colleges, universities, government units, or other organizations or persons for research projects of a public nature that benefit the unemployment insurance program, only if on behalf of a public official.
Any federal law enforcement agency or law enforcement agency of the state or any of its political subdivisions, if the individual or employing unit whose record is being sought is the subject of a criminal investigation.
Any person whom the department authorizes to use, print, or otherwise reproduce unemployment insurance records for purposes of demonstrating services or equipment in connection with the administration of the unemployment insurance program.

(2) The department may make any other disclosure as provided in this chapter.

(3) The department may disclose only that portion of the records and information as is necessary to complete the request.

History

Cr. Register, May, 1993, No. 449, eff. 6-1-93; CR 08-019: r. and recr. Register July 2008 No. 631, eff. 8-1-08; CR 18-033: am. (1) (intro.), (a), (c), (d) (intro.), 5. Register May 2019 No. 761, eff. 6-1-19.

Wis. Admin. Code § DWD 149.06 Confidentiality safeguard requirements and disclosure of records to third parties {#sec-dwd-149.06 omnilex-key=us-wi-regs-official--agency-dwd--DWD 149.06}

(1) Third party recipients of unemployment insurance records shall comply with all of the following confidentiality safeguard requirements:

(a) Safeguard disclosed information against unauthorized access or redisclosure.

(b) Use the disclosed information only for the purposes authorized by law and consistent with any applicable record disclosure agreement under s. DWD 149.07.

(d) Store and process information in electronic format in a way that unauthorized persons cannot obtain the information by any means.

(e) Ensure that only authorized persons are given access to disclosed information stored in a computer system.

(f) For third parties authorized to receive information by an individual or employing unit under s. DWD 149.03 (3), maintain a copy of the written release authorizing each access and ensure that access to disclosed information will be only to those authorized under the release.

(g) Instruct all persons having access to disclosed information of the confidentiality requirements and the penalties for unauthorized disclosure, and have these persons sign an acknowledgement that they have been so instructed and agree to report any infraction promptly.

(h) Dispose of all disclosed records and copies after the purpose for which the information was disclosed has been served or when the department considers appropriate, except for disclosed information possessed by any court.

(i) Allow the department to conduct on-site inspections of the disclosed records and to audit for compliance with this section.

(2) No information provided to a public official under this chapter may be used for solicitation of contributions or expenditures to or on behalf of a candidate for public or political office or a political party.

(3) No person, government unit, or other entity to which the department discloses an unemployment insurance record under s. DWD 149.03 (2) or (3), 149.04, or 149.05 may redisclose information obtained from that record without the prior written approval of the department. Any redisclosure is subject to the requirements in sub. (1).

(4) This section does not apply to disclosures of unemployment insurance records to a unit of the federal government that has safeguards in place that meet the confidentiality requirements of 42 USC 503 (a) (1), as determined by the department of labor with notice published in the Federal Register.

(5) This section does not apply to disclosures of the following:

(a) Public domain information.

(b) Disclosures exclusively for statistical purposes under a cooperative agreement with the bureau of labor statistics.

(d) Disclosures to the U.S. citizenship and immigration services for purposes of verifying a claimant’s immigration status.

(e) Disclosures to the U.S. department of labor for the purpose of oversight and audits of the unemployment insurance program.

(f) Disclosures of unemployment insurance appeal records under s. DWD 149.02 (2) (b) and disclosures to individuals and employing units under s. DWD 149.03 (1).

History

Cr. Register, May, 1993, No. 449, eff. 6-1-93; CR 08-019: r. and recr. Register July 2008 No. 631, eff. 8-1-08; CR 18-033: am. (4) Register May 2019 No. 761, eff. 6-1-19.

Wis. Admin. Code § DWD 149.07 Record disclosure agreements {#sec-dwd-149.07 omnilex-key=us-wi-regs-official--agency-dwd--DWD 149.07}

(1) The department shall require a record disclosure agreement to be in effect before disclosing unemployment insurance records under ss. DWD 149.03 (3), 149.04 (2) (e) to (m) and (3), and 149.05 (1) (d).

(2) The department may require a record disclosure agreement to be in effect before disclosing unemployment insurance records to any person, government unit, or entity not listed in sub. (1).

(3) Any record disclosure agreement with an agent of a public official for disclosure must be made with the public official and hold the public official responsible for ensuring the agent complies with the confidentiality requirements in s. DWD 149.06 (1).

(4) A record disclosure agreement shall be in writing for a prescribed period of time and include all of the following provisions:

(a) A statement of the purpose for which the record is sought, description of the specific information to be furnished, the methods and timing of requests and responses for information, and the format to be used.

(b) A requirement that the person, government unit, or entity that is a party to the agreement comply with all of the following:

Use the information only for purposes authorized by law and as stated in the agreement and limit access to the information to those with a need to access it for the stated purpose.
Pay all of the department’s costs in providing information from unemployment insurance records, unless the agreement provides for the reciprocal sharing of costs.
Comply with the confidentiality safeguards requirements of s. DWD 149.06 and not release information obtained from any unemployment insurance record to a third party without prior written approval of the department.
Verify the information in an unemployment insurance record released by the department if the person, government unit, or entity may take any action detrimental to the interests of the employee or employing unit that is the subject of the record.
Maintain a system of security that includes a procedure for the destruction of confidential information and report any infraction of the confidentiality safeguard requirements under s. DWD 149.06 or the agreement under this section fully and promptly.
Allow for on-site inspections by the department to ensure the confidentiality safeguard requirements of the agreement are met.

(c) For authorized third parties under s. DWD 149.03 (3), the information may be accessed only by those persons with authorization under the release, and the purpose for the release of information shall be limited to providing a service to benefit the individual.

(5) If the person, government unit, or entity fails to comply with the agreement, including failure to pay or reimburse the department for costs, the agreement shall be suspended. If no corrective action is taken and completed promptly following a suspension, the department shall cancel the agreement and all confidential information shall be surrendered to the department. The department may seek damages, penalties, and restitution as allowed by law.

(6) The requirements of this section do not apply to disclosures of unemployment insurance records to a federal agency that has in place safeguards adequate to satisfy the confidentiality requirements of 42 USC 503 (a) (1), as determined by the department of labor and published in the Federal Register.

History

Cr. Register, May, 1993, No. 449, eff. 6-1-93; CR 08-019: r. and recr. Register July 2008 No. 631, eff. 8-1-08; CR 18-033: am. (6) Register May 2019 No. 761, eff. 6-1-19.

Wis. Admin. Code § DWD 149.08 Fee for disclosing unemployment insurance records {#sec-dwd-149.08 omnilex-key=us-wi-regs-official--agency-dwd--DWD 149.08}

(1)

(a) The department shall charge a fee for disclosing an unemployment insurance record when the disclosure is for a third party, government unit, or entity that requests the record and disclosure is not necessary for the proper administration of the unemployment insurance program, unless only incidental staff time and nominal processing costs are involved in making the disclosure.

(b) The department may charge a fee for disclosure in the following circumstances:

Disclosure of public domain information.
Disclosure to an individual, employing unit, or agent.
The purpose of the disclosure is program oversight or audit.
The disclosure is pursuant to a court order or is to officials with subpoena authority.

(c) The fee for disclosure may not exceed the actual, necessary, and direct costs of location and disclosure of the record, including photocopy, postage, computer reprogramming, and labor costs, except a record location fee may be charged if the costs of location exceed $50. The department shall require the fee for disclosure to be paid in advance except for good reason.

(2) The department may permit an individual who is entitled to an unemployment insurance record to photograph the record or the department may photograph the record for the individual, if the form of the record does not permit copying.

(3) The department may impose reasonable restrictions on the manner of access to an original unemployment insurance record if the record is irreplaceable or easily damaged.

(4) Payment of the fee for disclosure on a one-time or an ongoing basis may be arranged under a record disclosure agreement under s. DWD 149.07.

History

Cr. Register, May, 1993, No. 449, eff. 6-1-93; CR 08-019: r. and recr. Register July 2008 No. 631, eff. 8-1-08.

Wis. Admin. Code § DWD 149.09 Penalties {#sec-dwd-149.09 omnilex-key=us-wi-regs-official--agency-dwd--DWD 149.09}

Any person who permits inspection or disclosure of an unemployment insurance record provided to that person by the department without authorization of the department shall be subject to the penalties provided under s. 108.24 (4), Stats.

History

Cr. Register, May, 1993, No. 449, eff. 6-1-93; CR 08-019: am. Register July 2008 No. 631, eff. 8-1-08.

Chapter DWD 150 FORMS

Wis. Admin. Code § DWD 150.001 Definitions {#sec-dwd-150.001 omnilex-key=us-wi-regs-official--agency-dwd--DWD 150.001}

Unless the context clearly indicates a different meaning, the definitions in ch. DWD 100 apply to this chapter.

History

Cr. Register, September, 1995, No. 477, eff. 10-1-95.

Wis. Admin. Code § DWD 150.05 Forms {#sec-dwd-150.05 omnilex-key=us-wi-regs-official--agency-dwd--DWD 150.05}

Copies of forms are provided by the department.

Note: Copies of forms are available online at: https://dwd.wisconsin.gov/dwd/forms-publications-search.htm.

History

1-2-56, am. intro. par., Register, March, 1967, No. 135, eff. 4-1-67; r. and recr. Register, September, 1968, No. 153, eff. 10-1-68; am. (2) (d) and (e), (3) (j) and (4) (g), cr. (2) (f), Register, January, 1975, No. 229, eff. 2-1-75; correction in (intro.) made under s. 13.93 (2m) (b) 7., Stats., Register, October, 1994, No. 466; r. and recr. (intro.), Register, November, 1999, No. 527, eff. 12-1-99; CR 18-033: am. Table DWD 150 Register May 2019 No. 761, eff. 6-1-19.

Chapter DWD 218 FAIR EMPLOYMENT

Wis. Admin. Code § DWD 218.01 Purpose {#sec-dwd-218.01 omnilex-key=us-wi-regs-official--agency-dwd--DWD 218.01}

The purpose of this chapter is to implement the provisions of ss. 16.009 (5) (d), 46.90 (4) (b), 50.07 (3) (b), 106.56, 111.31 to 111.395, 146.997, and 321.65 (7) (b), Stats. Sections 111.31 to 111.395, Stats., prohibit employment discrimination, unfair honesty testing, and unfair genetic testing. Section 16.009 (5), Stats., prohibits retaliation for reports to the Board on Aging and Long Term Care. Section 46.90 (4) (b), Stats., prohibits retaliation for reporting the abuse of an elderly person to a state or county agency. Section 50.07 (3) (b), Stats., prohibits retaliation for reports of abuse in care and service residential facilities. Section 146.997, Stats., prohibits retaliation against health care workers who report certain information about a health care facility or health care provider. Section 321.65 (7) (b), Stats., provides reemployment rights after national guard, state defense force, or public health emergency service. Section 106.56, Stats., prohibits discrimination on the basis of physical condition or developmental disability in post-secondary education. The goal of this chapter is to provide a constructive, impartial and speedy procedure for resolving disputes arising under these laws.

History

Cr. Register, June, 1995, No. 474, eff. 7-1-95; CR 06-062: am. Register November 2006 No. 611, eff. 12-1-06; corrections made under s. 13.92 (4) (b) 7., Stats., Register March 2013 No. 687.

Wis. Admin. Code § DWD 218.02 Definitions {#sec-dwd-218.02 omnilex-key=us-wi-regs-official--agency-dwd--DWD 218.02}

When used in this chapter or in the Wisconsin fair employment act:

(1) “Act” means the Wisconsin fair employment act, ss. 111.31 to 111.395, Stats.

(2) “Administrative law judge” means the examiner appointed to conduct hearings under the act.

(2m) “Agency” means an office, department, independent agency, authority, institution, association, society or other body in state government created or authorized to be created by the constitution or any law, including the legislature and the courts.

(3) “Complainant” means the person who files a complaint alleging that an action prohibited by the act has been committed.

(4) “Day”, when used in time computations in this chapter, means a calendar day, except that if the last day of the time period is a Saturday, Sunday or legal holiday, the last day shall be the next business day.

(5) “Division” means the equal rights division of the department of workforce development.

(6) “Filing” means the physical receipt of a document.

(7) “Person” includes, but is not limited to, one or more individuals, partnerships, associations, corporations, joint stock companies, trusts, unincorporated organizations, trustees, or trustees or receivers in bankruptcy.

(8) “Probable cause” means a reasonable ground for belief, supported by facts and circumstances strong enough in themselves to warrant a prudent person to believe, that a violation of the act probably has been or is being committed.

(9) “Respondent” means the person or agency alleged to have committed an action prohibited by the act.

History

Cr. Register, June, 1995, No. 474, eff. 7-1-95; emerg. cr. (2m), am. (9) eff. 8-5-03; CR 03-092: cr. (2m), am. (9) Register March 2004 No. 579, eff. 4-1-04.

Wis. Admin. Code § DWD 218.03 Complaints {#sec-dwd-218.03 omnilex-key=us-wi-regs-official--agency-dwd--DWD 218.03}

(1) Who may file complaints. 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.

(2) Where to file complaints.

(a) A complaint may be filed in person with any division office, or it may be mailed or sent by facsimile transmission to one of the following division offices:

Equal Rights Division, 201 East Washington Avenue, Madison, Wisconsin 53702. Facsimile number: 608-267-4592.
Equal Rights Division, 819 North Sixth Street, Milwaukee, Wisconsin 53203. Facsimile number: 414-227-4084.

(b) A complaint filed by facsimile transmission shall conform with the requirements of s. DWD 218.25 (1).

(3) Form and content of complaint. A complaint shall be written on a form which is available at any division office or on any form acceptable to the department. Each complaint shall be 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. Each complaint shall contain all of the following information:

(a) The name and address of the complainant.

(b) The name and address of the respondent.

(c) A concise statement of the facts, including pertinent dates, constituting the alleged act of employment discrimination, unfair honesty testing or unfair genetic testing.

(4) Assistance by the department. The department shall, upon request, provide appropriate assistance in completing and filing complaints.

(5) Date of filing of complaint deferred by another agency. A complaint which is deferred to the department by a federal or local employment opportunity agency with which the department has a worksharing agreement complies with the requirements of sub. (3) and is considered filed when received by the federal or local agency.

(6) 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 45 days before hearing unless good cause is shown for the failure to amend the complaint prior to that time. If the complaint is amended prior to the issuance of an initial determination, the department shall investigate the allegations of the amended complaint. If the complaint is amended after the case has been certified to hearing, the chief of the hearing section or the administrative law judge may remand the complaint to the investigation section to conduct an investigation and issue an initial determination as to whether probable cause exists to believe that the respondent has violated the act as alleged in the amended complaint. An amended complaint shall be dismissed if it does not meet the requirements of s. DWD 218.05 (1).

(7) Withdrawal of complaint. A complaint may be withdrawn at any time. A request for 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 withdrawal, the department shall dismiss the complaint by written order. Such dismissal shall be with prejudice unless otherwise expressly stated in the order.

History

Cr. Register, June, 1995, No. 474, eff. 7-1-95; CR 03-092: am. (6) Register March 2004 No. 579, eff. 4-1-04; CR 06-062: am. (2) Register November 2006 No. 611, eff. 12-1-06.

Wis. Admin. Code § DWD 218.04 Notification of respondent {#sec-dwd-218.04 omnilex-key=us-wi-regs-official--agency-dwd--DWD 218.04}

(1) When notice is to be sent. Except where prevented by the anonymity requirement of s. 111.375 (1), Stats., the department shall serve a copy of a complaint which meets the requirements of s. DWD 218.03 upon each respondent prior to the commencement of any investigation.

(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 specified 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 an act of employment discrimination, unfair honesty testing or unfair genetic testing has occurred based only on the department’s investigation and the information supplied by the complainant.

History

Cr. Register, June, 1995, No. 474, eff. 7-1-95.

Wis. Admin. Code § DWD 218.05 Preliminary review of complaints {#sec-dwd-218.05 omnilex-key=us-wi-regs-official--agency-dwd--DWD 218.05}

(1) Review of complaint. The department shall review every complaint filed to determine all of the following:

(a) Whether the complainant is protected by the act.

(b) Whether the respondent is subject to the act.

(d) Whether the complaint was filed within the time period set forth in the act, if that issue is raised in writing by the respondent.

(2) Preliminary determination dismissing complaint. The department shall issue a preliminary determination dismissing any complaint, or any portion of a complaint, that fails to meet the requirements of sub. (1). The department shall send the order of dismissal by first class mail to the last-known address of each party and to their attorneys of record.

(3) Appeal of preliminary determination. The complainant may appeal from an order dismissing a complaint under sub. (2) by filing a written appeal with the department. The appeal shall be filed within 20 days of the date of the order and shall state specifically the grounds upon which it is based. If a timely appeal is filed, the department shall serve a copy of the appeal upon all other parties. The matter shall be referred to the hearing section of the division 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. 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 appealed to the labor and industry review commission if it is a final decision and order as defined in s. DWD 218.21 (1).

History

Cr. Register, June, 1995, No. 474, eff. 7-1-95; CR 03-092: am. (2) and (3) Register March 2004 No. 579, eff. 4-1-04.

Wis. Admin. Code § DWD 218.06 Investigations {#sec-dwd-218.06 omnilex-key=us-wi-regs-official--agency-dwd--DWD 218.06}

(1) Conduct of investigation. Except as provided under sub. (3), the department shall investigate all complaints that satisfy the review under s. DWD 218.05 (1). 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. The department may subpoena persons or documents for the purpose of the investigation. Subpoenas may be enforced pursuant to s. 885.11, Stats.

(3) Dismissal of complaint prior to completion of investigation.

(a) The department may dismiss a complaint prior to completion of an investigation under the following circumstances:

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. 111.39 (3), Stats.
The complainant signed a valid 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 the act.
The allegations in the complaint have been previously dismissed by the department or by a state or federal court.

(b) A complainant may appeal from an order dismissing a complaint under this subsection by filing a written appeal with the department. The appeal shall be filed within 20 days of the date of the order and shall state specifically the grounds upon which it is based. If a timely appeal is filed, the department shall serve a copy of the appeal upon all other parties. The matter shall be referred to the hearing section of the division 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 dismissal of the complaint. The decision of the administrative law judge shall be served upon the parties. If the decision reverses or sets aside the dismissal, the complaint shall be remanded for further investigation. If the decision affirms the dismissal of the complaint, it may be appealed to the labor and industry review commission if it is a final decision and order as defined in s. DWD 218.21 (1).

History

History: Cr. Register, June, 1995, No. 474, eff. 7-1-95; CR 03-092: am. (1), cr. (3) Register March 2004 No. 579, eff. 4-1-04.

Wis. Admin. Code § DWD 218.07 Initial determination {#sec-dwd-218.07 omnilex-key=us-wi-regs-official--agency-dwd--DWD 218.07}

(1) General. At the conclusion of the investigation, the department shall issue a written initial determination which shall state whether or not there is probable cause to believe that an act of employment discrimination, unfair honesty testing or unfair genetic testing 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.

(2) Initial determination of probable cause. If the department initially determines that there is probable cause to believe that any discrimination, unfair honesty testing or unfair genetic testing occurred as alleged in the complaint, it shall certify the case to hearing. A hearing on the merits shall thereafter be noticed and conducted in accordance with the provisions of ss. DWD 218.11 to 218.20.

(3) Initial determination of no probable cause. If the department initially determines that there is no probable cause to believe that employment discrimination, unfair honesty testing or unfair genetic testing 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 218.08.

History

History: Cr. Register, June, 1995, No. 474, eff. 7-1-95.

Wis. Admin. Code § DWD 218.08 Appeal of initial determination of no probable cause {#sec-dwd-218.08 omnilex-key=us-wi-regs-official--agency-dwd--DWD 218.08}

(1) When filed. Within 30 days after the date of an initial determination finding that there is no probable cause, a complainant may file a written request for a hearing on the issue of probable cause. The request for hearing shall state specifically the grounds upon which the appeal is based. The department shall notify the respondent that an appeal has been filed within 10 days of receiving the appeal.

(2) Dismissal final if no appeal filed. If no timely written request for a hearing is filed, the initial determination’s order of dismissal shall be the final determination of the department.

(3) Certification to hearing on issue of probable cause; right to stipulate that case be decided on merits. If a timely appeal is filed, the division 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 218.11 and 218.13 to 218.20, except that the parties may stipulate prior to 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, with the consent of the parties, consolidate the hearing on probable cause and the hearing on the merits.

History

Cr. Register, June, 1995, No. 474, eff. 7-1-95; CR 06-062: am. (3) Register November 2006 No. 611, eff. 12-1-06.

Wis. Admin. Code § DWD 218.09 Private settlement and conciliation {#sec-dwd-218.09 omnilex-key=us-wi-regs-official--agency-dwd--DWD 218.09}

The parties may enter into an agreement to settle the complaint at any time during the proceedings, with or without assistance by the department. The department may assist the parties to reach a settlement agreement. The parties shall notify the department immediately upon reaching a settlement.

History

Cr. Register, June, 1995, No. 474, eff. 7-1-95.

Wis. Admin. Code § DWD 218.10 Dismissal of complaint for lack of jurisdiction or other procedural basis following certification to hearing {#sec-dwd-218.10 omnilex-key=us-wi-regs-official--agency-dwd--DWD 218.10}

A complaint may be dismissed based upon the conditions set forth in s. DWD 218.05 (1) or for any other procedural basis after the case is certified to hearing under either s. DWD 218.07 (2) or 218.08 (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 which 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 first class mail to the last known address of each party and to their attorneys of record.

History

Cr. Register, June, 1995, No. 474, eff. 7-1-95.

Wis. Admin. Code § DWD 218.11 Notice of hearing {#sec-dwd-218.11 omnilex-key=us-wi-regs-official--agency-dwd--DWD 218.11}

(1) Content. In any matter which has been certified to hearing following an initial determination of probable cause under s. DWD 218.07 (2) or an appeal of an initial determination of no probable cause under s. DWD 218.08 (3), the department shall advise the parties and their representatives and attorneys of record in writing by first-class 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 30 days after the date of mailing of the notice of hearing. The notice of hearing shall specify the nature of the act of employment discrimination, unfair honesty testing, or unfair genetic testing which 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.

(2) Place of hearing. The hearing shall be held in the county where the alleged act of discrimination occurred, or at another location with the consent of the parties. For purposes of this subsection, the county where the alleged act of discrimination occurred is the county where the respondent resides or where the alleged discrimination, unfair honesty testing or unfair genetic testing occurred.

History

Cr. Register, June, 1995, No. 474, eff. 7-1-95.

Wis. Admin. Code § DWD 218.12 Answer {#sec-dwd-218.12 omnilex-key=us-wi-regs-official--agency-dwd--DWD 218.12}

(1) When required. Within 21 days after the date of a notice of hearing on the merits, each respondent shall file with the hearing section of the division 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 mailed to all other parties.

(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, 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, but shall fairly meet the substance of the allegation. Any affirmative defense relied upon, including the statute of limitations, shall be raised in the answer unless it has previously been raised by a motion in writing. Failure to raise an affirmative defense in the answer may, in the absence of good cause, be held to constitute a waiver of such a defense.

History

Cr. Register, June, 1995, No. 474, eff. 7-1-95; CR 03-092: am. (1) and (2) Register March 2004 No. 579, eff. 4-1-04.

Wis. Admin. Code § DWD 218.13 Pre-hearing conference {#sec-dwd-218.13 omnilex-key=us-wi-regs-official--agency-dwd--DWD 218.13}

In any case which has been certified to hearing, a pre-hearing conference may be held in accordance with the provisions of s. 227.44 (4), Stats.

History

Cr. Register, June, 1995, No. 474, eff. 7-1-95.

Wis. Admin. Code § DWD 218.14 Pre-hearing discovery {#sec-dwd-218.14 omnilex-key=us-wi-regs-official--agency-dwd--DWD 218.14}

(1) When discovery may begin. Discovery may not be used prior to the time that a matter is certified to hearing, except that the taking and preservation of evidence shall be permitted prior to certification to hearing under the circumstances set forth in s. 227.45 (7), Stats.

(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 that discovery shall, not less than 10 days prior to 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 to either the chief of the hearing section 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. 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 which instituted those discovery requests as soon as practicable after the discovery has been taken.

(3) Scope, method 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.

(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.

(5) Filing with department. Copies of discovery requests and responses to discovery requests need not be filed with the division, except as required under sub. (2).

History

Cr. Register, June, 1995, No. 474, eff. 7-1-95; CR 03-092: am. (2) and (4) Register March 2004 No. 579, eff. 4-1-04.

Wis. Admin. Code § DWD 218.15 Subpoenas and motions {#sec-dwd-218.15 omnilex-key=us-wi-regs-official--agency-dwd--DWD 218.15}

(1) Subpoenas. 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 pursuant to s. 885.11, Stats.

(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.

History

Cr. Register, June, 1995, No. 474, eff. 7-1-95; emerg. am. (1) eff. 8-5-03; CR 03-092: am. (1) Register March 2004 No. 579, eff. 4-1-04.

Wis. Admin. Code § DWD 218.16 Disqualification of the administrative law judge {#sec-dwd-218.16 omnilex-key=us-wi-regs-official--agency-dwd--DWD 218.16}

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.

History

Cr. Register, June, 1995, No. 474, eff. 7-1-95.

Wis. Admin. Code § DWD 218.17 Exchange of names of witnesses and copies of exhibits {#sec-dwd-218.17 omnilex-key=us-wi-regs-official--agency-dwd--DWD 218.17}

By no later than the tenth day prior to the day of hearing, the parties shall file with the division and serve upon all other parties a written list of the names of witnesses and copies of the exhibits that the parties intend to use at the hearing. For the purpose of this section, service is complete on mailing rather than on receipt. The administrative law judge may exclude witnesses and exhibits not identified in a timely fashion pursuant to this section. This section does not apply to witnesses and exhibits offered in rebuttal which the party could not reasonably have anticipated using prior to the hearing.

History

Cr. Register, June, 1995, No. 474, eff. 7-1-95; CR 03-092: am. Register March 2004 No. 579, eff. 4-1-04.

Wis. Admin. Code § DWD 218.18 Hearings {#sec-dwd-218.18 omnilex-key=us-wi-regs-official--agency-dwd--DWD 218.18}

(1) Procedure. Hearings shall be conducted in conformity with the act and the provisions of ch. 227, Stats.

(2) Postponements and continuances. All requests for postponements shall be filed with the administrative law judge within 10 days after the notice of hearing, except where emergency circumstances arise after the notice is issued but prior to the hearing. The party requesting a postponement shall mail a copy of the request to all other parties at the time the request is filed with the division. Postponements and continuances may be granted only for good cause shown and shall not be granted solely for the convenience of the parties or their attorneys.

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

(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 failed to appear shows good cause in writing for the failure to appear, the administrative law judge may reopen the hearing.

History

Cr. Register, June, 1995, No. 474, eff. 7-1-95.

Wis. Admin. Code § DWD 218.19 Record of hearing {#sec-dwd-218.19 omnilex-key=us-wi-regs-official--agency-dwd--DWD 218.19}

(1) Method of recording hearing. A stenographic, electronic, or other record of oral proceedings shall be made at all hearings conducted under this chapter. 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 on tape or digitally, the original recording shall remain in the division for 5 years following the hearing, after which it may be discarded.

(2) Requirements for preparation of transcripts. Any party may file a transcript of the hearing with the division. 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.

(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. 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 expense of the parties. If a transcript has been provided to the court for the purpose of judicial review, the department shall provide a copy of the transcript at no cost to any party that submits a sworn affidavit of indigency and the inability to obtain funds to pay for a transcript.

History

Cr. Register, June, 1995, No. 474, eff. 7-1-95; CR 03-092: am. (3) Register March 2004 No. 579, eff. 4-1-04; CR 06-062: am. (1) Register November 2006 No. 611, eff. 12-1-06.

Wis. Admin. Code § DWD 218.20 Decision and order {#sec-dwd-218.20 omnilex-key=us-wi-regs-official--agency-dwd--DWD 218.20}

(1) General. After the close of the hearing, including any briefs which 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.

(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 first class 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 the labor and industry review commission if it is a final decision and order as defined in s. DWD 218.21 (1).

(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 which shall either dismiss the allegations of the complaint or shall order such action by the respondent as shall effectuate the purposes of the act, depending upon the administrative law judge’s findings and conclusions on the merits of the complaint. A certified copy of the decision and order and a notice of appeal rights shall be sent by first class mail to the last known address of each party and to their attorneys of record.

(4) Computation of interest. Interest on any award made pursuant to this chapter shall be added to that award and computed at an annual rate of 12% simple interest. Interest shall be computed by calendar quarter.

History

Cr. Register, June, 1995, No. 474, eff. 7-1-95; correction in (4) made under s. 13.92 (4) (b) 7., Stats., Register April 2026 No. 844.

Wis. Admin. Code § DWD 218.21 Petition for review by the labor and industry review commission {#sec-dwd-218.21 omnilex-key=us-wi-regs-official--agency-dwd--DWD 218.21}

(1) Appeals limited to final decisions and orders. Any party may file a written petition for review of a final decision and order of the administrative law judge by the labor and industry review commission. 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 division.

(2) Requirements for filing petition for review. The petition for review shall be filed within 21 days after the date that a copy of the administrative law judge’s decision and order is mailed to the last known addresses of the parties. The petition shall be filed with the division’s Madison or Milwaukee office.

History

Cr. Register, June, 1995, No. 474, eff. 7-1-95; CR 03-092: am. (1) Register March 2004 No. 579, eff. 4-1-04.

Wis. Admin. Code § DWD 218.22 Pre-employment inquiries and employment records {#sec-dwd-218.22 omnilex-key=us-wi-regs-official--agency-dwd--DWD 218.22}

An employer subject to the act may make such pre-employment inquiries and keep such employment records as will enable the employer to determine statistically the age, race, color, creed, sex, national origin, ancestry or marital status of applicants and employees. Pre-employment inquiries and employment records which tend directly or indirectly to disclose such information do not constitute unlawful discrimination per se.

History

Cr. Register, June, 1995, No. 474, eff. 7-1-95.

Wis. Admin. Code § DWD 218.23 Posting requirement {#sec-dwd-218.23 omnilex-key=us-wi-regs-official--agency-dwd--DWD 218.23}

Every employer, employment agency, labor organization and licensing agency subject to the act shall post in conspicuous places upon its premises a poster prepared and made available by the department relating to the provisions of the act and this chapter.

History

Cr. Register, June, 1995, No. 474, eff. 7-1-95.

Wis. Admin. Code § DWD 218.24 Pay status and witness fees for state employee parties and state employee witnesses {#sec-dwd-218.24 omnilex-key=us-wi-regs-official--agency-dwd--DWD 218.24}

(1) Pay status of state employee parties. State civil service employees who, as parties, are interviewed as part of investigations or who appear at pre-hearing conferences, conciliation sessions, or hearings, whether held in person or via telephone, shall do so without loss of state salary and with reimbursement by the employing agency for travel expenses in accordance with the uniform travel schedule amounts established under s. 20.916 (8), Stats.

(2) Pay status of state employee witnesses. State civil service employees who are interviewed as part of investigations or who attend hearings as witnesses, whether held in person or via telephone, shall do so without loss of state salary and with reimbursement by the employing agency for travel expenses in accordance with the uniform travel schedule amounts established under s. 20.916 (8), Stats.

(3) Witness fees for state civil service employees. State civil service employees who attend hearings as witnesses shall be entitled only to that compensation specified in sub. (2).

History

Emerg cr. eff. 8-5-03; CR 03-092: cr. Register March 2004 No. 579, eff. 4-1-04; CR 06-062: am. (2) Register November 2006 No. 611, eff. 12-1-06.

Wis. Admin. Code § DWD 218.25 Filing of documents by facsimile transmission or electronic mail {#sec-dwd-218.25 omnilex-key=us-wi-regs-official--agency-dwd--DWD 218.25}

(1) Filing of documents by facsimile transmission.

(a) Except where otherwise directed by the division, documents may be filed by facsimile transmission. Documents filed by facsimile transmission shall include a cover sheet setting forth all of the following information:

The name of the sender.
The individual to whom the transmission is directed, if that individual is known.
The number of pages being transmitted, including the cover sheet.

(b) The date of transmission recorded by the division’s facsimile machine 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 division as established by s. 230.35 (4) (f), Stats., or on a day when the offices of the division are closed pursuant to s. 230.35 (4) (a), Stats., shall be considered filed on the next business day of the division.

(2) Filing of documents by electronic mail. Documents may be filed by electronic mail only if expressly authorized by the equal rights officer or the administrative law judge assigned to the case.

History

CR 06-062: cr. Register November 2006 No. 611, eff. 12-1-06.

Chapter DWD 220 FAIR HOUSING

Wis. Admin. Code § DWD 220.01 Purpose {#sec-dwd-220.01 omnilex-key=us-wi-regs-official--agency-dwd--DWD 220.01}

The purpose of this chapter is to implement the laws prohibiting discrimination in housing and to provide an impartial and speedy procedure for resolving disputes of alleged housing discrimination.

History

Cr. Register, September, 1994, No. 465, eff. 10-1-94.

Wis. Admin. Code § DWD 220.02 Definitions {#sec-dwd-220.02 omnilex-key=us-wi-regs-official--agency-dwd--DWD 220.02}

In addition to those terms defined in s. 106.50, Stats., the following are definitions for terms used in this chapter:

(1) “Act” means s. 106.50, Stats., unless the context requires otherwise.

(2) “Administrative law judge” means the examiner appointed to conduct hearings under s. 106.50, Stats.

(3) “Conciliation agreement” means a written agreement setting forth the resolution of the issues in conciliation.

(5) “Department” means the department of workforce development.

(6) “Division” means the equal rights division of the department.

(7) “Filing” means the physical receipt of a document at any division office.

(8) “Lawful source of income” includes, but is not limited to, lawful compensation or lawful remuneration in exchange for goods or services provided; profit from financial investments; any negotiable draft, coupon or voucher representing monetary value such as food stamps; social security; public assistance; unemployment compensation or worker’s compensation payments.

(9) “Licensing or chartering agencies” means those regulatory agencies established under state law to license persons to perform activities which are covered by the act.

(10) “Person” includes, but is not limited to, one or more individuals, partnerships, associations, corporations, joint-stock companies, trusts, unincorporated organizations, legal representatives, trustees, or trustees or receivers in bankruptcy.

(11) “Probable cause” means a reasonable ground for belief, supported by facts and circumstances strong enough in themselves to warrant a prudent person to believe, that discrimination probably has been or is being committed. In making a determination of probable cause, the department shall consider whether the facts concerning the alleged discrimination are sufficient to warrant the initiation of a civil action.

(12) “Reasonable cause,” when used in s. 106.50 (6m) (d), Stats., means probable cause, as defined in sub. (11).

(13) “Receipt of service” means either the date that a document is delivered by certified mail or the date that the division is notified by the U.S. postal service that it was unable to deliver the document by certified mail.

(14) “Test” means a simulation of any transaction covered by the act for the purpose of comparing the responses given by persons such as landlords, sellers of real estate, and lenders of money for real estate to individuals such as renters or buyers of real estate or borrowers of money for real estate, to determine whether housing discrimination as defined under s. 106.50 (2), (2m) or (2r), Stats., is being or has been committed.

History

Cr. Register, September, 1994, No. 465, eff. 10-1-94; corrections in (intro.), (1), (2), (12) and (14) made under s. 13.93 (2m) (b) 7., Stats., Register, December, 2000, No. 540; CR 06-062: am. (11) Register November 2006 No. 611, eff. 12-1-06.

Wis. Admin. Code § DWD 220.03 Housing for older persons; exemptions and exclusions {#sec-dwd-220.03 omnilex-key=us-wi-regs-official--agency-dwd--DWD 220.03}

(1) Certification that housing is for older persons. Housing primarily intended and primarily operated for occupancy by at least one person 55 years of age or older per dwelling unit may qualify as housing for older persons entitled to the exemption under s. 106.50 (5m) (a) 1e., Stats., only if that housing actually satisfied all of the factors required for such housing by s. 106.50 (5m) (a) 1e., Stats., at the time that the alleged discriminatory housing practice occurred.

(2) Exemptions from occupancy requirements. Housing shall not fail to qualify for the exemptions and exclusions for housing for older persons set forth in s. 106.50 (5m) (a) 1. and 1e. b., Stats., by reason of either of the following:

(a) The existence of unoccupied units, provided that such units are reserved for occupancy by persons 55 years of age or over.

(b) The occupancy of one or more units by bona fide employees of the housing (and family members renting in the same unit) who are under 55 years of age, provided that they perform substantial duties directly related to management or maintenance of the housing.

History

Cr. Register, September, 1994, No. 465, eff. 10-1-94; corrections in (1) and (2) made under s. 13.93 (2m) (b) 7., Stats., Register, December, 2000, No. 540.

Wis. Admin. Code § DWD 220.04 Complaints {#sec-dwd-220.04 omnilex-key=us-wi-regs-official--agency-dwd--DWD 220.04}

(2) Persons against whom complaints may be filed. A complaint may be filed against any person alleged to be engaged or to have engaged in a discriminatory housing practice prohibited under the act.

(3) Where to file complaints.

(a) A complaint may be filed in person with any division office, or it may be mailed or sent by facsimile transmission to one of the following division offices:

Equal Rights Division, 201 East Washington Avenue, Madison, WI 53702. Facsimile number: 608-267-4592.
Equal Rights Division, 819 North 6th Street, Milwaukee, WI 53203. Facsimile number: 414-227-4084.

(b) A complaint filed by facsimile transmission shall conform with the requirements of s. DWD 220.25 (1).

(4) Form and content of complaint. A complaint shall be written on a form which is available at any division office or on any other form acceptable to the department. Each complaint shall be signed by the person filing the complaint or by the person’s duly authorized representative. The signature constitutes a certificate 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 well-founded; and that the complaint is not being used for any improper purpose, such as to harass the party against whom the complaint is filed. Each complaint shall contain substantially the following information:

(a) The name and address of the complainant.

(b) The name and address of the known aggrieved persons, if different than the complainant.

(d) A description and the address of the dwelling which is involved.

(e) A concise statement of the essential facts, including pertinent dates, constituting the alleged discriminatory housing practice.

(5) Date of filing of complaint. A complaint is filed when it is received by the department in a form that reasonably meets the standards of sub. (4).

(6) Date of filing of deferred complaint. A complaint which is deferred to the department by a federal or local fair housing agency with which the department has a worksharing agreement complies with the requirements of sub. (4) and is considered filed when received by the federal or local agency.

(7) Amendment of complaint. Subject to the approval of the department, a complaint may be amended no later than 45 days before hearing unless good cause is shown for the failure to amend the complaint prior to that time. If the complaint is amended prior to the issuance of an initial determination, the department shall investigate the allegations of the amended complaint. If the complaint is amended after the case has been certified to hearing, the chief of the hearing section or the administrative law judge may remand the complaint to the investigation section to conduct an investigation and issue an initial determination as to whether probable cause exists to believe that discrimination has been committed as alleged in the amended complaint. An amended complaint shall be dismissed if it does not meet the requirements of s. DWD 220.05 (1).

(8) Withdrawal of complaint. A complaint may be withdrawn at any time. A request for withdrawal shall be in writing and shall be signed by the complainant or by the complainant’s duly authorized representative or attorney of record. Upon the filing of a request for withdrawal, the department shall dismiss the complaint by written order. Such dismissal shall be with prejudice unless otherwise expressly stated in the order.

History

Cr. Register, September, 1994, No. 465, eff. 10-1-94; CR 03-092: am. (7) Register March 2004 No. 579, eff. 4-1-04; CR 06-062: am. (3) Register November 2006 No. 611, eff. 12-1-06.

Wis. Admin. Code § DWD 220.05 Preliminary review of complaints {#sec-dwd-220.05 omnilex-key=us-wi-regs-official--agency-dwd--DWD 220.05}

(1) Review of complaint. The department shall review every complaint filed to determine all of the following:

(a) Whether the complainant is protected by the act.

(b) Whether the respondent is subject to the act.

(d) Whether the complaint was timely filed.

(3) Appeal of preliminary determination. A complainant may appeal from an order dismissing a complaint under sub. (2) by filing a written request with the department. The appeal shall be filed within 20 days of the date of the order and shall state specifically the grounds upon which it is based. If a timely appeal is filed, the department shall serve a copy of the appeal upon all other parties. The matter shall be referred to the hearing section of the division 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. 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 is the final decision of the department. The department shall send a copy of the decision and order and notice of appeal rights by first class mail to the last known address of each party and to their attorneys of record.

History

Cr. Register, September, 1994, No. 465, eff. 10-1-94; CR 03-092: am. (2) and (3) Register March 2004 No. 579, eff. 4-1-04.

Wis. Admin. Code § DWD 220.06 Testing {#sec-dwd-220.06 omnilex-key=us-wi-regs-official--agency-dwd--DWD 220.06}

(1) Conditions under which testing may be done by the department. The department may engage in testing for the purpose of establishing violations of s. 106.50 (2), (2m) or (2r), Stats. by verifying allegations of unlawful housing discrimination or to determine whether sufficient evidence exists to initiate its own complaint. Testing may occur under circumstances including but not limited to the following:

(a) Where no other means exits for verifying or refuting the allegations contained in a complaint, or where the findings of the investigator would be significantly strengthened by the inclusion of test results.

(b) Where the number or content of complaints against a specific respondent is sufficient to indicate that a pattern of unlawful discrimination may exist.

(c) Where demographic statistics would lead a reasonable person to believe that a pattern of unlawful discrimination exists in a particular geographical area.

(2) Testing procedures. Any person engaged in testing for the department shall do so only after having specific authorization by the department. The results of each test for potential discrimination shall be submitted to the department in written form by those persons who conducted the test.

(3) Notice of testing. The department may not give notice of testing to the person who shall be tested. If the testing is undertaken as the result of a complaint naming a specific respondent, the department shall delay sending the notice of the complaint to the respondent until after the completion of the testing.

History

Cr. Register, September, 1994, No. 465, eff. 10-1-94; correction in (1) made under s. 13.93 (2m) (b) 7., Stats., Register, December, 2000, No. 540.

Wis. Admin. Code § DWD 220.07 Investigations {#sec-dwd-220.07 omnilex-key=us-wi-regs-official--agency-dwd--DWD 220.07}

(1) Conduct of investigation. Except as provided under sub. (2), the department shall investigate all complaints that satisfy the review under s. DWD 220.05 (1). 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. The department may subpoena persons or documents for the purpose of the investigation. Subpoenas may be enforced pursuant to s. 885.11, Stats.

(2) Dismissal of complaint prior to completion of investigation.

(a) The department may dismiss a complaint prior to completion of an investigation under the following circumstances:

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. 106.50 (6) (a) 6., Stats.
The allegations in the complaint have been previously dismissed by the department or by a state or federal court.

(b) A complainant may appeal from an order dismissing a complaint under this subsection by filing a written appeal with the department. The appeal shall be filed within 20 days of the date of the order and shall state specifically the grounds upon which it is based. If a timely appeal is filed, the department shall serve a copy of the appeal upon all other parties. The matter shall be referred to the hearing section of the division 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 dismissal of the complaint. The decision of the administrative law judge shall be served upon the parties. If the decision reverses or sets aside the dismissal, the complaint shall be remanded for further investigation. If the decision affirms the preliminary determination, the complainant may seek judicial review if it is a final decision and order as defined in s. DWD 220.24.

History

Cr. Register, September, 1994, No. 465, eff. 10-1-94; CR 03-092: rn. to be (1) and am., cr. (2) Register March 2004 No. 579, eff. 4-1-04.

Wis. Admin. Code § DWD 220.08 Initial determinations {#sec-dwd-220.08 omnilex-key=us-wi-regs-official--agency-dwd--DWD 220.08}

(1) General. At the conclusion of the investigation, the department shall issue an initial determination which shall state whether or not there is probable cause to believe that housing discrimination occurred as alleged in the complaint. This initial determination shall set forth the facts upon which its conclusion is based.

(2) Initial determination of probable cause. If the initial determination of the department is that probable cause exists, the department shall issue a charge under s. DWD 220.11.

(3) Initial determination of no probable cause. If the initial determination of the department is that there is no probable cause to believe that housing discrimination occurred as alleged in the complaint, it shall dismiss the complaint. The department shall notify the parties and their attorneys of record of the complainant’s right to appeal as provided in s. DWD 220.09.

History

Cr. Register, September, 1994, No. 465, eff. 10-1-94.

Wis. Admin. Code § DWD 220.09 Appeal of initial determination of no probable cause {#sec-dwd-220.09 omnilex-key=us-wi-regs-official--agency-dwd--DWD 220.09}

(1) When filed. Within 20 days after the date of an initial determination finding that there is no probable cause, a complainant may file a written request for a hearing on the issue of probable cause. The department shall notify the respondent that an appeal has been filed within 10 days of receiving the appeal.

(2) Dismissal final if no appeal filed. If no timely written request for a hearing is filed, the initial determination’s order of dismissal shall be the final determination of the department.

(3) Certification to hearing on issue of probable cause; right to stipulate that case may be heard on merits. If a timely appeal is filed, the division shall certify 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 220.14 and 220.16 to 220.23, except that the parties may stipulate prior to the hearing that the administrative law judge may decide the case on the merits.

History

Cr. Register, September, 1994, No. 465, eff. 10-1-94.

Wis. Admin. Code § DWD 220.10 Conciliation {#sec-dwd-220.10 omnilex-key=us-wi-regs-official--agency-dwd--DWD 220.10}

(1) Conciliation. Upon the consent of all parties, the department may assist the parties to reach a mutually agreeable and just resolution of the complaint at any time during the proceedings. If conciliation resolves a dispute, the terms of the agreement shall be set forth in a conciliation agreement.

(2) Remedy for breach of conciliation agreement. If, within one year after the effective date of a conciliation agreement, a complainant believes that the terms of the agreement have been breached by a respondent, the complainant may petition the department to re-open the complaint against that respondent. The department may conduct a hearing to determine whether the terms of the conciliation agreement have been breached. If the department determines that the respondent has breached the conciliation agreement, it may do either of the following:

(a) Refer the matter to the department of justice with a recommendation that a civil action be filed under s. 106.50 (6) (e) 4., Stats., for the enforcement of the terms of the conciliation agreement.

(b) Issue an order allowing the complainant to proceed with the complaint starting at the point in the administrative proceedings when the conciliation agreement became effective, provided that the complainant places any monetary proceeds which were received as a result of the conciliation agreement in an escrow account pending the final resolution of the complaint process.

(3) Stay of proceedings. Any proceedings before the division under this section shall be stayed pending any enforcement action by the department of justice or any contract action to enforce the conciliation agreement brought by the complainant in circuit court.

History

Cr. Register, September, 1994, No. 465, eff. 10-1-94; correction in (2) (a) made under s. 13.93 (2m) (b) 7., Stats., Register, December, 2000, No. 540.

Wis. Admin. Code § DWD 220.11 Charge of discrimination {#sec-dwd-220.11 omnilex-key=us-wi-regs-official--agency-dwd--DWD 220.11}

(1) When charge shall be issued. If the department makes an initial determination that there is probable cause to believe that housing discrimination occurred as alleged in the complaint, or if it issues a decision finding probable cause after a hearing, it shall issue a charge on behalf of the complainant and shall refer the charge to the attorney general as required by s. 106.50 (6) (c) 2., Stats. The charge may be incorporated into an initial determination finding probable cause under s. DWD 220.08 (2) or into a decision of an administrative law judge finding probable cause under s. DWD 220.23 (1).

(2) Exception if civil trial has commenced. The department shall not issue a charge under this section if it has been informed, in writing, that an aggrieved person has commenced a civil action in court under the federal fair housing act, 42 USC 3613, or the Wisconsin open housing law, s. 106.50 (6m), Stats., seeking relief with respect to the alleged discriminatory housing practice, and that the trial in the action has begun. If a charge may not be issued because of the commencement of such a trial, the department shall dismiss the complaint. The department shall notify the parties of the dismissal of the complaint by first class mail.

History

Cr. Register, September, 1994, No. 465, eff. 10-1-94; correction in (2) made under s. 13.93 (2m) (b) 7., Stats., Register, December, 2000, No. 540; CR 06-062: am. (1) Register November 2006 No. 611, eff. 12-1-06.

Wis. Admin. Code § DWD 220.12 Election of civil action; certification to hearing {#sec-dwd-220.12 omnilex-key=us-wi-regs-official--agency-dwd--DWD 220.12}

(1) Election of civil action. If a charge is issued under s. DWD 220.11, a complainant, a respondent or an aggrieved person on whose behalf the complaint was filed may elect, in lieu of an administrative proceeding under ss. DWD 220.14 to 220.23, to have the claims asserted in the charge decided in a civil action under s. 106.50 (6m), Stats. The election shall be in writing and shall be filed with the department no later than 20 days after the receipt of service of the charge by the electing person. The department shall notify the parties and their attorneys of record that an election has been made. Upon the filing of an election, the department shall dismiss the complaint. The order of dismissal shall become effective 90 days after the date the order is issued. The order of dismissal shall state that it is without prejudice to the parties’ rights to proceed on the complaint in another forum. The administrative proceedings shall be concluded upon the effective date of the department’s order of dismissal. The complainant or the aggrieved person shall have 90 days from the date of receipt of service of the notice of election to file a summons and complaint in circuit court. Thereafter, the complaint shall proceed as provided under s. 106.50 (6m), Stats.

(2) Certification to hearing on the merits of the complaint. If an election is not made under this section, the department shall issue a notice certifying the matter to hearing. A hearing on the merits shall thereafter be noticed and conducted in accordance with the provisions of ss. DWD 220.14 to 220.23.

History

Cr. Register, September, 1994, No. 465, eff. 10-1-94; corrections in (1) made under s. 13.93 (2m) (b) 7., Stats., Register, December, 2000, No. 540.

Wis. Admin. Code § DWD 220.13 Dismissal of complaint for lack of jurisdiction or other procedural basis following certification to hearing {#sec-dwd-220.13 omnilex-key=us-wi-regs-official--agency-dwd--DWD 220.13}

A complaint may be dismissed for the reasons set forth in s. DWD 220.05 (1) after the case is certified to hearing under either s. DWD 220.09 (3) or 220.12 (2). 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 which 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 first class mail to the last known address of each party and to their attorneys of record.

History

Cr. Register, September, 1994, No. 465, eff. 10-1-94.

Wis. Admin. Code § DWD 220.14 Notice of hearing {#sec-dwd-220.14 omnilex-key=us-wi-regs-official--agency-dwd--DWD 220.14}

(1) Content. In any matter which has been certified to hearing following the issuance of a charge under s. DWD 220.11 or an appeal of an initial determination of no probable cause under s. DWD 220.09 (3), the department shall send a notice of hearing to the parties and their attorneys of record, by first-class mail, advising them 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 of hearing not less than 30 days after the date of mailing of the notice of hearing. The notice of hearing shall specify the nature of the housing discrimination which 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.

(2) Place of hearing. The hearing shall be held in the county where the alleged act of discrimination occurred, or at another location with the consent of the parties. For purposes of this subsection, the county where the alleged act of housing discrimination occurred is the county where the housing which is the subject of the complaint is located, unless no specific housing is involved, in which case the county where the alleged act of housing discrimination occurred is the county where the respondent resides.

History

Cr. Register, September, 1994, No. 465, eff. 10-1-94.

Wis. Admin. Code § DWD 220.15 Answer {#sec-dwd-220.15 omnilex-key=us-wi-regs-official--agency-dwd--DWD 220.15}

(1) When required. Within 10 days after the date of a notice of hearing on the merits, each respondent shall file with the hearing section of the division 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 mailed to all other parties.

History

Cr. Register, September, 1994, No. 465, eff. 10-1-94; CR 03-092: am. Register March 2004 No. 579, eff. 4-1-04.

Wis. Admin. Code § DWD 220.16 Pre-hearing conference {#sec-dwd-220.16 omnilex-key=us-wi-regs-official--agency-dwd--DWD 220.16}

In any case which has been certified to hearing, a pre-hearing conference may be held in accordance with the provisions of s. 227.44 (4), Stats.

History

Cr. Register, September, 1994, No. 465, eff. 10-1-94.

Wis. Admin. Code § DWD 220.17 Subpoenas and motions {#sec-dwd-220.17 omnilex-key=us-wi-regs-official--agency-dwd--DWD 220.17}

(1) Subpoenas. The cost of service and witness and mileage fees shall be paid by the person requesting the subpoena. Witness and mileage fees shall be the same as set forth in s. 814.67 (1) (a) and (c), Stats. Subpoenas may be enforced pursuant to s. 885.11, Stats.

History

Cr. Register, September, 1994, No. 465, eff. 10-1-94.

Wis. Admin. Code § DWD 220.18 Pre-hearing discovery {#sec-dwd-220.18 omnilex-key=us-wi-regs-official--agency-dwd--DWD 220.18}

(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 that discovery shall, not less than 10 days prior to 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 to either the chief of the hearing section 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. 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 which instituted those discovery requests as soon as practicable after the discovery has been taken.

(3) Scope, method 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.

(5) Filing with department. Copies of discovery requests and responses to discovery requests need not be filed with the division, except as required under sub. (2).

History

Cr. Register, September, 1994, No. 465, eff. 10-1-94; CR 03-092: am. (2) and (4) Register March 2004 No. 579, eff. 4-1-04.

Wis. Admin. Code § DWD 220.19 Disqualification of the administrative law judge {#sec-dwd-220.19 omnilex-key=us-wi-regs-official--agency-dwd--DWD 220.19}

History

Cr. Register, September, 1994, No. 465, eff. 10-1-94.

Wis. Admin. Code § DWD 220.20 Exchange of names of witnesses and copies of exhibits {#sec-dwd-220.20 omnilex-key=us-wi-regs-official--agency-dwd--DWD 220.20}

By no later than the tenth day prior to the day of the hearing, the parties shall file with the division and serve upon the other party a written list of the names of witnesses and copies of the exhibits which the parties intend to use at the hearing. For the purpose of this section, service is complete on mailing rather than on receipt. The administrative law judge may exclude witnesses and exhibits not identified in a timely fashion pursuant to this section. This section does not apply to witnesses and exhibits offered in rebuttal which the party could not have reasonably anticipated using prior to the hearing.

History

Cr. Register, September, 1994, No. 465, eff. 10-1-94; CR 03-092: am. Register March 2004 No. 579, eff. 4-1-04.

Wis. Admin. Code § DWD 220.21 Hearing {#sec-dwd-220.21 omnilex-key=us-wi-regs-official--agency-dwd--DWD 220.21}

(1) Procedure. Hearings shall be conducted in conformity with the act and the provisions of ch. 227, Stats.

(2) Postponements and continuances. All requests for postponements shall be filed with the administrative law judge or with the chief of the hearing section within 10 days after the date of the notice of hearing, except where emergency circumstances arise after the notice is issued but prior to the hearing. The party requesting a postponement shall mail a copy of the request to all other parties at the time the request is filed with the division. Postponements and continuances may be granted only for good cause shown and shall not be granted solely for the convenience of the parties or their attorneys.

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

(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 the hearing, any party who failed to appear shows good cause in writing for the failure to appear, the administrative law judge may reopen the hearing.

History

Cr. Register, September, 1994, No. 465, eff. 10-1-94.

Wis. Admin. Code § DWD 220.22 Record of hearing {#sec-dwd-220.22 omnilex-key=us-wi-regs-official--agency-dwd--DWD 220.22}

(1) Method of recording hearing. A stenographic, electronic, or other record of oral proceedings shall be made at all hearings conducted under the act. 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 on tape or digitally, the original recording shall remain in the division for 5 years following the hearing, after which it will be discarded.

(2) Filing transcripts with the division. Transcription of the record shall be at the expense of any party who requests the transcription. The transcript shall be prepared by an independent, reputable, court reporter or transcriptionist. If a transcript is filed with the division, it shall include a certification by the transcriptionist that the transcript is an original, verbatim, transcript of the proceedings.

(3) Transcription of record at department expense. The department shall provide, without cost, a copy of the transcript for the purpose of judicial review if a party submits a sworn affidavit of indigency and the inability to obtain funds to pay the cost of a transcript.

History

Cr. Register, September, 1994, No. 465, eff. 10-1-94; CR 06-062: am. (1) Register November 2006 No. 611, eff. 12-1-06.

Wis. Admin. Code § DWD 220.23 Decision and order {#sec-dwd-220.23 omnilex-key=us-wi-regs-official--agency-dwd--DWD 220.23}

(1) 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 written decision and order which dismisses the allegations of the complaint or which orders that a charge be issued under s. DWD 220.11, depending upon the administrative law judge’s findings and conclusions on the issue of probable cause. If the decision of the administrative law judge concludes that no probable cause exists, a certified copy of the decision and order and a notice of appeal rights shall be sent by first class mail to the last known address of each party and to their attorneys of record.

(2) Decision and order after hearing on the merits. After a hearing on the merits, the administrative law judge shall issue a written decision and an order which shall either dismiss the allegations of the complaint or shall order such action by the respondent as shall effectuate the purposes of the act, depending upon the administrative law judge’s findings and conclusions on the merits of the complaint. Economic and noneconomic damages including, but not limited to, lost wages, medical expenses, the increased costs of alternative housing, and compensation for damages caused by emotional distress, damage to reputation, or embarrassment may be ordered. A forfeiture may be ordered under s. 106.50 (6) (h) 2. or 3., Stats., if the respondent’s violation of the act was found to have been willful. A certified copy of the decision and order and a notice of appeal rights shall be sent by first class mail to the last known address of each party and to their attorneys of record.

History

Cr. Register, September, 1994, No. 465, eff. 10-1-94; correction in (2) made under s. 13.93 (2m) (b) 7., Stats., Register, December, 2000, No. 540.

Wis. Admin. Code § DWD 220.24 Judicial review {#sec-dwd-220.24 omnilex-key=us-wi-regs-official--agency-dwd--DWD 220.24}

Any party may file a petition for review of a final decision and order of the administrative law judge in the appropriate circuit court, pursuant to s. 106.50 (6) (j), Stats. A final decision and order is one which finally disposes of the entire complaint and leaves no further proceedings on that complaint pending before the division.

History

Cr. Register, September, 1994, No. 465, eff. 10-1-94; correction made under s. 13.93 (2m) (b) 7., Stats., Register, December, 2000, No. 540.

Wis. Admin. Code § DWD 220.25 Filing of documents by facsimile transmission or electronic mail {#sec-dwd-220.25 omnilex-key=us-wi-regs-official--agency-dwd--DWD 220.25}

(1) Filing of documents by facsimile transmission.

The name of the sender.
The individual to whom the transmission is directed, if that individual is known.
The number of pages being transmitted, including the cover sheet.

(2) Filing of documents by electronic mail. Documents may be filed by electronic mail only if expressly authorized by the equal rights officer or the administrative law judge assigned to the case.

History

CR 06-062: cr. Register November 2006 No. 611, eff. 12-1-06.

Chapter DWD 221 PUBLIC ACCOMMODATIONS

Wis. Admin. Code § DWD 221.01 Purpose {#sec-dwd-221.01 omnilex-key=us-wi-regs-official--agency-dwd--DWD 221.01}

The purpose of this chapter is to implement the laws prohibiting discrimination in public accommodations and amusements, and to provide an impartial and speedy procedure for resolving disputes of alleged discrimination in public accommodations and amusements.

History

Cr. Register, September, 1994, No. 465, eff. 10-1-94.

Wis. Admin. Code § DWD 221.02 Definitions {#sec-dwd-221.02 omnilex-key=us-wi-regs-official--agency-dwd--DWD 221.02}

In addition to those terms defined in s. 106.52, Stats., the following are definitions for terms used in this chapter:

(1) “Act” means s. 106.52, Stats., unless the context requires otherwise.

(2) “Administrative law judge” means the examiner appointed to conduct hearings under the act.

(3) “Day,” when used in time computations in these rules, means a calendar day, except that if the last day of the time period is a Saturday, Sunday or legal holiday, the last day shall be the next business day.

(4) “Department” means the department of workforce development.

(5) “Division” means the equal rights division of the department.

(6) “Filing” means the physical receipt of a document at any division office.

(8) “Probable cause” means a reasonable ground for belief, supported by facts and circumstances strong enough in themselves to warrant a prudent person to believe, that discrimination probably has been or is being committed.

(9) “Test” means a simulation of any transaction covered by the act for the purpose of comparing the responses given by persons such as owners and operators of places of public accommodations or amusements to individuals such as customers, patients or patrons of places of public accommodations or amusements to determine whether discrimination as defined under s. 106.52 (3), Stats., is being or has been committed.

History

Cr. Register, September, 1994, No. 465, eff. 10-1-94; corrections in (intro.), (1) and (9) made under s. 13.93 (2m) (b) 7., Stats., Register, December, 2000, No. 540; correction in (9) made under s. 13.93 (2m) (b) 7., Stats., Register March 2004 No. 579, eff. 4-1-04.

Wis. Admin. Code § DWD 221.03 Complaints {#sec-dwd-221.03 omnilex-key=us-wi-regs-official--agency-dwd--DWD 221.03}

(2) Where to file complaints.

(a) A complaint may be filed in person with any division office, or it may be mailed or sent by facsimile transmission to one of the following division offices:

Equal Rights Division, 201 East Washington Avenue, Madison, WI 53702. Facsimile number: 608-267-4592.
Equal Rights Division, 819 North 6th Street, Milwaukee, WI 53203. Facsimile number: 414-227-4084.

(b) A complaint filed by facsimile transmission shall conform with the requirements of s. DWD 221.23 (1).

(3) Form and content of complaint. A complaint shall be written on a form which is available at any division office or on any other form acceptable to the department. Each complaint shall be signed by the person filing the complaint or by the person’s duly authorized representative and shall be notarized. Each complaint shall contain substantially the following information:

(a) The name and address of the complainant.

(b) The name and address of the respondent.

(d) A concise statement of the essential facts, including pertinent dates, constituting the alleged discrimination in public accommodations or amusements.

(4) Assistance by the department. The department shall, upon request, provide appropriate assistance in completing and filing complaints.

(5) Date of filing of complaint. A complaint is considered filed when it is received by the department in a form that reasonably meets the standards of sub. (3).

(6) Amendment of complaint. Subject to the approval of the department, a complaint may be amended no later than 45 days before hearing unless good cause is shown for the failure to amend the complaint prior to that time. If the complaint is amended prior to the issuance of an initial determination, the department shall investigate the allegations of the amended complaint. If the complaint is amended after the case has been certified to hearing, the chief of the hearing section or the administrative law judge may remand the complaint to the investigation section to conduct an investigation and issue an initial determination as to whether probable cause exists to believe that discrimination has occurred as alleged in the amended complaint. An amended complaint shall be dismissed if it does not meet the requirements of s. DWD 221.04 (1).

(7) Withdrawal of complaint. A complaint may be withdrawn at any time. A request for withdrawal shall be in writing and shall be signed by the complainant or the complainant’s duly authorized representative or attorney of record. Upon the filing of a request for withdrawal, the department shall dismiss the complaint by written order. Such dismissal shall be with prejudice unless otherwise expressly stated.

History

Cr. Register, September, 1994, No. 465, eff. 10-1-94; CR 03-092: am. (6) Register March 2004 No. 579, eff. 4-1-04; CR 06-062: am. (2) Register November 2006 No. 611, eff. 12-1-06.

Wis. Admin. Code § DWD 221.04 Preliminary review of complaints {#sec-dwd-221.04 omnilex-key=us-wi-regs-official--agency-dwd--DWD 221.04}

(1) Review of complaint. The department shall review every complaint filed to ascertain all of the following:

(a) Whether the complainant is protected by the act.

(b) Whether the respondent is subject to the act.

(d) Whether the complaint was timely filed.

(2) Preliminary determination dismissing complaint. The department shall issue a preliminary determination dismissing any complaint, or any portion of a complaint, that fails to meet the requirements in sub. (1). The department shall send the order of dismissal by first class mail to the last-known address of each party and to their attorneys of record.

(3) Appeal of preliminary determination. A complainant may appeal from an order dismissing a complaint under sub. (2) by filing a written request with the department. The appeal shall be filed within 20 days of the date of the order and shall state specifically the grounds upon which it is based. If a timely appeal is filed, the department shall serve a copy of the appeal upon all other parties. The matter shall be referred to the hearing section of the division 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. 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 appealed to the labor and industry review commission if it is a final decision and order as defined in s. DWD 221.22 (1).

History

Cr. Register, September, 1994, No. 465, eff. 10-1-94; CR 03-092: am. (2) and (3) Register March 2004 No. 579, eff. 4-1-04.

Wis. Admin. Code § DWD 221.05 Notice to respondents {#sec-dwd-221.05 omnilex-key=us-wi-regs-official--agency-dwd--DWD 221.05}

The department shall serve a copy of a complaint upon each respondent prior to the commencement of any investigation. The notice shall direct the respondent to respond in writing to the allegations of the complaint within 10 days after the date of the notice. The notice shall advise the respondent that if no response to the complaint is filed within the time provided, the division will make an initial determination based on the information provided by the complainant.

History

Cr. Register, September, 1994, No. 465, eff. 10-1-94.

Wis. Admin. Code § DWD 221.06 Testing {#sec-dwd-221.06 omnilex-key=us-wi-regs-official--agency-dwd--DWD 221.06}

(1) Conditions under which testing may be done by the department. The department may engage in testing for the purpose of verifying allegations of discrimination in public accommodations and amusements, or to determine whether sufficient evidence exists to initiate its own complaint. Testing may occur under circumstances including, but not limited to, the following:

(a) Where no other means exists for verifying or refuting the allegations contained in a complaint, or where the findings of the investigator would be significantly strengthened by the inclusion of test results.

(b) Where the number or content of complaints against a specific respondent is sufficient to indicate that a pattern of unlawful discrimination may exist.

(c) Where demographic statistics would lead a reasonable person to believe that a pattern of unlawful discrimination exists in a particular geographical area.

(2) Testing procedures. Any person engaged in testing for the department shall do so only after having received specific authorization by the department. The results of each test for potential discrimination shall be submitted to the department in written form by those persons who conducted the test. No test which constitutes entrapment shall be utilized by the department.

(3) Notice of testing. The department may not give notice of testing to the persons who will be tested. If the testing is undertaken as the result of a complaint naming a specific respondent, the department shall delay sending the notice of the complaint to the respondent until after the completion of the testing.

History

Cr. Register, September, 1994, No. 465, eff. 10-1-94.

Wis. Admin. Code § DWD 221.07 Complainant’s duty to respond to correspondence from the department {#sec-dwd-221.07 omnilex-key=us-wi-regs-official--agency-dwd--DWD 221.07}

History

Cr. Register, September, 1994, No. 465, eff. 10-1-94.

Wis. Admin. Code § DWD 221.08 Investigations {#sec-dwd-221.08 omnilex-key=us-wi-regs-official--agency-dwd--DWD 221.08}

(1) Conduct of investigation. The department shall investigate all complaints which satisfy the review under s. DWD 221.04 (1). In conducting investigations under this chapter, the department shall seek the voluntary cooperation of all persons to provide requested materials to the department; to obtain access to premises, documents, individuals, and other possible sources of information; to examine, record, and copy necessary materials; and to take and record testimony or statements of persons reasonably necessary for the investigation. The department may subpoena persons or documents for the purpose of the investigation. Subpoenas may be enforced pursuant to s. 885.11, Stats.

(2) Advising complainant to amend complaint. If, during an investigation, it appears that the respondent has engaged in discrimination against the complainant which is not alleged in the complaint, the department may advise the complainant that the complaint should be amended. If the complaint is amended, the department shall investigate the allegations of the amended complaint, as well as the allegations of the initial complaint.

(3) Dismissal of complaint prior to completion of investigation.

(a) The department may dismiss a complaint prior to completion of an investigation under the following circumstances:

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. 106.50 (6) (a) 6., Stats.
The allegations in the complaint have been previously dismissed by the department or by a state or federal court.

History

Cr. Register, September, 1994, No. 465, eff. 10-1-94; CR 03-092: cr. (3) Register March 2004 No. 579, eff. 4-1-04.

Wis. Admin. Code § DWD 221.09 Initial determination {#sec-dwd-221.09 omnilex-key=us-wi-regs-official--agency-dwd--DWD 221.09}

(1) General. At the conclusion of the investigation, the department shall issue a written initial determination which shall state whether or not there is probable cause to believe that discrimination occurred as alleged in the complaint. The initial determination shall state the facts upon which its conclusion is based and shall be served upon the parties and their attorneys of record by first class mail.

(2) Initial determination of probable cause. If the department initially determines that there is probable cause to believe that a violation of the act occurred as alleged in the complaint, those allegations shall be certified to hearing.

(3) Initial determination of no probable cause. If the department initially determines that there is no probable cause to believe that the act was violated as alleged in the complaint, it shall dismiss those allegations in the complaint. The department shall, by a notice to be incorporated in the initial determination, notify the parties of the complainant’s right to appeal as provided in s. DWD 221.10.

History

Cr. Register, September, 1994, No. 465, eff. 10-1-94.

Wis. Admin. Code § DWD 221.10 Appeal of initial determination of no probable cause {#sec-dwd-221.10 omnilex-key=us-wi-regs-official--agency-dwd--DWD 221.10}

(1) When filed. Within 20 days after the date of an initial determination finding that there is no probable cause, a complainant may file with the division a written request for a hearing on the issue of probable cause. The department shall notify the respondent that an appeal has been filed within 10 days of receiving the appeal.

(2) Dismissal final if no appeal filed. If no timely written request for a hearing is filed, the initial determination’s order of dismissal shall be the final determination of the department.

(3) Certification to hearing on issue of probable cause; right to stipulate that case be decided on merits. If a timely written request for a hearing is filed, the division 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 221.13 and 221.15 to 221.21, except that the parties may stipulate prior to the hearing that the administrative law judge may decide the case on the merits.

History

Cr. Register, September, 1994, No. 465, eff. 10-1-94.

Wis. Admin. Code § DWD 221.11 Conciliation; private settlement {#sec-dwd-221.11 omnilex-key=us-wi-regs-official--agency-dwd--DWD 221.11}

(1) Conciliation. With the consent of all parties, the department may assist the parties to reach a mutually agreeable and just resolution of the complaint at any time during the proceedings. If conciliation resolves the dispute, the terms of the agreement shall be reduced to a written conciliation agreement. The conciliation agreement must be signed by the respondent and the complainant, or by their representatives.

(2) Private settlement. The parties may enter into an agreement to settle the complaint at any time, with or without resort to conciliation. No complaint will be dismissed based on a settlement agreement unless the department receives a written request from the complainant withdrawing the complaint. A settlement agreement signed by the complainant which specifically authorizes the department to dismiss the complaint may be submitted by either party in place of a written request from the complainant withdrawing the complaint.

History

Cr. Register, September, 1994, No. 465, eff. 10-1-94.

Wis. Admin. Code § DWD 221.12 Dismissal of complaint for lack of jurisdiction or other procedural basis following certification to hearing {#sec-dwd-221.12 omnilex-key=us-wi-regs-official--agency-dwd--DWD 221.12}

A complaint may be dismissed for the reasons set forth in s. DWD 221.04 (1) after the case is certified to hearing under either s. DWD 221.09 (2) or 221.10 (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 which 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 first class mail to the last known address of each party and to their attorneys of record.

History

Cr. Register, September, 1994, No. 465, eff. 10-1-94.

Wis. Admin. Code § DWD 221.13 Notice of hearing {#sec-dwd-221.13 omnilex-key=us-wi-regs-official--agency-dwd--DWD 221.13}

(1) Content. In any matter which has been certified to hearing, the department shall send a notice of hearing to the parties and their attorneys of record, by first-class mail, advising them 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 of hearing not less than 30 days after the date of mailing of the notice of hearing. The notice of hearing shall specify the nature of the discrimination which 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.

(2) Place of hearing. The hearing shall be held in the county where the alleged act of discrimination occurred, or at another location with the consent of the parties. For purposes of this subsection, the county where the alleged act of discrimination occurred is the county where the place of public accommodations or amusements which is the subject of the complaint is located. If no specific place of public accommodation or amusement is involved, the place of hearing shall be the county where the respondent resides.

History

Cr. Register, September, 1994, No. 465, eff. 10-1-94.

Wis. Admin. Code § DWD 221.14 Answer {#sec-dwd-221.14 omnilex-key=us-wi-regs-official--agency-dwd--DWD 221.14}

(1) When required. Within 10 days after the date of a notice of hearing on the merits, each respondent shall file with the hearing section of the division an answer to the allegations of the complaint, along with a certification that a copy of the answer has been mailed to all other parties.

History

Cr. Register, September, 1994, No. 465, eff. 10-1-94; CR 03-092: am. Register March 2004 No. 579, eff. 4-1-04.

Wis. Admin. Code § DWD 221.15 Pre-hearing conference {#sec-dwd-221.15 omnilex-key=us-wi-regs-official--agency-dwd--DWD 221.15}

In any case which has been certified to hearing, a pre-hearing conference may be held in accordance with the provisions of s. 227.44 (4), Stats.

History

Cr. Register, September, 1994, No. 465, eff. 10-1-94.

Wis. Admin. Code § DWD 221.16 Subpoenas and motions {#sec-dwd-221.16 omnilex-key=us-wi-regs-official--agency-dwd--DWD 221.16}

(1) Subpoenas. Witnesses summoned by a subpoena shall be entitled to the witness and mileage fees set forth in s. 814.67 (1) (a) and (c), Stats. Subpoenas may be enforced pursuant to s. 885.11, Stats.

History

Cr. Register, September, 1994, No. 465, eff. 10-1-94.

Wis. Admin. Code § DWD 221.17 Pre-hearing discovery {#sec-dwd-221.17 omnilex-key=us-wi-regs-official--agency-dwd--DWD 221.17}

(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 that discovery shall, not less than 10 days prior to 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 either the chief of the hearing section 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. 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 which instituted those discovery requests as soon as practicable after the discovery has been taken.

(3) Scope, method 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.

(5) Filing with department. Copies of discovery requests and responses to discovery requests need not be filed with the division, except as required under sub. (2).

History

Cr. Register, September, 1994, No. 465, eff. 10-1-94; CR 03-092: am. (2) and (4) Register March 2004 No. 579, eff. 4-1-04.

Wis. Admin. Code § DWD 221.18 Disqualification of the administrative law judge {#sec-dwd-221.18 omnilex-key=us-wi-regs-official--agency-dwd--DWD 221.18}

History

Cr. Register, September, 1994, No. 465, eff. 10-1-94.

Wis. Admin. Code § DWD 221.19 Hearing {#sec-dwd-221.19 omnilex-key=us-wi-regs-official--agency-dwd--DWD 221.19}

(1) Procedure. Hearings shall be conducted in conformity with the act and the provisions of ch. 227, Stats.

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

(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 the hearing, any party who failed to appear shows good cause in writing for the failure to appear, the administrative law judge may reopen the hearing.

History

Cr. Register, September, 1994, No. 465, eff. 10-1-94.

Wis. Admin. Code § DWD 221.20 Record of hearing {#sec-dwd-221.20 omnilex-key=us-wi-regs-official--agency-dwd--DWD 221.20}

History

Cr. Register, September, 1994, No. 465, eff. 10-1-94; CR 06-062: am. (1) Register November 2006 No. 611, eff. 12-1-06.

Wis. Admin. Code § DWD 221.21 Decision and order {#sec-dwd-221.21 omnilex-key=us-wi-regs-official--agency-dwd--DWD 221.21}

(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 written decision and order which dismisses the allegations of the complaint or which orders the matter scheduled for a hearing on the merits, depending upon the administrative law judge’s findings and conclusions on the issue of probable cause. If the decision of the administrative law judge concludes that there is probable cause, the matter shall be certified for a hearing on the merits. 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 first class 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 the labor and industry review commission if it is a final decision and order as defined in s. DWD 221.22 (1).

(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 which will either dismiss the allegations of the complaint or shall order such action by the respondent as will effectuate the purposes of the act, depending upon the administrative law judge’s findings and conclusions on the merits of the complaint. A certified copy of the decision and order shall be sent by first class mail to the last known address of each party and to their attorneys of record.

History

Cr. Register, September, 1994, No. 465, eff. 10-1-94.

Wis. Admin. Code § DWD 221.22 Petition for review by the labor and industry review commission {#sec-dwd-221.22 omnilex-key=us-wi-regs-official--agency-dwd--DWD 221.22}

(1) Appeals limited to final decisions and orders. Any party may file a written petition for review of a final decision and order of the administrative law judge by the labor and industry review commission. Only final decisions and orders of the administrative law judge may be appealed. A final decision and order is one that finally disposes of the entire complaint and leaves no further proceedings on that complaint pending before the division.

(2) Requirements for filing petition for review. A petition for review shall be filed within 21 days after the date a copy of the administrative law judge’s decision and order is mailed to the last known address of each party and their representative or attorney of record. The petition shall be filed with the division’s Madison or Milwaukee office.

History

Cr. Register, September, 1994, No. 465, eff. 10-1-94; CR 03-092: am. (1) Register March 2004 No. 579, eff. 4-1-04.

Wis. Admin. Code § DWD 221.23 Filing of documents by facsimile transmission or electronic mail {#sec-dwd-221.23 omnilex-key=us-wi-regs-official--agency-dwd--DWD 221.23}

(1) Filing of documents by facsimile transmission.

The name of the sender.
The individual to whom the transmission is directed, if that individual is known.
The number of pages being transmitted, including the cover sheet.

(2) Filing of documents by electronic mail. Documents may be filed by electronic mail only if expressly authorized by the equal rights officer or the administrative law judge assigned to the case.

History

CR 06-062: cr. Register November 2006 No. 611, eff. 12-1-06.

Chapter DWD 223 PUBLIC EMPLOYEE SAFETY AND HEALTH

Wis. Admin. Code § DWD 223.01 Purpose {#sec-dwd-223.01 omnilex-key=us-wi-regs-official--agency-dwd--DWD 223.01}

The purpose of this chapter is to implement the law prohibiting employers from discharging or discriminating against public employees because they have exercised their rights under the public employee safety and health law, s. 101.055 (8), Stats.

History

CR 06-062: cr. Register November 2006 No. 611, eff. 12-1-06.

Wis. Admin. Code § DWD 223.02 Definitions {#sec-dwd-223.02 omnilex-key=us-wi-regs-official--agency-dwd--DWD 223.02}

When used in this chapter:

(1) “Act” means the public employee safety and health provisions contained in s. 101.055 (8), Stats.

(2) “Administrative law judge” means the examiner appointed to conduct hearings under the act.

(3) “Complainant” means the person who files a complaint alleging that an action prohibited by the act has been committed.

(4) “Day,” when used in time computations in this chapter, means a calendar day, except that if the last day of the time period is a Saturday, Sunday, or legal holiday, the last day shall be the next business day.

(5) “Division” means the equal rights division of the department of workforce development.

(6) “Filing” means the physical receipt of a document.

(9) “Respondent” means the person or agency alleged to have committed an action prohibited by the act.

History

CR 06-062: cr. Register November 2006 No. 611, eff. 12-1-06.

Wis. Admin. Code § DWD 223.03 Complaints {#sec-dwd-223.03 omnilex-key=us-wi-regs-official--agency-dwd--DWD 223.03}

(1) Who may file complaints. A complaint may be filed by any person or by the person’s authorized representative. A complaint filed by a representative shall state that the representative is authorized to file the complaint.

(2) Where to file complaints.

(a) A complaint may be filed in person with any division office, or it may be mailed or sent by facsimile transmission to one of the following division offices:

Equal Rights Division, 201 East Washington Avenue, Madison, WI 53702. Facsimile number: 608-267-4592.
Equal Rights Division, 819 North Sixth Street, Milwaukee, WI 53203. Facsimile number: 414-227-4084.

(b) A complaint filed by facsimile transmission shall conform with the requirements of s. DWD 223.22 (1).

(3) Form and content of complaint. A complaint shall be written on a form that is available at any division office or on any form that contains all of the information set forth in this subsection. Each complaint shall be signed by the person filing the complaint or by the person’s authorized representative. The signature constitutes an acknowledgment that the person 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. Each complaint shall contain all of the following information:

(a) The name and address of the complainant.

(b) The name and address of the respondent.

(4) Assistance by the division. The division shall, upon request, provide appropriate assistance in completing and filing complaints.

(5) Date of filing of complaint deferred by another agency. A complaint which is deferred to the division by a federal or local agency with which the division has a work sharing agreement complies with the requirements of sub. (3) and is considered filed when received by the federal or local agency.

(6) Amendment of complaint.

(a) A complaint may be amended, subject to the approval of the division.

(b) A complaint may be amended during the investigation if the proposed amendment alleges a basis that is covered under the act. If the complaint is amended prior to the issuance of an initial determination, the division shall investigate the allegations of the amended complaint.

(c) If the complainant requests to amend the complaint after the case has been certified to hearing, the chief of the hearing section or the administrative law judge shall consider whether the proposed amendment meets the requirements of s. DWD 223.05 (1) and may remand the complaint to the investigation section to conduct an investigation and issue an initial determination as to whether probable cause exists to believe that the respondent has violated the act as alleged in the amended complaint.

(7) Withdrawal of complaint. A complaint may be withdrawn at any time. A request for withdrawal shall be in writing and shall be signed by the complainant or by the complainant’s authorized representative. Upon the filing of a request for withdrawal, the division shall dismiss the complaint by written order. Such dismissal shall be with prejudice unless otherwise expressly stated in the order.

History

CR 06-062: cr. Register November 2006 No. 611, eff. 12-1-06.

Wis. Admin. Code § DWD 223.04 Notification of respondent {#sec-dwd-223.04 omnilex-key=us-wi-regs-official--agency-dwd--DWD 223.04}

(1) When notice is to be sent. The division shall serve by first class mail a copy of a complaint that meets the requirements of s. DWD 223.03 upon each respondent prior to the commencement of any investigation.

(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 specified by the division. The notice shall further state that, if the respondent fails to answer the complaint in writing, the division may make an initial determination as to whether a violation of s. 101.055 (8) (ar), Stats., has occurred based only on the division’s investigation and the information supplied by the complainant.

History

CR 06-062: cr. Register November 2006 No. 611, eff. 12-1-06.

Wis. Admin. Code § DWD 223.05 Preliminary review of complaints {#sec-dwd-223.05 omnilex-key=us-wi-regs-official--agency-dwd--DWD 223.05}

(1) Review of complaint. The division shall review every complaint filed to determine all of the following:

(a) Whether the complainant is protected by the act.

(b) Whether the respondent is subject to the act.

(d) Whether the complaint was filed within the time period set forth in the act.

(2) Preliminary determination dismissing complaint. The division shall issue a preliminary determination dismissing any complaint, or any portion of a complaint, that fails to meet the requirements of sub. (1). The division shall send the order of dismissal by first class mail to the last-known address of each party and to their attorneys of record.

(3) Appeal of preliminary determination. The complainant may appeal from an order dismissing a complaint under sub. (2) by filing a written appeal with the division. The appeal shall be filed within 10 days of the date of the order and shall state specifically the grounds upon which it is based. If a timely appeal is filed, the division shall serve a copy of the appeal upon all other parties. The matter shall be referred to the hearing section of the division for review by an administrative law judge. The administrative law judge shall issue a decision which shall either affirm, reverse, or set aside the preliminary determination. The division shall serve the decision on the administrative law judge upon the 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, it may be appealed to circuit court if it is a final decision and order as defined in s. DWD 223.20 (2).

History

CR 06-062: cr. Register November 2006 No. 611, eff. 12-1-06.

Wis. Admin. Code § DWD 223.06 Investigations {#sec-dwd-223.06 omnilex-key=us-wi-regs-official--agency-dwd--DWD 223.06}

(1) Conduct of investigation. The division shall investigate all complaints that satisfy the review under s. DWD 223.05 (1). In conducting investigations under this chapter, the division may seek the cooperation of all persons to provide requested materials to the division; 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. The division may subpoena persons or documents for the purpose of the investigation. Subpoenas may be enforced pursuant to s. 885.11, Stats.

(2) Advising complainant to amend complaint. If, during an investigation, it appears that the respondent has discharged or otherwise discriminated against the complainant in a manner that is not alleged in the complaint, the division may advise the complainant that the complaint should be amended.

History

CR 06-062: cr. Register November 2006 No. 611, eff. 12-1-06.

Wis. Admin. Code § DWD 223.07 Initial determination {#sec-dwd-223.07 omnilex-key=us-wi-regs-official--agency-dwd--DWD 223.07}

(1) General. At the conclusion of the investigation, the division shall issue a written initial determination which shall state whether or not there is probable cause to believe that the complainant has been discharged or otherwise discriminated against in violation of the act 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.

(2) Initial determination of probable cause. If the division initially determines that there is probable cause, it shall certify the case to hearing. A hearing on the merits shall thereafter be noticed and conducted in accordance with the provisions in ss. DWD 223.11 to 223.19.

(3) Initial determination of no probable cause. If the division initially determines that there is no probable cause, it shall dismiss those allegations. The division 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 223.08.

History

CR 06-062: cr. Register November 2006 No. 611, eff. 12-1-06.

Wis. Admin. Code § DWD 223.08 Appeal of initial determination of no probable cause {#sec-dwd-223.08 omnilex-key=us-wi-regs-official--agency-dwd--DWD 223.08}

(1) When filed. Within 10 days after the date of an initial determination finding that there is no probable cause, a complainant may file a written request for a hearing on the issue of probable cause. The request for hearing shall state specifically the grounds upon which the appeal is based. The division shall notify the respondent that an appeal has been filed within 10 days of receiving the appeal.

(2) Dismissal final if no appeal filed. If no timely written request for a hearing is filed, the initial determination’s order of dismissal shall be the final determination of the division.

(3) Certification to hearing on issue of probable cause; right to stipulate that case be decided on merits. If a timely appeal is filed, the division 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 223.11 and 223.13 to 223.19, except that the parties may stipulate prior to 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 division may, with the consent of the parties, consolidate the hearing on probable cause and the hearing on the merits.

History

CR 06-062: cr. Register November 2006 No. 611, eff. 12-1-06.

Wis. Admin. Code § DWD 223.09 Private settlement and conciliation {#sec-dwd-223.09 omnilex-key=us-wi-regs-official--agency-dwd--DWD 223.09}

The parties may enter into an agreement to settle the complaint at any time during the proceedings, with or without assistance by the division. The division may assist the parties to reach a settlement agreement. The parties shall notify the division immediately upon reaching a settlement. Upon receiving notification that the parties have reached a settlement, the division shall issue an order dismissing the complaint.

History

CR 06-062: cr. Register November 2006 No. 611, eff. 12-1-06.

Wis. Admin. Code § DWD 223.10 Dismissal of complaint for lack of jurisdiction or other procedural basis following certification to hearing {#sec-dwd-223.10 omnilex-key=us-wi-regs-official--agency-dwd--DWD 223.10}

A complaint may be dismissed based upon the conditions set forth in s. DWD 223.05 (1) or for any other procedural basis after the case is certified to hearing under either s. DWD 223.07 (2) or 223.08 (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 first class mail to the last known address of each party and to their attorneys of record.

History

CR 06-062: cr. Register November 2006 No. 611, eff. 12-1-06.

Wis. Admin. Code § DWD 223.11 Notice of hearing {#sec-dwd-223.11 omnilex-key=us-wi-regs-official--agency-dwd--DWD 223.11}

(1) Content. In any matter that has been certified to hearing following an initial determination of probable cause under s. DWD 223.07 (2) or an appeal of an initial determination of no probable cause under s. DWD 223.08 (3), the division shall advise the parties and their representatives and attorneys of record in writing by first-class 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 20 days after the date of mailing of the notice of hearing. The notice of hearing shall specify the nature of the violation of s. 101.055 (8) (ar), Stats., 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.

(2) Place of hearing. The hearing shall be held in either the county where the alleged violation of the law occurred or the county where the respondent resides, or at another location with the consent of the parties.

History

CR 06-062: cr. Register November 2006 No. 611, eff. 12-1-06.

Wis. Admin. Code § DWD 223.12 Answer {#sec-dwd-223.12 omnilex-key=us-wi-regs-official--agency-dwd--DWD 223.12}

(1) When required. Within 14 days after the date of a notice of hearing on the merits, each respondent shall file with the hearing section of the division an answer to the allegations of the complaint upon which there is a finding of probable cause, along with a signed document indicating that a copy of the answer has been mailed to all other parties.

(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, the respondent shall so state and this shall have the effect of a denial. Admissions or denials may be all or part of an allegation, but shall fairly meet the substance of the allegation. Any affirmative defense relied upon, including the statute of limitations, shall be raised in the answer unless it has previously been raised by a motion in writing. Failure to raise an affirmative defense in the answer may, in the absence of good cause, be held to constitute a waiver of such a defense.

History

CR 06-062: cr. Register November 2006 No. 611, eff. 12-1-06.

Wis. Admin. Code § DWD 223.13 Pre-hearing conference {#sec-dwd-223.13 omnilex-key=us-wi-regs-official--agency-dwd--DWD 223.13}

In any case which has been certified to hearing, a pre-hearing conference may be held in accordance with the provisions of s. 227.44 (4), Stats.

History

CR 06-062: cr. Register November 2006 No. 611, eff. 12-1-06.

Wis. Admin. Code § DWD 223.14 Pre-hearing discovery {#sec-dwd-223.14 omnilex-key=us-wi-regs-official--agency-dwd--DWD 223.14}

(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 that discovery shall, not less than 10 days prior to conducting the 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 to either the chief of the hearing section 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 division at the time they are served upon the unrepresented party from whom the discovery is sought. 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 division by the party which instituted those discovery requests as soon as practicable after the discovery has been taken.

(3) Scope, method, 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.

(5) Filing with division. Copies of discovery requests and responses to discovery requests need not be filed with the division, except as required under sub. (2).

History

CR 06-062: cr. Register November 2006 No. 611, eff. 12-1-06.

Wis. Admin. Code § DWD 223.15 Subpoenas and motions {#sec-dwd-223.15 omnilex-key=us-wi-regs-official--agency-dwd--DWD 223.15}

(1) Subpoenas. The division 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 pursuant to s. 885.11, Stats.

History

CR 06-062: cr. Register November 2006 No. 611, eff. 12-1-06.

Wis. Admin. Code § DWD 223.16 Disqualification of the administrative law judge {#sec-dwd-223.16 omnilex-key=us-wi-regs-official--agency-dwd--DWD 223.16}

History

CR 06-062: cr. Register November 2006 No. 611, eff. 12-1-06.

Wis. Admin. Code § DWD 223.17 Hearings {#sec-dwd-223.17 omnilex-key=us-wi-regs-official--agency-dwd--DWD 223.17}

(1) Procedure. Hearings shall be conducted in conformity with the act and the provisions of ch. 227, Stats.

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

History

CR 06-062: cr. Register November 2006 No. 611, eff. 12-1-06.

Wis. Admin. Code § DWD 223.18 Record of hearing {#sec-dwd-223.18 omnilex-key=us-wi-regs-official--agency-dwd--DWD 223.18}

(1) Method of recording hearings. A stenographic, electronic, or other record of oral proceedings shall be made at all hearings conducted under the act. 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 on tape or digitally, the original recording shall remain in the division for 5 years following the hearing, after which it may be discarded.

(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. For the purpose of judicial review, the division 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 expense of the parties. If a transcript has been provided to the court for the purpose of judicial review, the division shall provide a copy of the transcript at no cost to any party that submits a sworn affidavit of indigency and the inability to obtain funds to pay for a transcript.

History

CR 06-062: cr. Register November 2006 No. 611, eff. 12-1-06.

Wis. Admin. Code § DWD 223.19 Decision and order {#sec-dwd-223.19 omnilex-key=us-wi-regs-official--agency-dwd--DWD 223.19}

(1) General. After the close of the hearing, including review of any briefs that may be allowed by the administrative law judge, the administrative law judge shall prepare a formal written decision that shall include findings of fact, conclusions of law, and an order, and which may be accompanied by an opinion. If the administrative law judge allows briefs to be filed after the close of the hearing, the requirement in s. 101.055 (8) (c), Stats., that the division shall issue its decision and order within 30 days of the hearing is waived.

(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 that dismisses the allegations of the complaint or that 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 first class 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 circuit court if it is a final decision and order as defined in s. DWD 223.20 (2).

(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 which shall either dismiss the allegations of the complaint or shall order such action by the respondent as shall effectuate the purposes of the act, depending upon the administrative law judge’s findings and conclusions on the merits of the complaint. A certified copy of the decision and order and a notice of appeal rights shall be sent by first class mail to the last known address of each party and to their attorneys of record.

History

CR 06-062: cr. Register November 2006 No. 611, eff. 12-1-06.

Wis. Admin. Code § DWD 223.20 Appeal rights {#sec-dwd-223.20 omnilex-key=us-wi-regs-official--agency-dwd--DWD 223.20}

(1) Notice of appeal rights. Every decision and order of an administrative law judge under s. DWD 223.19 shall be accompanied by a separate notice advising the parties of their rights to seek judicial review under ch. 227, Stats.

(2) Judicial review. Any party may seek judicial review of a final decision and order of the administrative law judge as provided in s. 101.055 (8) (d), Stats. 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 division.

History

CR 06-062: cr. Register November 2006 No. 611, eff. 12-1-06.

Wis. Admin. Code § DWD 223.21 Pay status and witness fees for state employee parties and state employee witnesses {#sec-dwd-223.21 omnilex-key=us-wi-regs-official--agency-dwd--DWD 223.21}

(3) Witness fees for state civil service employees. State civil service employees who attend hearings as witnesses shall be entitled only to that compensation specified in sub. (2).

History

CR 06-062: cr. Register November 2006 No. 611, eff. 12-1-06.

Wis. Admin. Code § DWD 223.22 Filing of documents by facsimile transmission or electronic mail {#sec-dwd-223.22 omnilex-key=us-wi-regs-official--agency-dwd--DWD 223.22}

(1) Filing of documents by facsimile transmission.

The name of the sender.
The individual to whom the transmission is directed, if that individual is known.
The number of pages being transmitted, including the cover sheet.

(2) Filing of documents by electronic mail. Documents may be filed by electronic mail only if expressly authorized by the equal rights officer or the administrative law judge assigned to the case.

History

CR 06-062: cr. Register November 2006 No. 611, eff. 12-1-06.

Chapter DWD 224 WHISTLEBLOWER PROTECTION

Wis. Admin. Code § DWD 224.01 Purpose {#sec-dwd-224.01 omnilex-key=us-wi-regs-official--agency-dwd--DWD 224.01}

The purpose of this chapter is to implement the law relating to complaints filed against the state as an employer under subch. III of ch. 230, Stats., commonly referred to as the “whistleblower” law.

History

CR 03-092: cr. Register March 2004 No. 579, eff. 4-1-04.

Wis. Admin. Code § DWD 224.02 Definitions {#sec-dwd-224.02 omnilex-key=us-wi-regs-official--agency-dwd--DWD 224.02}

When used in this chapter:

(1) “Administrative law judge” means the examiner appointed to conduct hearings under subch. III of ch. 230, Stats.

(2) “Appointing authority” has the meaning given in s. 230.80 (1m), Stats.

Note: Section 230.80 (1m), Stats., provides that “appointing authority” means “the chief officer of any governmental unit unless another person is authorized to appoint subordinate staff by the constitution or any law.”

(3) “Complainant” means the employee who files a complaint alleging that an action prohibited by subch. III of ch. 230, Stats., has been committed.

(4) “Day” means a calendar day, except that if the last day of the time period is a Saturday, Sunday, or legal holiday, the last day shall be the next business day.

(5) “Division” means the equal rights division of the department of workforce development.

(6) “Employee” has the meaning given in s. 230.80 (3), Stats.

Note: Section 230.80 (3), Stats., provides that “employee” means “any person employed by any governmental unit except:

(a) A person employed by the office of the governor, the courts, the legislature or a service agency under subch. IV of ch. 13.

(b) A person who is, or whose immediate supervisor is, assigned to an executive salary group or university senior executive salary group s. 20.923.”

(7) “Filing” means the physical receipt of a document.

(8) “Governmental unit” has the meaning given in s. 230.80 (4), Stats.

Note: Section 230.80 (4), Stats., provides that “governmental unit” means “any association, authority, board, commission, department, independent agency, institution, office, society or other body in state government created or authorized to be created by the constitution or any law, including the legislature, the office of the governor and the courts. ‘Governmental unit’ does not mean any political subdivision of the state or body within one or more political subdivisions which is created by law or by action of one or more political subdivisions.”

(9) “Probable cause” means a reasonable ground for belief, supported by facts and circumstances strong enough in themselves to warrant a prudent person to believe, that a violation of subch. III of ch. 230, Stats., probably has been or is being committed.

(10) “Respondent” means the appointing authority, agent of an appointing authority, supervisor, or governmental unit alleged to have committed an action prohibited by subch. III of ch. 230, Stats.

(11) “Retaliatory action” has the meaning given in s. 230.80 (8), Stats.

Note: Section 230.80 (8), Stats., provides that “retaliatory action’ means “a disciplinary action take because of any of the following:

(a) The employee lawfully disclosed information under s. 230.81 or filed a complaint under s. 230.85 (1).

(b) The employee testified or assisted or will testify or assist in any action or proceeding relating to the lawful disclosure of information under s. 230.81 by another employee.

(c) The appointing authority, agent of an appointing authority or supervisor believes the employee engaged in any activity described in par. (a) or (b).”

(12) “Service of the complaint upon the respondent” under s. 230.85 (2), Stats., means mailing of the complaint to the respondent.

(13) “Unanimous vote” as it is used in s. 230.85 (3) (b), Stats., means the decision of the administrative law judge.

History

CR 03-092: cr. Register March 2004 No. 579, eff. 4-1-04.

Wis. Admin. Code § DWD 224.03 Complaints {#sec-dwd-224.03 omnilex-key=us-wi-regs-official--agency-dwd--DWD 224.03}

(1) Who may file complaints. A complaint may be filed by any employee or by the employee’s duly authorized representative. A complaint filed by a representative shall state that the representative is authorized to file the complaint.

(2) Where to file complaints.

(a) A complaint may be filed in person with any division office, or it may be mailed or sent by facsimile transmission to one of the following division offices:

Equal Rights Division, 201 East Washington Avenue, Madison, WI 53702. Facsimile number: 608-267-4592.
Equal Rights Division, 819 North 6th Street, Milwaukee, WI 53203. Facsimile number: 414-227-4084.

(b) A complaint filed by facsimile transmission shall conform with the requirements of s. DWD 224.24 (1).

(3) Form and content of complaint. A complaint shall be written on a form that is available at any division office or on any form acceptable to the division. Each complaint shall be signed by the employee filing the complaint or by the employee’s duly authorized representative. The signature constitutes an acknowledgment that the employee or the representative has read the complaint; that to the best of that employee’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. Each complaint shall contain all of the following information:

(a) The name and address of the complainant.

(b) The name and address of the respondent.

Note: A complaint form is also available on the Department of Workforce Development’s website at http://www.dwd.state.wi.us/ by following the link to Equal Rights.

(4) Assistance by the division. The division shall, upon request, provide appropriate assistance in completing and filing complaints.

(5) Amendment of complaint. A complaint may be amended, subject to the approval of the division, except that a complaint may not be amended less than 20 days before hearing unless good cause is shown for the failure to amend the complaint prior to that time. If the complaint is amended prior to the issuance of an initial determination, the division shall investigate the allegations of the amended complaint. If the complaint is amended after the case has been certified to hearing, the chief of the hearing section or the administrative law judge may remand the complaint to the investigation section to conduct an investigation and issue an initial determination as to whether probable cause exists to believe that the respondent took retaliatory action as alleged in the amended complaint. An amended complaint shall be dismissed if it does not meet the requirements of s. DWD 224.06 (1).

(6) Withdrawal of complaint. A complaint may be withdrawn at any time. A request for 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 withdrawal, the division shall dismiss the complaint by written order. Such dismissal shall be with prejudice unless otherwise expressly stated in the order.

History

CR 03-092: cr. Register March 2004 No. 579, eff. 4-1-04; CR 06-062: am. (2) Register November 2006 No. 611, eff. 12-1-06.

Wis. Admin. Code § DWD 224.04 Notification of respondent {#sec-dwd-224.04 omnilex-key=us-wi-regs-official--agency-dwd--DWD 224.04}

(1) When notice is to be sent. The division shall serve a copy of a complaint that meets the requirements of s. DWD 224.03 upon each respondent prior to the commencement of any investigation.

(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 specified by the division. The notice shall further state that, if the respondent fails to answer the complaint in writing, the division may make an initial determination as to whether retaliatory action has occurred based only on the division’s investigation and the information supplied by the complainant.

History

CR 03-092: cr. Register March 2004 No. 579, eff. 4-1-04.

Wis. Admin. Code § DWD 224.05 Complainant’s duty to respond to correspondence from the division {#sec-dwd-224.05 omnilex-key=us-wi-regs-official--agency-dwd--DWD 224.05}

The division may dismiss the complaint if the complainant fails to respond to the division within 20 days from the date of mailing of any correspondence from the division concerning the complaint, provided that correspondence was sent by certified mail, return receipt requested, to the last known address of the complainant.

History

CR 03-092: cr. Register March 2004 No. 579, eff. 4-1-04.

Wis. Admin. Code § DWD 224.06 Preliminary review of complaints {#sec-dwd-224.06 omnilex-key=us-wi-regs-official--agency-dwd--DWD 224.06}

(1) Review of complaint. The division shall review every complaint filed to determine all of the following:

(a) Whether the complainant is protected by subch. III of ch. 230, Stats.

(b) Whether the respondent is subject to subch. III of ch. 230, Stats.

(d) Whether the complaint was filed within the time period set forth in s. 230.85 (1), Stats., if that issue is raised in writing by the respondent.

(2) Preliminary determination dismissing complaint. The division shall issue a preliminary determination dismissing any complaint or any portion of a complaint that fails to meet the requirements of sub. (1). The division shall send the order of dismissal by first class mail to the last known address of each party and to their attorneys of record.

(3) Appeal of preliminary determination. A complainant may appeal from an order dismissing a complaint under sub. (2) by filing a written appeal with the division. The appeal shall be filed within 20 days of the date of the order and shall state specifically the grounds upon which it is based. If a timely appeal is filed, the division shall serve a copy of the appeal upon all other parties. The matter shall be referred to the hearing section of the division 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 division shall serve the decision of the administrative law judge upon the 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 complainant may seek judicial review if it is a final decision and order as defined in s. DWD 224.22 (1).

History

CR 03-092: cr. Register March 2004 No. 579, eff. 4-1-04.

Wis. Admin. Code § DWD 224.07 Investigations {#sec-dwd-224.07 omnilex-key=us-wi-regs-official--agency-dwd--DWD 224.07}

(1) Conduct of investigation. Except as provided in sub. (3), the division shall investigate all complaints that satisfy the review under s. DWD 224.06. In conducting investigations under this chapter, the division may seek the cooperation of all persons to provide requested materials to the division; 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. In scheduling interviews with state employees, the division may consider the programmatic needs of the appointing authority. The division may subpoena persons or documents for the purpose of the investigation. Subpoenas may be enforced pursuant to s. 885.11, Stats.

(2) Advising complainant to amend complaint. If, during an investigation, it appears that the respondent has engaged in retaliatory action against the complainant that is not alleged in the complaint, the division may advise the complainant that the complaint should be amended.

(3) Dismissal of complaint prior to completion of investigation.

(a) The division may dismiss a complaint prior to completion of an investigation under the following circumstances:

The complainant has failed to respond to correspondence from the division 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.
The complainant signed a valid waiver and release of claims arising out of the complainant’s employment with the respondent which would preclude the division from finding that the respondent has violated subch. III of ch. 230, Stats.
The allegations in the complaint have been previously dismissed by the division.

(b) A complainant may appeal from an order dismissing a complaint under this subsection by filing a written appeal with the division. The appeal shall be filed within 20 days of the date of the order and shall state specifically the grounds upon which it is based. If a timely appeal is filed, the division shall serve a copy of the appeal upon all other parties. The matter shall be referred to the hearing section of the division for review by an administrative law judge. The administrative law judge shall issue a decision that shall either affirm, reverse, modify, or set aside the dismissal of the complaint. The decision of the administrative law judge shall be served upon the parties. If the decision reverses or sets aside the dismissal, the complaint shall be remanded for further investigation. If the decision affirms the dismissal of the complaint, it is subject to judicial review under ch. 227, Stats., if it is a final decision and order as defined in s. DWD 224.22 (1).

History

CR 03-092: cr. Register March 2004 No. 579, eff. 4-1-04.

Wis. Admin. Code § DWD 224.08 Initial determination {#sec-dwd-224.08 omnilex-key=us-wi-regs-official--agency-dwd--DWD 224.08}

(1) General. At the conclusion of the investigation, the division shall issue a written initial determination that shall state whether or not there is probable cause to believe that retaliatory action 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.

(2) Initial determination of probable cause. If the division initially determines that there is probable cause to believe that any retaliatory action occurred as alleged in the complaint, it shall certify the case to hearing. A hearing on the merits shall thereafter be noticed and conducted in accordance with the provisions of ss. DWD 224.12 to 224.21.

(3) Initial determination of no probable cause. If the division initially determines that there is no probable cause to believe that retaliatory action occurred as alleged in the complaint, it may dismiss those allegations. The division 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 224.09.

History

CR 03-092: cr. Register March 2004 No. 579, eff. 4-1-04.

Wis. Admin. Code § DWD 224.09 Appeal of initial determination of no probable cause {#sec-dwd-224.09 omnilex-key=us-wi-regs-official--agency-dwd--DWD 224.09}

(1) When filed. Within 30 days after the date of an initial determination finding that there is no probable cause, a complainant may file a written request for a hearing on the issue of probable cause. The request for hearing shall state specifically the grounds upon which the appeal is based. The division shall notify the respondent that an appeal has been filed within 10 days of receiving the appeal.

(2) Dismissal final if no appeal filed. If no timely written request for a hearing is filed, the initial determination’s order of dismissal shall be the final determination of the division.

(3) Certification to hearing on issue of probable cause; right to stipulate the case be decided on merits. If a timely appeal is filed, the division 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 224.12 and 224.14 to 224.21, except that the parties may stipulate prior to 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 division may, with the consent of the parties, consolidate the hearing on probable cause and the hearing on the merits.

History

CR 03-092: cr. Register March 2004 No. 579, eff. 4-1-04; CR 06-062: am. (3) Register November 2006 No. 611, eff. 12-1-06.

Wis. Admin. Code § DWD 224.10 Private settlement and conciliation {#sec-dwd-224.10 omnilex-key=us-wi-regs-official--agency-dwd--DWD 224.10}

History

CR 03-092: cr. Register March 2004 No. 579, eff. 4-1-04.

Wis. Admin. Code § DWD 224.11 Dismissal of complaint for lack of jurisdiction or other procedural basis following certification to hearing {#sec-dwd-224.11 omnilex-key=us-wi-regs-official--agency-dwd--DWD 224.11}

A complaint may be dismissed based upon the conditions set forth in s. DWD 224.06 (1) or for any other procedural basis after the case is certified to hearing under either s. DWD 224.08 (2) or 224.09 (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 first class mail to the last known address of each party and to their attorneys of record.

History

CR 03-092: cr. Register March 2004 No. 579, eff. 4-1-04.

Wis. Admin. Code § DWD 224.12 Notice of hearing {#sec-dwd-224.12 omnilex-key=us-wi-regs-official--agency-dwd--DWD 224.12}

(1) Content. In any matter which has been certified to hearing following an initial determination of probable cause under s. DWD 224.08 (2) or an appeal of an initial determination of no probable cause under s. DWD 224.09 (3), the division shall advise the parties and their representatives and attorneys of record in writing by first–class 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 30 days after the date of mailing of the notice of hearing. The notice of hearing shall specify the nature of the retaliatory action 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.

(2) Place of hearing. The hearing shall be held in the county where the alleged retaliatory action occurred or at another location with the consent of the parties. For the purpose of this subsection, the county where the alleged retaliatory action occurred is the county where the complainant was employed at the time.

History

CR 03-092: cr. Register March 2004 No. 579, eff. 4-1-04.

Wis. Admin. Code § DWD 224.13 Answer {#sec-dwd-224.13 omnilex-key=us-wi-regs-official--agency-dwd--DWD 224.13}

(2) Content of answer. The answer shall contain the address of the respondent and the name and address of the respondent’s legal counsel or other representative. 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, 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, but shall fairly meet the substance of the allegation. Any affirmative defense relied upon, including the statute of limitations, shall be raised in the answer unless it has previously been raised by a motion in writing. Failure to raise an affirmative defense in the answer may, in the absence of good cause, be held to constitute a waiver of such a defense.

History

CR 03-092: cr. Register March 2004 No. 579, eff. 4-1-04.

Wis. Admin. Code § DWD 224.14 Pre–hearing conference {#sec-dwd-224.14 omnilex-key=us-wi-regs-official--agency-dwd--DWD 224.14}

In any case which has been certified to hearing, a pre–hearing conference may be held in accordance with the provisions of s. 227.44 (4), Stats.

History

CR 03-092: cr. Register March 2004 No. 579, eff. 4-1-04.

Wis. Admin. Code § DWD 224.15 Pre–hearing discovery {#sec-dwd-224.15 omnilex-key=us-wi-regs-official--agency-dwd--DWD 224.15}

(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 that discovery shall, not less than 10 days prior to 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 to either the chief of the hearing section 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 division at the time they are served upon the party from whom the discovery is sought. 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 division by the party which instituted those discovery requests as soon as practicable after the discovery has been taken.

(3) Scope, method, 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.

(5) Filing with division. Copies of discovery requests and responses to discovery requests need not be filed with the division, except as required under sub. (2).

History

CR 03-092: cr. Register March 2004 No. 579, eff. 4-1-04.

Wis. Admin. Code § DWD 224.16 Subpoenas and motions {#sec-dwd-224.16 omnilex-key=us-wi-regs-official--agency-dwd--DWD 224.16}

History

CR 03-092: cr. Register March 2004 No. 579, eff. 4-1-04.

Wis. Admin. Code § DWD 224.17 Disqualification of the administrative law judge {#sec-dwd-224.17 omnilex-key=us-wi-regs-official--agency-dwd--DWD 224.17}

History

CR 03-092: cr. Register March 2004 No. 579, eff. 4-1-04.

Wis. Admin. Code § DWD 224.18 Exchange of names of witnesses and copies of exhibits {#sec-dwd-224.18 omnilex-key=us-wi-regs-official--agency-dwd--DWD 224.18}

By no later than the tenth day prior to the day of hearing, the parties shall file with the division and serve upon all other parties a written list of the names of witnesses and copies of exhibits which the parties intend to use at the hearing. For the purpose of this section, service is complete on mailing rather than on receipt. The administrative law judge may exclude witnesses and exhibits not identified in a timely fashion pursuant to this section. This section does not apply to witnesses and exhibits offered in rebuttal that the party could not have reasonably anticipated using prior to the hearing.

History

CR 03-092: cr. Register March 2004 No. 579, eff. 4-1-04.

Wis. Admin. Code § DWD 224.19 Hearings {#sec-dwd-224.19 omnilex-key=us-wi-regs-official--agency-dwd--DWD 224.19}

(1) Procedure. Hearings shall be conducted in conformity with subch. III of ch. 230, Stats., and the provisions of ch. 227, Stats.

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

History

CR 03-092: cr. Register March 2004 No. 579, eff. 4-1-04.

Wis. Admin. Code § DWD 224.20 Record of hearing {#sec-dwd-224.20 omnilex-key=us-wi-regs-official--agency-dwd--DWD 224.20}

(1) Method of recording hearing. A stenographic, electronic, or other record of oral proceedings shall be made at all hearings conducted under subch. III of ch. 230, 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 on tape or digitally, the original recording shall remain in the division for 5 years following the hearing, after which it may be discarded.

(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. For the purpose of judicial review, the division 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 expense of the parties. If a transcript has been provided to the court for the purpose of judicial review, the division shall provide a copy of the transcript at no cost to any party that submits a sworn affidavit of indigency and the inability to obtain funds to pay for a transcript.

History

CR 03-092: cr. Register March 2004 No. 579, eff. 4-1-04; CR 06-062: am. (1) Register November 2006 No. 611, eff. 12-1-06.

Wis. Admin. Code § DWD 224.21 Decision and order {#sec-dwd-224.21 omnilex-key=us-wi-regs-official--agency-dwd--DWD 224.21}

(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 that shall include findings of fact, conclusions of law and an order, and which may be accompanied by an opinion.

(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 first class 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 224.22 (1).

(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 an appropriate action, including actions listed in s. 230.85 (3) (a), Stats., depending upon the administrative law judge’s findings and conclusions on the merits of the complaint. The division shall serve a certified copy of the findings and order on the respondent and, if the respondent is a natural person, upon the respondent’s appointing authority. The decision of the administrative law judge shall be the final decision of the division and the division for purposes of judicial review under s. 227.52, Stats.

History

CR 03-092: cr. Register March 2004 No. 579, eff. 4-1-04.

Wis. Admin. Code § DWD 224.22 Appeals {#sec-dwd-224.22 omnilex-key=us-wi-regs-official--agency-dwd--DWD 224.22}

(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 as provided in s. 230.87, Stats. 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 division.

(2) Notice of appeal rights. Every decision and order of an administrative law judge under s. DWD 224.21 shall be accompanied by a separate notice advising the parties of their rights to seek judicial review of the decision pursuant to s. 230.87, Stats.

History

CR 03-092: cr. Register March 2004 No. 579, eff. 4-1-04.

Wis. Admin. Code § DWD 224.23 Pay status and witness fees for state employee parties and state employee witnesses {#sec-dwd-224.23 omnilex-key=us-wi-regs-official--agency-dwd--DWD 224.23}

(3) Witness fees for state civil service employees. State civil service employees who attend hearings as witnesses shall be entitled only to that compensation specified in sub. (2).

History

CR 03-092: cr. Register March 2004 No. 579, eff. 4-1-04; CR 06-062: am. (2) Register November 2006 No. 611, eff. 12-1-06.

Wis. Admin. Code § DWD 224.24 Filing of documents by facsimile transmission or electronic mail {#sec-dwd-224.24 omnilex-key=us-wi-regs-official--agency-dwd--DWD 224.24}

(1) Filing of documents by facsimile transmission.

The name of the sender.
The individual to whom the transmission is directed, if that individual is known.
The number of pages being transmitted, including the cover sheet.

(2) Filing of documents by electronic mail. Documents may be filed by electronic mail only if expressly authorized by the equal rights officer or the administrative law judge assigned to the case.

History

CR 06-062: cr. Register November 2006 No. 611, eff. 12-1-06.

Chapter DWD 225 FAMILY AND MEDICAL LEAVE

Wis. Admin. Code § DWD 225.001 Purpose {#sec-dwd-225.001 omnilex-key=us-wi-regs-official--agency-dwd--DWD 225.001}

The purpose of this chapter is to implement the provisions of s. 103.10, Stats., providing for family and medical leave for employees in certain cases and prohibiting certain practices by establishing interpretations of the provisions of that section to assist in its implementation.

History

Cr. Register, November, 1989, No. 407, eff. 12-1-89.

Wis. Admin. Code § DWD 225.01 Definitions and scope {#sec-dwd-225.01 omnilex-key=us-wi-regs-official--agency-dwd--DWD 225.01}

(1) When used in this chapter or in s. 103.10, Stats.:

(a) “Act” means s. 103.10, Stats., unless the context requires otherwise.

(b) “Action prohibited” means one or more actions or inactions prohibited by the act.

(bm) “Agency” means any office, department, independent agency, authority, institution, association, society or other body in state government created or authorized to be created by the constitution or any law, including the legislature and the courts.

(d) “Child”, “Christian Science practitioner”, “employee”, “employer”, “employment benefit”, “health care provider”, “parent”, “serious health condition: and “spouse” have the same definitions as in the act.

(e) “Complainant” means the person who files a complaint alleging that an action prohibited by the act has been committed.

(f) “Days” means calendar days unless the context requires otherwise. When used in time computations in this chapter, “day” means a calendar day, except that if the last day of the time period is a Saturday, Sunday or legal holiday, the last day shall be the next business day.

(g) “Division” means the equal rights division of the Wisconsin department of workforce development.

(h) “Filing” means the physical receipt of a document.

(i) “Group health insurance coverage” means the entire health insurance package offered by an employer including without limitation medical, dental and vision insurance.

(j) “Person” includes but is not limited to one or more individuals, partnerships, associations, corporations, joint stock or mutual companies, bodies politic or corporate, unincorporated organizations, trusts, legal representatives, trustees or receivers.

(k) “Probable cause” means a reasonable ground for belief, supported by facts and circumstances strong enough in themselves to warrant a prudent person in the belief, that an action prohibited by s. 103.10 (11), Stats., probably has been or is being committed.

(L) “Respondent” means the person or agency alleged to have committed an action prohibited by the act.

(m) The words “a 12-month period,” as used in s. 103.10 (3) (a) and (4) (b), Stats., mean a calendar year commencing at 12:01 a.m. on January 1 and ending at midnight on December 31 each year.

(n) The words “a 12-month period”, as used in s. 103.10 (9) (c) 2., Stats., mean a period of 365 consecutive days commencing with the date the first payment is required by an employer to be paid by an employee pursuant to s. 103.10 (9) (c), Stats.

(o) The words “week” and “weeks”, as used in s. 103.10 (2) (c), Stats., mean 7 consecutive calendar days.

(2) A person engaging in any activity, enterprise or business in this state shall be deemed to be “employing at least 50 individuals on a permanent basis” within the meaning of s. 103.10 (1) (c), Stats., if, during at least 6 of the preceding 12 calendar months, with partial months to count as full months, the employer, according to its usual personnel recordkeeping practices as required by ss. DWD 272.11 and 274.06, actually treated at least 50 individuals as being permanent employees as to the activities, enterprises or businesses of that employer.

(3) A person shall be deemed to have “been employed by the same employer for more than 52 consecutive weeks” within the meaning of s. 103.10 (2) (c), Stats., if the person has actually been treated by the employer, according to the usual personnel recordkeeping practices of the employer as required by ss. DWD 272.11 and 274.06, as an employee during each of those 52 weeks, irrespective of the number of hours worked in those weeks and notwithstanding that the employee may have, in that 52-week period, been off work for one or more weeks on vacation leave, sick leave or other leave, or on layoff, if such vacation leave, sick leave or other leave was granted to the employee by the employer according to a regular practice of granting such leaves, or the layoff was initiated by the employer, and if the employer allowed the employee to return to work at the end of the leave or layoff without having to reapply for employment.

(4) A person shall be deemed to have “worked for the employer for at least 1,000 hours during the preceding 52-week period”within the meaning of s. 103.10 (2) (c), Stats., if the number of hours actually worked in that period plus the number of hours for which the employee was paid pursuant to a regular policy of paid vacation leave, sick leave or other paid leave equals at least 1,000 hours.

(5) Where a person’s policy with respect to leave for the reasons described in s. 103.10 (3) (b) and (4) (a), Stats., is to provide the same leave as granted in s. 103.10 (3) (b) and (4) (a), Stats., the posting of a statement to that effect together with a copy of the act, in the manner prescribed by s. 103.10 (14) (b), Stats., shall satisfy the requirements of s. 103.10 (14) (b), Stats.

(6) To the extent that an employer grants leave to an employee for the birth of the employee’s natural child in a manner which is no more restrictive than the leave available to that employee under s. 103.10 (3) (b) 1., Stats., the leave granted by the employer shall be deemed to be leave available to that employee under s. 103.10 (3) (b) 1., Stats.

(7) To the extent that an employer grants leave to an employee for the placement of a child with the employee for adoption or as a precondition for adoption under s. 48.90 (2), Stats., in a manner which is no more restrictive than the leave available to that employee under s. 103.10 (3) (b) 2., Stats., the leave granted by the employer shall be deemed to be leave available to that employee under s. 103.10 (3) (b) 2., Stats.

(8) To the extent that an employer grants leave to an employee to care for the employee’s child, spouse or parent in a manner which is no more restrictive than the leave available to that employee under s. 103.10 (3) (b) 3., Stats., the leave granted by the employer shall be deemed to be leave available to that employee under s. 103.10 (3) (b) 3., Stats.

(9) To the extent that an employer grants leave to an employee relating to the employee’s own health in a manner which is no more restrictive than the leave available to that employee under s. 103.10 (4), Stats., the leave granted by the employer shall be deemed to be leave available to that employee under s. 103.10 (4), Stats.

(10) To the extent that leave granted by an employer to an employee is deemed by this subsection to be leave available to that employee under the act, the use of that leave granted by the employer shall be use of that leave available under the act.

History

Cr. Register, November, 1989, No. 407, eff. 12-1-89; correction in (2) and (3) made under s. 13.93 (2m) (b) 7., Stats., Register, April, 1996, No. 484; emerg. am. (1) (L) eff. 8-5-03; CR 03-092: cr. (1) (bm), am. (1) (f), (h) and (L) Register March 2004 No. 579, eff. 4-1-04; CR 06-062: am. (1) (m) Register November 2006 No. 611, eff. 12-1-06.

Wis. Admin. Code § DWD 225.02 When and how leave taken {#sec-dwd-225.02 omnilex-key=us-wi-regs-official--agency-dwd--DWD 225.02}

(1) The leave allowed under the act may be taken in non-continuous increments. An employee may schedule and take partial absence leave, as provided in s. 103.10 (3) (d), Stats., or medical leave as provided in s. 103.10 (4) (c), Stats., in actual increments of less than a full workday if the employer allows any other leave to be taken in increments of less than a full workday. The duration of the shortest increment available to the employee under the act shall be equal to the shortest increment the employer allows to be taken by that employee for any other non-emergency leave.

(2) For purposes of the partial absence leave authorized by s. 103.10 (3) (d), Stats., the word “week” as used in s. 103.10 (3) (a), Stats., means 5 days of leave which would otherwise be workdays for the requesting employee.

(3)

(a) An employee shall be deemed to have scheduled partial absence, for the reasons described in s. 103.10 (3) (b) 1. and 2., Stats., in a fashion that “does not unduly disrupt the employer’s operations” within the meaning of s. 103.10 (3) (d), Stats.,

If the employee provides the employer with notice of the employee’s proposed schedule of partial absence which is at least as much notice as the shortest notice that employee is required to give the employer for the taking of any other non-emergency or non-medical leave, and
If the schedule is sufficiently definite for the employer to be able to schedule replacement employees, to the extent replacement employees are required, to cover for the absences.

(b) An employee shall be deemed to have scheduled partial absence, for the reasons described in s. 103.10 (3) (b) 3., Stats., in a fashion that “does not unduly disrupt the employer’s operations”within the meaning of s. 103.10 (3) (d), Stats.,

If the employee provides the employer with a proposed schedule for the leave with reasonable promptness after the employee learns of the probable necessity for the leave, and
Except where precluded by the need for health care consultation or treatment, if that proposed schedule is sufficiently definite that the employer is able to schedule replacement employees, to the extent replacement employees need to be scheduled, to cover the absence of the employee taking the leave.

(c) If an employer has a written policy which requires notice of scheduled absences under s. 103.10 (3) (d), Stats., to be in writing, if this policy governs all employees of the employer within this state, and if the employee has been made aware of this policy, the employee shall advise the employer under this subsection in writing.

(4)

(a) An employee shall be deemed to have given the employer “advance notice of the medical treatment or supervision in a reasonable and practicable manner” within the meaning of s. 103.10 (6) (b) 2., Stats., if the notice identifies the planned dates of the leave and is given to the employer by the employee with reasonable promptness after the employee learns of the probable necessity of the leave.

(b) If the employer has a written policy which requires notice of leave pursuant to s. 103.10 (6) (b) 2., Stats., to be in writing, if this policy governs all employees of the employer within this state, and if the employee has been made aware of this policy, the notice required by s. 103.10 (6) (b) 2., Stats., shall be in writing except where precluded by the need for health care consultation or treatment.

(5) An employee shall be deemed to have made “a reasonable effort” to schedule a leave so that it does not “unduly disrupt the employer’s operations” within the meaning of s. 103.10 (6) (b) 1., Stats.,

(a) If the employee provides the employer with a proposed schedule for the leave with reasonable promptness after the employee learns of the probable necessity of the leave, and

(b) Except where precluded by the need for health care consultation or treatment, if that proposed schedule is sufficiently definite that the employer is able to schedule replacement employees, to the extent replacement employees need to be scheduled, to cover the absence of the employee taking the leave.

(6)

(a) An employee may commence family leave pursuant to s. 103.10 (3) (b) 1., Stats., no earlier than 16 weeks before the estimated date of birth and no later than 16 weeks after the actual date of birth.

(b) An employee may commence family leave pursuant to s. 103.10 (3) (b) 2., Stats., no earlier than 16 weeks before the expected date of placement either for adoption or as a precondition for adoption under s. 48.90 (2), Stats., and no later than 16 weeks after the actual date of placement either for adoption or as a precondition for adoption under s. 48.90 (2), Stats.

(7) Leave available during “a 12-month period”, within the meaning of s. 103.10 (3) (a) and (4) (b), Stats., and s. DWD 225.01 (1) (m), must be used within that 12-month period. No more than one 6 week period of leave may be used by an employee, either as continuous or partial absence leave, as to the birth or adoption of any one child.

(8) Family leave requested by an employee may be denied by an employer if the employee substantially fails to provide that employer with proper notice of that leave pursuant to s. 103.10 (6), Stats., as interpreted by this section.

(9) Except where emergency health care consultation or treatment is required, an employer may deny a requested leave where the employer has made a proper request for certification pursuant to s. 103.10 (7), Stats., as to that leave, and the employee requesting the leave fails or refuses, after that proper request, to substantially comply with the provisions of s. 103.10 (7), Stats., as to certification.

History

Cr. Register, November, 1989, No. 407, eff. 12-1-89; correction in (7) and (8) made under s. 13.93 (2m) (b) 7., Stats., Register, April, 1996, No. 484.

Wis. Admin. Code § DWD 225.03 Substituting leave {#sec-dwd-225.03 omnilex-key=us-wi-regs-official--agency-dwd--DWD 225.03}

(1) At the option of the employee, an employee entitled to family or medical leave under the act may substitute, for any leave requested under the act, any other paid or unpaid leave which has accrued to the employee.

(2) Leave substituted for leave available under the act will be credited, for purposes of using up the leave available under the act, to the extent the substituted leave is actually used by the employee calculated in no less than the increments available pursuant to s. DWD 225.02 (1).

(3) The employer may not require an employee to substitute any other paid or unpaid leave available to the employee for either family or medical leave under the act.

(4) If any other type of leave is substituted for family or medical leave, and any seniority or employment benefit would normally accrue during the taking of that other type of leave, that seniority or employment benefit shall accrue during the taking of that substituted leave.

History

Cr. Register, November, 1989, No. 407, eff. 12-1-89; correction in (2) made under s. 13.93 (2m) (b) 7., Stats., Register, April, 1996, No. 484.

Wis. Admin. Code § DWD 225.031 Consecutive leave {#sec-dwd-225.031 omnilex-key=us-wi-regs-official--agency-dwd--DWD 225.031}

If any employee chooses to utilize leave provided under s. 103.10 (3) or (4), Stats., the employee may not extend leave taken by adding leave of any other type provided by the employer, unless:

(1) The employee meets the employer’s requirements for taking the other leave which are in effect for all employees; or

(2) The employer consents to the extension.

History

Cr. Register, November, 1989, No. 407, eff. 12-1-89.

Wis. Admin. Code § DWD 225.04 Continuation of insurance {#sec-dwd-225.04 omnilex-key=us-wi-regs-official--agency-dwd--DWD 225.04}

(1) The 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. 103.10 (9) (b), Stats., if the employee pays the contribution required by the employer within the time required by the employer.

(2) The employer may not require the employee to pay the employee’s contribution, except into escrow as provided by s. 103.10 (9) (c), Stats., more frequently, or in greater amounts, than was required of the employee prior to the leave being taken.

(3) The employer may not deny leave under this act based upon nonpayment by the employee into the escrow account.

(4) In the event an employer requires an employee to fund an escrow account under s. 103.10 (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 the act.

History

Cr. Register, November, 1989, No. 407, eff. 12-1-89.

Wis. Admin. Code § DWD 225.05 Time to commence administrative proceedings {#sec-dwd-225.05 omnilex-key=us-wi-regs-official--agency-dwd--DWD 225.05}

If an employer is not in compliance with the notice posting requirements of s. 103.10 (14) (a), Stats., at the time a violation occurs under s. 103.10, Stats., an employee complaining of that violation shall be deemed not to “reasonably have known” that a violation occurred within the meaning of s. 103.10 (12) (b), Stats., until either the first date that the employer comes into compliance with s. 103.10 (14) (a), Stats., by posting the required notice, 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. 103.10 (14) (a), Stats., at the time a violation occurs under s. 103.10, Stats., the employer has the burden of proving actual knowledge on the part of the employee within the meaning of this section.

History

Cr. Register, November, 1989, No. 407, eff. 12-1-89.

Wis. Admin. Code § DWD 225.06 Complaints {#sec-dwd-225.06 omnilex-key=us-wi-regs-official--agency-dwd--DWD 225.06}

(1) Who may file 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.

(2) Where to file complaints.

(a) A complaint may be filed in person with any division office, or it may be mailed or sent by facsimile transmission to one of the following division offices:

Equal Rights Division, 201 East Washington Avenue, Madison, WI 53702. Facsimile number: 608-267-4592.
Equal Rights Division, 819 North 6th Street, Milwaukee, WI 53203. Facsimile number: 414-227-4084.

(b) A complaint filed by facsimile transmission shall conform with the requirements of s. DWD 225.27 (1).

(a) The name and address of the complainant.

(b) The name and address of the respondent.

(4) Assistance by the department. The department shall, upon request, provide appropriate assistance in completing and filing complaints.

(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 unless good cause is shown for the failure to amend the complaint prior to that time. If the complaint is amended prior to 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 investigation section to conduct an investigation and issue an initial determination as to whether probable cause exists to believe that the respondent has violated the act as alleged in the amended complaint. An amended complaint shall be dismissed if it does not meet the requirements of s. DWD 225.09 (1).

(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.

History

Cr. Register, November, 1989, No. 407, eff. 12-1-89; CR 03-092: r. and recr. Register March 2004 No. 579, eff. 4-1-04; CR 06-062: am. (2) Register November 2006 No. 611, eff. 12-1-06.

Wis. Admin. Code § DWD 225.07 Complainant’s duty to respond to correspondence from the department {#sec-dwd-225.07 omnilex-key=us-wi-regs-official--agency-dwd--DWD 225.07}

History

Cr. Register, November, 1989, No. 407, eff. 12-1-89; CR 03-092: r. and recr. Register March 2004 No. 579, eff. 4-1-04.

Wis. Admin. Code § DWD 225.08 Notification of respondent {#sec-dwd-225.08 omnilex-key=us-wi-regs-official--agency-dwd--DWD 225.08}

(1) When notice is to be sent. The department shall serve a copy of a complaint which meets the requirements of s. DWD 225.06 upon each respondent prior to the commencement of any investigation.

(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 specified 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 prohibited act has occurred based only on the department’s investigation and the information supplied by the complainant.

History

Cr. Register, November, 1989, No. 407, eff. 12-1-89; CR 03-092: r. and recr. Register March 2004 No. 579, eff. 4-1-04.

Wis. Admin. Code § DWD 225.09 Preliminary review of complaints {#sec-dwd-225.09 omnilex-key=us-wi-regs-official--agency-dwd--DWD 225.09}

(1) Review of complaint. The department shall review every complaint filed to determine all of the following:

(a) Whether the complainant is protected by the act.

(b) Whether the respondent is subject to the act.

(d) Whether the complaint was filed within the time period set forth in the act, if that issue is raised in writing by the respondent.

(2) Preliminary determination dismissing complaint. The division 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 first class mail to the last known address of each party and to their attorneys of record.

(3) Appeal of preliminary determination. A complainant may appeal from an order dismissing a complaint under sub. (2) by filing a written appeal with the department. The appeal shall be filed within 10 days after the date of the order and shall state specifically the grounds upon which it is based. If a timely appeal is filed, the department shall serve a copy of the appeal upon all other parties. The matter shall be referred to the hearing section of the division 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. 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 225.25 (1).

History

Cr. Register, November, 1989, No. 407, eff. 12-1-89; CR 03-092: r. and recr. Register March 2004 No. 579, eff. 4-1-04.

Wis. Admin. Code § DWD 225.10 Investigations {#sec-dwd-225.10 omnilex-key=us-wi-regs-official--agency-dwd--DWD 225.10}

(1) Conduct of investigation. The department shall investigate all complaints that satisfy the review under s. DWD 225.09. 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. The department may subpoena persons or documents for the purpose of the investigation. Subpoenas may be enforced pursuant to s. 885.11, Stats.

(2) Advising complainant to amend complaint. If, during an investigation, it appears that the respondent may have committed a prohibited act which is not alleged in the complaint, the department may advise the complainant that the complaint should be amended.

(3) Dismissal of complaint prior to completion of investigation.

(a) The department may dismiss a complaint prior to completion of an investigation under the following circumstances:

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 225.07.
The complainant signed a valid 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 the act.
The allegations in the complaint have been previously dismissed by the department or by a state or federal court.

(b) A complainant may appeal from an order dismissing a complaint under this subsection by filing a written appeal with the department. The appeal shall be filed within 10 days of the date of the order and shall state specifically the grounds upon which it is based. If a timely appeal is filed, the department shall serve a copy of the appeal upon all other parties. The matter shall be referred to the hearing section of the division 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 dismissal of the complaint. The department shall serve the decision of the administrative law judge upon the parties. If the decision reverses or sets aside the dismissal, the complaint shall be remanded for further investigation. If the decision affirms the dismissal of the complaint, it may be subject to review in court if it is a final decision and order as defined in s. DWD 225.25 (1).

History

Cr. Register, November, 1989, No. 407, eff. 12-1-89; correction in (1) made under s. 13.93 (2m) (b) 7., Stats., Register, April, 1996, No. 484; emerg. am. eff. 8-5-03; CR 03-092: r. and recr. Register March 2004 No. 579, eff. 4-1-04.

Wis. Admin. Code § DWD 225.11 Initial determination {#sec-dwd-225.11 omnilex-key=us-wi-regs-official--agency-dwd--DWD 225.11}

(1) General. At the conclusion of the investigation, the department shall issue a written initial determination which shall state whether or not 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.

(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 thereafter be noticed and conducted in accordance with the provisions of ss. DWD 225.15 to 225.24.

(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 225.12.

History

Cr. Register, November, 1989, No. 407, eff. 12-1-89; correction in (3) made under s. 13.93 (2m) (b) 7., Stats., Register, April, 1996, No. 484; emerg. am. eff. 8-5-03; CR 03-092: r. and recr. Register March 2004 No. 579, eff. 4-1-04.

Wis. Admin. Code § DWD 225.12 Appeal of initial determination of no probable cause {#sec-dwd-225.12 omnilex-key=us-wi-regs-official--agency-dwd--DWD 225.12}

(1) When filed. Within 10 days after the appeal of an initial determination finding that there is no probable cause, a complainant may file a written request for a hearing on the issue of probable cause. The request for hearing shall state specifically the grounds upon which the appeal is based. The department shall notify the respondent that an appeal has been filed within 10 days of receiving the appeal.

(2) Dismissal final if no appeal filed. If no timely written request for a hearing is filed, the initial determination’s order of dismissal shall be the final determination of the department.

(3) Certification to hearing on issue of probable cause; right to stipulate that case be decided on merits. If a timely appeal is filed, the division 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 225.15 and 225.17 to 225.24, except that the parties may stipulate prior to 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, with the consent of the parties, consolidate the hearing on probable cause and the hearing on the merits.

History

Cr. Register, November, 1989, No. 407, eff. 12-1-89; corrections in (1) and (2) made under s. 13.93 (2m) (b) 7., Stats., Register, April, 1996, No. 484; CR 03-092: r. and recr. Register March 2004 No. 579, eff. 4-1-04; CR 06-062: am. (3) Register November 2006 No. 611, eff. 12-1-06.

Wis. Admin. Code § DWD 225.13 Private settlement and conciliation {#sec-dwd-225.13 omnilex-key=us-wi-regs-official--agency-dwd--DWD 225.13}

History

Cr. Register, November, 1989, No. 407, eff. 12-1-89; CR 03-092: r. and recr. Register March 2004 No. 579, eff. 4-1-04.

Wis. Admin. Code § DWD 225.14 Dismissal of complaint for lack of jurisdiction or other procedural basis following certification to hearing {#sec-dwd-225.14 omnilex-key=us-wi-regs-official--agency-dwd--DWD 225.14}

A complaint may be dismissed based upon the conditions set forth in s. DWD 225.09 (1) or for any other procedural basis after the case is certified to hearing under either s. DWD 225.11 (2) or 225.12 (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 first class mail to the last known address of each party and to their attorneys of record.

History

Cr. Register, November, 1989, No. 407, eff. 12-1-89; CR 03-092: r. and recr. Register March 2004 No. 579, eff. 4-1-04.

Wis. Admin. Code § DWD 225.15 Notice of hearing {#sec-dwd-225.15 omnilex-key=us-wi-regs-official--agency-dwd--DWD 225.15}

(1) Content. In any matter which has been certified to hearing following an initial determination of probable cause under s. DWD 225.09 (1) or an appeal of an initial determination of no probable cause under s. DWD 225.11 (2), the department shall advise the parties and their representatives and attorneys of record in writing by first-class 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.

(2) Place of hearing. The hearing shall be held in the county where the alleged prohibited act 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.

History

Cr. Register, November, 1989, No. 407, eff. 12-1-89; CR 03-092: r. and recr. Register March 2004 No. 579, eff. 4-1-04.

Wis. Admin. Code § DWD 225.16 Answer {#sec-dwd-225.16 omnilex-key=us-wi-regs-official--agency-dwd--DWD 225.16}

(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, but shall fairly meet the substance of the allegation. Any affirmative defense relied upon by a respondent 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 filed answer may, in the absence of good cause, be held to constitute a waiver of such a defense.

History

Cr. Register, November, 1989, No. 407, eff. 12-1-89; CR 03-092: r. and recr. Register March 2004 No. 579, eff. 4-1-04.

Wis. Admin. Code § DWD 225.17 Pre-hearing conference {#sec-dwd-225.17 omnilex-key=us-wi-regs-official--agency-dwd--DWD 225.17}

In any case which has been certified to hearing, a pre-hearing conference may be held in accordance with the provisions of s. 227.44 (4), Stats.

History

Cr. Register, November, 1989, No. 407, eff. 12-1-89; CR 03-092: r. and recr. Register March 2004 No. 579, eff. 4-1-04.

Wis. Admin. Code § DWD 225.18 Prehearing discovery {#sec-dwd-225.18 omnilex-key=us-wi-regs-official--agency-dwd--DWD 225.18}

(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 that discovery shall, not less than 10 days prior to 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 chief of the hearing section 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. 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 which instituted those discovery requests as soon as practicable after the discovery has been taken.

(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.

(5) Filing with the department. Copies of discovery requests and responses to discovery requests need not be filed with the division, except as required under sub. (2).

History

Cr. Register, November, 1989, No. 407, eff. 12-1-89; CR 03-092: r. and recr. Register March 2004 No. 579, eff. 4-1-04.

Wis. Admin. Code § DWD 225.19 Subpoenas and motions {#sec-dwd-225.19 omnilex-key=us-wi-regs-official--agency-dwd--DWD 225.19}

(1) Subpoenas. 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 pursuant to s. 885.12, Stats.

History

Cr. Register, November, 1989, No. 407, eff. 12-1-89; CR 03-092: r. and recr. Register March 2004 No. 579, eff. 4-1-04.

Wis. Admin. Code § DWD 225.20 Disqualification of the administrative law judge {#sec-dwd-225.20 omnilex-key=us-wi-regs-official--agency-dwd--DWD 225.20}

History

Cr. Register, November, 1989, No. 407, eff. 12-1-89; CR 03-092: r. and recr. Register March 2004 No. 579, eff. 4-1-04.

Wis. Admin. Code § DWD 225.21 Exchange of names of witnesses and copies of exhibits {#sec-dwd-225.21 omnilex-key=us-wi-regs-official--agency-dwd--DWD 225.21}

By no later than the tenth day prior to the hearing, the parties shall file with the division 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. For the purpose of this section, service is complete on mailing rather than on receipt. The administrative law judge may exclude witnesses and exhibits not identified in a timely fashion pursuant to this section. This section does not apply to witnesses and exhibits offered in rebuttal which the party could not reasonably have anticipated using prior to the hearing.

History

Cr. Register, November, 1989, No. 407, eff. 12-1-89; CR 03-092: r. and recr. Register March 2004 No. 579, eff. 4-1-04.

Wis. Admin. Code § DWD 225.22 Hearings {#sec-dwd-225.22 omnilex-key=us-wi-regs-official--agency-dwd--DWD 225.22}

(1) Procedure. Hearings shall be conducted in conformity with the act and with the provisions of ch. 227, Stats.

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

(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.

History

Cr. Register, November, 1989, No. 407, eff. 12-1-89; CR 03-092: r. and recr. Register March 2004 No. 579, eff. 4-1-04.

Wis. Admin. Code § DWD 225.23 Record of hearing {#sec-dwd-225.23 omnilex-key=us-wi-regs-official--agency-dwd--DWD 225.23}

History

Emerg. am. eff. 8-5-03; CR 03-092: cr. Register March 2004 No. 579, eff. 4-1-04; CR 06-062: am. (1) Register November 2006 No. 611, eff. 12-1-06.

Wis. Admin. Code § DWD 225.24 Decision and order {#sec-dwd-225.24 omnilex-key=us-wi-regs-official--agency-dwd--DWD 225.24}

(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.

(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 first class 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 225.25 (1).

(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 the act, depending upon the administrative law judge’s findings and conclusions on the merits of the complaint. A certified copy of the decision and order and a notice of appeal rights shall be sent by first class mail to the last known address of each party and to their attorneys of record.

(4) Computation of interest. Interest on any award made pursuant to this subchapter shall be added to that award and computed at an annual rate of 12% simple interest. Interest shall be computed by calendar quarter.

History

CR 03-092: cr. Register March 2004 No. 579, eff. 4-1-04

Wis. Admin. Code § DWD 225.25 Appeals {#sec-dwd-225.25 omnilex-key=us-wi-regs-official--agency-dwd--DWD 225.25}

(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 division.

(2) Notice of appeal rights. Every decision and order of an administrative law judge under s. DWD 225.24 shall be accompanied by a separate notice advising the parties of their rights to seek judicial review of the decision pursuant to the act.

History

CR 03-092: cr. Register March 2004 No. 579, eff. 4-1-04

Wis. Admin. Code § DWD 225.26 Pay status and witness fees for state employee parties and state employee witnesses {#sec-dwd-225.26 omnilex-key=us-wi-regs-official--agency-dwd--DWD 225.26}

(3) Witness fees for state civil service employees. State civil service employees who attend hearings as witnesses shall be entitled only to that compensation specified in sub. (2).

History

CR 03-092: cr. Register March 2004 No. 579, eff. 4-1-04; CR 06-062: am. (2) Register November 2006 No. 611, eff. 12-1-06.

Wis. Admin. Code § DWD 225.27 Filing of documents by facsimile transmission or electronic mail {#sec-dwd-225.27 omnilex-key=us-wi-regs-official--agency-dwd--DWD 225.27}

(1) Filing of documents by facsimile transmission.

The name of the sender.
The individual to whom the transmission is directed, if that individual is known.
The number of pages being transmitted, including the cover sheet.

(2) Filing of documents by electronic mail. Documents may be filed by electronic mail only if expressly authorized by the equal rights officer or the administrative law judge assigned to the case.

History

CR 06-062: cr. Register November 2006 No. 611, eff. 12-1-06.

Chapter DWD 226 BONE MARROW AND ORGAN DONOR LEAVE

Wis. Admin. Code § DWD 226.001 Purpose {#sec-dwd-226.001 omnilex-key=us-wi-regs-official--agency-dwd--DWD 226.001}

This chapter implements the provisions of s. 103.11, Stats., providing for bone marrow and organ donor leave for employees in certain cases and prohibiting certain practices by establishing interpretations of the provisions of that section to assist in its implementation.

History

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

Wis. Admin. Code § DWD 226.01 Definitions and scope {#sec-dwd-226.01 omnilex-key=us-wi-regs-official--agency-dwd--DWD 226.01}

(1) When used in this chapter or in s. 103.11, Stats.:

(a) “12-month period,” as used in s. 103.11 (4), Stats., means a calendar year commencing at 12:01 a.m. on January 1 and ending at midnight on December 31 each year.

Note: Section 103.11 (4), Stats., specifies requirements for taking bone marrow and organ donation leave and limits the leave to no more than 6 weeks in a 12-month period.

(b) “12-month period,” as used in s. 103.11 (9) (c) 2., Stats., means a period of 365 consecutive days commencing with the date the first payment is required by an employer to be paid by an employee under s. 103.11 (9) (c), Stats.

Note: Section 103.11 (9) (b) and (c), Stats., applies to employers who maintain group health insurance coverage for employees. If an employee takes bone marrow and organ donation leave, then, during the period of the leave, s. 103.11 (9) (b), Stats., requires the employer to maintain the coverage under the same conditions that applied immediately before the leave began. Section 103.11 (9) (c) 1., Stats., allows the employer to require the employee to have in escrow with the employer an amount equal to the entire premium or similar expense for 8 weeks of the employee’s group health insurance coverage. If an employer requires an employee to have that amount in escrow, s. 103.11 (9) (c) 2., Stats., allows the employee to pay the amount to the employer in equal installments at regular intervals over at least a 12-month period.

(d) “Complainant” means the person who files a complaint alleging a violation under s. 103.11, Stats.

(e) “Day” means a calendar day. When used in time computations, “day” means a calendar day, except that if the last day of the time period is a Saturday, Sunday, or legal holiday, the last day shall be the next business day.

(f) “Department” means the Wisconsin department of workforce development.

(g) “Employee” means an individual employed in this state by an employer.

(h) “Employer” means a person engaging in any activity, enterprise, or business in this state employing at least 50 individuals on a permanent basis, and includes the state and any office, department, independent agency, authority, institution, association, society, or other body in state government created or authorized to be created by the constitution or any law, including the legislature and the courts.

(i) “Filing” means the physical or electronic receipt of a document by the department, including receipt by hand delivery, U.S. mail, facsimile, email, or receipt on the department’s website.

(j) “Group health insurance coverage” means the entire health insurance package offered by an employer including, medical, dental, or vision insurance.

(k) “Probable cause” means a reasonable ground for belief, supported by facts and circumstances strong enough in themselves to warrant a prudent person in the belief that one or more actions prohibited by s. 103.11 (11), Stats., probably has been or is being committed.

(L) “Respondent” means the person or agency alleged to have committed one or more actions prohibited by s. 103.11 (11), Stats.

(m) “Week” as used in s. 103.11 (3) (b), Stats., means 7 consecutive days.

(2) An employer shall be deemed to be “employing at least 50 individuals on a permanent basis” within the meaning of s. 103.11 (1) (c), Stats., if, during at least 6 of the preceding 12 calendar months, with partial months to count as full months, the employer, according to its usual personnel recordkeeping practices, actually treated at least 50 individuals as being permanent employees as to the activities, enterprises, or businesses of that employer.

(3) An employee shall be deemed to have “been employed by the same employer for more than 52 consecutive weeks” within the meaning of s. 103.11 (3) (b), Stats., if the person has actually been treated by the employer, according to the usual personnel recordkeeping practices of the employer, as an employee during each of those 52 weeks, irrespective of the number of hours worked in those weeks and notwithstanding that the employee may have, in that 52-week period, been off work for one or more weeks on vacation leave, sick leave, or other leave, or on layoff, if such vacation leave, sick leave, or other leave was granted to the employee by the employer according to a regular practice of granting such leaves, or the layoff was initiated by the employer, and if the employer allowed the employee to return to work at the end of the leave or layoff without having to reapply for employment.

(4) Under s. 103.11 (3) (b), Stats., a person shall be deemed to have “worked for the employer for at least 1,000 hours during the preceding 52-week period,” if the number of hours actually worked in that period plus the number of hours for which the employee was paid pursuant to a regular policy of paid vacation leave, sick leave, or other paid leave equals at least 1,000 hours.

(5) Where an employer’s policy with respect to leave for the purpose of serving as a bone marrow or organ donor is to provide the same leave as granted in s. 103.11 (4), Stats., the posting of a statement to that effect together with a copy of s. 103.11, Stats., in the manner prescribed by s. 103.11 (14) (b), Stats., shall satisfy the requirements of s. 103.11 (14) (b), Stats.

(6) To the extent that an employer grants leave to an employee relating to the employee’s service as a bone marrow or organ donor in a manner which is no more restrictive than the leave available to that employee under s. 103.11 (4), Stats., the leave granted by the employer shall be deemed to be leave available to that employee under s. 103.11 (4), Stats.

History

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

Wis. Admin. Code § DWD 226.02 When and how leave taken {#sec-dwd-226.02 omnilex-key=us-wi-regs-official--agency-dwd--DWD 226.02}

(1) The leave allowed under s. 103.11, Stats., may be taken in noncontinuous increments. An employee may schedule and take partial absence leave in actual increments of less than a full workday if the employer allows any other leave to be taken in increments of less than a full workday. The duration of the shortest increment available to the employee under s. 103.11, Stats., shall be equal to the shortest increment the employer allows to be taken by that employee for any other nonemergency leave. Such partial leave must be necessary for the employee to undergo the bone marrow or organ donation procedure and to recover from it.

(2) For partial leave purposes, a “week” means 5 days of leave which would otherwise be workdays for the requesting employee.

(3)

(a) An employee shall be deemed to have scheduled partial absence that does not “unduly disrupt the employer’s operations” within the meaning of s. 103.11 (6) (a), Stats., if all of the following apply:

The employee provides the employer with notice of the employee’s proposed schedule of partial absence which is at least as much notice as the shortest notice that employee is required to give the employer for the taking of any other nonemergency or nonmedical leave.
The schedule under subd. 1. is sufficiently definite for the employer to be able to schedule replacement employees, to the extent replacement employees are required, to cover for the absences.

(b) If an employer has a written policy which requires notice of scheduled partial absences to be in writing, if this policy governs all employees of the employer within this state, and if the employee has been made aware of this policy, the employee shall advise the employer under this subsection in writing.

(4)

(a) An employee shall be deemed to have given the employer “advance notice of the bone marrow or organ donation in a reasonable and practicable manner” within the meaning of s. 103.11 (6) (b), Stats., if the notice identifies the planned dates of the leave and is given to the employer by the employee with reasonable promptness after the employee learns of the probable necessity of the leave.

(b) If the employer has a written policy which requires notice of leave under s. 103.11 (6) (b), Stats., to be in writing, if this policy governs all employees of the employer within this state, and if the employee has been made aware of this policy, the notice required by s. 103.11 (6) (b), Stats., shall be in writing, except where precluded by the need for health care consultation or treatment.

(5) An employee shall be deemed to have made “a reasonable effort” to schedule a leave so that it does not “unduly disrupt the employer’s operations” within the meaning of s. 103.11 (6) (a), Stats., if all of the following apply:

(a) The employee provides the employer with a proposed schedule for the leave with reasonable promptness after the employee learns of the probable necessity of the leave.

(b) Except where precluded by the need for health care consultation or treatment, the proposed schedule under par. (a) is sufficiently definite that the employer is able to schedule replacement employees, to the extent replacement employees need to be scheduled, to cover the absence of the employee taking the leave.

(6) Leave requested by an employee may be denied by an employer if the employee substantially fails to provide the employer with notice of the leave as required under s. 103.11 (6), Stats., as interpreted by this section. For purposes of this subsection, an employee is considered to have substantially failed to provide proper notice if the employee fails to do at least 2 of the following:

(a) Provide the notice in writing.

(b) Identify the planned dates of leave.

(d) Provide a proposed schedule that is sufficiently definite to allow the employer to schedule replacements, if needed.

(7) Except where emergency health care consultation or treatment is required, an employer may deny a requested leave where the employer has made a request for certification that complies with s. 103.11 (7), Stats., as to that leave, and the employee requesting the leave fails or refuses, after that proper request, to substantially comply with s. 103.11 (7), Stats., as to certification.

(8) Leave under this section is available for only the period necessary for the employee to undergo the bone marrow or organ donor procedure or to recover from that procedure. Family or medical leave under s. 103.10, Stats., may also be available to qualified employees. An employer may not designate leave under this section to run concurrently with family or medical leave under s. 103.10, Stats.

Note: Leave under this section may run concurrently with family or medical leave for which an employee is eligible under the federal family and medical leave act, 29 USC 2601 et seq.

(9) No more than 6 weeks of bone marrow and organ donation leave may be taken in a 12-month period. Bone marrow and organ donation leave that begins in one 12-month period and ends in the subsequent 12-month period may not exceed 6 weeks. In this subsection, “12-month period” has the meaning given in s. DWD 226.01 (1) (a).

History

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

Wis. Admin. Code § DWD 226.03 Substituting leave {#sec-dwd-226.03 omnilex-key=us-wi-regs-official--agency-dwd--DWD 226.03}

(1) An employee entitled to bone marrow or organ donor leave under s. 103.11, Stats., may substitute, for any leave requested under s. DWD 226.02, any other paid or unpaid leave which has accrued to the employee.

(2) Leave substituted for leave available under this section shall be calculated as specified in s. DWD 226.02 (1).

(3) The employer may not require an employee to substitute any other paid or unpaid leave available to the employee for either bone marrow or organ donation leave under s. 103.11, Stats.

(4) If any other type of leave is substituted for bone marrow and organ donor leave, and any seniority or employment benefit would normally accrue during the taking of that other type of leave, that seniority or employment benefit shall accrue during the taking of that substituted leave.

History

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

Wis. Admin. Code § DWD 226.031 Consecutive leave {#sec-dwd-226.031 omnilex-key=us-wi-regs-official--agency-dwd--DWD 226.031}

If an employee chooses to use leave provided under s. 103.11 (4), Stats., the employee may not extend leave taken by adding leave of any other type provided by the employer, unless any of the following applies:

(1) The employee meets the employer’s requirements for taking the other leave which are in effect for all employees.

(2) The employer consents to the extension.

History

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.

Wis. Admin. Code § DWD 226.04 Continuation of insurance {#sec-dwd-226.04 omnilex-key=us-wi-regs-official--agency-dwd--DWD 226.04}

(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.

(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.

(3) The employer may not deny leave under s. 103.11, Stats., based upon nonpayment by the employee into the escrow account.

(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.

History

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

Wis. Admin. Code § DWD 226.05 Time to commence administrative proceedings {#sec-dwd-226.05 omnilex-key=us-wi-regs-official--agency-dwd--DWD 226.05}

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.

History

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

Wis. Admin. Code § DWD 226.06 Complaints {#sec-dwd-226.06 omnilex-key=us-wi-regs-official--agency-dwd--DWD 226.06}

(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.

(2) Where to file complaint.

(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.

(b) A complaint filed by facsimile transmission shall conform with the requirements of s. DWD 226.26 (1).

Note: The offices of the department’s equal rights division are at the following addresses:

1. 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.

2. 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.

(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:

(a) The name and address of the complainant.

(b) The name and address of the respondent.

(4) Assistance by the department. The department shall, upon request, provide appropriate assistance in completing and filing complaints.

(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).

History

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.

Wis. Admin. Code § DWD 226.07 Complainant’s duty to respond to correspondence from the department {#sec-dwd-226.07 omnilex-key=us-wi-regs-official--agency-dwd--DWD 226.07}

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.

History

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

Wis. Admin. Code § DWD 226.08 Notification of respondent {#sec-dwd-226.08 omnilex-key=us-wi-regs-official--agency-dwd--DWD 226.08}

(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.

(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.

History

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

Wis. Admin. Code § DWD 226.09 Preliminary review of complaints {#sec-dwd-226.09 omnilex-key=us-wi-regs-official--agency-dwd--DWD 226.09}

(1) Review of complaint. The department shall review every complaint filed to determine all of the following:

(a) Whether the complainant is protected by s. 103.11, Stats.

(b) Whether the respondent is subject to s. 103.11, Stats.

(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.

(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.

(3) Appeal of preliminary determination.

(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:

The appeal is filed within 10 days after the date of the order.
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).

(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).

History

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

Wis. Admin. Code § DWD 226.10 Investigations {#sec-dwd-226.10 omnilex-key=us-wi-regs-official--agency-dwd--DWD 226.10}

(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.

(2) Dismissal of complaint before completion of investigation.

(a) The department may dismiss a complaint before completion of an investigation under the any of the following circumstances:

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.
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.
The allegations in the complaint have been previously dismissed with prejudice by the department or by a state or federal court.

(b)

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:

a. The appeal is filed within 20 days after the date of the order.

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).

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).

History

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.

Wis. Admin. Code § DWD 226.11 Initial determination {#sec-dwd-226.11 omnilex-key=us-wi-regs-official--agency-dwd--DWD 226.11}

(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.

(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.

History

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

Wis. Admin. Code § DWD 226.12 Appeal of initial determination of no probable cause {#sec-dwd-226.12 omnilex-key=us-wi-regs-official--agency-dwd--DWD 226.12}

(1) An appeal shall be filed within 10 days of the date of the initial determination.

(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.

(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.

History

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

Wis. Admin. Code § DWD 226.13 Private settlement and conciliation {#sec-dwd-226.13 omnilex-key=us-wi-regs-official--agency-dwd--DWD 226.13}

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.

History

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

Wis. Admin. Code § DWD 226.14 Dismissal of complaint for lack of jurisdiction or other procedural basis following certification to hearing {#sec-dwd-226.14 omnilex-key=us-wi-regs-official--agency-dwd--DWD 226.14}

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.

History

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

Wis. Admin. Code § DWD 226.15 Notice of hearing {#sec-dwd-226.15 omnilex-key=us-wi-regs-official--agency-dwd--DWD 226.15}

(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.

(2) Place of hearing.

(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.

(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.

History

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

Wis. Admin. Code § DWD 226.16 Answer {#sec-dwd-226.16 omnilex-key=us-wi-regs-official--agency-dwd--DWD 226.16}

(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.

(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.

History

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

Wis. Admin. Code § DWD 226.17 Prehearing conference {#sec-dwd-226.17 omnilex-key=us-wi-regs-official--agency-dwd--DWD 226.17}

In any case which has been certified to hearing, a prehearing conference may be held in accordance with s. 227.44 (4), Stats.

History

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

Wis. Admin. Code § DWD 226.18 Prehearing discovery {#sec-dwd-226.18 omnilex-key=us-wi-regs-official--agency-dwd--DWD 226.18}

(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.

(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.

(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.

(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).

History

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.

Wis. Admin. Code § DWD 226.19 Subpoenas and motions {#sec-dwd-226.19 omnilex-key=us-wi-regs-official--agency-dwd--DWD 226.19}

(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.

History

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

Wis. Admin. Code § DWD 226.20 Disqualification of the administrative law judge {#sec-dwd-226.20 omnilex-key=us-wi-regs-official--agency-dwd--DWD 226.20}

History

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

Wis. Admin. Code § DWD 226.21 Exchange of names of witnesses and copies of exhibits {#sec-dwd-226.21 omnilex-key=us-wi-regs-official--agency-dwd--DWD 226.21}

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.

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.

Wis. Admin. Code § DWD 226.22 Hearings {#sec-dwd-226.22 omnilex-key=us-wi-regs-official--agency-dwd--DWD 226.22}

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

(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.

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

(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.

History

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

Wis. Admin. Code § DWD 226.23 Record of hearing {#sec-dwd-226.23 omnilex-key=us-wi-regs-official--agency-dwd--DWD 226.23}

(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.

(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.

(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.

History

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

Wis. Admin. Code § DWD 226.24 Decision and order {#sec-dwd-226.24 omnilex-key=us-wi-regs-official--agency-dwd--DWD 226.24}

(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.

(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).

(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.

(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.

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.

Wis. Admin. Code § DWD 226.25 Appeals {#sec-dwd-226.25 omnilex-key=us-wi-regs-official--agency-dwd--DWD 226.25}

(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.

History

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

Wis. Admin. Code § DWD 226.26 Filing of documents {#sec-dwd-226.26 omnilex-key=us-wi-regs-official--agency-dwd--DWD 226.26}

(1) Filing of documents by facsimile transmission.

(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:

The name of the sender.
The individual to whom the transmission is directed, if that individual is known.
The number of pages being transmitted, including the cover sheet.

(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.

(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 ERInfo@dwd.wisconsin.gov.

(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.

History

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

Chapter DWD 270 EMPLOYMENT OF MINORS

Wis. Admin. Code § DWD 270.01 Authority and purpose {#sec-dwd-270.01 omnilex-key=us-wi-regs-official--agency-dwd--DWD 270.01}

This chapter is promulgated under the authority of s. 103.66, Stats., to carry out the purposes of ss. 103.21 to 103.33 and 103.64 to 103.82, Stats., by fixing reasonable classifications of employments, places of employment, the duration of lunch and other rest periods, and prohibited hazardous employment as necessary to protect the life, health, safety, and welfare of minors in minor employment and street trades.

History

CR 04-010: cr. Register November 2004 No. 587, eff. 12-1-04; CR 26-015: am. Register May 2026 No. 845, eff. 6-1-26.

Wis. Admin. Code § DWD 270.02 Higher standards {#sec-dwd-270.02 omnilex-key=us-wi-regs-official--agency-dwd--DWD 270.02}

Nothing in this chapter may be construed to authorize noncompliance with any federal, state, or municipal statute, regulation, or ordinance establishing a stricter standard. If more than one standard within this chapter applies to a single activity, the standard that provides more protection to a minor applies.

History

CR 04-010: cr. Register November 2004 No. 587, eff. 12-1-04.

Wis. Admin. Code § DWD 270.03 Required poster on hours minors may work {#sec-dwd-270.03 omnilex-key=us-wi-regs-official--agency-dwd--DWD 270.03}

A summary of the provisions in s. 103.68, Stats., shall be posted in a conspicuous place in all places of employment where minors are employed or permitted to work, except domestic and farm employments, on a form prescribed by the department.

Note: To obtain the required poster, contact Department of Workforce Development, Equal Rights Division, P.O. Box 8928, Madison, WI 53708-8928; telephone (608) 266-6860; or web site at http://dwd.wi.gov/er.

History

CR 04-010: cr. Register November 2004 No. 587, eff. 12-1-04; CR 26-015: am. Register May 2026 No. 845, eff. 6-1-26.

Wis. Admin. Code § DWD 270.04 Definitions {#sec-dwd-270.04 omnilex-key=us-wi-regs-official--agency-dwd--DWD 270.04}

In this chapter, the following words and phrases have the designated meanings unless a different meaning is expressly provided:

(1) “Charter school” has the meaning given in s. 115.001 (1), Stats.

Note: Section 115.001 (1), Stats., provides that “charter school” means “a school under contract with a school board under s. 118.40, with one of the entities under s. 118.40 (2r) (b) 1., or with the director under s. 118.40 (2x), or a school established and operated by one of the entities under s. 118.40 (2r) (b) 1. a. to d.”

(2) “Day” means a calendar day, except when a work shift commences in one calendar day and ends in the following day, all hours worked in that shift will count in the day the shift commenced.

(3) “Department” means the department of workforce development.

(4) “Employee” has meaning given in s. 103.001 (5), Stats.

Note: Section 103.001 (5), Stats., provides that “employee” means “any person who may be required or directed by any employer, in consideration of direct or indirect gain or profit, to engage in any employment, or to go or work or be at any time in any place of employment.”

(5) “Employer” has the meaning given in s. 103.001 (6), Stats.

Note: Section 103.001 (6), Stats., provides that “employer” means “any person, firm, corporation, state, county, town, city, village, school district, sewer district, drainage district, long-term care district and other public or quasi-public corporations as well as any agent, manager, representative or other person having control or custody of any employment, place of employment of any employee.”

(6) “Employment” has the meaning given in s. 103.001 (7), Stats.

Note: Section 103.001 (7), Stats., provides that “employment” means “any trade, occupation or process of manufacture, or any method of carrying on such trade, occupation or process of manufacture in which any person may be engaged, except in such private domestic service as does not involve the use of mechanical power and in farm labor as used in sub. (12).”

(7) “Farming” has the meaning given in s. 102.04 (3), Stats.

Note: Note: Section 102.04 (3), Stats., provides: “As used in this chapter ‘farming’ means the operation of farm premises owned or rented by the operator. ‘Farm premises’ means areas used for operations herein set forth, but does not include other areas, greenhouses or other similar structures unless used principally for the production of food and farm plants. ‘Farmer’ means any person engaged in farming as defined. Operation of farm premises shall be deemed to be the planting and cultivating of the soil thereof; the raising and harvesting of agricultural, horticultural or arboricultural crops thereon; the raising, breeding, tending, training and management of livestock, bees, poultry, fur–bearing animals, wildlife or aquatic life, or their products, thereon; the processing, drying, packing, packaging, freezing, grading, storing, delivering to storage, to market or to a carrier for transportation to market, distributing directly to consumers or marketing any of the above–named commodities, substantially all of which have been planted or produced thereon; the clearing of such premises and the salvaging of timber and management and use of wood lots thereon, but not including logging, lumbering or wood cutting operations unless conducted as an accessory to other farming operations; the managing, conserving, improving and maintaining of such premises or the tools, equipment and improvements thereon and the exchange of labor, services or the exchange of use of equipment with other farmers in pursuing such activities. The operation for not to exceed 30 days during any calendar year, by any person deriving the person’s principal income from farming, of farm machinery in performing farming services for other farmers for a consideration other than exchange of labor shall be deemed farming. Operation of such premises shall be deemed to include also any other activities commonly considered to be farming whether conducted on or off such premises by the farm operator.”

(8) “General educational development test” has the meaning given in s. PI 5.02 (6).

Note: Section PI 5.02 (6) provides that “general educational development test” means “the test developed by GED Testing Service and administered in Wisconsin at testing sites approved by the state superintendent and GED Testing Service.”

(9) “Graduated from high school” has the meaning given in s. PI 5.02 (6m).

Note: Section PI 5.02 (6m) provides that “graduated from high school” means “for purposes of compulsory attendance under s. 118.15 (1) (a), Stats., … having received a diploma in satisfaction of school board requirements under s. 118.33, Stats., or a high school equivalency diploma under s. 115.29 (4) (a), Stats.”

(10) “High school equivalency diploma” means the diploma granted by the state superintendent under s. 115.29 (4) (a), Stats., and ch. PI 5.

(11) “Home-schooled” means participating in a home-based private educational program as defined in s. 115.001 (3g), Stats.

Note: Section 115.001 (3g), Stats., provides that “home-based private educational program” means “a program of educational instruction provided to a child by the child’s parent or guardian or by a person designated by the parent or guardian. An instructional program provided to more than one family unit does not constitute a home-based private educational program.”

(13) “Place of employment” has the meaning given in s. 103.001 (12), Stats.

Note: Section 103.001 (12), Stats., provides that “place of employment” includes “every place, whether indoors or out or underground and the premises appurtenant thereto where either temporarily or permanently any industry, trade or business is carried on, or where any process or operation, directly or indirectly related to any industry, trade or business, is carried on, and where any person is, directly or indirectly, employed by another for direct or indirect gain or profit, but does not include any place where persons are employed in private domestic service which does not involve the use of mechanical power or in farming. ‘Farming’ includes those activities specified in s. 102.04 (3), and also includes the transportation of farm products, supplies or equipment directly to the farm by the operator of said farm or employees for use thereon, if such activities are directly or indirectly for the purpose of producing commodities for market, or as an accessory to such production.”

(14) “Public schools” has the meaning given in s. 115.01 (1), Stats.

Note: Section 115.01 (1), Stats., provides that “Public schools are the elementary and high schools supported by public taxation.”

(15) “Schooled at home” means enrolled in a public or private school but receiving instruction at home rather than the school by special arrangement.

(16) “Street trade” has the meaning given in s. 103.21 (6), Stats.

Note: Section 103.21 (6), Stats., provides that “street trade” means “the selling, offering for sale, soliciting for, collecting for, displaying or distributing any articles, goods, merchandise, commercial service, posters, circular, newspapers or magazines, or the blacking of boots, on any street or other public place or from house to house.”

(17) “Week” means a calendar week, except all hours worked in a shift commenced in a calendar week will count in that calendar week.

(18) “Welfare” has the meaning given in s. 103.001 (16), Stats.

Note: Section 103.001 (16), Stats., provides that “welfare” includes “comfort, decency and moral well-being.”

History

CR 04-010: cr. Register November 2004 No. 587, eff. 12-1-04; CR 26-015: am. (10), r. (12) Register May 2026 No. 845, eff. 6-1-26.

Wis. Admin. Code § DWD 270.05 Minor labor permits {#sec-dwd-270.05 omnilex-key=us-wi-regs-official--agency-dwd--DWD 270.05}

(1) Permits necessary for minors. Except as provided in sub. (2), no minor under 16 years of age may be employed or permitted to work in any gainful occupation unless the minor first obtains from the department or a permit officer a permit under sub. (3) authorizing the employment of the minor within those periods of time stated in the permit, which shall not exceed the hours prescribed by law.

(2) Exceptions. Minor labor permits are not required in the following circumstances:

(a) The minor will be working in street trades and has obtained a permit or is exempt under ss. 103.21 to 103.31, Stats.

(b) The minor will be working in public exhibitions, radio and television broadcasts, or modeling and meets the requirements of s. 103.78, Stats.

(e) The minor is 14 years of age or over and enrolled in a youth apprenticeship program under s. 106.13, Stats.

(f) The minor will be working to fulfill the requirements of a deferred prosecution agreement pursuant to s. 938.245 (2) (a) 5. b., Stats.

(g) The minor will be working to fulfill the requirements of a consent decree pursuant to s. 938.32 (1t) (a) 2., Stats.

(h) The minor has been adjudged delinquent and will be working as part of a restitution project ordered pursuant to s. 938.34 (5) (b), Stats., or a supervised work program or other community service work pursuant to s. 938.34 (5g) (c), Stats.

(3) Method of issuing.

(am) Minor labor permits may be obtained from the department under par. (bm) or a permit officer under par. (cm).

(bm) Minor labor permits issued by the department may be obtained through the department's online work permit application portal at the request of the minor’s parent, guardian, or court-ordered foster parent who attests all of the following:

Note: The department’s online work permit application portal can be found on the department's website at: https://dwd.wisconsin.gov/er/laborstandards/workpermit/default.htm.

The minor is of the appropriate age for the position as of the date the minor commences employment.
The minor has a bona find offer of employment from the employer, including the job duties, hours of work, and time of day the minor will be working.

(cm) Minor labor permits issued by a permit officer may be obtained by presenting evidence of the following to the permit officer:

The minor is of the appropriate age for the position as of the date the minor commences employment, as provided in s. DWD 270.07.
The minor has a bona fide offer of employment from the employer, including the job duties, hours of work, and time of day the minor will be working.

(e) Payment of the permit fee is the responsibility of the employer. If the minor advances the fee, the employer shall reimburse the minor no later than the first paycheck. Payment of the fee is collected by the department on its online work permit application portal or by the permit officer.

(4) Permit form. The permit shall be issued upon a form established by the department. For permits issued by the department, the department shall distribute electronic copies of the permit to the employer, the minor, and the school district that the minor attends. The department shall provide a paper version for use by permit officers. A permit officer shall distribute the original to the employer and copies to the minor, the department, and the school district that the minor attends.

(5) Revocation or suspension of permits.

(b) The department may revoke or suspend any permit immediately, without prior notice, whenever any of the following apply:

The permit has been improperly or illegally issued.
The physical or moral welfare or school attendance of the minor would be best served by the revocation or suspension of the permit.
The failing school performance of the minor would be remedied by the revocation of the permit.

(c) The department may revoke or suspend any permit under par. (b) 2. or 3. if requested in writing by the school principal or the minor’s parent, legal guardian, or court–ordered foster parent. The requesting party shall demonstrate that there has been some attempt to resolve the issue between the minor, school, parent or guardian, and employer before the request for revocation or suspension is made to the department.

(d) The department shall revoke a permit if ordered to do so under s. 938.342 (1g) (e), Stats.

(e) If the department revokes a permit, the department shall, by registered mail, notify the person employing the minor and the minor holding the permit. Upon receipt of the notice, the employer of the minor shall immediately return the revoked permit to the department and discontinue the employment of the minor.

History

CR 04-010: cr. Register November 2004 No. 587, eff. 12-1-04; CR 26-015: am. (title), (1), (2) (intro.), (c), r. (2) (d), am. (2) (e), r. (2) (i), renum. (3) (intro.) to (3) (am) and am., r. (3) (a) to (d), cr. (3) (bm), (cm), am. (3) (e), renum. (4) (a) to (4) and am., r. (4) (b), am. (5) (title), r. (5) (a) Register May 2026 No. 845, eff. 6-1-26.

Wis. Admin. Code § DWD 270.07 Evidence of age for minor labor permits and certificates of age {#sec-dwd-270.07 omnilex-key=us-wi-regs-official--agency-dwd--DWD 270.07}

A permit officer shall accept any of the following items as evidence of age for a minor labor permit required under s. 103.73 (1) (a), Stats., a certificate of age allowed under s. 103.75, Stats., or a street trade permit required under s. 103.25, Stats.:

Note: Permit officers are authorized under 103.75(1) to issue certificates of age after verifying the minor's age in accordance with DWD 270.07.

(1) Wisconsin driver’s license or state ID. A valid Wisconsin operator’s license issued under ch. 343, Stats., that contains the photograph of the license holder or an identification card issued under s. 343.50, Stats.

(2) Birth certificate. A birth certificate issued by a registrar of vital statistics or other officer charged with the duty of recording births or a certified record of birth from the hospital in which the birth occurred.

(3) Baptismal certificate. A baptismal certificate including the minor’s name, date of birth, date and place of baptism, name of church, and the signature of officiating or issuing clergy.

(4) Other evidence. When the evidence of age in subs. (1) to (3) are not attainable, any of the following may be used as evidence of age:

(a) Government records that show the age of the minor, including a passport or a certificate of arrival in the United States issued by United States immigration officers.

(b) A life insurance policy that is at least one year old and is supported by the age indicated in a school record.

(c) School records, preferably from the first school attended, with a parent’s, guardian’s, or custodian’s statement of age, and physician’s statement of physical age.

(d) When none of the above forms of evidence of age are obtainable, proof of age may be established through circuit court as provided in s. 889.28, Stats.

(5) Evidence of identity if name change. A marriage license or other certificate or legal document shall be required in addition to the evidence of age if the minor’s current name is different from the name on the evidence of age.

History

CR 04-010: cr. Register November 2004 No. 587, eff. 12-1-04; CR 26-015: am. (title), (intro.) Register May 2026 No. 845, eff. 6-1-26.

Wis. Admin. Code § DWD 270.09 Permanent records to be kept by the employer {#sec-dwd-270.09 omnilex-key=us-wi-regs-official--agency-dwd--DWD 270.09}

(1) Every employer shall keep payroll or other records for each of their employees that contain the following information about the employee for at least 3 years:

(a) Name and address.

(b) Date of birth.

(d) Time of beginning and ending of work each day.

(e) Time of beginning and ending of meal periods. When employee’s meal periods are required or when the meal periods are to be deducted from work time, this requirement shall not apply when work is of such a nature that production or business activity ceases on a regularly scheduled basis.

(f) Total number of hours worked per day and per week.

(g) Rate of pay and wages paid each payroll period.

(h) The amount of and reason for each deduction from the wages earned.

(i) Output of employee, if paid on other than time basis.

(2) The required records or a duplicate copy shall be kept safe and accessible at the place of employment or business at which the employee is employed or at one or more established central record-keeping offices in the state of Wisconsin.

(3) The required records shall be made available for inspection and transcription by a duly authorized deputy of the department during the business hours generally observed by the office at which they are kept or in the community generally.

History

CR 04-010: cr. Register November 2004 No. 587, eff. 12-1-04.

Wis. Admin. Code § DWD 270.10 Minimum ages in various employments {#sec-dwd-270.10 omnilex-key=us-wi-regs-official--agency-dwd--DWD 270.10}

A minor under 14 years of age may not be employed or permitted to work in any gainful occupation at any time, except that a minor under 14 years of age may be employed or permitted to work as follows to the extent permitted under the federal Fair Labor Standards Act, 29 USC 201 to 219:

(1) School lunch. Minors 12 years of age or older may be employed in school lunch programs of the school that they attend.

(2) Public exhibitions. Minors under 14 years of age may be employed in public exhibitions as provided in s. 103.78, Stats.

(3) Street trades and fundraising. Minors 12 years of age or older may be employed in street trades, and any minor may work in fund–raising sales for nonprofit organizations, public schools, or private schools, as provided in ss. 103.21 to 103.31, Stats.

(4) Caddies on golf courses. Caddy services may only be provided in accordance with 29 CFR 570.33 (e).

Note: 29 CFR 570.33 (e) prohibits minors who are 15 years of age or younger from operating, tending, setting up, adjusting, cleaning, oiling, or repairing power-driven golf carts.

(5) Farming. Minors 12 years of age or older may be employed in farming.

(6) Domestic employment. Minors 12 years of age or older may be employed in and around a home in work usual to the home of the employer, if the work is not in connection with or a part of the business, trade, or profession of the employer and the type of employment is not specifically prohibited by ss. 103.64 to 103.82, Stats., or this chapter.

(7) Parents or guardians employing their own children. Unless prohibited under s. 103.65, minors of any age may be employed under the direct supervision of the minor’s parent or guardian in connection with the parent’s or guardian’s business, trade, or profession.

(8) Football sideline officials. Minors 12 and 13 years of age may be employed as sideline officials to operate chains and the sideline marker for high school football games.

(9) Officials for privately-sponsored athletic events. Minors 12 and 13 years of age may be employed under direct adult supervision as officials for athletic events sponsored by private, nonprofit organizations in which the minor would be eligible to participate or in which the participants are the same age as or younger than the minor.

(10) Football ball monitors. Minors 11 to 13 years of age may be employed as ball monitors at high school football games and practices.

(11) Restitution or community service. Minors under 14 years of age may be employed as participants in a restitution project under s. 938.245 (2) (a) 5., 938.32 (1t) (a), 938.34 (5), or 938.345, Stats., in a supervised work program or other community service work under s. 938.245 (2) (a) 6., 938.32 (1t) (b), 938.34 (5g), 938.343 (3), or 938.345, Stats., or in the community service component of a youth report center program under s. 938.245 (2) (a) 9m., 938.32 (1p), 938.34 (7j), 938.342 (1d) (c) or (1g) (k), 938.343 (3m), 938.344 (2g) (a) 5., 938.345, or 938.355 (6) (d) 5. or (6m) (a) 4., Stats.

History

CR 04-010: cr. Register November 2004 No. 587, eff. 12-1-04; CR 26-015: r. (1), r. (2) (title), renum. (2) (intro.), (a) to (k) to (intro.)., (1) to (11) and, as renumbered, am. (4), (7) Register May 2026 No. 845, eff. 6-1-26.

Wis. Admin. Code § DWD 270.11 Hours of labor of minors {#sec-dwd-270.11 omnilex-key=us-wi-regs-official--agency-dwd--DWD 270.11}

The following requirements modify s. 103.68, Stats., as provided under s. 103.66, Stats., and shall be deemed to be necessary to protect minors from employment dangerous or prejudicial to their life, health, safety, or welfare:

(1m) Work experience program. Hours worked as part of a work experience program during school hours shall not count as part of the total permitted hours of work per day or per week.

(4) Home and charter schools.

(d) Minors 12 to 15 years of age who participate in a home-based private educational program, as defined in s. 115.001 (3g), Stats., that meets all the criteria under s. 118.165 (1), Stats., may work the same hours as if they were enrolled in public school as provided in s. 103.68 (2), Stats.

(e) Minors who are enrolled in a charter school may not work during hours they are scheduled to be in the charter school.

History

CR 04-010: cr. Register November 2004 No. 587, eff. 12-1-04; CR 26-015: am. (intro.), r. (1) (title), (a) to (d), renum. (1) (e) to (1m), r. (2), (3), am. (4) (title), r. (4) (a) to (c), am. (4) (d) Register May 2026 No. 845, eff. 6-1-26.

Wis. Admin. Code § DWD 270.12 Hazardous occupations prohibited to all minors {#sec-dwd-270.12 omnilex-key=us-wi-regs-official--agency-dwd--DWD 270.12}

The employment of minors in the following occupations or places of employment shall be deemed to be dangerous or prejudicial to the life, health, safety, or welfare of the minor and other employees or frequenters, except as provided in s. DWD 270.14. No employer may employ or permit any minor to work in the following occupations or places of employment:

(1) Adult bookstores. No minor may be employed in an adult bookstore.

(2) Amusement parks, ski hills, street carnivals, and traveling shows.

(a) Prohibition. Except as provided in par. (c), no minor may be employed in operating, assisting to operate, erecting, dismantling, setting up, adjusting, repairing, oiling, or cleaning of any rides or machinery, or the loading or unloading of passengers, in the operation of amusement park rides, ski hills, street carnivals, or traveling shows.

(b) Definitions. For the purpose of this subsection:

“Amusement park ride” means a device or animal that carries, transports, or supports passengers in unusual, entertaining, or thrilling modes of motion and any vehicle providing entertainment or transportation in conjunction with an amusement park ride, including rider-powered and power-driven thrill rides, mild rides, ride-throughs, walk-throughs, air pillows, giant slides, water slides, and animal rides. Vehicles include parking lot trams, old fire engines, stagecoaches, and trains. “Amusement park ride” does not include aircraft under the jurisdiction of the federal aviation administration, railroad trains under the jurisdiction of the federal railroad administration, or boats used on navigable waters.
“Water slide” means a slide that incorporates a flow of water intended to carry a rider down a flume and that is required under s. ATCP 76.23 (1) (d) to have an attendant stationed at the entrance to enforce slide usage rules. “Water slide” does not include a slide that meets all of the following conditions:

a. The slide is less than or equal to 6 feet high as measured vertically from the slide entrance to the deck.

b. The user has a clear view of the landing area when measured from the slide entrance at a height of 43 inches.

c. The flume carries less than 100 gallons per minute of water.

(c) Exception. Minors 16 and 17 years of age may be employed in occupations involving the loading or unloading of passengers on water slides.

(3) Asbestos, chrysotile, crocidolite, amosite, tremolite, anthophyllite, and actinolite. No minor may be employed in occupations or duties involving exposure to asbestos, chrysotile, crocidolite, amosite, tremolite, anthophyllite, or actinolite.

(4) Bakery machines.

(am) Prohibitions. Except as provided in par. (bm), no minor may be employed in the following duties related to the operation of power–driven bakery machines:

Operating, assisting to operate, setting up, adjusting, repairing, oiling, or cleaning any horizontal or vertical dough mixer; batter mixer; bread dividing, rounding, or molding machine; doughbrake; dough sheeter; combination bread slicing and wrapping machine; or cake cutting band saw.
Setting up or adjusting a cookie or cracker machine.

(bm) Exceptions.

Minors 16 and 17 years of age may be employed in the operation, including the setting up, adjusting, repairing, oiling and cleaning, of lightweight, small capacity, portable counter-top power-driven food mixers that are, or are comparable to, models intended for household use. For purposes of this subdivision, a lightweight, small capacity mixer is one that is not hardwired into the establishment's power source, is equipped with a motor that operates at no more than 1/2 horsepower and is equipped with a bowl with a capacity of no more than five quarts. This subdivision does not apply when a mixer is used, with or without attachments to process meat products as prohibited by s. DWD 270.18 (a) 4.
Except as provided in subd. 3., minors 16 and 17 years of age may be employed in the operation of dough sheeters that are pizza-dough rollers and that have all of the following safeguards:

a. The rollers have been constructed with safeguards contained in the basic design so as to prevent fingers, hands, or clothing from being caught in the in-running point of the rollers.

b. The rollers have gears that are completely enclosed.

c. The rollers have microswitches that disengage the machinery if the backs or sides of the rollers are removed.

Subdivision 2. applies only when all the safeguards detailed in subd. 2. are present on the machine, are operational, and have not been overridden. Subdivision 2. does not apply to the setting up, adjusting, repairing, oiling, or cleaning of pizza-dough rollers.

(5) Bingo. No minor may be employed in conducting or assisting in the conducting of a bingo game.

Note: See s. 563.51 (13)(b), Stats.

(6) Brick, tile, and similar products.

(a) Prohibitions. No minor may be employed in the following occupations involved in the manufacture of clay construction products and of silica refractory products:

All work in or about establishments in which clay construction products are manufactured, except work in storage and shipping; work in offices, laboratories, and storerooms; and work in the drying departments of plants manufacturing sewer pipe.
All work in or about establishments in which silica brick or other silica refractories are manufactured, except work in offices.

(b) Definitions. In this subsection:

“Clay construction products” means the following clay products: Brick, hollow structural tile, sewer pipe and similar products, refractories, and other clay products such as architectural terra cotta, glazed structural tile, roofing tile, stove lining, chimney pipes and tops, wall coping, and drain tile.
“Clay construction products” does not include the following:

a. Nonstructural–bearing clay products such as ceramic floor and wall tile, mosaic tile, glazed and enameled tile, faience, and similar tile.

b. Non-clay construction products such as sand–lime brick, glass brick, or nonclay refractories.

“Silica brick or other silica refractories” means refractory products produced from raw materials containing free silica as their main constituent.

(7) Confined space.

(a) No minor may be employed in any occupation or have duties in an environment which by design or construction has limited openings for entry and egress, has unfavorable natural ventilation, could reasonably be believed by the employer to have dangerous air contaminants or contain materials that may produce dangerous air contaminants, and is not intended for human occupancy.

(b) Confined spaces include storage tanks, compartments of ships, process vessels, pits, silos, vats, degreasers, reaction vessels, boilers, ventilation and exhaust ducts, manholes, sewers, underground utility vaults, and pipelines. Confined spaces do not include heating system tunnels and heating system vaults.

(8) Coal mine.

(a) Prohibition and exception. No minor may be employed in any occupation in or about a coal mine, except the occupation of refuse picking at a picking table or picking chute in a tipple or breaker and occupations requiring the performance of duties solely in offices or in repair or maintenance shops located on the surface of a coal mining plant.

(b) Definitions. For the purpose of this subsection:

“Any occupation in or about a coal mine” means all types of work performed in any underground working, open–pit, or surface part of any coal mining plant that involves the extraction, grading, cleaning, or other handling of coal.
“Coal” means any rank of coal, including lignite, bituminous, and anthracite coals.

(9) Excavation operations. No minor may be employed in any of the following occupations in excavation operations:

(a) Excavating, working in, or backfilling trenches, except manually excavating or manually backfilling trenches that do not exceed 4 feet in depth at any point, or working in trenches that do not exceed 4 feet in depth at any point.

(b) Excavating for buildings or other structures or working in such excavations, except manually excavating to a depth not exceeding 4 feet below any ground surface adjoining the excavation, or working in an excavation not exceeding such depth, or working in an excavation where the side walls are shored or sloped to the angle of repose.

(d) Working within shafts prior to the completion of all sinking and shoring operations.

(10) Exotic dancer. No minor may be employed as an exotic dancer.

(11) Explosives.

(a) Prohibition. No minor may be employed in any occupation in or about plants or establishments manufacturing or storing explosives or articles containing explosive components except as provided in par. (b).

(b) Exceptions.

A minor may be employed in a retail establishment in which explosives are sold.
A minor may be employed in the following occupations in or about any plant or establishment manufacturing or storing small arms ammunition not exceeding .60 caliber in size, shotgun shells, or blasting caps when manufactured or stored in conjunction with the manufacture of small arms ammunition:

a. All occupations involved in the manufacturing, mixing, transporting, or handling of explosive compounds in the manufacture of small arms ammunition and all other occupations requiring the performance of any duties in the explosives area in which ex-plosive compounds are manufactured or mixed.

b. All occupations involved in the manufacturing, transporting, or handling of primers and all other occupations requiring the performance of any duties in the same building in which primers are manufactured.

c. All occupations involved in the priming of cartridges and all other occupations requiring the performance of any duties in the same workroom in which rim–fire cartridges are primed.

d. All occupations involved in the plate loading of cartridges and in the operation of automatic loading machines.

e. All occupations involved in the loading, inspecting, packing, shipping, and storage of blasting caps.

A minor may be employed in occupations performed in an area that meets all of the following criteria:

a. None of the work performed in the area involves the handling or use of explosives.

b. The area is separated from the explosives area by a distance not less than that prescribed in the American Table of Distances for the protection of inhabited buildings.

Note: The American Table of Distances (also called Safety Library Publication 2 or SLP-2) was developed by the Institute of Makers of Explosives and first published in 1910. Per the Bureau of Alcohol, Tobacco, Firearms and Explosives, the SLP-2 was adopted to “protect the public in the event of a magazine explosion.” See https://www.atf.gov/explosives/tools-services-explosives-industry/current-licensees/table-distances. The SLP-2 applies to the outdoor storage of explosive materials and specify minimum distances from inhabited buildings, public highways, passenger railways, and other magazines based on the quantity of explosive materials in each magazine.

c. The area is separated from the explosives area by a fence or is otherwise located so that it constitutes a definite designated area.

d. Satisfactory controls have been established to prevent employees under 18 years of age within the area from entering any area in or about the plant that does not meet criteria of subd. 3. a. to c.

“Explosives” and “articles containing explosive components” include ammunition, black powder, blasting caps, fireworks, high explosives, primers, smokeless powder, and all goods classified and defined as explosive materials by the federal Bureau of Alcohol, Tobacco Firearms and Explosives.

Note: The Bureau of Alcohol, Tobacco, Firearms and Explosives annually publishes in the Federal Register a list of explosive materials determined to be within the coverage of 18 USC Chapter 40, Importation, Manufacture, Distribution and Storage of Explosive Materials. For example, see the 2025 list published by the bureau in 90 FR 25077, which can be found here: https://www.federalregister.gov/documents/2025/06/13/2025-10659/commerce-in-explosives-2025-annual-list-of-explosive-materials.

“Plant or establishment manufacturing or storing explosives or articles containing explosive components” means the land with all the buildings and other structures thereon used in connection with the manufacturing, processing, or storing of explosives or articles containing explosive components.

(12) Hoists and hoisting apparatus.

(a) Prohibitions. Except as provided in par. (c), no minor may be employed in the following occupations involved in the operation of power–driven hoisting apparatus:

Work of operating an elevator, crane, derrick, hoist or high–lift truck, except operating an unattended automatic operation passenger elevator or an electric or air–operated hoist not exceeding one–ton capacity except as specified in par. (c).
Work which involves riding on a man lift or on a freight elevator, except a freight elevator operated by an assigned operator.
Work of assisting in the operation of a crane, derrick, or hoist performed by crane hookers, crane chasers, hookers–on, riggers, rigger helpers, and like occupations.
Work of tending, riding upon, working from, repairing, servicing, or disassembling an elevator, crane, derrick, manlift, hoist, or high-lift truck.

(b) Definitions. For the purpose of this subsection:

“Crane” means a power–driven machine for lifting and lowering a load and moving it horizontally, in which the hoisting mechanism is an integral part of the machine. The term shall include all types of cranes, such as cantilever gantry, crawler, gantry, hammerhead, ingot–pouring, jib, locomotive, motortruck, overhead traveling, pillar jib, pintle, portal, semigantry, semiportal, storage bridge, tower, walking jib and wall cranes.
“Derrick” means a power–driven apparatus consisting of a mast or equivalent members held at the top by guys or braces, with or without a boom, for use with a hoisting mechanism or operating ropes. The term shall include all types of derricks, such as A–frame, breast, Chicago boom, gin–pole, guy and stiff–leg derricks.
“Elevator” means any power–driven hoisting or lowering mechanism equipped with a car or platform which moves in guides in a substantially vertical direction. The term shall include both passenger and freight elevators, including portable elevators or tiering machines, but not including dumb-waiters.
“High–lift truck" means a power–driven industrial type of truck used for lateral transportation that is equipped with a power–operated lifting device usually in the form of a fork or platform capable of tiering loaded pallets or skids one above the other. Instead of a fork or platform, the lifting device may consist of a ram, scoop, shovel, crane, revolving fork, or other attachments for handling specific loads. The term shall mean and include high–lift trucks known under such names as backhoes, forklifts, forktrucks, forklift trucks, front-end loaders, tiering trucks, or stacking trucks, or other similar pieces of equipment, but shall not mean low–lift trucks or low–lift platform trucks that are designed for the transportation of but not the tiering of material.
“Hoist” means a power–driven apparatus for raising or lowering a load by the application of a pulling force that does not include a car or platform running in guides. “Hoist” includes all types of hoists, such as base mounted electric, clevis suspension, hook suspension, monorail, overhead electric, simple drum, and trolley suspension hoists.
“Manlift” means a device intended for the conveyance of persons which consists of platforms or brackets mounted on, or attached to, an endless belt, cable, chain or similar method of suspension operating in a substantially vertical direction and being supported by and driven through pulleys, sheaves or sprockets at the top and bottom.

Minors 16 and 17 years of age may operate floor jacks, service jacks, hand jacks, drive-on lifts, and arm lifts used in conjunction with repairing or servicing motor vehicles.
Minors may operate an automatic elevator and an automatic signal operation elevator if the elevator meets all of the following criteria:

a. The exposed portion of the car interior, exclusive of vents and other necessary small openings; the car door; and the hoistway doors are constructed of solid surfaces without any opening through which a part of the body may extend.

b. All hoistway openings at floor level have doors that are interlocked with the car door so as to prevent the car from starting until all the doors are closed and locked.

c. The elevator, other than hydraulic elevators, is equipped with a device that will stop and hold the car in case of overspeed or if the cable slackens or breaks.

d. The elevator is equipped with upper and lower travel limit devices that will normally bring the car to rest at either terminal and a final limit switch that will prevent the movement in either direction and will open in case of excessive overtravel by the car.

For the purpose of subd. 2.:

a. “Automatic elevator” means a passenger elevator, a freight elevator, or a combination passenger–freight elevator, the operation of which is controlled by pushbuttons in such a manner that the starting, going to the landing selected, leveling and holding, and the opening and closing of the car and hoistway doors are entirely automatic.

b. “Automatic signal operation elevator” means an elevator that is started in response to the operation of a switch, such as a lever or pushbutton, in the car which when operated by the operator actuates a starting device that automatically closes the car and hoistway doors so that from that point on, the movement of the car to the landing selected, the leveling and holding when it gets there, and the opening of the car and hoistway doors are entirely automatic.

(12m) Forest fire fighting and prevention, timber tract and forestry service occupations, logging, sawmill, lath mill, shingle mill, or cooperage stock mill.

(a) Forest fire fighting and forest fire prevention prohibitions. No minor may be employed in any occupation in forest fire fighting and forest fire prevention, including the controlling and extinguishing of fires; wetting down of areas or extinguishing spot fires; patrolling of burned areas to assure the fire has been extinguished; piling and burning of slash; clearing of fire trails or roads; constructing, maintaining, and patrolling fire lines; acting as a fire lookout or fire patrolperson; and maintaining of firefighting equipment.

(b) Forestry service prohibitions and exemptions. No minor may be employed in any occupation in forestry service occupations, including timber cruising, surveying, or logging-engineering parties; estimating timber; timber valuation; forest pest control; and reforestation. This prohibition does not apply to any of the following:

Work in forest nurseries or establishments primarily engaged in growing trees for purposes of reforestation.
Work gathering forest products such as balsam needles, ginseng, huckleberry greens, maple sap, moss, Spanish moss, sphagnum moss, teaberries, and tree seeds.
Work at a gum farm on the distillation of gum, turpentine, or rosin and work on the extraction of pine gum.

(c) Logging prohibitions and exceptions. No minor may be employed in any occupation in logging, including the felling or bucking of timber, the collecting or transporting of logs, the operation of chain saws and other power–driven machinery, the handling or use of explosives, and work on trestles. This prohibition does not apply to any of the following:

Work in offices or in repair or maintenance shops related to logging.
Work in the construction, operation, repair, or maintenance of living and administrative quarters of logging camps.
Work in timber cruising, surveying, or logging–engineering parties; work in the repair or maintenance of roads, railroads, or flumes; or work in forest protection, such as clearing fire trails or roads, piling and burning slash, maintaining fire-fighting equipment, constructing and maintaining telephone lines, or acting as fire lookout or fire patrolperson away from the actual logging operations.
Peeling of fence posts, pulpwood, chemical wood, excelsior wood, cordwood, or similar products, when not done in conjunction with and at the same time and place as other logging occupations declared hazardous by this subsection.
Work in the feeding or care of animals related to logging.

(d) Sawmill, lath mill, shingle mill, and cooperage–stock mill prohibitions and exceptions.

No minor may be employed in any occupation in the operation of any sawmill, lath mill, shingle mill, or cooperage–stock mill.
Except as provided in subd. 3., subd. 1. does not apply to any of the following work related to any permanent sawmill or the operation of any lath mill, shingle mill, or cooper-age–stock mill:

a. Work in offices or in repair or maintenance shops.

b. Straightening, marking, or tallying lumber on the dry chain or the dry drop sorter.

c. Pulling lumber from the dry chain. This subd. 2. c. does not apply to minors under 16 years of age.

d. Clean–up in the lumberyard.

e. Piling, handling, or shipping of cooperage stock in yards or storage sheds, other than operating or assisting in the operation of power–driven equipment, except that minors under 16 years of age may not perform shipping duties.

f. Clerical work in yards or shipping sheds, such as done by orderpersons, tallypersons, and shipping clerks.

Subdivision 2. does not apply to work that involves entering the sawmill building or to a combined portable sawmill and lumberyard, the lumberyard of which is used only for the temporary storage of green lumber.

(e) Definitions. For the purpose of this subsection:

“All occupations in logging” means all work performed in connection with the felling of timber; the bucking or converting of timber into logs, poles, piles, ties, bolts, pulpwood, chemical wood, excelsior wood, cordwood, fence posts, or similar products; the collecting, skidding, yarding, loading, transporting and unloading of these products in connection with logging; the constructing, repairing and maintaining of roads, railroads, flumes, or camps used in connection with logging; the moving, installing, rigging, and maintenance of machinery or equipment used in logging; and other work performed in connection with logging. The term does not include work performed in timber culture, timber stand improvement, or in emergency fire–fighting.
“All occupations in the operation of any sawmill, lath mill, shingle mill, or cooperage–stock mill” means all work performed in or about any such mill in connection with storing of logs and bolts; converting logs or bolts into sawn lumber, laths, shingles, or cooperage stock; storing, drying, and shipping lumber, laths, shingles, cooperage stock, or other products of such mills; and other work performed in connection with the operation of any sawmill, lath mill, shingle mill, or cooperage–stock mill. The term shall not include work performed in the planing–mill department or other remanufacturing departments of any sawmill, or in any planing mill or remanufacturing plant not a part of a saw-mill.

(13) Infectious agent. No minor may be employed in any occupations or duties involving exposure to infectious agents as defined in s. 101.58 (2) (f), Stats., and specified in ch. SPS 335.

(14) Lifeguards, swimming instructors and aides. Minors 15 years of age or older may be employed as lifeguards and swimming instructors and aides if they have successfully completed a bona fide life-saving course. Minors 15 years of age may be employed as lifeguards and swimming instructors and aides if an adult employee is on the premises at which the minors are employed while the minors are employed at the premises.

Note: An example of a bona fide life-saving course is described in 29 CFR 570.34(L)(1), which refers to training that is certified by the American Red Cross, or a similar certifying organization.

(15) Liquor. No minor may be employed in establishments where liquor is present, except minors 14 to 17 years old may be employed in occupations that do not involve serving, selling, dispensing, or giving away the liquor or acting as bouncers, crowd controllers, or identification checkers.

(16) Lead. No minor may be employed in any occupation involving exposure to lead, including radiator manufacture and repair, battery manufacture and recycling, removal of lead-based paint, soldering, and welding.

(18) Meat processing.

(a) Prohibitions. No minor may be employed in any of the following occupations in or about slaughtering and meat packing establishments; rendering plants; or wholesale, retail, or service establishments:

All occupations on the killing floor, in curing cellars, and in hide cellars, except the work of messengers, runners, hand-truckers, and similar occupations that require entering such workrooms or workplaces infrequently and for short periods of time.
All occupations involved in the recovery of lard and oils, except packaging and shipping of such products and the operation of lard–roll machines.
All occupations involved in tankage or rendering of dead animals, animal offal, animal fats, scrap meats, blood, and bones into stock feeds, tallow, inedible greases, fertilizer ingredients, and similar products.
All occupations involved in setting–up, adjusting, operating, repairing, oiling, feeding, or cleaning any of the following power–driven meat–processing machines, regardless of the product being processed:

a. Meat patty forming machines.

b. Meat and bone cutting saws.

c. Power knives, except bacon–slicing machines.

d. Head–splitters and guillotine cutters.

e. Snout–pullers and jaw–pullers.

f. Skinning machines.

g. Horizontal rotary washing machines.

h. Casing–cleaning machines such as crushing, stripping, and finishing machines.

i. Grinding, mixing, chopping, and hashing machines.

j. Presses, except belly–rolling machines.

All boning occupations.
All occupations that involve the pushing or dropping of any suspended carcass, half carcass, or quarter carcass.
All occupations involving hand–lifting or hand–carrying any carcass or half carcass of beef, pork, or horse, or any quarter carcass of beef or horse.

(b) Definitions. For the purpose of this subsection:

“Boning occupations” means the removal of bones from meat cuts. “Boning” does not include work that involves cutting, scraping, or trimming meat from cuts containing bones.
“Curing cellar” includes a workroom or workplace that is primarily devoted to the preservation and flavoring of meat by curing materials. “Curing cellar” does not include a workroom or workplace where meats are smoked.
“Hide cellar” includes a workroom or workplace where hides are graded, trimmed, salted, and otherwise cured.
“Killing floor” includes a workroom or workplace where cattle, calves, hogs, sheep, lambs, goats, or horses are immobilized, shackled, or killed, and the carcasses are dressed prior to chilling.
“Rendering plants” means establishments engaged in the conversion of dead animals, animal offal, animal fats, scrap meats, blood, and bones into stock feeds, tallow, inedible greases, fertilizer ingredients, and similar products.
“Slaughtering and meat packing establishments” means places in or about which cattle, calves, hogs, sheep, lambs, goats, or horses are killed, butchered, or processed. “Slaughtering and meat packing establishments” also includes establishments that manufacture or process meat products or sausage casings from such animals and poultry slaughtering establishments.

(19) Metal-forming, punching, and shearing power–driven machines.

(a) Prohibitions. Except as provided in par. (am), no minor may be employed in any of the following occupations:

The occupations of operator of or helper on the following power–driven metal-forming, punching, and shearing machines:

a. All rolling machines, such as beading, straightening, corrugating, flanging, or bending rolls; and hot or cold rolling mills.

b. All pressing or punching machines, such as punch presses, except those provided with full automatic feed and ejection and with a fixed barrier guard to prevent the hands or fingers of the operator from entering the area between the dies; power presses; and plate punches.

c. All bending machines, such as apron brakes and press brakes.

d. All hammering machines, such as drop hammers and power hammers.

e. All shearing machines, such as guillotine or squaring shears; alligator shears; and rotary shears.

The occupations of setting–up, adjusting, repairing, oiling, or cleaning these machines including those with automatic feed and ejection.

(am) Exception. Minors 16 and 17 years of age may be employed to operate a key-cutting machine if it has a properly equipped and functioning key saw guard.

(b) Definitions. For the purpose of this subsection:

“Forming, punching, and shearing machines” means power–driven metal–working machines, other than machine tools, which change the shape of or cut metal by means of tools, such as dies, rolls, or knives which are mounted on rams, plungers, or other moving parts. Types of forming, punching, and shearing machines enumerated in this subsection are the machines to which the designation is by custom applied.
“Helper” means a person who assists in the operation of a machine covered by this subsection by helping to place materials into the machine or helping to remove them from the machine.
“Operator” means a person who operates a machine covered by this subsection by performing such functions as starting or stopping the machine, placing materials into or removing them from the machine, or any other functions directly involved in operation of the machine.

(20) Mining, other than coal.

(a) Prohibition and exceptions. No minor may be employed in any occupation in connection with mining, other than coal, except the following:

Work in offices, the warehouse or supply house, the change house, the laboratory, or in repair or maintenance shops not located underground.
Work in the operation and maintenance of living quarters.
Work outside the mine in surveying, the repair and maintenance of roads, or general clean–up about the mine property, such as clearing brush and digging drainage ditches.
Work of track crews in the building and maintaining of sections of railroad track located in those areas of open–cut metal mines where mining and hauling activities are not being conducted at the time and place that the building and maintenance work is being done.
Work in or about surface placer mining operations other than placer dredging operations and hydraulic placer mining operations.
The following work in metal mills other than in mercury–recovery mills or mills using the cyanide process:

a. Work involving the operation of jigs, sludge tables, flotation cells, or drier–filters.

b. Work of hand sorting at picking table or picking belt.

c. General clean–up work.

(b) Definitions. For the purpose of this subsection:

“All occupations in connection with mining, other than coal” means all work performed underground in mines and quarries; on the surface at underground mines and underground quarries; in or about open–cut mines, open quarries, clay pits, and sand and gravel operations; at or about placer mining operations; at or about dredging operations for clay, sand or gravel; at or about bore–hole mining operations; in or about all metal mills, washer plants, or grinding mills reducing the bulk of the extracted minerals; and at or about any other crushing, grinding, screening, sizing, washing or cleaning operations performed upon the extracted minerals except where these operations are performed as a part of a manufacturing process.
“All occupations in connection with mining, other than coal” does not include work performed in subsequent manufacturing or processing operations, such as work performed in smelters, electro–metallurgical plants, refineries, reduction plants, cement mills, plants where quarried stone is cut, sanded and further processed, or plants manufacturing clay, glass or ceramic products. The term does not include work performed in connection with coal mining, in petroleum production, in natural gas production, nor in dredging operations which are not a part of mining operations, such as dredging for construction or navigation purposes.

Note: For restrictions on minors working in any occupation in or about a coal mine, see sub. (8).

(21) Motor vehicle driver and outside helper.

(a) Prohibition. Except as provided in par. (b), no minor may be employed as a motor vehicle driver or outside helper on any public road; highway; in or about a mine, including an open pit mine or quarry; in a place where logging or sawmill operations are in progress; or in any excavation of the type identified in sub. (9).

(b) Exception-incidental and occasional driving by 17-year-olds. Minors who are at least 17 years of age may drive motor vehicles on public roadways when all of the following conditions are met:

The driving is only occasional and incidental to the minor’s employment.
The driving is restricted to daylight hours.
The driving takes place within a 30-mile radius of the minor’s place of employment.
The motor vehicle does not exceed 6,000 pounds gross vehicle weight.
The minor has completed a state-approved driver education course and holds a state license valid for the type of driving involved in the job that the minor performs.
The minor has no record of any moving violation at the time of hire.
The motor vehicle is equipped with a seat belt for the driver and for each passenger, and the minor’s employer has instructed each minor that the seat belts must be used when driving or riding in the motor vehicle.
The driving does not involve any of the following:

a. Towing of vehicles.

b. Route deliveries or route sales.

c. Transportation for hire of property, goods, or passengers.

d. Urgent, time-sensitive deliveries.

e. Transporting at any one time more than 3 passengers, including employees of the employer.

f. More than two trips away from the primary place of employment in any single day for the purpose of delivering goods of the minor’s employer to a customer.

“Driver” means any individual who, in the course of their employment, drives a motor vehicle at any time.
“Gross vehicle weight” includes the truck chassis with lubricants, water and full tank or tanks of fuel, plus the weight of the cab or driver’s compartment, body, and special chassis and body equipment, and payload.
“Motor vehicle” means any automobile, truck, truck–tractor, trailer, semi-trailer, motorcycle, all-terrain vehicle, or similar vehicle propelled or drawn by mechanical power and designed for use as a means of transportation but does not include any vehicle operated exclusively on rails.
“Occasional and incidental” means no more than one-third of an employee’s work time in any workday and no more than 20 percent of an employee’s work time in any work week.
“Outside helper” means any individual, other than a driver, whose work includes riding on a motor vehicle outside the cab for the purpose of assisting in transporting or delivering goods.

(22) Paper–products machines.

(a) Prohibition. Except as provided in par. (c), no minor may be employed in any occupations involved in the operating, assisting to operate, setting up, adjusting, repairing, oiling, or cleaning any of the following power-driven paper-products machines:

Arm-type wire stitcher or stapler, circular or band saw, corner cutter or mitering machine, corrugating and single-or-double-facing machine, envelope die-cutting press, guillotine paper cutter or shear, horizontal bar scorer, laminating or combing machine, sheeting machine, scrap paper baler, paper box compactor, vertical slotter, or any other similar baler or compactor devices, including those not designed or used to process paper.
Platen die–cutting press, platen printing press, or punch press that involves hand feeding of the machine.

(b) Definitions. For the purpose of this subsection:

“Applicable ANSI Standard” means the American National Standard Institute’s Standard ANSI Z245.5-1990 for scrap paper balers or the American National Standard Institute’s Standard ANSI Z245.2-1992 for paper box compactors or any replacement standard adopted by the American National Standard Institute that the federal Secretary of Labor has certified to be at least as protective of the safety of minors as Standard ANSI Z245.5-1990 for scrap paper balers or ANSI Z245.2-1992 for paper box compactors.

Note: The ANSI standards for scrap paper balers and paper box compactors govern the manufacture and modification of the equipment, the operation and maintenance of the equipment, and employee training. Copies of these standards are available for purchase from the American National Standards Institute (ANSI), 1180 Avenue of the Americas, 10th Floor, New York, NY 10036; telephone (212) 642-4980; or web site at https://www.ansi.org/.

“Operating or assisting to operate” means all work which involves starting or stopping a machine covered by this subsection, placing materials into or removing materials from a machine, including clearing a machine of jammed paper or cardboard, or any other work directly involved in operating the machine. The term does not include the stacking of materials by an employee in an area nearby or adjacent to the machine where the employee does not place the materials into the machine.
“Paper box compactor” means a powered machine that remains stationary during operation, used to compact refuse, including paper boxes, into a detachable or integral container or into a transfer vehicle.
“Paper products machine” means all power-driven machines used in all of the following:

a. Remanufacturing or converting paper or pulp into a finished product, including preparing these materials for recycling.

b. Preparing paper or pulp materials for disposal. The term applies to these machines whether they are used in establishments that manufacture converted paper or pulp products, or in any other type of manufacturing or nonmanufacturing establishment. The term applies to those machines which, in addition to paper products, also process other material for disposal.

“Scrap-paper baler” means a powered machine used to compress paper and possibly other solid waste, with or without binding, to a density of form that will support handling and transportation as a material unit without requiring a disposable or reusable container.

(c) Exemption. Sixteen- and 17-year-old minors may load materials into, but not operate or unload, a scrap paper baler or a paper box compactor only if all of the following conditions are met:

The scrap paper baler or paper box compactor meets the applicable ANSI standard.
The scrap paper baler or paper box compactor includes an on-off switch incorporating a key-lock or other system and the control of the system is maintained in the custody of employees who are 18 years of age or older.
The on-off switch of the scrap paper baler or paper box compactor is maintained in an off position when the machine is not in operation.
The employer posts a notice on the scrap paper baler or paper box compactor in a prominent position and easily visible to any person loading, operating, or unloading the machine stating that: “The scrap paper baler or compactor meets the industry safety standard applicable to the machine, Standard ANSI Z245.5-1990 for scrap paper balers and Standard ANSI Z245.2-1992 for paper box compactors. Sixteen- and 17-year-old employees may only load the scrap paper baler or paper box compactor. No employee under the age of 18 may operate or unload the scrap paper baler or paper box compactor.”

(23) Radioactive substances and ionizing radiations.

(a) Prohibition. No minor may be employed in occupations involving exposure to radioactive substances and to ionizing radiations in any workroom in which any of the following occurs:

Radium is stored or used in the manufacture of a self–luminous compound.
A self–luminous compound is made, processed, or packaged.
A self–luminous compound is stored, used, or worked upon.
Incandescent mantles are made from fabric and solutions containing thorium salts or are processed or packaged.
Other radioactive substances are present in the air in average concentrations exceeding 10% of the maximum permissible concentrations in the air recommended for the occupational exposure by the National Council on Radiation Protection and Measurements.

Note: For further information, contact the National Council on Radiation Protection and Measurements by telephone at (301) 657-2652 or web site at https://ncrponline.org/ or at 7910 Woodmont Avenue, Suite 905, Bethesda, MD 20814-3046.

Any other work that involves exposure to ionizing radiations in excess of 0.5 rem per year.

(b) Definitions. For the purpose of this subsection:

“Ionizing radiations” means alpha and beta particles, electrons, protons, neutrons, gamma and X–ray and all other radiations which produce ionizations directly or indirectly, but does not include electromagnetic radiations other than gamma and X–ray.
“Rem” means the dosage of an ionizing radiation that will cause the same biological effect as one roentgen of x-ray or gamma-ray exposure.
“Self–luminous compound” means any mixture of phosphorescent material and radium, mesothorium, or other radioactive element.
“Workroom” includes the entire area bounded by walls of solid material and extending from floor to ceiling in which the work involving exposure to radioactive substances and to ionizing radiations listed in par. (a) is performed.

(24) Roofing or on or about a roof.

(a) Prohibition. No minor may be employed in roofing operations or on or about a roof.

(b) Definitions. For the purpose of this subsection:

“On or about a roof” includes all work performed upon a roof, including carpentry and metal work, alterations, additions, maintenance and repair, including painting and coating of existing roofs; the construction of the sheathing or base of roofs; gutter and downspout work; the installation and servicing of television and communication equipment such as cable and satellite dishes; the installation and servicing of heating, ventilation and air conditioning equipment or similar appliances attached to roofs; and any similar work that is required to be performed upon or about roofs.
“Roofing operations” means all work performed in connection with the installation of roofs, including related metal work such as flashing, and applying weatherproofing materials and substances, such as waterproof membranes, tar, slag or pitch, asphalt prepared paper, tile, composite roofing materials, slate, metal, translucent materials, and shingles of asbestos, asphalt or wood or other materials, to roofs of buildings or other structures. The term also includes all jobs on the ground related to roofing operations, such as roofing laborer, roofing helper, materials handler, and tending a jar heater.

(25) Saws and guillotine shears.

(a) Prohibition. No minor may be employed in any of the following occupations:

The occupations of operator of or helper on the following power–driven fixed or portable machines, except machines equipped with full automatic feed and ejection.

a. Circular saws.

b. Band saws.

c. Guillotine shears.

d. Chain saws, reciprocating saws, wood chippers, and abrasive cutting discs.

The occupations of setting up, adjusting, repairing, oiling, or cleaning the machines listed in subd. 1. a. to d.

(b) Definitions. For the purpose of this subsection:

“Band saw” means a machine equipped with an endless steel band having a continuous series of notches or teeth, running over wheels or pulleys, and used for sawing materials.
“Chain saw” means a machine equipped with an endless steel chain having a continuous series of notches or teeth, running over wheels or pulleys, and used for sawing materials.
“Circular saw“ means a machine equipped with a thin steel disc having a continuous series of notches or teeth on the periphery, mounted on shafting, and used for sawing materials.
“Guillotine shear” means a machine equipped with a movable blade operated vertically and used to shear materials. “Guillotine shear” does not include other types of shearing machines, using a different form of shearing action, such as alligator shears or circular shears.
“Helper” means a person who assists in the operation of a machine covered by this subsection by helping to place materials into or helping to remove them from the machine.
“Machines equipped with full automatic feed and ejection” means machines covered by this subsection that are equipped with devices for full automatic feeding and ejection and with a fixed barrier guard to prevent completely the operator or helper from placing any part of his body in the point–of–operation area.
“Operator” means a person who operates a machine covered by this subsection by performing such functions as starting or stopping the machine, placing materials into or removing them from the machine, or any other functions directly involved in the operation of the machine.

(26) Strikes and lockouts. No minor may be employed in any occupations or activities, including picketing, performed in or on the premises of any establishment where a strike or lockout is in active progress.

(27) Woodworking power–driven machines.

(a) Prohibition. No minor may be employed in any of the following occupations involved in the operation of power–driven woodworking machines:

The occupation of operating power–driven woodworking machines, including supervising or controlling the operation of these machines, feeding material into these machines, and helping the operator to feed material into these machines but not including the placing of material on a moving chain or in a hopper or slide for automatic feeding.
The occupations of setting up, adjusting, repairing, oiling, or cleaning power–driven woodworking machines.
The occupations of off–bearing from circular saws and from guillotine–action veneer clippers.

(b) Definitions. For the purpose of this subsection:

“Off–bearing” means the removal of material or refuse directly from a saw table or from the point of operation. “Off-bearing” does not include any of the following:

a. The removal of material or refuse from a circular saw or guillotine–action veneer clipper where the material or refuse has been conveyed away from the saw table or point of operation by a gravity chute or by some mechanical means such as a moving belt or expulsion roller.

b. The following operations when they do not involve the removal of material or refuse directly from a saw table or from the point of operation: the carrying, moving, or transporting of materials from one machine to another or from one part of a plant to another; the piling, stacking, or arranging of materials for feeding into a machine by another person; and the sorting, tying, bundling, or loading of materials.

“Power–driven woodworking machines” means all fixed or portable machines or tools driven by power and used or designed for cutting, shaping, forming, surfacing, nailing, stapling, wire stitching, fastening, or otherwise assembling, pressing, or printing wood or veneer.

(28) Wrecking, demolition, and shipbreaking.

(a) Prohibition. No minor may be employed in any occupation in wrecking, demolition, and ship-breaking operations.

(b) Definition. For the purpose of this subsection, the term “wrecking, demolition, and ship-breaking operations” means all work, including clean–up and salvage work, performed at the site of the total or partial razing, demolishing, or dismantling of a building, bridge, steeple, tower, chimney, other structure, ship or other vessel, or motor vehicle.

History

CR 04-010: cr. Register November 2004 No. 587, eff. 12-1-04; correction in (2) (b) 2. (intro.) made under s. 13.92 (4) (b) 7., Stats; correction in (13) made under s. 13.92 (4) (b) 7., Stats., Register February 2012 No. 674; correction in (2) (b) 2. (intro.) made under s. 13.92 (4) (b) 7., Stats., Register December 2018 No. 756; CR 25-016: am. (2) (a), (b) 1., renum. (4) to (4) (am) and, as renumbered, am. (4) (am) (intro.), cr. (4) (am) (title), (bm), am. (5), (6) (a) (title), (7) (b), (11) (c) 1., cr. (12) (a) 4., am. (12) (b) 4., cr. (12m) (a), (b), am. (14), renum. (17) (title), (a) to (c) to (12m) (title), (c) to (e) and, as renumbered, am. (title), (c) 3., (d) 2. c., e., am. (18) (b) 1., 6., (19) (a) (intro.), cr. (19) (am), am. (21) (b) 8. e., (21) (c) 3., (22) (a) (intro.), 1., (23) (a) 4., (25) (a) 1. d. Register May 2026 No. 845, eff. 6-1-26.

Wis. Admin. Code § DWD 270.13 Hazardous employment prohibited to minors under 16 years of age {#sec-dwd-270.13 omnilex-key=us-wi-regs-official--agency-dwd--DWD 270.13}

The employment of minors under 16 years of age in the following occupations or places of employment shall be deemed to be dangerous or prejudicial to the life, health, safety, or welfare of the minor and other employees or frequenters, except as provided in s. DWD 270.14. No employer may employ or permit a minor under 16 years of age to work in the following occupations or places of employment:

(1) Airports. No minor under 16 years of age may be employed in or about a landing strip or taxi or maintenance apron at an airport.

(2) Boiler and engine rooms. No minor under 16 years of age may be employed in a boiler or engine room.

(3) Cars and trucks. No minor under 16 years of age may be employed in connection with cars and trucks, including work involving the use of pits, racks or lifting apparatus, or involving the inflation of any tire mounted on a rim equipped with a removable retaining ring, and excluding work by a minor 14 years of age or over in dispensing gasoline and oil, courtesy service, car cleaning, and washing and polishing.

(4) Communications and public utilities. No minor under 16 years of age may be employed in an occupation in connection with communications and public utilities, except for office or sales work.

(5) Construction. No minor under 16 years of age may be employed in an occupation in connection with construction, including demolition and repair, except for office or sales work not at the actual construction site.

(6) Farming.

(am) Prohibitions. Except as provided in par. (c), no minor under 16 years of age may be employed in any of the following occupations in farming:

Operating or assisting in the operation of machinery, including farm type tractors and other self-propelled vehicles, except those minors trained under either the 4-H federal extension service or the U.S. office of education vocational agriculture training programs may work on equipment permitted by their certificate of training.
Any occupation in farming that the U.S. secretary of labor finds and declares to be particularly hazardous for the employment of minors below the age of 16.

Note: See 29 CFR 570.71.

(7) Freezers and meat coolers. No minor under 16 years of age may be employed in a freezer or meat cooler or any work in the preparation of meats for sale, except minors 14 years of age and over may be employed in wrapping, sealing, labeling, weighing, pricing, and stocking goods when performed in areas separate from a freezer or meat cooler or other work preparing meats for sale.

(8) Gun clubs. No minor under 16 years of age may be employed as a skeet and trap loader at a gun club.

(9) Hospitals and nursing homes. No minor under 16 years of age may be employed in occupations that involve the personal care of patients in hospitals or nursing homes.

(10) Kitchen work. No minor under 16 years of age may be employed in an occupation involving cooking unless with direct adult supervision, except a minor 14 years of age and over may be employed in kitchen work involved in preparing and serving food and beverages without adult supervision, including the use of dishwashers, toasters, dumbwaiters, microwaves, popcorn poppers, blenders, automatic coffee machines, and devices used to maintain the temperature of prepared foods such as warmers, steam tables, and heat lamps.

(11) Ladders. No minor under 16 years of age may work on a ladder, scaffold, or similar device more than 6 feet high.

(12) Loading and unloading. No minor under 16 years of age may be employed in loading and unloading goods to and from trucks, railroad cars, or conveyors.

(13) Manufacturing, mining, or processing occupations. No minor under 16 years of age may be employed in manufacturing, mining, or processing occupations, including occupations that require the performance of any duties in workrooms or workplaces where goods are manufactured, mined, or otherwise processed.

(14) Motor vehicle lift. No minor under 16 years of age may operate a motor vehicle lift of any type or work in a pit underneath a motor vehicle.

(15) Power-driven machinery.

(a) No minor under 16 years of age may be employed in occupations that involve operating or assisting in the operation of any light power–driven machinery, except as provided in par. (c).

(b) For purposes of this subsection, the term “power-driven machinery” includes all of the following:

Drill presses; grinder wheels; lathes; portable power–driven machinery, such as drills and sanders; and floor maintenance equipment, such as polishers and scrubbers.
Welding, including spot welding in manufacturing operations.
Tending of hoisting apparatus.
Lawn and garden equipment, including power–driven mowers or cutters and sidewalk-type snow blowers.

Lawn and garden equipment used in and around the private home of the employer that is not in connection with the employer’s trade or business.
Lawn and garden equipment used by students in a bona fide student learner program.
Office machines.
Operating, but not cleaning or repairing, a photo-processing machine with an automatic feed.
For minors 14 years of age and over, vacuum cleaners and floor waxers.
For minors 14 years of age and over, machines and devices used in the performance of kitchen work as provided in sub. (10).

(16) Public messenger service. No minor under 16 years of age may be employed in delivery work for a public messenger service.

(17) Racetracks and fairs with pari–mutuel betting. No minor under 16 years of age may be employed at a racetrack not at a fair. No minor under the age of 16 years may be employed in any employment at a fair in any pari-mutuel wagering activity.

Note: See s. 562.06 (2), Stats.

(18) Street carnivals and traveling shows. No minor under 16 years of age may be employed in an occupation in connection with street carnivals and traveling shows.

(19) Transportation. No minor under 16 years of age may be employed in an occupation in connection with the transportation of persons or property by rail, highway, air, water, pipeline, or other means, except for office or sales work that does not involve the performance of any duties on trains, motor vehicles, aircraft, vessels, or other forms of transportation.

(20) Warehousing and storage. No minor under 16 years of age may be employed in an occupation in connection with warehousing and storage, except for office or sales work.

(21) Window washing. No minor under 16 years of age be employed to perform outside window washing working from window sills or requiring the use of a ladder more than 6 feet high, any scaffold, or their substitutes.

History

CR 04-010: cr. Register November 2004 No. 587, eff. 12-1-04; CR 26-015: renum. (6) (intro.), (a), (b) to (6) (am) and, as renumbered, am. (6) (am) (intro.), 1., cr. (6) (c), renum. (17) (intro.) to (17) and am., r. (17) (a), (b) Register May 2026 No. 845, eff. 6-1-26.

Wis. Admin. Code § DWD 270.14 Exemptions to hazardous employment prohibitions {#sec-dwd-270.14 omnilex-key=us-wi-regs-official--agency-dwd--DWD 270.14}

Sections DWD 270.12 or 270.13 shall not apply to a minor 14 through 17 years of age when employed under the following conditions:

(1) Apprentice. A minor 16 years of age or over shall be exempt from the prohibitions in ss. DWD 270.12 or 270.13 if the minor is performing service within the provisions of an apprenticeship contract under s. 106.01, Stats., that is approved by the department.

(2) High school graduate. A minor who has graduated from high school or passed the general education development test may be employed in the occupations otherwise prohibited under s. DWD 270.12 except the following:

(a) Section DWD 270.12 (4), Bakery machines.

(b) Section DWD 270.12 (6), Brick, tile, and similar products.

(d) Section DWD 270.12 (11), Explosives.

(e) Section DWD 270.12 (12), Hoists and hoisting apparatus.

(f) Section DWD 270.12 (12m), Forest fire fighting and prevention, timber tract and forestry service occupations, logging, sawmill, lath mill, shingle mill, or cooperage stock mill.

(g) Section DWD 270.12 (18), Meat processing.

(h) Section DWD 270.12 (19), Metal forming, punching and shearing power-driven machines.

(i) Section DWD 270.12 (20), Mining, other than coal.

(j) Section DWD 270.12 (21), Motor vehicle driver and outside helper.

(k) Section DWD 270.12 (22), Paper-products machines.

(L) Section DWD 270.12 (23), Radioactive substances and ionizing radiations.

(m) Section DWD 270.12 (25), Saws and guillotine shears.

(n) Section DWD 270.12 (27), Woodworking power-driven machines.

(o) Section DWD 270.12 (28), Wrecking, demolition, and shipbreaking.

Note: This subsection does not exempt high school graduates or minors who have passed the general educational development (GED) test from the permit requirement in s. DWD 270.05.

(3) Student learner.

(a) Except as provided in par. (f), a student learner shall be exempt from the prohibitions in ss. DWD 270.12 and 270.13 if the student learner is performing service within a bona fide school–work training program sponsored by an accredited school and authorized and approved by the state department of public instruction, the technical college system board, or the department’s youth apprenticeship program.

(b) For the purpose of this subsection, a student learner is a student of an accredited school who is employed on a part–time basis to obtain both scholastic credit and employment training under a bona fide written school–work training program agreement.

(c) Each school–work training agreement shall contain the name of the student learner; shall be signed by the parent, employer, and school principal; shall be kept on file by both the school and the employer; and shall provide all of the following:

That the work of the student learner in the occupations declared hazardous under ss. DWD 270.12 and 270.13 is incidental to the student learner’s training, and shall be intermittent and only for short periods of time.
That the work shall be under the direct and close supervision of a qualified and experienced person.
That safety instructions will be given by the school and correlated by the employer with on–the–job training.
A schedule of organized and progressive work processes to be performed on the job.

(e) The department may revoke the exemption under this subsection in a particular place of employment if the department finds that reasonable precautions have not been observed for the safety of a minor employed under a school–work training program agreement.

(f) A student learner may be employed in the occupations otherwise prohibited under ss. DWD 270.12 and 270.13 except the following:

Section DWD 270.12 (4) Bakery machines.
Section DWD 270.12 (6) Brick, tile, and similar products.
Section DWD 270.12 (8) Coal mine.
Section DWD 270.12 (11) Explosives.
Section DWD 270.12 (12) Hoists and hoisting apparatus.
Section DWD 270.12 (12m) Forest fighting and prevention, timber tract and forestry service occupations, logging, sawmill, lath mill, shingle mill, or cooperage stock mill.
Section DWD 270.12 (20) Mining, other than coal.
Section DWD 270.12 (21) Motor vehicle driver and outside helper.
Section DWD 270.12 (23) Radioactive substances and ionizing radiations.
Section DWD 270.12 (26) Strikes and lockouts.
Section DWD 270.12 (28) Wrecking, demolition, and shipbreaking.
Section DWD 270.13 (8) Gun clubs.
Section DWD 270.13 (13) Manufacturing, mining, or processing occupations.

History

CR 04-010: cr. Register November 2004 No. 587, eff. 12-1-04; CR 26-015: am. (1), (2) (f), (j), (3) (c) 1., r. (3) (d), am. (3) (f) 6. Register May 2026 No. 845, eff. 6-1-26; correction in (3) (f) 1. to 13. made under s. 35.17, Stats., Register May 2026 No. 845.

Wis. Admin. Code § DWD 270.15 Employment of minors in farming {#sec-dwd-270.15 omnilex-key=us-wi-regs-official--agency-dwd--DWD 270.15}

(1) Except as provided in sub. (3), no minor under 12 years of age may be employed or permitted to work in farming.

(2) The presence of a minor under 12 years of age at the place where a parent or guardian is employed in farming, if merely for the purpose of supervision by the parent or guardian, is not prohibited by this section.

(3) Sections 103.64 to 103.82, Stats., and this chapter do not apply to the employment of a minor engaged in farm work performed outside school hours in connection with the minor’s own home farm and directly for his or her parent or guardian, or on another farm, with the consent of minor’s parent or guardian where the farm work is primarily an exchange of labor with another farmer.

History

CR 04-010: cr. Register November 2004 No. 587, eff. 12-1-04; CR 26-015: am. (1), (2) Register May 2026 No. 845, eff. 6-1-26.

Wis. Admin. Code § DWD 270.17 Caddies on golf courses {#sec-dwd-270.17 omnilex-key=us-wi-regs-official--agency-dwd--DWD 270.17}

(1) Any minor on a golf course for the purpose of caddying for or while caddying for a person permitted to play golf on the course shall be deemed an employee of the golf club or other person, partnership, association, or corporation, including the state and any municipal corporation or other political subdivision thereof, operating the golf course.

(2) A minor labor permit issued by the department or a permit officer allowing a minor to be employed as a caddy by the golf club named in the permit shall be deemed to allow the employment of the minor named in the permit as a caddy by the golf club on whose course inter–club matches, inter–service club matches, or special events for non-members are being held during the duration of the matches or events if the club on whose course the matches or events are being held secures from the club to whom the permit or permits were issued a list of the caddies transferred before the club employs the caddies. This list shall contain the name, address, and date of birth of each minor transferred, together with the date of issuance of the permit, the name of the golf club to which it was issued, and the name of the golf club to which the minor was transferred. The golf club to which the permit or permits were issued shall keep on file at the club a duplicate of the list. The golf club to which the caddy or caddies are transferred shall add to the list the dates the club employed each minor named in the list and shall keep the list on file at the club.

History

CR 04-010: cr. Register November 2004 No. 587, eff. 12-1-04; CR 26-015: am. (2) Register May 2026 No. 845, eff. 6-1-26.

Wis. Admin. Code § DWD 270.18 Volunteer service {#sec-dwd-270.18 omnilex-key=us-wi-regs-official--agency-dwd--DWD 270.18}

(1) A minor may volunteer services for a nonprofit organization with the written consent of the minor’s parent and under the supervision of a responsible adult.

(2) No minor may volunteer in an occupation or place of employment deemed dangerous or prejudicial to the life, health, safety or welfare of the minor or other employees or frequenters as specified in ss. DWD 270.12 and 270.13.

(3) The organization for which the volunteer is serving shall provide insurance for on-duty injuries that may occur to the volunteer.

Note: The department recommends that organizations obtain liability coverage to protect the volunteer in the event that the volunteer causes an injury to a third party.

(4) Minor volunteers may not be used to replace a paid employee.

(5) In this section, “volunteer service” includes service to a nonprofit organization under the graduation requirements of a school or school district.

History

CR 04-010: cr. Register November 2004 No. 587, eff. 12-1-04; CR 26-015: am. (3) Register May 2026 No. 845, eff. 6-1-26.

Wis. Admin. Code § DWD 270.19 Student worklike activities {#sec-dwd-270.19 omnilex-key=us-wi-regs-official--agency-dwd--DWD 270.19}

(1) Specific allowable activities. A student may perform worklike activities in his or her own elementary or secondary school, with or without compensation, which shall not constitute employment if all of the following conditions are met:

(a) The student helps in the school lunchroom or cafeteria, cleans a classroom, acts as a hall monitor, or performs minor clerical work in the school office or library.

(b) The student may perform the activities listed in par. (a) for periods of one hour or less on days that school is in session. The student may perform the activities listed in par. (a) for longer periods on days that school is not in session but may not perform the activities for longer hours on more than four consecutive days. The annual total time that the student performs the activities listed in par. (a) shall not exceed the equivalent of one hour per school day in any school year as defined in s. 115.001 (13), Stats.

(d) The student does not displace a regular employee or reduce previously existing employment opportunities by performing work that would otherwise be performed by regular employees.

(2) Conditions for other student worklike activities. A student may perform worklike activities, other than those listed in sub. (1) (a), in his or her own elementary or secondary school, with or without compensation, which shall not constitute employment if all of the following conditions are met:

(a) The primary purpose is educational and the activity is conducted primarily for the benefit of the student.

(b) The time in attendance at school plus the time spent at the activity does not exceed the time that the student would be required to attend school under a normal academic schedule by more than one hour per day.

(d) The student does not displace a regular employee or reduce previously existing employment opportunities by performing work that would otherwise be performed by regular employees.

History

CR 04-010: cr. Register November 2004 No. 587, eff. 12-1-04; CR 26-015: am. (1) (b) Register May 2026 No. 845, eff. 6-1-26.

Wis. Admin. Code § DWD 270.20 Street trades {#sec-dwd-270.20 omnilex-key=us-wi-regs-official--agency-dwd--DWD 270.20}

(1) Definitions. In this section:

(a) “Day” means a calendar day.

(b) “Week” means a calendar week or a regular reoccurring period of 168 hours in the form of 7 consecutive calendar days.

(2) Identification. The identification card as provided in s. 103.25, Stats., shall be required for minors employed in street trades. No charge shall be made for the identification cards.

(3) Meal periods. At least 30 minutes shall be allowed for each meal period reasonably close to the usual meal period time. In no case shall a minor under 18 years of age be employed or permitted to work more than 6 consecutive hours without a meal period.

(4) Hours of work and time of day of work.

(a) Minors under 12 years of age may work in a fundraising sale for a non-profit organization, a public or private school. Minors under 12 years of age must submit written approval from their parent or guardian to the non-profit organization, public or private school. Each minor or group of minors under 9 years of age must be physically accompanied by a parent or person at least 16 years of age.

(b) No minor under 16 years of age shall be employed or permitted to work at any street trade more than 6 days per week except for the delivery of newspapers; 4 hours per day, except 8 hours per day on Fridays, Saturdays, Sundays and other non-school days, 18 hours per calendar week while their respective school is in session, or 24 hours per calendar week while their respective school is in session less than 5 days per week or 40 hours per week during non-school weeks, nor before 7:00 a.m. except for the delivery of newspapers 5:00 a.m., nor after 8:00 p.m. on days preceding school days and not later than 9:00 p.m. on days not preceding school days.

(c) Hours worked as part of a work experience program during school hours will not count as part of the total permitted hours of work per day or per week.

(d) Minors 16 and 17 years of age must receive overtime as provided under the employer’s pay plan to other workers, but in no case shall the payment be less than time and one-half their regular rate of pay for all overtime hours worked over 10 hours per day or over 40 hours per week whichever is greater.

(e) Minors may not be employed during the hours they are required to attend school under s. 118.15, Stats., nor contrary to local curfew ordinances establishing an earlier restriction.

(f) In court ordered restitution or community services programs, minors under 14 years of age may be employed as participants in a restitution project as provided under s 103.67 (2) (j), Stats.

(5) Higher standards. Nothing in this section shall authorize noncompliance with any federal or state law, regulation, or municipal ordinance establishing a higher standard. If more than one standard within the Wisconsin Administrative Code applies to a single activity, the higher standard shall be applicable.

(6) Requirements to obtain a street trades permit. When a street trades permit is required for a minor under 16 years of age under s. 103.25, Stats., the permit shall be issued by the department or a permit officer when the following is presented to the department or permit officer on a form established by the department:

(a) Proof of age as provided in s. DWD 270.07.

(b) The minor's bona fide offer of employment from the employer, including the job duties, hours of work, and time of day the minor will be working.

Note: See s. 103.805, Stats., for instruction of payment of fees for street trades permits.

(7) Permit and identification card. The department or permit officer shall issue a street trades permit and identification card on forms furnished by the department. The department or permit officer shall provide the permit original to the employer and identification card to the minor. The department or permit officer shall retain a copy of the permit and provide copies of the permit to the minor and the school district that the minor attends, if the school district is in this state. If a permit officer issues the street trades permit, the permit officer shall provide a copy to the department.

(8) Revocation or suspension of permits.

(a) The department may revoke or suspend any permit whenever the permit has been improperly or illegally issued, or the physical, moral welfare or the best interest of the minor would be served by revocation or suspension.

(b) The department may revoke or suspend any permit if requested in writing by the school principal or the minor’s parent or guardian who has legal custody of the minor or the court-ordered foster parent while the minor is under their care and supervision. The requesting party shall demonstrate some attempt has taken place to resolve the work problem between the minor, school, parent or guardian and employer before the request for revocation or suspension is made to the department.

History

CR 26-015: cr. (title), (1) (intro.), renum. (1) (a), (b), (2), (3), (4) (title), (a), (b), (c), (d), (e), (f), (5), (8) from DWD 271.04 (8), (9), 271.01, 271.03, 271.04 (title), (1), (2), (4), (5), (6), (10), 271.05, 271.08 and, as renumbered, am. (4) (d) to (f), (5), (8) (b) Register May 2026 No. 845, eff. 6-1-26; renumbered (6) (a) to (6) under s. 13.92 (4) (b) 1., Stats., Register May 2026 No. 845.

Chapter DWD 272 MINIMUM WAGES

Wis. Admin. Code § DWD 272.001 Declaration of policy {#sec-dwd-272.001 omnilex-key=us-wi-regs-official--agency-dwd--DWD 272.001}

(1) The department, in fulfilling its statutory mandate, has caused extensive studies to be made relative to the consideration of a “living wage” and how the wage should be computed. The concept of “cost of living” and “living wage” is very complex because of the many variables. Any single concept is difficult to apply because of different assumptions, techniques and local conditions.

(2) The rates adopted in this chapter reflect compensation that has been determined to be adequate to permit any employee to maintain herself or himself in minimum comfort, decency, physical and moral well-being. The department has also considered the effect that an increase in the living-wage might have on the economy of the state, including the effect of a living-wage increase on job creation, retention and expansion, on the availability of entry-level jobs and on regional economic conditions within the state.

(6) Room allowances shall be computed on the basis of 20% of the prescribed minimum rate for employees based on a 40 hour week, rounded off to the nearest 5 cents.

(7) Meal allowance shall be computed on the basis of 30% of the prescribed minimum rate for employees based on a 40 hour week, rounded off to the nearest 5 cents.

History

Cr. Register, July, 1978, No. 271, eff. 8-1-78; am (5) (a), Register, March, 1990, No. 411, eff. 4-1-90; r. (2), renum. (3) to be (2), cr. (3), Register, February, 1992, No. 434, eff. 3-1-92; am. (2), Register, February, 1996, No. 482, eff. 3-1-96; corrections made under s. 13.93 (2m) (b) 7., Stats., Register, February, 1996, No. 482; r. (3), (4) and (5), Register, May, 1997, No. 497, eff. 6-1-97.

Wis. Admin. Code § DWD 272.01 Definitions {#sec-dwd-272.01 omnilex-key=us-wi-regs-official--agency-dwd--DWD 272.01}

As used in this chapter:

(1) “Agriculture” will mean the same as “farm premises” as defined in s. 102.04 (3), Stats., of the worker’s compensation act.

(2) “Bona fide school training program” means a program sponsored by an accredited school and authorized and approved by the state department of public instruction or the board of vocational, technical and adult education or other recognized educational body and provides for part-time employment training which may be scheduled for a part of the workday or workweek, supplemented by and integrated with a definitely organized plan of instruction and where proper scholastic credit is given by the school.

(3) A “bona fide vocational training program” is one authorized and approved by the state board of vocational, technical and adult education or other recognized educational body and provides for part-time employment training which may be scheduled for a part of the workday or workweek, for alternating weeks or for other limited periods during the year, supplemented by and integrated with a definitely organized plan of instruction designed to teach technical knowledge and related to industrial information given as a regular part of a student learner’s course by an accredited school, college or university.

(4) “Department” means the department of workforce development.

(5)

(a) The term “employer” shall mean and include every person, firm or corporation, agent, manager, representative, contractor, subcontractor or principal, or other person having control or direction of any person employed at any labor or responsible directly or indirectly for the wages of another.

(b) The term “employer” shall also include any person, partnership, or corporation engaged in the processing of cucumbers into pickles, who is responsible directly or indirectly for the wages paid for the services of “workers” engaged in the harvesting of cucumbers providing:

That the processor or the processor’s agent directly or indirectly pays each “worker” performing services in the harvesting of cucumbers or,
That the processor or the processor’s agent has the right (whether exercised or not) to terminate the services of the “worker” or to transfer a worker’s services from one grower to another.

(8) “Industry” means a trade, business, industry, or branch thereof, or group of industries in which individuals are gainfully employed.

(9) A “minor” shall mean any person under 18 years of age.

(9m) “Minor employee” means a minor who is paid at the applicable minor minimum wage rate.

(10) “Month” means 30 days.

(11) “Opportunity employee” means an employee who is not yet 20 years old, during the first 90 consecutive days after the employee is initially employed by the employer.

(12) “Tipped employee” means any employee engaged in an occupation in which they customarily and regularly receive tips or gratuities from patrons or others.

History

Cr. Register, July, 1978, No. 271, eff. 8-1-78; cr. (15), Register, August, 1987, No. 380, eff. 9-1-87; cr. (16), Register, June, 1989, No. 402, eff. 7-1-89; renum. (3) to (16) to be (4) to (9), (12), (15), (13), (17), (3), (16), (14) and (11) and am. (11), cr. (10), Register March, 1990, No. 411, eff. 4-1-90; r. (6) and (7), Register, February, 1992, No. 434, eff. 3-1-92; renum. (12) to (17) to be ILHR 272.09 (1) (g), (h), (j), (k), ILHR 272.01 (12) and ILHR 272.09 (1) (m), Register, February, 1996, No. 482, eff. 3-1-96; am. (4) and r. (11), Register, May, 1997, No. 497, eff. 6-1-97; emerg. cr. (11), eff. 5-31-97; cr. (11), Register, September, 1997, No. 501, eff. 10-1-97; emerg. cr. (9m) eff. 6-1-05; CR 05-056: cr. (9m) Register August 2005 No. 596, eff. 11-1-05.

Wis. Admin. Code § DWD 272.02 Applicability of orders {#sec-dwd-272.02 omnilex-key=us-wi-regs-official--agency-dwd--DWD 272.02}

The rates prescribed in this chapter shall apply to all employees, including indentured apprentices, employed at private employments including nonprofit organizations, whether paid on a time, piece rate, commission, or other basis.

History

Cr. Register, July, 1978, No. 271, eff. 8-1-78.

Wis. Admin. Code § DWD 272.025 Statement of intent {#sec-dwd-272.025 omnilex-key=us-wi-regs-official--agency-dwd--DWD 272.025}

Nothing contained in s. DWD 272.03 prohibits an employer from paying more than the minimum rates listed in this chapter or from treating an employee as a probationary employee for less than the number of days specified in this chapter.

History

Cr. Register, June, 1989, No. 402, eff. 7-1-89; correction made under s. 13.93 (2m) (b) 7., Stats., Register, February, 1996, No. 482.

Wis. Admin. Code § DWD 272.03 Minimum rates {#sec-dwd-272.03 omnilex-key=us-wi-regs-official--agency-dwd--DWD 272.03}

(1) Minimum rates. This subsection is effective on July 24, 2009. Except as provided in ss. DWD 272.05 to 272.09, no employer may employ any employee in any occupation, trade, or industry at a lesser hourly rate than as follows:

(a) All employees except opportunity and minor employees $7.25 per hour.

(b) Minor employees $7.25 per hour.

(1m) Minimum rates. This subsection is in effect from June 1, 2006, to July 23, 2009. Except as provided in ss. DWD 272.05 to 272.09, no employer may employ any employee in any occupation, trade, or industry at a lesser hourly rate than as follows:

(a) All employees except opportunity and minor employees $6.50 per hour.

(b) Opportunity and minor employees $5.90 per hour.

(2) Tips. Where tips or gratuities are received by the employee from patrons or others, the employer may pay the minimum wage rate established by this subsection, providing the employer can establish by its payroll records that for each week where credit is taken, when adding the tips received to the wages paid, no less than the minimum rate prescribed in sub. (1), was received by the employee. The minimum rate shall be the rate established in par. (a).

(a) Minimum rates for tipped employees. All employees except opportunity employees $2.33 per hr.

(am) Opportunity employees. Opportunity employees $2.13 per hour.

(b) Burden of proof.

When the employer elects to take tip credit the employer must have a tip declaration signed by the tipped employee each pay period and show on the payroll records that any required social security or taxes have been withheld each pay period to show that when adding the tips received to the wages paid by the employer, no less than the minimum rate was received by the employee. When the employer’s time and payroll records do not contain these requirements, no tip credit shall be allowed.
The department may refuse to take action to collect minimum wage deficiencies for a tipped employee who has refused or failed to file an accurate signed tip declaration for the employer each pay period.

Tip means a sum presented by a customer as a gift or gratuity in recognition of some service performed for them. It is to be distinguished from payment of a charge, if any, made for the service. Whether a tip is to be given, and its amount, are matters determined solely by the customer, and generally they have the right to determine who shall be the recipient of their gratuity. In the absence of an agreement to the contrary between the recipient and a third party, a tip becomes the property of the person in recognition of whose service it is presented by the customer. Only tips actually received by an employee as money belonging to them which they may use as they choose free of any control by the employer, may be counted in determining whether they are a “tipped employee.”
In addition to cash sums presented by customers which an employee keeps as their own, tips received by an employee include, amounts paid by bank check or other negotiable instrument payable at par and amounts transferred by the employer to the employee pursuant to directions from credit customers who designate amounts to be added to their bills as tips. Special gifts in forms other than money or its equivalent as above described, such as theater tickets, passes, or merchandise, are not counted as tips received by the employee.

(d) Tip pooling. Where employees practice tip splitting, as where waiters or waitresses give a portion of their tips to the bus persons, both the amounts retained by the waiters or waitresses and those given the bus persons are considered tips of the individuals who retain them.

(e) Service charge.

A compulsory charge for service, such as 15% of the amount of the bill, imposed on a customer by an employer’s establishment, is not a tip unless distributed by the employer to their employees.
Similarly, where negotiations between a hotel or restaurant and a customer for banquet facilities include amounts for distribution to employees of the hotel or restaurant, the amounts must be so distributed to the employees at the end of the pay period in which it is earned.
If the employer in their payroll records can establish a breakdown of the service charge, such as how much is for tips, room charge, decorations, and other chargeable services, only the amount for tips must be paid to the employee at the end of the pay period in which it is earned.
Similarly, where an accounting is made to an employer for their information only or in furtherance of a pooling arrangement whereby the employer redistributes the tips to the employees upon some basis to which they have mutually agreed among themselves, the amounts received and retained by each individual as their own are counted as their tips.

(f) Receiving the minimum amount “customarily and regularly”. The employee must receive tips “customarily and regularly” in the occupation in which they are engaged in order to qualify as a tipped employee. If it is known that they always receive more than the stipulated amount each month, as may be the case with many employees in occupations such as those of waiters, waitresses, bellhops, taxicab drivers, barbers, or beauty operators, the employee will qualify and the tip credit provisions of s. DWD 272.03 may be applied. On the other hand, an employee who only occasionally or sporadically receives tips such as at Christmas or New Years when customers may be more generous than usual, will not be deemed a tipped employee. The phrase “customarily and regularly” signifies a frequency which must be greater than occasional, but which may be less than constant. If an employee is in an occupation in which they normally and recurrently receive tips, they will be considered a tipped employee even though occasionally, because of sickness, vacation, seasonal fluctuations or the like, they fail to receive tips in a particular month.

(g) The tip wage credit.

In determining compliance with the wage payment requirements the amount paid to a tipped employee as allowable under par. (a) by an employer is deemed to be increased on account of tips to equal the minimum wage applicable under sub. (1) to such employee in the pay period for which the wage payment is made. This credit is in addition to any credit for board, lodging, or other facilities which may be allowable under s. DWD 272.03. The credit allowed on account of tips may be less than the difference between the applicable minimum wage and the rate for a tipped employee; it cannot be more.
It is presumed that in the application of this special provision the employee will be receiving at least the maximum tip credit in actual tips:“If the employee is receiving less than the amount credited, the employer is required to pay the balance so that the employee receives at least the minimum wage with the defined combination of wages and tips.”
Under employment agreements requiring tips to be turned over or credited to the employer to be treated by them as part of their gross receipts, it is clear that the employer must pay the employee the full minimum hourly wage, since for all practical purposes the employee is not receiving tip income.

(h) Overtime payments. When overtime is worked by a tipped employee who is subject to the overtime pay of ch. DWD 274, their regular rate of pay is determined by dividing their total remuneration for employment in any workweek by the total number of hours actually worked by them in that workweek for which such compensation was paid. A tipped employee’s regular rate of pay includes the amount of tip credit taken by the employer, and the cash wages including commissions and certain bonuses paid by the employer. Any tips received by the employee in excess of the tip credit need not be included in the regular rate. Such tips are not payments made by the employer to the employee as remuneration for employment within the meaning of ch. DWD 274.

(3) Allowance for board and lodging. This subsection is effective on July 24, 2009. Where board or lodging or both are furnished by the employer in accordance with s. DWD 272.04, and accepted and received by a particular employee, an allowance may be made not to exceed the following amounts:

(a) Lodging.

All employees except opportunity and minor employees $58.00 per week or $8.30 per day.
Minor employees $58.00 per week or $8.30 per day.
Opportunity employees $47.20 per week or $6.75 per day.

(b) Meals.

All employees except opportunity and minor employees $87.00 per week or $4.15 per meal.
Minor employees $87.00 per week or $4.15 per meal.
Opportunity employees $70.80 per week or $3.35 per meal.

(3m) Allowance for board and lodging. This subsection is in effect from June 1, 2006, to July 23, 2009. Where board or lodging or both are furnished by the employer in accordance with s. DWD 272.04, and accepted and received by a particular employee, an allowance may be made not to exceed the following amounts:

(a) Lodging.

All employees except opportunity and minor employees $52.00 per week or $7.40 per day.
Opportunity and minor employees $47.20 per week or $6.75 per day.

(b) Meals.

All employees except opportunity and minor employees $78.00 per week or $3.70 per meal.
Opportunity and minor employees $70.80 per week or $3.35 per meal.

(4) Board and lodging, value. Where board, lodging or other necessities of life, are furnished by the employer, in accordance with s. DWD 272.04, and accepted and received by the employee or their spouse or both, minor children or other dependents, an allowance may be made, not to exceed the “fair value” of such necessities on the basis of average cost to the employer, or to groups of employers similarly situated, or average values to groups of employees or other appropriate measures of fair value.

(5) Payment of wages on other than time basis. Where payment of wages is made upon a basis or system other than time rate, the actual wage paid per payroll period shall not be less than provided for in this order.

(6) Homework. Wages paid to homeworkers shall be not less than the rates prescribed in this order.

(7) Determination of compliance. The payroll period shall be taken as the unit of determining compliance with the minimum rates prescribed in this order.

(8) Proof of previous employment. An employee is responsible for providing the proof of previous employment necessary to determine whether the person is a probationary employee. An employer shall not be liable for a violation of this section if the violation is caused by the employer’s good faith reliance of the proof presented by an employee under this subsection.

History

Cr. Register, July, 1978, No. 271, eff. 8-1-78; am. (1) and (2) (a), Register, August, 1987, No. 380, eff. 9-1-87; am. (1), (2) (a) and (3), Register, June, 1989, No. 402, eff. 7-1-89; am. (1), (2) (intro.) and (3) cr. (8), Register, March, 1990, No. 411, eff. 4-1-90; am. (1), (2) (a) and (3), Register, February, 1992, No. 434, eff. 3-1-92; corrections made under s. 13.93 (2m) (b) 7., Stats., Register, February, 1996, No. 482; r. and recr. (1), (2) (a) and (3), cr. (1m) and (3m), Register, May, 1997, No. 497, eff. 6-1-97; emerg. cr. (1) (b), (1m) (b), (2) (b), am. (3) and (3m), eff. 5-31-97; cr. (1) (b), (1m) (b), (2) (am), am. (3), (3m), Register, September, 1997, No. 501, eff. 10-1-97; emerg. am. (1) and (3), r. (1m) and (3m) eff. 6-1-05; CR 05-056: am. (1), (1m), (3) and (3m) Register August 2005 No. 596, eff. 11-1-05; CR 08-069: r. and recr. (1) and (3), am. (1m) (intro.) and (3m) (intro.) Register February 2009 No. 638, eff. 3-1-09.

Wis. Admin. Code § DWD 272.04 Deductions for meals and lodging {#sec-dwd-272.04 omnilex-key=us-wi-regs-official--agency-dwd--DWD 272.04}

(1) A meal means an adequate well-balanced serving of a variety of wholesome and nutritious foods.

(a) Deductions may be made only for bona fide meals consistent with employee’s work shift. No deductions shall be made or credit given for meals not eaten except in employments where weekly room and board is provided and accepted.

(b) An employer shall not require that meals be accepted as part payment of wages.

(c) Employer must pay all employees for “on duty” meal periods. Such periods are to be counted as work time. An “on duty” meal period is one where the employer does not provide at least 30 minutes free from work. Any meal period where the employee is not free to leave the premises of the employer will also be considered an “on duty” meal period.

(d) Authorized rest periods or breaks of less than 30 consecutive minutes per shift shall be counted as work time for which there shall be no deduction from wages.

(e) Whenever a collective bargaining agreement exists, the department may consider the written application of labor and management for a waiver or modification to the requirements of par. (c) or (d), based upon practical difficulties or unnecessary hardship in compliance. If the department determines that compliance with par. (c) or (d) is unjust or unreasonable and that granting a waiver or modification will not be dangerous or prejudicial to the life, health, safety or welfare of the employees, the department may grant a waiver or modification.

(2) Lodging means living accommodations which are adequate, decent and sanitary, according to usual and customary standards. Employees shall not be required to share a bed.

(3) Room and board deductions may not be made from the wages of a seasonal non-resident agricultural employee that would result in the employee receiving less than the prescribed minimum rate.

History

Cr. Register, July, 1978, No. 271, eff. 8-1-78; cr. (1) (e), Register, February, 1992, No. 434, eff. 3-1-92.

Wis. Admin. Code § DWD 272.05 Agriculture {#sec-dwd-272.05 omnilex-key=us-wi-regs-official--agency-dwd--DWD 272.05}

(1) Minimum rates. The minimum wage of employees employed in agriculture shall be as follows:

(a) Employees 18 years of age and over: $7.25 per hour.

(b) Employees 17 years of age and under: $7.25 per hour.

(2) Allowance for board and lodging. Where board or lodging or both are furnished by the employer in accordance with s. DWD 272.04, and accepted and received by the employee, an allowance may be made not to exceed the following amounts:

History

Cr. Register, July, 1978, No. 271, eff. 8-1-78; am. (1), Register, August, 1987, No. 380, eff. 9-1-87; am. Register, June, 1989, No. 402, eff. 7-1-89; am. Register, March, 1990, No. 411, eff. 4-1-90; am. (5), Register, February, 1992, No. 434, eff. 3-1-92; correction made under s. 13.93 (2m) (b) 7., Stats., Register, February, 1996, No. 482; emerg. am. (1) (a), (b), (2) (a) and (b) eff. 6-1-05; CR 05-056: am. (1) (a), (b), (2) (a) and (b) Register August 2005 No. 596, eff. 11-1-05; CR 08-069: am. Register February 2009 No. 638, eff. 3-1-09.

Wis. Admin. Code § DWD 272.06 Domestic service employment, casual employment, and companions in private homes {#sec-dwd-272.06 omnilex-key=us-wi-regs-official--agency-dwd--DWD 272.06}

(1) Domestic service employment.

(a) “Domestic service employment” means all services related to the care of persons or maintenance of a private household or its premises, on a regular basis, by an employee of a private householder. Such occupations shall include, but not be limited to, the following: butlers, chauffeurs, cooks, day workers, gardeners, graduate nurses, grooms, handy persons, house cleaners, housekeepers, laundry persons, practical nurses, tutors, valets and other similar occupations.

(b) Domestic workers who reside in the employer’s household are covered under the rates prescribed by s. DWD 272.03. Employers may take credit for board and lodging as prescribed by s. DWD 272.03 (3). Record keeping requirement provided in s. DWD 272.11 shall apply.

(2) Casual employment. “Casual employment” means employment which is on an irregular or intermittent basis for not more than 15 hours per week for any one employer. This applies to the following: baby-sitting, mowing lawns, raking leaves, shoveling snow or other similar odd jobs. The minimum rates prescribed by s. DWD 272.03 shall not apply to casual employment in or around a home in work usual to the home of the employer, and not in connection with or part of the business, trade or profession of the employer.

(3) Companions in private homes. Persons who reside in the employer’s household for the purpose of companionship and who spend less than 15 hours per week on general household work are not covered under the rates prescribed in s. DWD 272.03. As used in this section, the term“companionship services” shall mean those services which provide fellowship, care and protection for a person, who, because of advanced age or physical mental infirmity, cannot care for his or her own needs. Such services may include, but not be limited to, household work related to the care of the aged or infirmed person such as meal preparation, bed making, washing of clothes and other similar services. They may also include the performance of general household work. The term “companionship services” does not include services relating to the care and protection of the aged or infirmed which require and are performed by trained personnel such as registered or practical nurses. While trained personnel do not qualify as companions, this fact does not remove them from the category of covered domestic service employees when employed in or about a private household.

History

Cr. Register, July, 1978, No. 271, eff. 8-1-78; corrections made under s. 13.93 (2m) (b) 7., Stats., Register, February, 1996, No. 482.

Wis. Admin. Code § DWD 272.07 Recreational or educational camps {#sec-dwd-272.07 omnilex-key=us-wi-regs-official--agency-dwd--DWD 272.07}

(1) Minimum rates. The minimum wage of all employees employed in recreational or educational camps and day camps, except counselors, shall be computed on an hourly basis as prescribed in s. DWD 272.03 (1).

(3) Counselors. This subsection is effective on July 24, 2009. The minimum wage of counselors employed in seasonal recreational or educational camps and day camps may be computed on a weekly basis as follows:

(a) Adult counselors 18 years of age and over:

If board and lodging are not furnished $350.00
If board only is furnished $265.00
If board and lodging are furnished $210.00

(b) Counselors 17 years of age and under:

If board and lodging are not furnished $350.00
If board only is furnished $265.00
If board and lodging are furnished $210.00

(3r) Counselors. This subsection is in effect from June 1, 2007, to July 23, 2009. The minimum wage of counselors employed in seasonal recreational or educational camps and day camps may be computed on a weekly basis as follows:

(a) Adult counselors 18 years of age and over:

If board and lodging are not furnished $315.00
If board only is furnished $240.00
If board and lodging are furnished $189.00

(b) Counselors 17 years of age and under:

If board and lodging are not furnished $275.00
If board only is furnished $209.00
If board and lodging are furnished $165.00

(4) Records. Recreational or educational camps and day camps are not required to keep the daily and weekly time records required by s. DWD 272.11 (1) (d), (e), and (f), for counselors employed and paid on a weekly basis.

(5) Definitions. For the purpose of this section:

(a) A “recreational or educational camp” means a camp operated under trained leadership for the purpose of providing group experience for and contributing to the physical, mental, spiritual and social growth of campers who are less than 18 years of age and who make such camp their residence during the camping period.

(b) A “recreational or educational day camp” means a camp operated under trained leadership for the purpose of providing group experience and contributing to the physical, mental, spiritual and social growth of campers who participate in such camping program during daytime periods, but not overnight.

(c) A “camp counselor” means a person employed by a “recreational or educational camp” or “recreational or educational day camp” who leads, directs and instructs campers in such camps in their camping program and activities and shares responsibility for the total care and well-being of campers.

History

Cr. Register, July, 1978, No. 271, eff. 8-1-78; r. and recr. (3) (a) and (b), Register, February, 1980, No. 290, eff. 3-1-80; am. (3) (a) and (b), Register, February, 1992, No. 434, eff. 3-1-92; corrections made under s. 13.93 (2m) (b) 7., Stats., Register, February, 1996, No. 482; am. (title), (1), (4) and (5), Register, May, 1997, No. 497, eff. 6-1-97; emerg. am. (3) eff. 6-1-05; CR 05-056: am. (3), cr. (3g) and (3r) Register August 2005 No. 596, eff. 11-1-05; CR 08-069: r. and recr. (3), r. (3g), am. (3r) (intro.) Register February 2009 No. 638, eff. 3-1-09.

Wis. Admin. Code § DWD 272.08 Caddies {#sec-dwd-272.08 omnilex-key=us-wi-regs-official--agency-dwd--DWD 272.08}

The minimum wage of employees employed as caddies shall be:

History

Cr. Register, July, 1978, No. 271, eff. 8-1-78; r. and recr. Register, February, 1980, No. 290, eff. 3-1-80; am. Register, February, 1992, No. 434, eff. 3-1-92; emerg. am. eff. 6-1-05; CR 05-056: am. Register August 2005 No. 596, eff. 11-1-05.

Wis. Admin. Code § DWD 272.085 Student worklike activities and employment {#sec-dwd-272.085 omnilex-key=us-wi-regs-official--agency-dwd--DWD 272.085}

(1) Independent colleges and universities.

(a) Independent colleges and universities may employ full-time students who are 18 years of age and over for 20 hours per week or less at the federal minimum wage rates established under 29 USC 206.

(b) Students who work at independent colleges or universities for over 20 hours per week shall be paid at the rates established under s. DWD 272.03.

(2) Elementary and secondary schools. Student worklike activities that meet the criteria of s. DWD 270.19 are not covered by the minimum wage provisions of this chapter.

History

Cr. Register, July, 1978, No. 271, eff. 8-1-78; correction made under s. 13.93 (2m) (b) 7., Stats., Register, February, 1996, No. 482; r. and recr. Register, October, 2000, No. 538, eff. 11-1-00; correction in (2) made under s. 13.92 (4) (b) 7., Stats., Register February 2009 No. 638.

Wis. Admin. Code § DWD 272.09 Subminimum wage licenses for rehabilitation facilities and for the employment of workers with disabilities and student learners {#sec-dwd-272.09 omnilex-key=us-wi-regs-official--agency-dwd--DWD 272.09}

(1) Definitions. For the purposes of this section:

(a) “Commensurate wage” means a special minimum wage paid to a worker with a disability.

(b) “Employ” means to permit work.

(c) “Employment relationship” means the relationship that exists whenever an individual, including an individual with a disability, is permitted to work.

(d) “Experienced worker” means a worker who has learned the basic elements or requirements of the work to be performed, ordinarily by completion of a probationary or training period.

(dm) “IWRP” means individualized written rehabilitation plan.

(e) “Institution” means an entity which may be either a public or private entity and either a nonprofit or a for profit entity that receives more than 50% of its income from providing residential care for sick, aged, or mentally ill persons or persons with intellectual disabilities. “Institution” includes hospitals, nursing homes, intermediate care facilities, rest homes, convalescent homes, homes for the elderly and infirm, halfway houses, and residential centers for the treatment of drug addiction or alcoholism, whether licensed under s. 50.01, Stats., or not licensed.

(f) “Patient worker” means a worker with a disability employed by a hospital or institution providing residential care where the worker receives treatment or care without regard to whether the worker is a resident of the establishment. In determining whether a patient worker is “employed”, the department shall consider whether the work performed is of any consequential economic benefit to the institution. Work is considered to be of consequential economic benefit if it is of the type that workers without disabilities normally perform. A patient does not become an employee if the patient merely performs personal housekeeping chores and receives token remuneration in connection with this activity. It may also be possible for patients in group homes or other family like settings to rotate or share household tasks or chores without becoming employees.

(g) “Sheltered workshop” means a rehabilitation facility which is a charitable organization or institution conducted not for profit, but for the purpose of carrying out a recognized program of rehabilitation for workers with disabilities providing such individuals with remunerative employment or other occupational rehabilitating activity of an educational or therapeutic nature.

(h) “Sheltered workshop training program” or ‘‘rehabilitation training program” means a program of not more than 12 months duration designed to:

Develop the patterns of behavior which will help a client adjust to a work environment, or
Teach the skills and knowledge related to a specific occupational objective of a job family, and which meets the department of workforce development, division of vocational rehabilitation or equivalent standards.

(i) “Special minimum wage” means a wage authorized under a license issued to an employer that is less than the statutory minimum wage.

(j) “Sponsoring agency” means a sheltered workshop, governmental agency or a nonprofit charitable organization or institution carrying out an occupational rehabilitating activity of an educational or therapeutic nature.

(k) “Student learner” means a student who is receiving instruction in an accredited school, college or university and who is employed on a part-time basis, pursuant to a bona fide vocational training program.

(L) “Vicinity” or “locality” means the geographic area from which the labor force of the community is drawn.

(m) “Work activity center” means a rehabilitation facility, a workshop or a physically separated department of a workshop having an identifiable program, separate supervision and records, planned and designed exclusively to provide therapeutic activities for workers with disabilities whose physical or mental impairment is so severe as to make their productive capacity inconsequential.

(n) “Worker with a disability” means an individual whose earnings or productive capacity is impaired by a physical or intellectual disability, including those relating to age or injury, for the work to be performed. Disabilities which may affect earning or productive capacity include blindness, mental illness, intellectual disability, cerebral palsy, alcoholism and drug addiction. The following, taken by themselves, are not considered disabilities for the purposes of this section: vocational, social, cultural, or educational disabilities; chronic unemployment; receipt of welfare benefits; nonattendance at school; juvenile delinquency; and correctional parole or probation. Further, a disability which may affect earning or productive capacity for one type of work may not have this effect for another type of work.

(2) Wage payments.

(a) An individual whose earning or productive capacity is not impaired for the work being performed cannot be employed under a license and shall be paid at least the applicable minimum wage. An individual whose earning or productive capacity is impaired to the extent that the individual is unable to earn at least the applicable minimum wage may be paid a commensurate wage, but only after the employer has obtained a license authorizing the payment of a special minimum wage from the department.

(b) The employer may not deduct from the commensurate wages of patient workers employed in institutions to cover the cost of room, board or other services provided by the facility. A patient worker shall receive wages with no deductions except for amounts deducted for taxes and any voluntary wage assignments. These rules do not preclude the institution from assessing or collecting charges for room, board and other services actually provided to an individual to the extent permitted by federal or state law and on the same basis as it assesses and collects from nonworking patients.

(c) Under this chapter, an employment relationship arises whenever an individual is permitted to work. The determination as to the existence of an employment relationship does not depend upon the level of performance or whether the work is of some therapeutic benefit. It does not include such activities as making craft products when the individual voluntarily participates in such activities and the products become the property of the individual making them, or all the funds resulting from the sale of the products are divided among the participants in the activity or are used in purchasing additional materials to make craft products.

(3) Compensable time. The employer shall compensate employees for all hours worked. Compensable time includes not only those hours during which the individual is actually performing productive work but also includes those hours when no work is performed but the individual is required by the employer to remain available for the next assignment. If the individual is completely relieved from duty and is not required to remain available for the next assignment, the time will not be considered compensable time. The burden of establishing that any hours are not compensable rests with the facility and the hours must be clearly distinguishable from compensable hours.

Note: As an example, a person employed by a rehabilitation facility would not be engaged in a compensable activity if the person is completely relieved from duty but is provided therapy or the opportunity to participate in an alternative program or activity in the facility that does not involve work and is not directly related to the person’s job (examples are self-help skills training, recreation, job seeking skills training, independent living skills, or adult basic education).

(4) Special provisions for temporary authority.

(a) The department may grant temporary authority to an employer to permit the employment of workers with disabilities pursuant to a vocational rehabilitation program of the U.S. department of veterans affairs for veterans with a service-incurred disability or a vocational rehabilitation program administered by a state agency.

(b) Temporary authority under this subsection is effective for 90 days from the date that the designated section of the application form is completed and signed by the representative of the state agency or the U.S. department of veterans affairs, if the application form is sent to the department within 10 days of the signing. Temporary authority under this subsection may not be renewed or extended by the department.

(c) The signed application form constitutes the temporary authority to employ workers with disabilities at special minimum wage rates. The department shall review all applications under this subsection upon receipt and shall issue a license when the criteria for licensing are met. The department shall promptly notify the applicant if additional information is required or if the license is denied.

(5) Criteria for employment under a special minimum wage rate license.

(a) To determine whether the approval of special minimum wage rates is necessary in order to prevent the curtailment of opportunities for employment and to determine whether a particular employee will receive a commensurate wage, the department shall consider the following criteria:

The nature and extent of the disabilities of the employee as these disabilities relate to the employee’s productivity.
The prevailing wages of experienced employees not disabled for the job that are employed in the vicinity in industry engaged in work comparable to the work under consideration.
The productivity of a worker with a disability compared to the norm established for nondisabled employees through the use of a verifiable work measurement method, or the productivity of experienced nondisabled employees employed in the vicinity on comparable work.
The wage rates to be paid to a worker with a disability for work comparable to that performed by experienced nondisabled employees.

(b) Before the license authorizing special minimum wage rates for workers with disabilities is issued, the employer shall provide the following written assurances concerning the employment:

In the case of employees paid at hourly rates, the special minimum wage rates shall be reviewed by the employer at periodic intervals with a minimum interval of once every 6 months.
Wages for all employees shall be adjusted by the employer at periodic intervals with a minimum interval of once each year to reflect changes in the prevailing wages paid to experienced nondisabled employees employed in the locality for essentially the same type of work.

(6) Prevailing wage rates.

(a) A prevailing wage rate is a wage rate that is paid to an experienced employee not disabled for the work to be performed. There may be more than one prevailing wage rate for a specific type of work in the given area. The department shall require an employer applying for a special minimum wage rate license to demonstrate that the wage rate used as prevailing for determining a commensurate wage was objectively determined according to the requirements of this subsection.

(b) An employer whose work force consists primarily of nondisabled employees or who employs more than a token number of nondisabled employees doing similar work shall use as the prevailing wage the wage rate paid to that employer’s experienced nondisabled employees performing similar work. This requirement also applies to the determination of the prevailing wage rate when a sponsoring agency places a disabled employee on the premises of an employer covered by this paragraph.

(c) An employer whose work force primarily consists of employees disabled for the work to be performed may determine the prevailing wage by ascertaining the wage rates paid to the experienced nondisabled employees of other employers in the vicinity. This information may be obtained by conducting a survey of comparable businesses in the area that employ primarily nondisabled employees doing similar work. The businesses that are surveyed should be representative of the area in terms of wages paid to experienced employees doing similar work. The appropriate size of the sample will depend on the number of firms doing similar work but should include no less than 3 businesses unless there are fewer businesses doing similar work in the area. A comparable firm is one which is of similar size in terms of employees or which competes for or bids on contracts of a similar size or nature.

(d) If a survey is not practical, an employer may contact other sources such as the federal bureau of labor statistics or private or state employment services. If similar businesses cannot be found in the area defined by the geographic labor market, the closest comparable community may be used.

(e) The prevailing wage rate shall be based upon the wage rate paid to experienced nondisabled employees. Employment services which only provide entry level wage data are not acceptable as sources for prevailing wage information.

(f) The prevailing wage survey shall be based upon work utilizing similar methods and equipment. The employer shall employ a consistent methodology for tabulating the results of the survey.

(g) The employer shall record the following information in documenting the determination of prevailing wage rates:

Date of contact with a firm or other source.
Name, address and phone number of firm or other source contact.
Title and name of the individual contacted within the firm or source.
Wage rate information provided.
Brief description of work for which wage information is provided.
Basis for the conclusion that the wage rate is not based upon an entry level position.

(h) A prevailing wage may not be less than the minimum wage specified in this chapter.

Note: If the employer is unable to obtain the prevailing wage for a specific job to be performed on the premises (for example, collating documents), it is acceptable to use as the prevailing wage the wage paid to experienced individuals employed in similar jobs requiring the same general skill levels (for example, file clerk or general office clerk).

(7) Issuance of licenses.

(a) After considering the criteria given in sub. (5), the department may issue a special license.

(b) If the department issues a special minimum wage license, it shall send a copy to the employer. If the department denies a license, it shall notify the employer in writing and provide the reasons for the denial.

(8) Terms and conditions of special minimum wage licenses.

(a) The department shall specify the terms and conditions under which a special minimum wage license is granted.

(b) The department shall provide that a special minimum wage license applies to each worker employed by the employer receiving the license, provided that the worker is in fact disabled for the work that he or she is to perform.

(c) The department shall designate the period for which a special minimum wage license shall be effective. The employer may pay a wage lower than the minimum wage to a worker with a disability only during the effective period of a license which applies to that worker.

(d) No special minimum wage license shall authorize workers with disabilities to be paid wages that are less than commensurate with those paid to experienced nondisabled workers employed in the vicinity for essentially the same type, quality and quantity of work.

(e) Any special minimum wage license issued by the department shall require that workers with disabilities be paid not less than one and one half times the regular rate of pay for all hours worked in excess of 40 hours per week.

(f) The special minimum wage license shall require that the wage of each worker covered by the license be adjusted by the employer at periodic intervals of at least once per year to reflect changes in the prevailing wages paid to experienced persons who are not disabled and who are employed in the vicinity for essentially the same type of work.

(g) Each worker with a disability and, when appropriate, a parent or guardian of the worker, shall be informed, verbally and in writing, of the terms of the license under which the worker is employed. This requirement may be satisfied by making copies of the license available. If a worker with a disability displays an understanding of the terms of the license and requests that other parties not be informed, it is not necessary to inform a parent or guardian.

(h) The department shall use the criteria in this paragraph to establish piece rates for workers with disabilities.

The employer may establish standard production rates for workers not disabled for the work to be performed by using industrial work measurement methods, including but not limited to stop watch time studies, predetermined time systems, or standard data. The department may require the employer to demonstrate that a particular method is generally accepted by industrial engineers and has been properly executed. The employer may not require specific training or certification. An employer shall not be required to repeat the application of work measurement methods that have already been applied by another employer or source and that can be properly documented.

a. The piece rate paid to a worker with a disability shall be based on the standard production rate. The standard production rate is the number of units that an experienced worker who is not disabled for the work is expected to produce in one hour. The piece rate paid to a worker with a disability shall also be based on the prevailing industry wage rate paid to an experienced nondisabled worker in the vicinity for essentially the same type and quality of work or for work requiring similar skill. The piece rate is determined by dividing the prevailing industry wage rate by the standard number of units per hour.

b. The piece rate for a worker with a disability shall not be less than the actual prevailing piece rate paid to any experienced worker not disabled for the work who is doing the same or similar work in the vicinity.

Work measurement methods used to establish piece rates shall meet the following criteria:

a. If a stop watch time study is made, it shall be made with a person whose productivity represents normal performance. If this is not possible, an appropriate adjustment shall be made. An adjustment of this type, which may be referred to as a “performance rating”or “leveling”, may be made only by a person knowledgeable in this technique, as evidenced by successful completion of training. The person observed in the stop watch time study shall be given time to practice the work to be performed in order to provide the person with an opportunity to overcome the initial learning curve. In addition, the person observed shall be trained to use the specific work method and tools which are available to the disabled workers for whom rates are to be established.

b. Work measurement methods shall allow appropriate time for personal time, fatigue, and unavoidable delays. In general, this should amount to an allowance of at least 15%, or nine to ten minutes per hour.

c. A work measurement study shall be conducted using the same work method that will be utilized by the workers with disabilities. If a modification such as a jig or a fixture must be made to a production method to accommodate the special needs of an individual worker with a disability, an additional work measurement study need not be conducted as long as the modification enables the disabled worker to perform the work or to increase productivity but would impede the worker without disabilities. If, in a particular case, it is not possible to accommodate a worker with a disability, as for example where an adequate number of machines are not available, a second work measurement study may be required.

(i) The employer shall pay full earnings to each worker with a disability who is employed on a piece rate basis. Employers may “pool” earnings only where piece rates cannot be established for each individual worker.

Note: An example of this situation is a team production operation where each worker’s individual contribution to the finished product cannot be determined separately. However, the employer should still make every effort to objectively divide the earnings according to the productivity level of each individual worker.

(j) The requirements of this paragraph apply to the payment of a worker with a disability who is employed at hourly rates.

The employer shall base hourly rates upon the prevailing hourly wage rate paid to an experienced worker not disabled for the job who is doing essentially the same type of work and using similar methods or equipment in the vicinity.
The employer shall make an initial evaluation of the worker’s productivity within the first month after employment begins in order to determine the worker’s commensurate wage rate. The employer shall record the results of the evaluation and the employer shall adjust the worker’s wages accordingly no later than the first complete pay period following the initial evaluation. The employer shall pay commensurate wages to each worker for all hours worked. If the initial evaluation shows that the wages paid to the worker during pay periods prior to the evaluation were less than the commensurate wage, the employer shall compensate the worker for the difference in pay.
Upon the completion of not more than 6 months of employment, the employer shall review the quantity and quality of the work of each hourly wage rate worker with a disability as compared to a nondisabled worker engaged in similar work. The review shall be in writing and shall be recorded. The employer shall conduct and record a similar productivity review at least every 6 months thereafter. The employer shall also conduct and record a productivity review after a worker changes to a new job. After any review, the employer shall adjust the worker’s wages appropriately no later than the first complete pay period following the review. Because the purpose of such reviews is to ensure that a worker with a disability receives commensurate wages for all hours worked, conducting reviews at 6-month intervals is a minimum requirement. The employer shall conduct reviews in the manner and frequency necessary to ensure the payment of commensurate wages.

Note: For example, evaluations shall not be conducted before a worker has had an opportunity to become familiar with the job, or at a time when the worker is fatigued or subject to conditions that result in less than normal productivity.

Any employer conducting a review covered by this paragraph must include for each review the name of the individual worker, the date and time of the review, and the name and position of the person conducting the review.

(9) Renewal of special minimum wage licenses.

(a) An employer with a special minimum wage license may file a written application for renewal with the department.

(b) When an application for renewal of a special minimum wage license has been properly and timely filed with the department, the existing special minimum wage license shall remain in effect until the application for renewal has been granted or denied.

(d) Before any application for renewal is denied, the department shall notify the employer in writing of the facts or conduct which may warrant denial and provide the employer an opportunity to demonstrate or achieve compliance with all legal requirements before a final decision on denial or approval of the application is made.

(10) Poster. An employer that is operating under a special minimum wage license shall at all times display and make available to employees a poster as prescribed by the department. The poster shall explain, in general terms, the conditions under which special minimum wages may be paid. The employer shall post the poster in a conspicuous place on the employer’s premises where it may be readily observed by workers with disabilities, the parents and guardians of workers, and other employees. As a substitute for posting, the employer may provide a copy of the poster directly to each employee subject to its terms.

(11) Records to be kept by employers. Every employer of workers under a special minimum wage license, or the referring agency or facility in the case of records verifying a worker’s disabilities, shall maintain and have available for inspection the records specified in this subsection.

(a) Verification of the worker’s disability.

(b) Evidence of the productivity of each worker with a disability which has been gathered on a continuing basis or at periodic intervals which do not exceed 6 months in the case of employees paid hourly wage rates.

(c) The prevailing wage paid to a worker who is not disabled for the job performed and who is employed in industry in the vicinity for the same type of work using similar methods and equipment as that used by the worker with a disability employed under the special minimum wage license.

(d) The production standards and supporting documentation for nondisabled workers for each job being performed by a worker with disabilities employed under the special license.

(e) In the case of workers with disabilities who are employed by a recognized non-profit rehabilitation facility and who are working in or about a home, apartment, or room in the residential establishment, the records required under s. DWD 272.11.

(f) The employer shall maintain and preserve the records required by this section for 3 years.

(12) Relation to other laws. No provision of these rules, or of any special minimum wage license issued under this section, shall excuse noncompliance with any federal law or municipal ordinance which establishes higher standards.

(13) Work activity centers. This section does not prevent an employer from maintaining or establishing a work activity center to provide therapeutic activities for workers with disabilities as long as the employer complies with the requirements of this section.

(14) Licensing under a special license requested by a sponsoring agency. A sponsoring agency may request a special minimum wage license on behalf of a worker with a disability. The department may issue a license to a worker with a disability which will authorize an employer to pay the rate of pay stated on the license. An employer that hires a licensed worker with a disability shall retain a photocopy of the license for the employer’s records. A license issued under this subsection is effective for not more than one year.

Note: The intent of issuing this type of license to a worker with a disability instead of to the employer is to permit the sponsoring agency to make short term placements which enable the worker to gain a variety of experiences without putting the burden on each employer to obtain a license. However, this does not relieve an employer from complying with the Federal Labor Standards Act which requires that an individual subminimum wage license be issued to any federally covered employer.

(15) Student learners. A license may be issued for a student who is enrolled in a bona fide school training program.

(a) Application for a student learner license.

Applications shall be filed with the department by the school on behalf of the employer.
The application must be made on a form provided by the department, and accompanied by a copy of the training agreement, or, in the absence of such agreement, a copy of the program or curriculum may be submitted. The application must be signed by the employer, the appropriate school official, the student, and the student’s parent or guardian.

(b) Conditions for issuing a license for a student.

Each program must be a bona fide school training program.
The employment at subminimum rates is necessary to provide employment opportunities under the program.
The student must be at least 14 years of age and obtain a work permit if under 18 years of age.
The occupation for which the student is receiving preparatory training must require a sufficient degree of skill to necessitate a learning period.
The training must not be for the specific purpose of acquiring manual dexterity and high production speed in repetitive operation. In case of a training program which does not qualify as a bona fide training program within the meaning of s. 104.01 (6), Stats., the employer must pay the trainee the minimum wage for all time spent on the training program whether such time is instructional or work in nature.
The employment must not have the effect of displacing a worker employed in the establishment. A student learner must be paid minimum wage for time spent doing work which would be normally done by a regular paid employee if the student learner performed the work.
The employment must not tend to impair or depress the wage rates or working standards established for experienced workers for work of a like or comparable character.
The issuance of such license must not tend to prevent the development of apprenticeship nor impair established apprenticeship standards in the occupation or industry involved.

The license shall specify, among other things:

a. The name and address of the student.

b. The name and address of the employer.

c. The name and address of the school which provides the related school instructions.

d. The effective and expiration dates of the license.

The rate shall not be less than 75% of the applicable rates in s. DWD 272.03.
The license shall be effective for the period designated thereon, and no license shall be issued retroactively.
A student may work a number of hours in addition to the daily and weekly hours of employment training authorized by the license provided the total hours of work shall not exceed the limits set forth in s. DWD 270.05, and that the pay for such hours is not less than that prescribed in s. DWD 272.03.
Students under 18 years of age may not serve at any job prohibited by statute, or orders of the department. (See s. DWD 270.03.)
A training agreement shall set down the scheduled duties and responsibilities of the local school, the employer, the student, and the student’s parent or guardian. The training agreement shall be signed by an appropriate school official, the employer, the student, and the student’s parent or guardian.
The department may set a rate of less than 75% of the rates in s. DWD 272.03 for student learners with disabilities if justified by extraordinary circumstances. The rates granted shall be commensurate with the student’s ability.

(d) Employment records to be kept. In addition to the records required in s. DWD 272.11 the employer shall keep the following for each student employed at a subminimum wage rate.

The student shall be identified on the payroll records, showing the student’s occupation and rate of pay.
The employer’s copy of the license and training agreement must be available at all times for inspection for a period of 3 years.

(16) Denial and revocation of licenses.

(a) The department may deny or revoke a special minimum wage or student learner license for cause at any time. The department may amend or modify a special minimum wage or student learner license if conditions or extraordinary circumstances warrant the action. The grounds for revocation or denial include but are not limited to the facts specified in this subsection.

A license may be revoked or denied if misrepresentations or false statements have been made to obtain the license or to permit a worker with a disability to be employed under the license.
A license may be revoked or denied if any provision of the Wisconsin labor standards law or any of the terms of the license has been violated.
A license may be revoked or denied if the license is no longer necessary in order to prevent a curtailment of opportunities for employment.

(b) Unless the public interest requires otherwise, the department shall notify the employer of facts or conduct which may warrant revocation before beginning revocation proceedings and shall provide the employer an opportunity to demonstrate or achieve compliance with all legal requirements.

Note: The legal procedure for license revocations is established by ch. 227, Stats.

(17) Review. Any person that is aggrieved by an action of the department taken under this section may, within 60 days after learning of the action or within any additional time that the department might allow, file with the department a request for reconsideration or review. The department shall determine if a review shall be granted. If a review is conducted, it shall be conducted by the department. The department may provide other interested persons an opportunity to present data and views.

(18) Rehabilitation facilities.

(a) The department and community-based rehabilitation organizations are committed to the continued development and implementation of individual vocational rehabilitation programs that will facilitate the transition of persons with disabilities into employment within their communities. This transition must take place under conditions that will not jeopardize the protection afforded by the minimum wage law to program participants, employees, employers or other programs providing rehabilitation services to individuals with disabilities.

(b) When all of the following criteria are met, the department shall not assert an employment relationship for the purposes of the minimum wage:

Participants are individuals with physical or mental disabilities for whom competitive employment at or above the minimum wage level is not immediately obtainable and who, because of their disabilities, will need intensive ongoing support to perform in a work setting.
Participation is for vocational exploration, assessment or training in a community-based placement work site under the general supervision of rehabilitation organization personnel.
Community-based placements are clearly defined components of individual rehabilitation programs developed and designed for the benefit of each participant. The statement of needed transition services established for the exploration assessment or training components shall be included in each participant’s IWRP.
The department does not require disclosure of the information contained in the IWRP. However, the department does require documentation as to the participant’s enrollment in the community-based placement program. The participant and, when appropriate, the parent or guardian of the participant, shall be fully informed of the IWRP and the community-based placement component and shall have indicated voluntary participation with the understanding that participation in such a component does not entitle the participant to wages.
The activities of the participants at the community-based placement site do not result in an immediate advantage to the business. The department shall be more likely to conclude that there has been no immediate advantage to the business if all of the following determinations can be made:

a. There has been no displacement of employees, vacant positions have not been filled, employees have not been relieved of assigned duties, and the participants are not performing services that, although not ordinarily performed by employees, clearly are of benefit to the business.

b. The participants are under continued and direct supervision by either representatives of the rehabilitation facility or by employees of the business.

c. The placements are made according to the requirements of the participant’s IWRP and not to meet the labor needs of the business.

d. The periods of time spent by the participants at any one site or in any clearly distinguishable job classification are specifically limited by the IWRP.

Each component of the IWRP may not exceed the following limitations:

a. Vocational explorations: 5 hours per job experienced.

b. Vocational assessment: 90 hours per job experienced.

c. Vocational training: 120 hours per job experienced.

A participant is not entitled to employment at the business at the conclusion of his or her IWRP, however, if a participant does becomes an employee, he or she cannot be considered to be a trainee at that particular community-based placement unless he or she is in a clearly distinguishable occupation.

(c) An employment relationship shall exist unless all of the criteria described in par. (b) are met. If an employment relationship is found to exist, the business shall be held responsible for full compliance with the applicable sections of the minimum wage law.

(d) Businesses and rehabilitation organizations may, at any time, consider participants to be employees and may structure a program so that the participants are compensated in accordance with the requirements of the minimum wage law. Whenever an employment relationship is established, the business may make use of the special minimum wage provisions provided by this section.

History

Cr. Register, July, 1978, No. 271, eff. 8-1-78; r. and recr. (2) (a) 1. and am. (2) (a) intro. and 2., Register, August, 1987, No. 380, eff. 9-1-87; r. (1), (2) and (4), renum. (3) to be (15), cr. (1) to (14), (16) and (17), Register, January, 1991, No. 421, eff. 2-1-91; am. (1) (g) (h) (intro.) and (m), Register, May, 1997, No. 497, eff. 6-1-97; correction in (1) (h) 2. made under s. 13.92 (4) (b) 6., Stats., Register February 2009 No. 638; 2019 Wis. Act 1: am. (1) (e), (n) Register May 2019 No. 761, eff. 6-1-19; CR 20-031: am. (1) (g), (m), (15) (c) 7. Register October 2021 No. 790, eff. 11-1-21.

Wis. Admin. Code § DWD 272.10 Listing deductions from wages {#sec-dwd-272.10 omnilex-key=us-wi-regs-official--agency-dwd--DWD 272.10}

An employer shall state clearly on the employee’s paycheck, pay envelope, or paper accompanying the wage payment the number of hours worked, the rate of pay and the amount of and reason for each deduction from the wages due or earned by the employee, except such miscellaneous deductions as may have been authorized by request of individual employees for reasons personal to themselves. A reasonable coding system may be used by the employers.

History

Cr. Register, July, 1978, No. 271, eff. 8-1-78; cr. (1) (dm) and (18), renum. (1) (g) to (i) to be (1) (i), (L) and (n), (1) (g), (h), (j), (k) and (m) renum. from Ind 72.01 (12) to (15) and (17), Register, February, 1996, No. 482, eff. 3-1-96.

Wis. Admin. Code § DWD 272.11 Permanent records to be kept by the employer {#sec-dwd-272.11 omnilex-key=us-wi-regs-official--agency-dwd--DWD 272.11}

(1) Every employer shall make and keep for at least 3 years payroll or other records for each of their employees which contain:

(a) Name and address.

(b) Date of birth.

(d) Time of beginning and ending of work each day.

(e) Time of beginning and ending of meal periods:

When employee’s meal periods are required or when such meal periods are to be deducted from work time.
This requirement shall not apply when work is of such a nature that production or business activity ceases on a regularly scheduled basis.

(f) Total number of hours worked per day and per week.

(g) Rate of pay and wages paid each payroll period.

(h) The amount of and reason for each deduction from the wages earned.

(i) Output of employee, if paid on other than time basis.

(2) The required records or a duplicate copy thereof shall be kept safe and accessible at the place of employment or business at which the employee is employed, or at one or more established central record keeping offices in the state of Wisconsin.

History

Cr. Register, July, 1978, No. 271, eff. 8-1-78.

Wis. Admin. Code § DWD 272.12 Interpretation of hours worked {#sec-dwd-272.12 omnilex-key=us-wi-regs-official--agency-dwd--DWD 272.12}

(1) Principles for determination of hours worked.

(a) General requirements of sections.

Employees subject to the statutes must be paid for all time spent in “physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer’s business.” The workweek ordinarily includes “all time during which an employee is necessarily required to be on the employer’s premises, on duty or at a prescribed work place.”
“Workday,” in general, means the period between “the time on any particular workday at which such employee commences their principal activity or activities” and “the time on any particular workday at which they cease such principal activity or activities.” The “workday” may thus be longer than the employee’s scheduled shift, hours, tour of duty, or time on the production line. Also, its duration may vary from day to day depending upon when the employee commences or ceases their “principal” activities.

(2) Application of principles.

(a) Employees “suffered or permitted” to work.

General. Work not requested but suffered or permitted is work time. For example, an employee may voluntarily continue to work at the end of the shift. They may be a pieceworker, they may desire to finish an assigned task or they may wish to correct errors, past work tickets, prepare time reports or other records. The reason is immaterial. The employer knows or has reason to believe that they are continuing to work and the time is working time.
Work performed away from the premises or job site. The rule is also applicable to work performed away from the premises or the job site, or even at home. If the employer knows or has reason to believe that the work is being performed, they must count the time as hours worked.
Duty of management. In all such cases it is the duty of the management to exercise its control and see that the work is not performed if it does not want it to be performed. It cannot sit back and accept the benefits without compensating for them. The mere promulgation of a rule against such work is not enough. Management has the power to enforce the rule and must make every effort to do so.

(b) Waiting time.

General. Whether waiting time is time worked depends upon particular circumstances. The determination involves “scrutiny and construction of the agreements between particular parties, appraisal of their practical construction of the working agreement by conduct, consideration of the nature of the service, and its relation to the waiting time, and all of the circumstances. Facts may show that the employee was engaged to wait, or they may show that he/she waited to be engaged.”
On duty. A stenographer who reads a book while waiting for dictation, a messenger who works a crossword puzzle while awaiting assignments, a firefighter who plays checkers while waiting for alarms and a factory worker who talks to fellow employees while waiting for machinery to be repaired are all working during their periods of inactivity. The rule also applies to employees who work away from the plant. For example, a repairperson is working while they wait for their employer’s customer to get the premises in readiness. The time is work time even though the employee is allowed to leave the premises or the job site during such periods of inactivity. The periods during which these occur are unpredictable. They are usually of short duration. In either event the employee is unable to use the time effectively for their own purposes. It belongs to and is controlled by the employer. In all of these cases waiting is an integral part of the job. The employee is engaged to wait.
Off duty. Periods during which an employee is completely relieved from duty and which are long enough to enable them to use the time effectively for their own purposes are not hours worked. They are not completely relieved from duty and cannot use the time effectively for their own purposes unless they are definitely told in advance that they may leave the job and that they will not have to commence work until a definitely specified hour has arrived.
On-call time. An employee who is required to remain on call on the employer’s premises or so close thereto that they cannot use the time effectively for their own purposes is working while “on call.” An employee who is not required to remain on the employer’s premises but is merely required to leave word at their home or with company officials where they may be reached is not working while on call.

Rest. Rest periods of short duration, running less than 30 minutes are common in industry. They promote the efficiency of the employee and are customarily paid for as working time. They must be counted as hours worked. Compensable time of rest periods may not be offset against other working time such as compensable waiting time or on-call time.
Meal. Bona fide meal periods of 30 minutes or more are not work time. Bona fide meal periods do not include coffee breaks or time for snacks. These are rest periods. The employee must be completely relieved from duty for the purposes of eating regular meals. Ordinarily 30 minutes or more is long enough for a bona fide meal period. The employee is not relieved if they are required to perform any duties, whether active or inactive, while eating. For example, an office employee who is required to eat at their desk or a factory worker who is required to be at their machine is working while eating.

(d) Sleeping time and certain other activities. Under certain conditions an employee is considered to be working even though some of their time is spent in sleeping or in certain other activities.

Definitions. In this paragraph:

a. “Day” means a calendar day or a period of 24 consecutive hours.

b. “Home care premises” means premises or locations, including group homes, in which the employer is acting either directly or indirectly as an agent to provide home care services for an elderly person, a person with a disability, a person otherwise in need of care and assistance in the home, or for the family of such a person.

c. “Homelike environment” means facilities, including private quarters as defined in par. (f), and also including facilities for cooking and eating on the same premises; for bathing in private; and for recreation, such as television. The amenities and quarters shall be suitable for long-term residence by individuals and shall be similar to those found in typical private residence or apartment, rather than those found in institutional facilities such as dormitories, barracks, and short-term facilities for travelers.

d. “Off-duty” means the time period during which the employee is completely relieved from duty and is free to leave the home care premises or otherwise use the time for his or her benefit.

e. “On-duty” means the period of time the employee is required to be on the home care premises or otherwise working for the employer.

f. “Private quarters” means living quarters that are furnished, are separate from the clients and from any other staff members, have as a minimum the same furnishings available to clients, such as bed, table, chair, lamp, dresser, closet, and in which the employee is able to leave his or her belongings during on-duty and off-duty periods.

g. “Workweek” means 7 consecutive 24-hour periods.

Less than 24-hour duty.

a. An employee who is required to be on duty for less than 24 hours is working even though they are permitted to sleep or engage in other personal activities when not busy. A telephone operator, for example, who is required to be on duty for specified hours is working even though they are permitted to sleep when not busy answering calls. It makes no difference that they are furnished facilities for sleeping. Their time is given to their employer. They are required to be on duty and the time is work time.

b. Allowances for board and lodging as provided in s. DWD 272.03 (3) or (4) may be considered by a mutual written or implied agreement.

a. Where an employee is required to be on duty for 24 consecutive hours or more, the employer and the employee pursuant to a mutual written agreement may agree to exclude bona fide meal periods and a bona fide regularly scheduled sleeping period of not more than 8 hours from hours worked per 24-hour period, provided adequate sleeping facilities are furnished by the employer and the employee can usually enjoy an uninterrupted night’s sleep. If the sleeping period is more than 8 hours, only 8 hours shall be credited per 24-hour period. Where no written agreement to the contrary is present, the 8 hours of sleeping time and lunch periods constitute hours worked. If the sleeping period is interrupted by a call to duty, the interruption shall be counted as hours worked. Employers may take credit for board and lodging as prescribed by s. DWD 272.03 (3) or (4), whichever is applicable. Record keeping requirements provided in s. DWD 272.11 shall apply.

b. If the sleeping period is interrupted by a call to duty, the interruption must be counted as hours worked. If the period is interrupted to such an extent that the employee cannot get a reasonable night’s sleep, the entire period must be counted.

Employees residing on employer’s premises, home care premises or working at home. An employee who resides on his or her employer’s premises or home care premises on a permanent basis or for extended periods of time is not considered as working all the time he or she is on the premises. Ordinarily, the employees may engage in normal private pursuits and thus have enough time for eating, sleeping, entertaining, and other periods of complete freedom from all duties when he or she may leave the premises for purposes of his or her own. It is of course difficult to determine the exact hours worked under these circumstances and any reasonable written agreement of the parties which takes into consideration all of the pertinent facts shall be accepted.
Home care premises.

a. When an employee who provides home care services does not maintain his or her permanent residence on the home care premises and does not otherwise reside on the premises 7 days a week, the department shall consider an employee who sleeps in private quarters, in a homelike environment, to reside on the premises for an extended period of time within the meaning of par. (d) 4, if the employee resides on the premises for a period of at least 120 hours in a workweek.

b. An employee shall be found to reside on the premises for extended periods of time if both of the following apply: the employee is on duty at the home care premises and is compensated for at least 8 hours in each of 5 consecutive 24-hour periods; and the employee sleeps on the premises for all sleep periods between the beginning and end of the 120 hour period. Any 24-hour period can be utilized, and the 8 compensated hours per 24-hour period need not be consecutive. An employee who is on duty and compensated for the period 5:00 p. m. to 10:00 p.m. Monday, 6:00 a.m. to 9:00 a.m. and 3:00 p.m. to 10:00 p.m. Tuesday through Friday, and 6:00 a.m. to 9:00 a.m. Saturday, and who sleeps on the premises (10:00 p.m. to 6:00 a.m.) for all sleep periods from Monday night through Friday night, has been compensated for at least 8 hours in 5 consecutive 24-hour periods between 5:00 p.m. Monday and 5:00 p.m. Saturday. The employee would also have slept 5 consecutive nights on the premises. Provided the other conditions were met, this would be considered to be residing on the premises for an extended period of time. An employee who is on duty and is compensated from 6:00 a.m. to 9:00 a.m. and 5:00 p.m. to 10:00 p.m., Monday through Friday, and who sleeps Monday through Thursday nights on the premises, would be considered to reside on the premises for extended periods of time. These employees are called “full-time” employees.

c. Where one or more employees meet the “full-time employee residing on the premises test” of subd. 5. b., the department shall apply the provisions of par. (d) 4. to one or more “relief” employees who reside on the premises for 1 to 3 nights, provided these employees are on duty and are compensated for at least 8 hours in each 24-hour period in question and sleep on the premises all intervening nights. Although it is anticipated that there will be no more than one relief employee for each full-time employee, it is possible that there may be more then one. To come within the provisions the relief employee shall be relieving a full-time employee. That is, the full-time employee and the employee or employees relieving that employee may not be on duty for more than a combined total of 7 days and 7 nights in each workweek. A part-time employee shall not be considered a relief employee if that employee and the full-time employee being relieved are on duty simultaneously for more than one hour a day.

d. In order to deduct sleep time for full-time and relief employees, the employees shall be provided private quarters in a homelike environment. A reasonable agreement shall be reached, in advance, regarding compensable time. The employer and the employee may agree to exclude up to 8 hours per night of uninterrupted sleep time. They may also agree to exclude a period of off-duty time during the day when the employee is completely relieved of all responsibilities. These exclusions shall be the result of an employe-employer agreement and not a unilateral decision of the employer. Such an agreement should normally be in writing to preclude any possible misunderstanding of the terms and conditions of the individual’s employment.

e. Where sleep time is to be deducted, the employer should determine if the following criteria are met: the employer and the employee have reached agreement in advance that sleep time is being deducted; adequate sleeping facilities with private quarters were furnished; if interruptions occurred, employees got at least 5 hours of sleep during the scheduled sleeping period; employees are compensated for any interruptions in sleep; and no more than 8 hours of sleep time is deducted for each full 24-hour on-duty period.

f. Sleep time may not be deducted for relief or other part-time employees who are not relieving a full-time employee, unless such employees are themselves on duty for 24 hours or more as provided in subd. 3. An off-duty period during a weekday for such employees breaks an on-duty period for the purposes of subd. 3. For example, a duty period from 5:00 p.m. of one day to 5:00 p.m. the following day, during which an employee has uncompensated free time between 9:00 a.m. and 3:00 p.m. of the on-duty period, is not considered to be a 24-hour period.

(e) Preparatory and concluding activities.

The term “principal activities”includes all activities which are an integral part of a principal activity. Two examples of what is meant by an integral part of a principal activity are the following:

a. In connection with the operation of a lathe, an employee will frequently, at the commencement of their workday, oil, grease, or clean their machine, or install a new cutting tool. Such activities are an integral part of the principal activity, and are included within such term.

b. In the case of a garment worker in a textile mill, who is required to report 30 minutes before other employees report to commence their principal activities, and who during such 30 minutes distributes clothing or parts of clothing at the workbenches of other employees and gets machines in readiness for operation by other employees, such activities are among the principal activities of such employee. Such preparatory activities are compensable under this chapter.

c. Among the activities included as an integral part of the principal activity are those closely related activities which are indispensable to its performance. If an employee in a chemical plant, for example, cannot perform their principal activities without putting on certain clothes, changing clothes on the employer’s premises at the beginning and end of the workday would be an integral part of the employee’s principal activity. On the other hand, if changing clothes is merely a convenience to the employee and not directly related to their principal activities, it would be considered as a “preliminary” or “postliminary” activity rather than a principal part of the activity. However, activities such as checking in and out and waiting in line to do so would not ordinarily be regarded as integral parts of the principal activity or activities.

(f) Lectures, meetings and training programs.

General. Attendance at lectures, meetings, training programs and similar activities need not be counted as working time if the following 4 criteria are met:

a. Attendance is outside of the employee’s regular working hours;

b. Attendance is in fact voluntary;

c. The course, lecture, or meeting is not directly related to the employee’s job; and

d. The employee does not perform any productive work during such attendance.

Involuntary attendance. Attendance is not voluntary, of course, if it is required by the employer. It is not voluntary in fact if the employee is given to understand or led to believe that their present working conditions or the continuance of their employment would be adversely affected by nonattendance.
Training directly related to employee’s job. The training is directly related to the employee’s job it if is designed to make the employee handle their job more effectively as distinguished from training them for another job, or to a new or additional skill. For example, stenographers who are given a course in stenography are engaged in an activity to make them a better stenographer. Time spent in such a course given by the employer or under their auspices is hours worked. However, if the stenographers take a course in bookkeeping, it may not be directly related to their job. Thus, the time they spend voluntarily in taking such a bookkeeping course, outside of regular working hours, need not be counted as working time. Where a training course is instituted for the bona fide purpose of preparing for advancement through upgrading the employee to a higher skill, and is not intended to make the employee more efficient in their present job, the training is not considered directly related to the employee’s job even though the course incidentally improves their skill in doing their regular work.
Independent training. Of course, if an employee on their own initiative attends an independent school, college or independent trade school after hours, the time is not hours worked for their employer even if the courses are related to their job.
Apprenticeship training. As an enforcement policy, time spent in an organized program of related, supplemental instruction by employees working under bona fide apprenticeship programs may be excluded from working time if the following criteria are met:

a. The apprentice is employed under a written apprenticeship agreement or program which substantially meets the fundamental standards of the bureau of apprenticeship standards of the department of workforce development, and

b. Such time does not involve productive work or performance of the apprentice’s regular duties. If the above criteria are met the time spent in such related supplemental training shall not be counted as hours worked unless the written agreement specifically provides that it is hours worked. The mere payment or agreement to pay for time spent in related instruction does not constitute an agreement that such time is hours worked.

(g) Travel time.

General. The principles which apply in determining whether or not time spent in travel is working time depend upon the kind of travel involved.
Home to work; ordinary situation. An employee who travels from home before their regular workday and returns to their home at the end of the workday is engaged in ordinary home to work travel which is a normal incident of employment. This is true whether they work at a fixed location or at different job sites. Normal travel from home to work is not work time.
Home to work in emergency situations. There may be instances when travel from home to work is work time. For example, if an employee who has gone home after completing their day’s work is subsequently called out at night to travel a substantial distance to perform an emergency job for one of their employer’s customers, all time spent on such travel is working time.
Home to work on special one-day assignment in another city. A problem arises when an employee who regularly works at a fixed location in one city is given a special one-day work assignment in another city. Such travel cannot be regarded as ordinary home-to-work travel occasioned merely by the fact of employment if performed for the employer’s benefit and at their special request to meet the needs of the particular and unusual assignment. It would thus qualify as an integral part of the “principal” activity which the employee was hired to perform on the workday in question; it is like travel involved in an emergency call, or like travel that is all in the day’s work. All the time involved, however, need not be counted. Since, except for the special assignment, the employee would have had to report to their regular work site, the travel between their home and the railroad depot may be deducted, it being in the “home-to-work” category. Also, of course, the usual meal time would be deductible.
Travel that is all in the day’s work. Time spent by an employee in travel as part of their principal activity, such as travel from job site to job site during the workday, must be counted as hours worked. Where an employee is required to report at a meeting place to receive instructions or to perform other work there, or to pick up and to carry tools, the travel from the designated place to the workplace is part of the day’s work, and must be counted as hours worked regardless of contract, custom, or practice. If an employee normally finished their work on the premises at 5 p.m. and is sent to another job which they finish at 8 p.m. and is required to return to their employer’s premises arriving at 9 p.m. all of the time is working time. However, if the employee goes home instead of returning to their employer’s premises, the travel after 8 p.m. is home-to-work travel and is not hours worked.
Travel away from home community. Travel time away from the home community for business purposes that occurs for the benefit of the employer is considered hours worked.
When private automobile is used in travel away from home community. If an employee is offered public transportation but requests permission to drive their car instead, the employer may count as hours worked either the time spent driving the car or the time they would have had to count as hours worked during working hours if the employee had used the public conveyance.
Work performed while traveling. Any work which an employee is required to perform while traveling must of course be counted as hours worked. An employee who drives a truck, bus, automobile, boat or airplane, or an employee who is required to ride therein as an assistant or helper, is working while riding, except during bona fide meal periods or when the employee is permitted to sleep in adequate facilities furnished by the employer.

(h) Adjusting grievances, medical attention, civic and charitable work, and suggestion systems.

Adjusting grievances. Time spent in adjusting grievances between an employer and employees during the time the employees are required to be on the premises is hours worked, but in the event a bona fide union is involved the counting of such time will, as a matter of enforcement policy, be left to the process of collective bargaining or to the custom or practice under the collective bargaining agreement.
Medical attention. Time spent by an employee in waiting for and receiving medical attention on the premises or at the direction of the employer during the employee’s normal working hours on days when they are working, constitutes hours worked.
Civic and charitable work. Time spent in work for public or charitable purposes at the employer’s request, or under their direction or control, or while the employee is required to be on the premises, is working time. However, time spent voluntarily in such activities outside of the employee’s normal working hours is not hours worked.
Suggestions systems. Generally, time spent by employees outside of their regular working hours in developing suggestions under a general suggestion system is not working time, but if employees are permitted to work on suggestion during regular working hours the time spent must be counted as hours worked. Where an employee is assigned to work on the development of a suggestion, the time is considered hours worked.

History

Cr. Register, July, 1978, No. 271, eff. 8-1-78; corrections in (2) (f) 5. a. made under s. 13.93 (2m) (b) 6., Stats., Register, August, 1987, No. 380; cr. (2) (d) 1. and 5., am. (2) (d) 3. a. and 4., Register, February, 1996, No. 482, eff. 3-1-96; emerg. r. and recr. (2) (g) 6. eff 6-1-05; CR 05-056: r. and recr. (2) (g) 6. Register August 2005 No. 596, eff. 11-1-05; correction in (2) (f) 5. a. made under s. 13.92 (4) (b) 6., Stats., Register February 2009 No. 638.

Wis. Admin. Code § DWD 272.13 Forms {#sec-dwd-272.13 omnilex-key=us-wi-regs-official--agency-dwd--DWD 272.13}

The following forms are listed in accordance with s. 227.23, Stats. These forms are issued by and may be obtained from the Equal Rights Division, Department of Workforce Development, P. O. Box 8928, Madison, Wisconsin, 53708.

(1) ERD-9247 Minimum Wage Rates.

(2) LS-37, Application for Subminimum Wage License. This particular form is used for both workers with disabilities and student learners. WH-226 is the application for a sheltered workshop to employ workers with disabilities at a subminimum wage. WH-227 is a supplement data sheet for sheltered workshop certificate. WH-247 is an application for a certificate for a training or evaluation program in a sheltered workshop. WH-249 is an application for a special individual rate in a sheltered workshop.

History

Cr. Register, July, 1978, No. 271, eff. 8-1-78; corrections in (intro.) made under s. 13.93 (2m) (b) 6., Stats., Register, August, 1987, No. 380; am. (intro.) and (1), Register, May, 1997, No. 497, eff. 6-1-97; CR 20-031: am. (2) Register October 2021 No. 790, eff. 11-1-21.

Wis. Admin. Code § DWD 272.14 Prohibition of displacement {#sec-dwd-272.14 omnilex-key=us-wi-regs-official--agency-dwd--DWD 272.14}

An employer may not displace an employee solely for the purpose of hiring an employee to be paid the opportunity wage.

History

Cr. Register, November, 1997, No. 503, eff. 12-1-97.

Chapter DWD 273 TRAVELING SALES CREWS

Wis. Admin. Code § DWD 273.01 Authority and purpose {#sec-dwd-273.01 omnilex-key=us-wi-regs-official--agency-dwd--DWD 273.01}

This rule is adopted in accordance with s. 103.34, Stats., to provide rules for the administration of the laws relating to traveling sales crews.

History

EmR1011: emerg. cr. eff. 4-19-10; CR 09-110: cr. Register August 2010 No. 656, eff. 9-1-10.

Wis. Admin. Code § DWD 273.02 Applicability {#sec-dwd-273.02 omnilex-key=us-wi-regs-official--agency-dwd--DWD 273.02}

This chapter applies to any employer of traveling sales crew workers, and to any individuals who are employed or who have applied to be employed as traveling sales crew workers, to whom the requirements of s. 103.34, Stats., apply.

History

EmR1011: emerg. cr. eff. 4-19-10; CR 09-110: cr. Register August 2010 No. 656, eff. 9-1-10.

Wis. Admin. Code § DWD 273.03 Definitions {#sec-dwd-273.03 omnilex-key=us-wi-regs-official--agency-dwd--DWD 273.03}

Unless otherwise provided, in this chapter:

(1) “Department” means the Department of Workforce Development.

(2) “Employee” means an individual who is recruited in Wisconsin to be a traveling sales crew worker or who is working in Wisconsin as a traveling sales crew worker.

(3) “Employer” means an entity that is operating a traveling sales crew in Wisconsin or that recruits any traveling sales crew worker in Wisconsin.

(4) “Misconduct” for the purposes of s. 103.34 (9) (e), Stats., means conduct evincing such willful or wanton disregard of an employer’s interests as is found in a deliberate violation or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to the employer. Mere inefficiency, unsatisfactory conduct, failure of good performance as the result of inability or incapacity, inadvertencies of ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed “misconduct.”

Note: The term “misconduct” is defined because s. 103.34 (9) (e), Stats., provides as follows: “(9) No employer of a traveling sales crew worker and no employee, agent, or representative of that employer who supervises or transports traveling sales crew workers may do any of the following: . . . . . (e) Abandon a traveling sales crew worker who is unable to work due to illness or injury or who is discharged from employment for reasons other than misconduct without providing for the return of the traveling sales crew worker to his or her permanent place of residence.”

(5) “Operator” means a person, corporation, limited liability company or other entity that employs, offers to employ, or otherwise recruits an individual to work as a traveling sales crew worker, including a proprietor, managing partner, manager, principal officer, employee, agent or representative of the entity.

(6) “Traveling sales crew” has the same meaning as in s. 103.34 (1) (d), Stats.

Note: Section 103.34 (1) (d), Stats., defines “traveling sales crew” as “2 or more individuals who are employed as salespersons or in related support work, who travel together in a group, and who are absent overnight from their permanent places of residence for the purpose of selling consumer goods or services to consumers from house to house, on any street, or in any other place that is open to the public. “Traveling sales crew” does not include 2 or more individuals who are traveling together for the purpose of participating in a trade show or convention or 2 or more immediate family members who are traveling together for the purpose of selling consumer goods or services.”

(7) “Traveling sales crew activities” has the same meaning as in s. 103.34 (1) (e), Stats.

Note: Section 103.34 (1) (e), Stats., defines “traveling sales crew activities” as “(e) “Traveling sales crew activities” means the sale of consumer goods or services to consumers from house to house, on any street, or in any other place that is open to the public or related support work. “Traveling sales crew activities” does not include the sale of consumer goods or services from a fixed location at a concert, festival, carnival, street fair, public exhibition, or other similar special event with the permission of the organizer of the special event.”

(8) “Traveling sales crew worker” has the same meaning as in s. 103.34 (1) (f), Stats.

Note: Section 103.34 (1) (f), Stats., defines “traveling sales crew worker” as “a member of a traveling sales crew.”

History

EmR1011: emerg. cr. eff. 4-19-10; CR 09-110: cr. Register August 2010 No. 656, eff. 9-1-10.

Wis. Admin. Code § DWD 273.04 Certificate of registration {#sec-dwd-273.04 omnilex-key=us-wi-regs-official--agency-dwd--DWD 273.04}

(1) Application. In order to apply for a 12 month original or renewal certificate of registration as a traveling sales crew employer under this chapter, the applicant shall fully complete a written application form furnished by the department and return it to the department.

Note: Applications should be delivered to the Department of Workforce Development, Equal Rights Division, at Room A300, 201 East Washington Avenue, Madison Wisconsin, or they may be mailed to the DWD Equal Rights Division at P.O. Box 8928, Madison, WI 53708. Application forms may be obtained by writing to the DWD Equal Rights Division at this address, or calling (608) 266-6860, or visiting the DWD Equal Rights Division website at http://dwd.wisconsin.gov/er/.

(2) Items required. Along with the completed application form, the following items must be provided to the department:

(a) Two completed fingerprint cards for each person who is a proprietor, managing partner, manager, or principal officer of the applicant, and for each employee, agent or representative of the applicant who supervises or transports traveling sales crew workers.

(b) Evidence that the applicant has obtained, as confirmation of its ability to pay any compensation owed to an employee or any penalty imposed by the department, one of the following in the amount of at least $10,000: a surety bond, a certificate of deposit, an escrow account or an irrevocable letter of credit.

(c) A registration fee of $60.00 for each individual for whom the criminal background check under s. 103.34 (3) (b) 2., Stats., is required.

(d) Certification by a motor vehicle mechanic that all vehicles used by the applicant to transport traveling sales crews are in compliance with all applicable Wisconsin and federal safety standards as described in s. DWD 273.09 (2). The costs associated with any vehicle inspection are the responsibility of the applicant.

(e) A copy of the statement provided by the applicant to its employees, as required by s. 103.34 (5) (a) 9., Stats., which describes the transportation to be provided to the employee and which identifies any hazardous materials that the sales crews shall be storing, handling, transporting or having any exposure to, and a copy of any additional information concerning the storage, handling or transportation of hazardous materials which may be required by s. 103.34 (7) (b), Stats.

(f) Documentation showing that the applicant has in force insurance policies with minimum coverage for commercial automobile liability of $500,000 per person, $2,000,000 per accident and $500,000 of physical damage, and also has commercial general liability coverage of at least $500,000 per occurrence and $1,000,000 aggregate.

(3) Issuance. The department shall process a certificate of registration application when all of the required application documents have been received by the department. The department shall request the criminal background check within 30 calendar days of receipt of the completed application materials. The department shall complete its processing of the registration application within 30 calendar days of its receipt of the results of the criminal background check.

History

EmR1011: emerg. cr. eff. 4-19-10; CR 09-110: cr. Register August 2010 No. 656, eff. 9-1-10.

Wis. Admin. Code § DWD 273.05 Fingerprint cards {#sec-dwd-273.05 omnilex-key=us-wi-regs-official--agency-dwd--DWD 273.05}

When it is necessary to complete the criminal background check required by s. 103.34 (3) (b) 2., Stats., the applicant shall provide two completed fingerprint cards for each individual identified in s. DWD 273.04 (2) (a). The fingerprinting on these cards shall be completed by a federal, state, or local law enforcement agency, or a private entity duly authorized to provide fingerprinting services. The applicant shall include, with the fingerprint cards submitted, documentation identifying the agency or business that administered the fingerprinting.

History

EmR1011: emerg. cr. eff. 4-19-10; CR 09-110: cr. Register August 2010 No. 656, eff. 9-1-10.

Wis. Admin. Code § DWD 273.06 Change of status {#sec-dwd-273.06 omnilex-key=us-wi-regs-official--agency-dwd--DWD 273.06}

If a change occurs in any of the information submitted to the department under s. 103.34 (3) (a), Stats., the registrant shall notify the department of that change within 30 calendar days after the change occurs. If the registrant hires any new individuals who are required to have a criminal background check involving fingerprint cards performed under s. 103.34 (3) (b) 2., Stats., the registrant shall submit to the department, for each new individual hired, an additional registration fee of $60.00 and two completed fingerprint cards.

History

EmR1011: emerg. cr. eff. 4-19-10; CR 09-110: cr. Register August 2010 No. 656, eff. 9-1-10.

Wis. Admin. Code § DWD 273.07 Suspension or revocation of registration {#sec-dwd-273.07 omnilex-key=us-wi-regs-official--agency-dwd--DWD 273.07}

The department may deny, suspend, revoke, restrict or refuse the certificate of registration if the department determines the applicant or registrant is not in compliance with s. 103.34, Stats.

History

EmR1011: emerg. cr. eff. 4-19-10; CR 09-110: cr. Register August 2010 No. 656, eff. 9-1-10.

Wis. Admin. Code § DWD 273.08 Payment and compensation {#sec-dwd-273.08 omnilex-key=us-wi-regs-official--agency-dwd--DWD 273.08}

(1) Payment and records required. The employer of a traveling sales crew shall provide payment to its employees on the regularly agreed upon pay dates, which shall in no case be less often than semimonthly. The employer shall keep, for three years, the following records for all traveling sales crew workers:

(a) Name and address.

(b) Date of birth.

(d) Time of beginning and ending of work each day.

(e) Time of beginning and ending of meal periods, when the traveling sales crew worker’s meal periods are required or when such meal periods are to be deducted from work time.

(f) Total number of hours worked per day and per week.

(g) Rate of pay and wages paid each payroll period.

(h) The amount of and reason for each deduction from the wages earned.

(i) Output of the traveling sales crew worker, if paid on other than time basis.

(j) Documentation that the traveling sales crew worker has been paid the applicable minimum wage for all hours worked each pay period.

(2) Deductions. The employer may make deductions from pay as allowed under s. 103.34 (6) (b), Stats. The employer shall state clearly on the traveling sales crew worker’s paycheck, pay envelope, pay stub, other paper accompanying the wage payment, or simultaneously issued electronic statement corresponding to the wage payment, the number of hours worked, the rate of pay, and the amount of and reason for each deduction from the wages due or earned by the traveling sales crew worker, except such miscellaneous deductions as may have been authorized by request of the individual traveling sales crew worker for reasons personal to himself or herself. The employer may use a reasonable coding system.

History

EmR1011: emerg. cr. eff. 4-19-10; CR 09-110: cr. Register August 2010 No. 656, eff. 9-1-10; 2013 Wis. Act 361: am. (1) (intro.), (2) Register May 2014 No. 701, eff. 6-1-14.

Wis. Admin. Code § DWD 273.09 Worker safety {#sec-dwd-273.09 omnilex-key=us-wi-regs-official--agency-dwd--DWD 273.09}

(1) Vehicles. The vehicle used to transport traveling sales crews shall be used for its intended use. The vehicle shall have all safety equipment required under state and federal laws. The safety equipment shall be operational as defined in these laws.

(2) Transportation of materials. If any motor vehicle is used by the operator of a traveling sales crew to carry the products or samples of the products that the traveling sales crew is selling, the following requirements apply:

(a) If the product may pose any hazard to health due to contact with skin, or the breathing of fumes, or for any other reason, the operator shall obtain written information from the manufacturer or an equivalent source on the potential health hazards. The operator shall provide this information to all traveling sales crew workers and shall include the information provided in its application for a certificate of registration.

(b) The operator shall prepare a plan for the storage of products that are carried with the traveling sales crew which specifies how the products are to be stored in the vehicle, and during any temporary storage outside of the vehicle, to minimize the risk of injury to traveling sales crew workers. The operator shall provide this information to all traveling sales crew workers and shall include the information provided in its application for a certificate of registration.

History

EmR1011: emerg. cr. eff. 4-19-10; CR 09-110: cr. Register August 2010 No. 656, eff. 9-1-10.

Wis. Admin. Code § DWD 273.10 Insurance {#sec-dwd-273.10 omnilex-key=us-wi-regs-official--agency-dwd--DWD 273.10}

The registered operator of a traveling sales crew shall maintain in force the following insurance policies:

(1) Commercial automobile liability that provides minimum coverage limits of $500,000 per person, $2,000,000 per accident and $500,000 of physical damage.

(2) Commercial general liability that provides minimum coverage limits of $500,000 per occurrence and $1,000,000 aggregate.

History

EmR1011: emerg. cr. eff. 4-19-10; CR 09-110: cr. Register August 2010 No. 656, eff. 9-1-10; numbering of (1) and (2) made under s. 13.92 (4) (b) 1., Stats., Register August 2010 No. 656.

Wis. Admin. Code § DWD 273.11 Traveling sales crew worker permits and identification cards {#sec-dwd-273.11 omnilex-key=us-wi-regs-official--agency-dwd--DWD 273.11}

(1) Requirement. The operator of a traveling sales crew shall obtain a permit and identification card for each traveling sales crew worker who works in Wisconsin or who is recruited from Wisconsin before the traveling sales crew worker begins work.

(2) Application. In order to obtain a traveling sales crew worker permit and identification card from the department, the traveling sales crew operator shall submit to the department a government-issued picture ID, which shall include date of birth and permanent home address for each worker. Accompanying the government picture ID, a letter from the operator of the traveling sales crew shall be submitted which identifies the following:

(a) The location where the traveling sales crew worker was recruited.

(b) The locations where the traveling sales crew worker shall be working.

(d) A description of the products being sold.

(e) A statement verifying that the required disclosure statement has been provided to the traveling sales crew worker.

(3) Processing. Within ten calendar days after receipt of the completed application materials, the department shall complete its processing of the application and issue the permit and identification card.

(4) Operator requirement to carry permit and identification card. The operator of a traveling sales crew and anyone supervising or transporting a traveling sales crew worker shall carry at all times, while engaged in traveling sales crew activities, a copy of each permit and identification card. An operator shall provide a traveling sales crew worker’s permit and identification card upon the request of a deputy of the department, a law enforcement officer, or a person with whom the employer, traveling sales crew worker, agent, or representative is doing business.

(5) Traveling sales crew worker requirement to carry permit and identification card. While engaged in traveling sales crew activities, a traveling sales crew worker shall carry at all times his or her original traveling sales crew worker permit and identification card and his or her government-issued picture ID. A traveling sales crew worker shall provide any one or more of these documents upon the request of a deputy of the department, a law enforcement officer, or a person with whom the traveling sales crew worker is doing business.

History

EmR1011: emerg. cr. eff. 4-19-10; CR 09-110: cr. Register August 2010 No. 656, eff. 9-1-10; 2013 Wis. Act 361: am. (title), (1), (2) (intro.), (3) to (5) Register May 2014 No. 701, eff. 6-1-14.

Wis. Admin. Code § DWD 273.12 Wage claims {#sec-dwd-273.12 omnilex-key=us-wi-regs-official--agency-dwd--DWD 273.12}

A person for whom an operator is required to obtain a traveling sales crew worker permit is entitled to file an unpaid wage complaint with the department under s. 109.09, Stats.

History

EmR1011: emerg. cr. eff. 4-19-10; CR 09-110: cr. Register August 2010 No. 656, eff. 9-1-10.

Chapter DWD 274 HOURS OF WORK AND OVERTIME

Wis. Admin. Code § DWD 274.01 Definitions {#sec-dwd-274.01 omnilex-key=us-wi-regs-official--agency-dwd--DWD 274.01}

(1) “Day” means a calendar day or a period of 24 consecutive hours.

(2) “Week” means a calendar week or a regular reoccurring period of 168 hours in the form of 7 consecutive 24 hour periods.

(3) “Regular” time means 40 hours of work per week.

(4) “Overtime” means hours in excess of 40 hours of work per week.

(5) “Mercantile” means “pertaining to merchants or trade,” and is synonymous with the word commercial. Commercial is viewed with regard to profit or designed for profit; designed for mass appeal, emphasizing skill and subjects useful in business. “Trade” means the business or work in which one engages regularly, an occupation requiring manual or mechanical skill; the persons engaged in an occupation, business, or industry, dealings between persons or groups; the business of buying and selling or bartering commodities or services; to do business with, to have dealings, to give one thing in exchange for another.

History

Cr. Register, March, 1977, No. 255, eff. 4-1-77; am. (1) to (4) and cr. (5), Register, December, 1980, No. 300, eff. 1-1-81; correction in (3) and (4) made under s. 13.93 (2m) (b) 7., Stats., Register, February, 1996, No. 482; CR 03-053: am. (3) and (4) Register November 2003 No. 575, eff. 12-1-2003.

Wis. Admin. Code § DWD 274.015 Applicability of chapter {#sec-dwd-274.015 omnilex-key=us-wi-regs-official--agency-dwd--DWD 274.015}

Pursuant to s. 103.01 (1), Stats., employees employed in manufactories, mechanical or mercantile establishments, beauty parlors, laundries, restaurants, confectionary stores, telegraph or telephone offices or exchanges or express or transportation establishments, hotels, and by the state, its political subdivisions and any office, department, independent agency, authority, institution, association, society or other body in state or local government created or authorized to be created by the constitution or any law, including the legislature and the courts, are covered by this chapter. Employees employed in domestic service in a household by a household are not subject to this chapter.

History

Cr. Register, December, 1980, No. 300, eff. 1-1-81; emerg. am. eff. 12-18-90; am. Register, August, 1991, No. 428, eff. 9-1-91; CR 03-053: am. Register November 2003 No. 575, eff. 12-1-2003.

Wis. Admin. Code § DWD 274.02 Hours of work {#sec-dwd-274.02 omnilex-key=us-wi-regs-official--agency-dwd--DWD 274.02}

(1) No person shall be employed or be permitted to work in any place of employment or at any employment for such period or periods of time during any day, night or week as shall be dangerous or prejudicial to the life, health, safety or welfare of such person.

(2) It is recommended that each employer allow each employee, 18 years of age or over, at least 30 minutes for each meal period reasonably close to the usual meal period time (6:00 a.m., 12:00 noon, 6:00 p.m. or 12:00 midnight) or near the middle of a shift. Shifts of more than 6 consecutive hours without a meal period should be avoided.

Note: The above meal period requirements are mandatory for minors under 18 years of age.

(3) The employer shall pay all employees for on-duty meal periods, which are to be counted as work time. An on-duty meal period is a meal period where the employer does not provide at least 30 minutes free from work. Any meal period where the employee is not free to leave the premises of the employer will also be considered an on-duty meal period.

History

Cr. Register, March, 1977, No. 255, eff. 4-1-77; cr. (3), Register, February, 1992, No. 434, eff. 3-1-92.

Wis. Admin. Code § DWD 274.03 Overtime pay {#sec-dwd-274.03 omnilex-key=us-wi-regs-official--agency-dwd--DWD 274.03}

Except as provided in s. DWD 274.08, each employer subject to this chapter shall pay to each employee time and one-half the regular rate of pay for all hours worked in excess of 40 hours per week.

History

Cr. Register, March, 1977, No. 255, eff. 4-1-77; reprinted to correct printing error, Register, April, 1977, No. 256; am. Register, December, 1980, No. 300, eff. 1-1-81; emerg. am. eff. 12-18-90; am. Register, August, 1991, No. 428, eff. 9-1-91.

Wis. Admin. Code § DWD 274.04 Exemptions {#sec-dwd-274.04 omnilex-key=us-wi-regs-official--agency-dwd--DWD 274.04}

Except as provided in s. DWD 274.08, each employer subject to ch. DWD 274 shall be exempt from the overtime pay requirements in s. DWD 274.03 and these exemptions shall be interpreted in such a manner as to be consistent with the Federal Fair Labor Standards Act and the Code of Federal Regulations as amended, relating to the application of that act to all issues of overtime in respect to the following employees:

(1) Persons whose primary duty consists of administrative, executive or professional work.

(a) “Executive” means an employee employed in a bona fide executive capacity who meets the following criteria:

Whose primary duty consists of the management of the enterprise in which they are employed or of a customarily recognized department of subdivision thereof; and
Who customarily and regularly directs the work of 2 or more other employees therein; and
Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring or firing and as to the advancement and promotion or any other change of status of other employees will be given particular weight; and
Who customarily and regularly exercises discretionary powers; and
Who does not devote more than 20%, or in the case of an employee of a retail or service establishment who does not devote as much as 40%, of their hours of work in the workweek of activities which are not directly and closely related to the performance of the work described in subds. 1. through 4. provided, that this paragraph shall not apply in the case of an employee who is in sole charge of an independent establishment or a physically separated branch establishment, or who owns at least a 20% interest in the enterprise in which he is employed; and
Who is compensated for their services on a salary basis at a rate of not less than $700 per month.

(b) “Administrative” means an employee employed in a bona fide administrative capacity who meets the following criteria:

Whose primary duty consists of the performance of office or nonmanual work directly related to management policies or general business operations of their employer or their employer’s customers, or
Who customarily and regularly exercises discretion and independent judgment; and

a. Who regularly and directly assists a proprietor, or an employee employed in a bona fide executive or administrative capacity; or

b. Who performs under only general supervision work along specialized or technical lines requiring special training, experience, or knowledge, or

c. Who executes under only general supervision special assignments and tasks; and

Who does not devote more than 20%, or in the case of an employee of a retail or service establishment who does not devote as much as 40%, of their hours worked in the workweek to activities which are not directly and closely related to the performance of the work described in subds. 1. through 3.; and
Who is compensated for their services on a salary or fee basis at a rate of not less than $700 per month.

Whose primary duty consists of the performance of:

a. Work requiring knowledge of an advance type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study, as distinguished from a general academic education and from an apprenticeship, and from training in the performance of routine mental, manual, or physical processes, or

b. Work that is original and creative in character in a recognized field of artistic endeavor (as opposed to work which can be produced by a person endowed with general manual or intellectual ability and training), and the result of which depends primarily on the invention, imagination, or talent of the employee, or

Whose work requires the consistent exercise of discretion and judgment in its performance; and
Whose work is predominantly intellectual and varied in character (as opposed to routine mental, manual, mechanical or physical work) and is of such character that the output produced or the result accomplished cannot be standardized in relation to a given period of time; and
Who does not devote more than 20% of their hours worked in the workweek to activities which are not an essential part of and necessarily incidental to the work described in subs. (1) through (3); and
Who is compensated for services on a salary or fee basis at a rate of not less than $750 per month.

(2) An employee who meets all of the following conditions:

(a) The employee’s primary duty, as determined under 29 CFR 541.500 (b), is any of the following:

Making sales, as defined under 29 USC 203 (k).
Obtaining orders or contracts for services or for the use of facilities for which a consideration will be paid by the client or customer.

(b) The employee is customarily and regularly engaged away from the employer’s place of business, as described under 29 CFR 541.502, in performing the employee’s primary duty described under par. (a).

(3) Higher paid commission employees of retail and service establishments if a) 50% of earnings is from commission, and b) time and one-half of minimum wage is received for all hours worked.

(4) Drivers, driver’s helpers, loaders or mechanics of a motor carrier or a private or contract carrier who are covered under the provisions of section 204 of the Motor Carrier Act 1935 as amended. Any employee of an employer engaged in the operation of a common carrier by rail and subject to the provision of Part I of the Interstate Commerce Act as amended and any employee of a carrier by air subject to the provision of the Railway Labor Act as amended.

(5) Drivers of taxi cabs.

(6) Time spent in related classroom instruction by indentured apprentices need not be counted as work time for the purpose of computing overtime.

(7) Parts persons, salespersons, service managers, service writers, or mechanics selling or servicing automobiles, trucks, farm implements, trailers, boats, motorcycles, snowmobiles, other recreational vehicles or aircraft, when employed by a nonmanufacturing establishment primarily engaged in selling such vehicles to ultimate purchasers.

(8) Any employee employed by an establishment which is an amusement or recreational establishment, if a) it does not operate for more than 7 months in any calendar year, or b) if during the preceding calendar year, its average receipts for any 6 months of such year were not more than 331/3% of its average receipts for the other 6 months of such year. This rule shall be construed in such manner as to be in conformity with any comparable federal statute or regulation.

(9) Persons employed in agriculture including farming in all its branches, including, among other things, the cultivation and tillage of the soil, dairying, the production, cultivation, growing, and harvesting of any agricultural or horticultural commodities, the raising of livestock, bees, furbearing animals, or poultry, and any practices performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, including preparation for market, delivery to storage or to market or to carriers for transportation to market.

(10) Employees employed in any motion picture theater.

(11) Employees of a hospital or other institutions primarily engaged in the care of the sick, the aged, the mentally ill or persons with developmental disabilities who reside on the premises may have an agreement between the employer and the employee before performance of the work for the purpose of overtime computation. A work period of 14 consecutive days is accepted in lieu of the workweek of seven consecutive days for purposes of overtime computation if time and one-half the regular rate of pay is paid for all hours worked in excess of eight hours per day and 80 hours within the 14 day period.

(12) Employees employed as a driver or driver’s helper making local deliveries, who are compensated for such employment on the basis of trip rates or other delivery payment plan, if each plan has the general purpose and effect of reducing hours worked by such employees to, or below, the maximum workweek applicable to them.

(13) Employees employed in any funeral establishment.

(14) Any employee employed in the following forestry or lumbering operations, if the number of employees employed by the employer in the operation does not exceed 8:

(a) Planting or tending trees, cruising, surveying or felling timber;

(b) Preparing logs or other forestry products; or

(c) Transporting logs or other forestry products to a mill, processing plant or railroad or other transportation terminal.

(15) Any employee who is a computer systems analyst, computer programmer, software engineer, or other similarly skilled worker, who, in the case of an employee who is compensated on an hourly basis, is compensated at a rate of not less than $27.63 an hour, and whose primary duty is one of the following:

(a) The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software, or system functional specifications.

(b) The design, development, documentation, analysis, creation, testing or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications.

(c) The design, documentation, testing, creation or modification of computer programs related to machine operating systems.

(d) A combination of the duties described in pars. (a), (b) and (c), the performance of which requires the same level of skills.

Note: This provision is intended to be interpreted in a manner consistent with 29 USC 213(a)(17).

History

Cr. Register, March, 1977, No. 255, eff. 4-1-77; cr. (9), Register, February, 1980, No. 290, eff. 3-1-80; emerg. cr. (10), eff. 6-27-80; am. (intro.), r. (7), renum. (8) and (9) to be (7) and (8) and am. (7), cr. (9) to (13), Register, December, 1980, No. 300, eff. 1-1-81; cr. (14), Register, March, 1983, No. 327, eff. 4-1-83; am. (intro.), Register, August, 1991, No. 428, eff. 9-1-91; corrections made under s. 13.93 (2m) (b) 7., Register, February, 1996, No. 482; cr. (15), Register, May, 1997, No. 497, eff. 6-1-97; CR 03-053: r. and recr. (9) Register November 2003 No. 575, eff. 12-1-2003; 2017 Wis. Act 340: r. and recr. (2) Register April 2018 No. 748, eff. 5-1-18.

Wis. Admin. Code § DWD 274.045 Interpretation of hours worked {#sec-dwd-274.045 omnilex-key=us-wi-regs-official--agency-dwd--DWD 274.045}

The provisions of s. DWD 272.12 apply to the interpretation of hours worked under this chapter.

History

Cr. Register, February, 1992, No. 434, eff. 3-1-92; correction made under s. 13.93 (2m) (b) 7., Register, February, 1996, No. 482.

Wis. Admin. Code § DWD 274.05 Waiver or modification {#sec-dwd-274.05 omnilex-key=us-wi-regs-official--agency-dwd--DWD 274.05}

Except as provided in s. DWD 274.08, where a collectively bargained agreement exists, the department may consider the written application of labor and management for a waiver or modification to the requirements of this chapter based upon practical difficulties or unnecessary hardship in complying therewith. If the department determines that in the circumstances existing compliance with this chapter is unjust or unreasonable and that granting such waiver or modification will not be dangerous or prejudicial to the life, health, safety or welfare of the employees, the department may grant such waiver or modification as may be appropriate to the case.

History

Cr. Register, March, 1977, No. 255, eff. 4-1-77; am. Register, August, 1991, No. 428, eff. 9-1-91; am. Register, February, 1992, No. 434, eff. 3-1-92; correction made under s. 13.93 (2m) (b) 7., Register, February, 1996, No. 482.

Wis. Admin. Code § DWD 274.06 Records {#sec-dwd-274.06 omnilex-key=us-wi-regs-official--agency-dwd--DWD 274.06}

Except as provided in s. DWD 274.08, each employer shall keep permanent records for at least 3 years, available for inspection and transcription by a duly authorized deputy of the department, showing the name and address of each employee, the hours of employment and wages of each and such other records as the department may require.

History

Cr. Register, March, 1977, No. 255, eff. 4-1-77; am. Register, August, 1991, No. 428, eff. 9-1-91; correction made under s. 13.93 (2m) (b) 7., Register, February, 1996, No. 482.

Wis. Admin. Code § DWD 274.07 Penalties {#sec-dwd-274.07 omnilex-key=us-wi-regs-official--agency-dwd--DWD 274.07}

Any employer who violates order s. DWD 274.02, 274.03 or 274.06 shall be subject to the penalties provided in ss. 103.005 and 109.11, Stats. Each day of violation shall constitute a separate and distinct offense.

History

Cr. Register, March, 1977, No. 255, eff. 4-1-77; correction made under s. 13.93 (2m) (b) 7., Register, February, 1996, No. 482; correction made under s. 13.92 (4) (b) 7., Stats., Register March 2013 No. 687.

Wis. Admin. Code § DWD 274.08 Coverage of public employees {#sec-dwd-274.08 omnilex-key=us-wi-regs-official--agency-dwd--DWD 274.08}

(1) This section applies to employees of the state, its political subdivisions, and any office, department, independent agency, authority, institution, association, society or other body in state or local government created or authorized to be created by the constitution or any law, including the legislature and the courts.

(2) The provisions of ss. DWD 274.03 through 274.06 regarding overtime pay, exemptions, and records shall not be applicable to employees identified in sub. (1). The provisions applicable to employees identified in sub. (1) shall be the provisions of the federal Fair Labor Standards Act, 29 CFR Part 553, the regulations of the U.S. department of labor relating to the application of the Act to employees of state and local governments, and other federal regulations relating to the application of the Act to overtime issues affecting employees of state and local governments.

(3) Where there is a valid collective bargaining agreement in effect as of December 18, 1990, the provisions of this chapter shall not become effective for employees identified in sub. (1) until one day after expiration of the collective bargaining agreement, unless it is otherwise modified prior to expiration.

History

Emerg. cr. eff. 12-18-90; cr. Register, August, 1991, No. 428, eff. 9-1-91; correction in (2) made under s. 13.93 (2m) (b) 7., Register, February, 1996, No. 482.

Chapter DWD 275 ONE DAY OF REST IN SEVEN

Wis. Admin. Code § DWD 275.01 Day of rest {#sec-dwd-275.01 omnilex-key=us-wi-regs-official--agency-dwd--DWD 275.01}

Section 103.85, Stats., is modified as follows:

(1) Twenty-four consecutive hours of rest in each calendar week shall be deemed compliance with this section.

(2) Employees in paper and pulp mills.

(a) This section shall not apply to superintendents and department heads whose work is supervisory and not manual.

(b) This section shall apply to machine operators, but shall not apply to millwrights, electricians, pipefitters, and other employees whose duties include not more than 5 hours of essential work on Sunday, making necessary repairs to boilers, piping, wiring or machinery.

History

Cr. Register, March, 1957, No. 15, eff. 4-1-57; r. and recr. Register, May, 1967, No. 137, eff. 6-1-67.

Chapter DWD 277 PRIVATE EMPLOYMENT AGENTS REQUIRED TO BE LICENSED UNDER CH. 105, STATS.

Wis. Admin. Code § DWD 277.01 Definitions {#sec-dwd-277.01 omnilex-key=us-wi-regs-official--agency-dwd--DWD 277.01}

As used in this chapter:

(1) “Agency” or “agent” means employment agent.

(2) “Applicant” means a job seeker who informs an employment agency of his or her availability and qualifications for referral to job openings and requests assistance in finding a position.

(3) “Branch office” means a separate office of an agency located in the same community as the parent or main office.

(4) “Department” means the department of workforce development.

(4m) “Employer-paid fee employment agent” means a private employment agent whose fees or charges are paid entirely and directly by the employer to the employment agent.

(5) “Employment agent” has the meaning defined in s. 105.01, Stats.

(6) “Referral” means the making of arrangements by an agency to bring to the attention of an employer the qualifications of the applicant by means of an employment interview. The mailing of an unsolicited resume in itself does not constitute a referral.

(7) “Registration fee” means any charge for registering or listing an applicant for employment, including any charge for letter writing, cost of photograph or filmstrip, costume, or any charge of a similar nature, without having a bona fide order for the placement of the applicant in a job.

History

Cr. Register, July, 1970, No. 175, eff. 8-1-70; am. (2) and (6), Register, June, 1985, No. 354, eff. 7-1-85; cr. (4m), Register, April, 1991, No. 424, eff. 5-1-91.

Wis. Admin. Code § DWD 277.015 Employer-paid fee employment agent registration {#sec-dwd-277.015 omnilex-key=us-wi-regs-official--agency-dwd--DWD 277.015}

(1) All employer-paid fee employment agents shall pay a $5.00 registration fee and register with the department by July 1 of each year for the period of July 1 through June 30 of the following year.

(2) The $5.00 registration fee covers all business locations of the requesting agent.

History

Cr. Register, April, 1991, No. 424, eff. 5-1-91.

Wis. Admin. Code § DWD 277.02 Application for a license {#sec-dwd-277.02 omnilex-key=us-wi-regs-official--agency-dwd--DWD 277.02}

(1) In order to apply for licensure as an employment agent under ch. 105, Stats., an applicant shall fully complete a written application form furnished by the department and return it to the department of workforce development, equal rights division, at Room 403, 201 E. Washington Avenue, Madison, Wisconsin, or mail to P.O. Box 8928, Madison, Wisconsin 53708. This application shall be accompanied by a $5,000 surety bond required by s. 105.06, Stats., and the minimum license fee of $50.00 required by s. 105.06, Stats. The license application may not be processed until all 3 of the above documents have been received by the department. If the license application is not approved and a license issued, the $50.00 license fee shall be refunded to the applicant.

(2) Within 30 working days of receipt of the application, bond and minimum license fee, the department may hold a public hearing to determine if the applicant is of sufficient character to operate an employment agency and whether the quarters of the proposed agency are suitable for use by an employment agency. In scheduling the public hearing, a notice shall be mailed to each licensed employment agency and other interested parties at least 10 calendar days prior to the hearing.

(3) Within 10 working days after completion of the public hearing, the examiner shall issue proposed finding of fact and a proposed order to either grant or refuse the license application. Interested parties that either appeared to testify at the hearing or submitted written testimony at or prior to the hearing shall receive a copy of the proposed findings of fact and order. Parties receiving a copy of the proposed order may appeal it within 10 calendar days of the issuance of the proposed order by requesting in writing an opportunity to present oral or written arguments to the department secretary or the secretary’s designated representative. Appeals shall be sent to the address listed on the cover letter accompanying the proposed order. In hearings where no one has testified in opposition to the granting of the license, where the examiner proposes granting the license and where it appears there is no one to object to the granting of the license, the department may forego the proposed order and issue findings of fact and a final order after the hearing.

(4) Within 5 working days after the proposed order appeal period expires, the department shall issue findings of fact and a final order except if a timely appeal has been received. In such cases, the department within 15 working days of receipt of the appeal shall either schedule the secretary or the secretary’s designated representative to hear oral arguments or to receive written arguments on why the proposed order should be modified or reversed. The secretary or secretary’s representative within 30 calendar days of receipt of all parties arguments shall issue findings of fact and the final order of the department.

(5) Approval of applications for a license shall expire 90 days after date of order if the agency has not commenced operation. Extensions of 30 days may be granted by the department where extenuating circumstances exist.

History

Cr. Register, July, 1970, No. 175, eff. 8-1-70; r. and recr. (1), renum. (2) to be (5), cr. (2), (3) and (4), Register, June, 1985, No. 354, eff. 7-1-85.

Wis. Admin. Code § DWD 277.03 Character and premises {#sec-dwd-277.03 omnilex-key=us-wi-regs-official--agency-dwd--DWD 277.03}

(1) “Character,” as used in s. 105.13, Stats., includes components of an applicant’s ability to be an agent; such as, his or her moral character, education, business integrity, fiscal integrity, training and knowledge of the employment business, capability of staff, and the extent of his or her participation in operating the agency.

(2) “Premises” as used in s. 105.13, Stats., includes components of the following to be considered as fit for the use by private employment agents; such as, location, size, neighborhood, public access, access for individuals with disabilities, public restroom facilities, compliance with local zoning and building codes, occupancy permit, principal place of business and the types or services provided at the licensed facility.

History

Cr. Register, July, 1970, No. 175, eff. 8-1-70; am. (1), r. and recr. (2), r. (3), Register, June, 1985, No. 354, eff. 7-1-85; CR 20-031: am. (2) Register October 2021 No. 790, eff. 11-1-21.

Wis. Admin. Code § DWD 277.04 Licensee {#sec-dwd-277.04 omnilex-key=us-wi-regs-official--agency-dwd--DWD 277.04}

A license to operate as an employment agent under ch. 105, Stats., may be issued to a person, partnership or corporation. If a license is issued to a corporation or transferred from an individual or partnership to a corporation, the following conditions shall apply:

(1) The corporation shall be licensed to do business in the state of Wisconsin, shall maintain therein all records with respect to the operations of the agency within the state of Wisconsin, and shall appoint a manager or managers who shall reside in Wisconsin, and who shall consent to service of process by certified mail addressed to the agency.

(2) The licensee shall notify the department immediately if there is a change in managers.

(3) The corporation shall file with the department a certified statement setting forth the names, home addresses and telephone numbers of all officers and directors of the corporation and their respective interest therein.

History

Cr. Register, July, 1970, No. 175, eff. 8-1-70.

Wis. Admin. Code § DWD 277.05 License coverage {#sec-dwd-277.05 omnilex-key=us-wi-regs-official--agency-dwd--DWD 277.05}

(1) Private employment agency licenses are limited by the terms and classifications set forth thereon.

(2) Said license shall constitute a license from this state to operate as an employment agent for compensation and shall not be transferable to any other person or persons whatever, or inure to the benefit of any person other than the licensee.

(3) When the sale, transfer or assignment of the agency or the controlling interest of the agency takes place, the assuming principals shall proceed to obtain a license in the same manner as any other applicant for a license.

(4) If the sale, transfer or assignment is not contingent on the approval of the license application by the department, the agency shall cease operation until such time as the department issues a license.

History

Cr. Register, July, 1970, No. 175, eff. 8-1-70; r. and recr. (3) and (4), Register, June, 1985, No. 354, eff. 7-1-85.

Wis. Admin. Code § DWD 277.06 License renewal {#sec-dwd-277.06 omnilex-key=us-wi-regs-official--agency-dwd--DWD 277.06}

(1) Before May 31 of each year, the department shall mail a renewal application and bond form to each licensed agent.

(2) By July 10 of each year, each licensed agent shall submit to the department the following:

(a) The completed renewal application.

(b) Required surety bond.

(d) The minimum license fee for the next year.

(e) Applicant fee schedule.

(3) A license may be withheld until all of the information under sub. (2) is furnished and may be suspended if the license fee is not paid.

(4) Each license shall expire annually on June 30 of each year or the date stated thereon.

(5) When a licensee has made a timely and sufficient application for the renewal of their license, the existing license remains in effect until the renewal application has been finally acted upon by the department.

History

Cr. Register, July, 1970, No. 175, eff. 8-1-70; r. and recr. (6), Register, June, 1985, No. 354, eff. 7-1-85; r. (2) (f), Register, April, 1991, No. 424, eff. 5-1-91.

Wis. Admin. Code § DWD 277.07 Licenses withheld, suspended, or revoked {#sec-dwd-277.07 omnilex-key=us-wi-regs-official--agency-dwd--DWD 277.07}

(1) The license may be withheld, suspended, or revoked by the department if the applicant for a license or licensee fails to meet the requirements of ch. 105, Stats., or ch. DWD 277.

(2) The license may be withheld, suspended, or revoked by the department if the licensee fails to meet the requirements of the Wisconsin fair employment law, ss. 111.31 to 111.395, Stats., Wisconsin labor standards laws applying to the payment of minimum wage, ch. DWD 272, overtime, ch. DWD 274, and complying with the wage payment and collection law, ch. 109, Stats.

History

Cr. Register, July, 1970, No. 175, eff. 8-1-70; r. and recr. (2), Register, June, 1985, No. 354, eff. 7-1-85; corrections made under s. 13.93 (2m) (b) 7., Stats., Register, February, 1996, No. 482.

Wis. Admin. Code § DWD 277.08 Moving place of business {#sec-dwd-277.08 omnilex-key=us-wi-regs-official--agency-dwd--DWD 277.08}

(1) No agent shall open, conduct or maintain an office at any place of business other than that approved by the department.

(2) A place of business shall not be moved unless the agent first obtains the written consent of the department.

(3) No branch office or additional place of business shall be opened without the prior approval of the department.

History

Cr. Register, July, 1970, No. 175, eff. 8-1-70.

Wis. Admin. Code § DWD 277.09 Classifications, fee schedules, and other requirements {#sec-dwd-277.09 omnilex-key=us-wi-regs-official--agency-dwd--DWD 277.09}

(1) Classifications of licenses.

(a) Class I applicant-paid fee agencies. A class I license is for agencies which charge and collect a fee from the applicant for securing work for persons in the following positions:

Administrative
Clerical
Commercial
Executive
Professional
Sales
Technical
Domestic, household employer, unskilled or untrained
Industrial worker or mechanic, skilled or unskilled.

(b) Class II modeling agencies. A class II license is for agencies which secure work for persons to act as live models or to model for photography.

(c) Class III nurses registry agencies. A class III license is for agencies which operate a nurses registry which secure work for persons who are licensed practical nurses and registered nurses.

(d) Class IV other agencies. A class IV license is for agencies whose activities are of a specialized nature or limited to specific areas of activity or types of placement that do not fall under the other classes of license.

(2) Fee schedules.

(a) Class I applicant-paid fee agencies.

For placement of 3 calendar months or more duration, regarded as a permanent position by both parties, the total fee charged to an applicant for employment may not exceed the following schedule:

a. Positions paying less than $583.33 per month — 72% of the first month’s salary.

b. Positions paying $583.33 or more but less than $666.66 per month — 84% of the first month’s salary.

c. Positions paying $666.66 or more but less than $750 per month — 96% of the first month’s salary.

d. Positions paying $750 or more but less than $833.33 per month — 108% of the first month’s salary.

e. Positions paying $833.33 or more per month — 120% of the first month’s salary.

The total fee charged to an applicant for employment for temporary placements of less than 3 calendar months may not exceed 20% of the wages or salary of the applicant. The total fee charged for a temporary placement may not exceed 75% of the fee charged for a permanent placement.

(b) Class II modeling agencies. The total fee charged to an applicant for employment may not exceed 15% of the sum received by the applicant from the employer. In addition to the 15% charge to the applicant, the agent may also charge the client a service charge for specific services performed.

For private nursing the total fee charged to the applicant for employment may not exceed 5% of the wages or salary received by the applicant from the employer.
The total fee charged to the applicant for employment for all other placements may not exceed those prescribed in par. (a) 1.
If prior approval from the department is received, a registration fee may be charged not to exceed $20 per month providing each applicant for employment is given a reasonable number of bona fide job offers and the actual registration fee does not exceed 5% of the annual wages or salary received. If the applicant registers for a lesser period of time, the sum received may be prorated to the actual period of availability.

(d) Class IV other agencies.

Charges to the applicants for services or employment shall be approved as being reasonable for the services offered or provided.
Each agent or applicant for a class IV license shall submit to the department for approval:

a. A schedule of fees, charges, and commissions which they intend to charge to applicants for service or employment.

b. Copies of all forms and contracts pertinent to the placement of applicants to be used in the operation of the agency.

c. Adequate supporting materials justifying the proposed schedule of fees and contracts.

(3) Other requirements.

(a) All fee schedules of class I, II, III and IV agencies for applicants for employment shall base the fee upon the first month’s salary.

(b) The fees contained in sub. (2) are presumed reasonable, and application for the fees shall be approved without supporting materials. If an applicant for a license or agent submits a schedule of higher fees, the applicant or agent shall file a supporting statement specifying the reasons for, and reasonableness of, the requested variance. In such cases, the department shall deny the request if it determines that the requested schedule is unreasonable. No agent shall request or accept any placement fee or charge until the placement is made.

(c) Agencies may be limited to specific areas of operation within a class or may be licensed to operate in more than one classification.

(d) No charge for a placement may be made by an agency to an applicant unless the agency has made arrangements to bring to the attention of the employer the qualifications of the available applicant by means of an employment interview and the applicant accepts employment.

(e) If an applicant accepts a position to which they were referred by an agency with the understanding that the fee or any portion of the fee was to be paid by the employer, and they leave that position for any reason, they are not liable to the agency for that part of the placement fee understood to be paid by the employer, notwithstanding contractual provisions to the contrary.

(f) If an employee is referred to a position by an agency with the understanding that the fee is negotiable, the results of this fee negotiation shall be made a part of the agency’s record, and the employee is not liable to the agency for that portion of the fee which the employer has agreed to pay, notwithstanding contractual provisions to the contrary.

(g) For placements in hourly paid positions, the total fee charged to the applicant for employment shall be computed on the basis of an amount not to exceed the actual earnings of the employee during the first 41⁄3 weeks of employment.

(h) If a job applicant accepts employment and thereafter fails to report for work, the gross fee charged to such applicant may not exceed 25% of the maximum fee allowed in this section, provided, however, if the applicant remains with their same employer, the fee may not exceed 50%.

(i) If a placement fee is paid partially by the applicant and partially by the employer, the total fee that the agency may charge for that placement may not exceed the applicant’s fee schedule on file and approved by the department.

History

Cr. Register, July, 1970, No. 175, eff. 8-1-70; r. and recr. Register, June, 1985, No. 354, eff. 7-1-85; r. (1) (e) and (2) (e), Register, April, 1991, No. 424, eff. 5-1-91.

Wis. Admin. Code § DWD 277.10 Receipts, refunds, and other contractual provisions applicable to all classes {#sec-dwd-277.10 omnilex-key=us-wi-regs-official--agency-dwd--DWD 277.10}

(1) The agency shall give every person from whom a fee is received for services rendered a receipt which shall include:

(a) Name of the person paying the fee.

(b) Amount of the fee.

(d) Balance due, if any.

(2) If an applicant is entitled to a refund from the fee paid, the agency shall make such refund in cash or negotiable check within 10 days.

(3) No interest or carrying charges, except for payment of delinquent fees or charges, for placement services may be made that would cause the total placement fee to be paid to exceed the schedules on file with the department of workforce development. No agent shall charge an applicant interest for failure to make payment of fees when due, unless the interest requirement and the interest rate are stated on a written contract signed by the applicant. An agent may be reimbursed for any disbursements made on behalf of an applicant or employer where authorization for disbursement and reimbursement has been given.

(4) An agent may include as part of the agency contract a provision that, if an applicant is referred to an employer for a permanent position and fails to get that position, but, within 6 months does secure employment with that employer as a result of the referral, he or she may be liable for the fee to the agency.

(5) The agency and applicant may agree on a schedule of payment of the fee for a permanent placement, but in no case may more than 60% of the first month’s earnings be required to be paid to the agency in the first 30 days of employment, if the total fee exceeds 60% of the first month’s earnings.

(6) An agency which requires an applicant to sign a contract shall have the terms of the contract and the fee schedule printed in its entirety and in not less than 8 point type and shall give to the applicant a copy of the signed contract.

(7) No agency may take from an applicant a confession of judgment, a promissory note or notes, or an assignment of wages to cover its fees.

(8) Upon every contract shall be printed the following statement: “Complaints against employment agents may be made to the State of Wisconsin, Department of workforce development, P.O. Box 8928, Madison, Wisconsin 53708.”

History

Cr. Register, July, 1970, No. 175, eff. 8-1-70; am. (4) and (8), r. and recr. (5), Register, June, 1985, No. 354, eff. 7-1-85.

Wis. Admin. Code § DWD 277.11 Orders from employers {#sec-dwd-277.11 omnilex-key=us-wi-regs-official--agency-dwd--DWD 277.11}

No employment agent shall refer an employee to employment without having obtained either orally or in writing authorization therefor, and if no employment of the kind specified by the employment agent existed at the place to which such employee was directed or if no other employment in substitution thereof is accepted by the employee, the agent shall within 24 hours of demand refund to the employee any sums paid by the employee for transportation in going to and returning from such place.

History

Cr. Register, July, 1970, No. 175, eff. 8-1-70; r. (2), (3) and (4), Register, June, 1985, No. 354, eff. 7-1-85.

Wis. Admin. Code § DWD 277.13 Applicant travel expense {#sec-dwd-277.13 omnilex-key=us-wi-regs-official--agency-dwd--DWD 277.13}

The employment agent shall clearly advise the applicant who is liable for all necessary expenses incurred by the applicant when referred to a position outside the city where the agent is located. Failure by the agent to advise the applicant either verbally or in writing who is responsible for the expenses shall result in the employment agent being liable for the expenses incurred.

History

Cr. Register, July, 1970, No. 175, eff. 8-1-70; r. and recr. Register, June, 1985, No. 354, eff. 7-1-85.

Wis. Admin. Code § DWD 277.14 Records to be kept {#sec-dwd-277.14 omnilex-key=us-wi-regs-official--agency-dwd--DWD 277.14}

For the purpose of this chapter, each employment agency shall keep, in the English language, for at least 2 years, the following records:

(1) A record of all applications for employment showing the name and address of the applicant.

(2) A record of all persons referred to employers, the date of referral, whether they are hired or not.

(3) A record of all job orders for employees received from employers. Such job orders shall be numbered consecutively and shall show the name and address of the employer, the name and position of the person placing the order, the kind of employee requested, the nature of the employment, the salary or wages to be paid and the duration of the job.

(4) A record of all payments to the agency of any and all placement fees received and refunded. Each record shall show the date of each transaction, the name of the person making the remittance, the amount paid, a duplicate receipt, and the date and amount of any refund.

(5) A record of jobs advertised correlated to show date and publication in which the ad appeared and the job order number of each job advertised.

(6) A record of fee agreement negotiations showing the amount to be paid by each party.

History

Cr. Register, July, 1970, No. 175, eff. 8-1-70; am. (2), Register, June, 1985, No. 354, eff. 7-1-85.

Wis. Admin. Code § DWD 277.15 Applicant-paid fee agents {#sec-dwd-277.15 omnilex-key=us-wi-regs-official--agency-dwd--DWD 277.15}

(1) All advertising, including newspaper ads, informational flyers, and bulletins, shall contain the name of the employment agency and a statement that the agency is a “licensed employment agent.”

(2) Advertisements for positions located in communities other than that in which the employment agency is located shall clearly indicate that fact for each position advertised may require geographic relocation.

(3) Positions listed in the “Help Wanted” columns of newspapers or other media shall refer to bona fide openings available at the time that the advertisement or copy is given to the publisher.

(4) When an agent operates separate divisions within the agency and the separate divisions are operated under different names than the licensed agent, then all advertising shall contain the name of the licensed agent and the fact that the agent is licensed.

History

Cr. Register, July, 1970, No. 175, eff. 8-1-70; am. (2) and cr. (4), Register, June, 1985, No. 354, eff. 7-1-85.

Wis. Admin. Code § DWD 277.16 Inducing discharge or termination of employment {#sec-dwd-277.16 omnilex-key=us-wi-regs-official--agency-dwd--DWD 277.16}

No employment agent shall persuade, induce or procure, or attempt to persuade, induce, or procure any employer or agent of any employer to discharge any employee.

History

Cr. Register, July, 1970, No. 175, eff. 8-1-70.

Wis. Admin. Code § DWD 277.18 Posting of license, fee schedule, and rules {#sec-dwd-277.18 omnilex-key=us-wi-regs-official--agency-dwd--DWD 277.18}

(1) The license shall be posted in a conspicuous place in the main room of the agency.

(2) The name of the agency and the fact that he is licensed shall be posted on or near the main entrance door of the agency.

(3) All stationery, contracts, and fee schedules shall contain the name of the employment agency and a statement that the agency is a “licensed employment agent.”

(4) A copy of ch. 105, Stats., and ch. DWD 277 shall be posted or made readily available to visitors in the main room of the agency.

History

Cr. Register, July, 1970, No. 175, eff. 8-1-70; correction in (4) made under s. 13.93 (2m) (b) 7., Stats., Register, February, 1996, No. 482.

Wis. Admin. Code § DWD 277.19 Notice to home care consumers and workers {#sec-dwd-277.19 omnilex-key=us-wi-regs-official--agency-dwd--DWD 277.19}

(1) Definitions. In this section:

(a) “Home care consumer” or “consumer” has the meaning given in s. 105.115 (1) (b), Stats.

Note: Section 105.115 (1) (b), Stats., provides that “home care consumer” means “a person who receives home care services in his or her temporary or permanent residence from a home care worker.”

(b) “Home care placement agency” means a person that is engaged in placing home care workers in the temporary or permanent residences of home care consumers for the purpose of providing home care services to those home care consumers, including an employment agent engaged in the business specified in s. 105.01 (1) (intro.), Stats., or a person specified in s. 105.01 (1) (f), Stats., whose fees or charges are paid entirely by a home care consumer. “Home care placement agency” does not include a person that places home care workers in the residences of home care consumers for the purpose of providing home care services to those home care consumers if the person employs the individuals and pays wages or salaries, federal social security taxes, and state and federal unemployment contributions or taxes; carries worker’s compensation insurance as required by state law; and maintains liability insurance covering the acts of its employees while providing home care services.

Note: Section 105.115 (1) (e), Stats., provides that “home care worker” means “a person who provides home care services to a home care consumer in the temporary or permanent residence of the home care consumer.”

(d) “Refer” means to bring to the attention of a potential home care consumer the qualifications of a potential home care worker.

(2) Notice to home care consumer.

(a) A home care placement agency shall have in its files a copy of the notice required under s. 105.115 (2), Stats., signed by a home care consumer, before the home care placement agency refers a home care worker to the consumer.

Note: Section 105.115 (2) (intro.), Stats., provides that the notice shall be on a form prescribed by the department. A copy of the required form is available by contacting the Equal Rights Division, 201 East Washington Avenue, P.O. Box 8928, Madison WI 53708; phone (608) 266-6860; or by following the link to Equal Rights on the department’s website at https://dwd.wisconsin.gov/er/.

(b) “Temporarily substituting” as used in s. 105.115 (2) (intro.), Stats., means no more than 2 weeks per incident.

Note: Section 105.115 (2) (intro.), Stats., provides that “a home care placement agency is not required to provide that notice [the notice to home care consumers] when placing a home care worker who is temporarily substituting for the regular home care worker of a home care consumer.”

(3) Notice to home care worker. A home care placement agency shall have in its files a copy of the notice required under s. 105.115 (3), Stats., signed by a home care worker, before the home care placement agency refers the potential home care worker to a consumer.

Note: Section 105.115 (3) (intro.), Stats., provides that the notice shall be on a form prescribed by the department. A copy of the required form is available by contacting the Equal Rights Division, 201 East Washington Avenue, P.O. Box 8928, Madison WI 53708; phone (608) 266-6860; or by following the link to Equal Rights on the department’s website at https://dwd.wisconsin.gov/er/.

(4) Record retention. A home care placement agency shall retain the notices required under s. 105.115 (2) and (3), Stats., at least 4 years from the date that the home care agency referred the home care worker to the consumer if the home care worker and home care consumer enter into an employment agreement or contract for services.

History

CR 06-138: cr. Register April 2007 No. 616, eff. 5-1-07.

Chapter DWD 279 BUSINESS CLOSING AND MASS LAYOFF

Wis. Admin. Code § DWD 279.001 Purpose {#sec-dwd-279.001 omnilex-key=us-wi-regs-official--agency-dwd--DWD 279.001}

The purpose of this chapter is to implement s. 109.07, Stats., which provides remedies for an employer’s failure to provide notice of a business closing or mass layoff in certain cases. The chapter provides criteria for exceptions and is designed to aid the administration and enforcement of the law.

History

Cr. Register, March, 1991, No. 423, eff. 4-1-91.

Wis. Admin. Code § DWD 279.002 Interpretation {#sec-dwd-279.002 omnilex-key=us-wi-regs-official--agency-dwd--DWD 279.002}

Whenever possible, this chapter will be interpreted in a manner consistent with the Federal Worker Adjustment and Retraining Notification Act, 29 USC 2101, et seq., the federal regulations and court decisions interpreting that Act to the extent that the provisions of federal and state law are the same.

History

Cr. Register, March, 1991, No. 423, eff. 4-1-91; correction made under s. 13.93 (2m) (b) 7., Stats, Register, April, 2001, No. 544.

Wis. Admin. Code § DWD 279.01 Definitions and scope {#sec-dwd-279.01 omnilex-key=us-wi-regs-official--agency-dwd--DWD 279.01}

(1) When used in this chapter or in s. 109.07, Stats.:

(a) “Affected employee” has the meaning specified in s. 109.07 (1) (a), Stats. An employee that suffers loss of employment is an affected employee if that loss is the result of an employment termination (other than a discharge for cause, voluntary departure or retirement), a layoff exceeding 6 months or a reduction in hours of work of more than 50% during each month of any 6-month period. An affected employee does not include an employee discharged for cause or employees who terminate their employment as a result of retirement or voluntary departure. Business partners as well as consultant or contract employees who are paid by another employer or are self employed are not affected employees of the business to which they are assigned.

(b) “Business closing” has the meaning specified in s. 109.07 (1) (b), Stats.

(d) “Employer” has the meaning specified in s. 109.07 (1) (d), Stats., but does not include the federal or state government or any of their political subdivisions. Charitable or tax-exempt institutions and organizations are also not included. Independent contractors and wholly or partially owned subsidiaries that are independent from the parent corporation are considered separate employers for the purposes of this section.

(e) “Employment site” as used in s. 109.07, Stats. means a single location or group of locations within the same municipality or reasonable geographic proximity that share the same or related staff or operational purpose. Employment sites that have separate workforces, separate management, or produce different products are separate employment sites.

(f) “Facilities” as used in s. 109.07 (1) (b), Stats., means a building or buildings.

(g) “Mass layoff” has the meaning specified in s. 109.07 (1) (f), Stats.

(h) “Municipality” means a city, town or village.

(i) “New or low hour employee” has the meaning specified in s. 109.07 (1) (h), Stats.

(j) “Operating units” as used in s. 109.07 (1) (b), Stats., means an organizationally or operationally distinct operation or specific work function within or across facilities at an employment site. Only distinct structural or operational entities within an employment site are intended to be included as“operating units.”

(k) “Persons” as used in s. 109.07 (1) (d), Stats., does not include new or low-hour employees.

(L) “Substantially all” as used in s. 109.07 (6) (a) and (b), Stats., means that number of an employers affected employees who if hired or offered transfer, will make the total number of affected employees experiencing a loss of employment, as determined by the department on a case by case basis less than the thresholds for a “business closing” or “mass layoff” as defined in s. 109.07 (1) (b) or (f), Stats.

History

Cr. Register, March, 1991, No. 423, eff. 4-1-91.

Wis. Admin. Code § DWD 279.02 Employer notice {#sec-dwd-279.02 omnilex-key=us-wi-regs-official--agency-dwd--DWD 279.02}

(1) An employer who has decided upon a business closing or mass layoff in this state shall provide written notice of the closing or mass layoff to the department, any affected employee, any collective bargaining representative of any affected employee and the highest official of any municipality in which the affected employment site is located.

Note: An employer shall notify the department of a business closing or mass layoff by providing written notice delivered to WIOATitleI@dwd.wisconsin.gov.

(2)

(a) In the case of the sale of part or all of a business the exception in s. 109.07 (6) (a), Stats., may apply. If that exception does not apply and if notice is required, the seller shall provide notice of any business closing or mass layoff that occurs up to the effective date of sale, and the buyer is responsible for providing notice of any business closing or mass layoff that takes place thereafter. If termination or layoff takes place on the sale’s effective date, notice to affected employees not hired by the buyer in connection with the sale is the responsibility of the buyer.

(b) Not withstanding the allocation of responsibility for notice in par. (a), a buyer and seller may issue notices jointly or as agents of one another. Buyers and sellers also may enter into private agreements which address their respective rights and notice obligations under this subsection.

(c) If notice is not given as required by par. (a), the employer required to give notice shall be liable for penalties under s. 109.07 (3) and (4m), Stats.

History

Cr. Register, March, 1991, No. 423, eff. 4-1-91.

Wis. Admin. Code § DWD 279.03 Who must receive notice {#sec-dwd-279.03 omnilex-key=us-wi-regs-official--agency-dwd--DWD 279.03}

(1) An employer shall provide notice to all affected employees that may reasonably be expected to lose employment as a result of a business closing or mass layoff. If at the time the notice is given, the employer is unable to identify which employee will lose employment due to elimination of a particular position, notice shall be provided to the employee currently holding that position.

(2) An employer shall notify the collective bargaining representative of an affected employee by providing written notice to that employee’s local bargaining agent or the chief elected officer of the employee’s exclusive bargaining agent.

(3) An employer shall notify the affected municipality of the business closing or mass layoff by providing written notice to the mayor of a city, town board chairman or village president. In the case of cities organized under a city manager plan, notice shall be delivered to the president of the city council and city manager. For villages organized under a city manager plan, notice shall be delivered to the president of the village board of trustees and the village manager.

History

Cr. Register, March, 1991, No. 423, eff. 4-1-91.

Wis. Admin. Code § DWD 279.04 When employer notice must be given {#sec-dwd-279.04 omnilex-key=us-wi-regs-official--agency-dwd--DWD 279.04}

(1) An employer who has decided upon a business closing or mass layoff in this state shall provide written notice of such action no later than 60 calendar days prior to the date that the closing or layoff occurs. The department shall, upon complaint, determine whether notice is required or should have been provided.

(2)

(a) An employer is not required to provide notice as required in this section unless affected employees lose employment in sufficient number on a particular date to meet the definition of business closing or mass layoff. However, subject to par. (c), 2 or more groups of employees who are affected during a 90-day period may be considered in the aggregate in order to determine whether the business closing or mass layoff thresholds have been met, unless the loss of employment in different groups are the result of separate and distinct actions and causes. In order to be considered in the aggregate, each group of employees affected by a reduction in the workforce on different dates must, by itself, be insufficient to trigger notice obligations.

(b) For the purpose of this subsection successive layoffs or terminations that result from different events are separate and distinct actions and causes. Successive layoffs or reductions in the workforce caused by ongoing unfavorable business conditions are separate and distinct if the employer had a reasonable basis for believing that the subsequent reduction would not necessarily follow from the earlier reduction or reductions.

(c) The department shall consider, subject to par. (a), a series of layoffs that are related and conducted by the employer with the intent to evade the notice requirements of s. 109.07, Stats. as failure to give timely notice.

(d) The department shall consider permanent or routine notice given by an employer with the intent to evade the requirements of s. 109.07, Stats., as failure to give timely notice.

(3) For the purposes of this section, an affected employee’s date of layoff or termination is the date active employment is first denied because of a business closing or mass layoff. The date of an employees’ reduction in hours of work of 50% or more in a given month is the first business day in the month in which the employee experiences that reduction. Notice is required when it becomes evident that the reduction will extend beyond 6 months.

(4)

(a) An employer may use any reasonable method of delivery designed to result in receipt of written notice at least 60 days before the business closing or mass layoff occurs. Employers must exercise reasonable diligence in issuing notices but do not have to take extraordinary or unreasonable measures to ensure notices are actually received by all parties.

(b) A reasonable method of delivery includes but is not limited to, first class mail, personal delivery with optional signed receipt or in the case of notification directly to affected employees, insertion of notice into pay envelopes. A ticketed notice, in other words, a preprinted notice regularly included in each employee’s pay check or pay envelope, does not meet the requirements of this section.

(5) To determine whether a business enterprise is an employer subject to s. 109.07, Stats., or to determine the number of employees in an employers workforce or at an employment site against which the 25% threshold for a mass layoff is to be calculated, the point in time at which that number is to be measured is the date the first notice is required to be given. If this“snapshot” of the amount of employees on the date is not representative of the employers ordinary or average employment levels over the previous 90 days then the department shall use a more representative number.

History

Cr. Register, March, 1991, No. 423, eff. 4-1-91.

Wis. Admin. Code § DWD 279.05 Extension of notice {#sec-dwd-279.05 omnilex-key=us-wi-regs-official--agency-dwd--DWD 279.05}

Additional notice of a delayed business closing or mass layoff must be issued within a reasonable time after the employer learns there will be a postponement or delay beyond the date announced in the original notice. The additional notice shall be directed to the same recipients of the original notice. The additional notice shall include reference to the earlier notice, the date to which the planned action is postponed, and the reasons for the postponement or change.

History

Cr. Register, March, 1991, No. 423, eff. 4-1-91.

Wis. Admin. Code § DWD 279.06 Content of employer notice {#sec-dwd-279.06 omnilex-key=us-wi-regs-official--agency-dwd--DWD 279.06}

(1) Notice by the employer to each affected employee shall contain at least all of the following:

(a) The name and address of the employment site where the business closing or mass layoff will occur and the name and telephone number of a company official to contact for further information.

(b) A description of whether the planned action is expected to be permanent or temporary and, if the entire employment site is to be closed, a statement to that effect. If the planned action is expected to be temporary the notice should to the extent reasonable include the estimated duration of that action, if known.

(c) The expected date when the business closing or mass layoff will commence and the expected date of the employee’s layoff or separation.

(d) The name and address of the employee’s collective bargaining representative, if applicable.

(2) Notice to the collective bargaining representative of an affected employee shall contain all of the following:

(a) The name and address of the employment site where the business closing or mass layoff will occur and whether the planned action is expected to be permanent or temporary, and if the entire employment site is to be closed a statement to that effect.

(b) The schedule of separation or layoff, a list including the job titles of the affected positions and the names of employees currently holding those jobs or expected to be affected by the business closing or mass layoff.

(3) Notice to the department and to the highest official of the municipality in which the affected employment site is located shall contain all of the following:

(a) The name and address of the employment site where the business closing or mass layoff will occur.

(b) The name and telephone number of a company official to contact for further information.

(d) The number of employees affected by the business closing or mass layoff.

(e) A description of whether the planned action is expected to be permanent or temporary and, if the entire employment site is to be closed, a statement to that effect. If the planned action is expected to be temporary the notice should include to the extent reasonable the estimated duration of that action, if known.

(4)

(a) Information provided in the notice shall be based on the best information available to the employer at the time the notice is served. Errors in information provided in a notice that occur because events subsequently change or that are minor inadvertent errors are not to be considered a violation of s. 109.07, Stats.

(b) Minor inadvertent errors includes but is not limited to factual errors that result because circumstances later changed, the omission or misstatement of position titles or number of employees in a given position, typographical errors or other minor inaccuracies that were unintended.

(5) Employers may use a form of notice that satisfies the notice requirements of the federal Worker Adjustment and Retraining Notification Act as specified in 20 CFR 639.7, as a substitute for the notice required in this section. In those instances when notice is required under s. 109.07, Stats., but not clearly required under federal law, employer notice shall comply with this section.

(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.

History

Cr. Register, March, 1991, No. 423, eff. 4-1-91.

Wis. Admin. Code § DWD 279.07 Posting of notice {#sec-dwd-279.07 omnilex-key=us-wi-regs-official--agency-dwd--DWD 279.07}

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.

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.

History

Cr. Register, March, 1991, No. 423, eff. 4-1-91.

Wis. Admin. Code § DWD 279.08 Exceptions {#sec-dwd-279.08 omnilex-key=us-wi-regs-official--agency-dwd--DWD 279.08}

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:

(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.

(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.

(3)

(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.

(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.

(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.

(4)

(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.

(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.

(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.

(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.

(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.

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

(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.

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

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

(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.

(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.

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

(8)

(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.

(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:

Written requests for loans of capital to individuals or lending institutions.
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.
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.
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.
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.

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

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

History

Cr. Register, March, 1991, No. 423, eff. 4-1-91.

Wis. Admin. Code § DWD 279.09 Applicability {#sec-dwd-279.09 omnilex-key=us-wi-regs-official--agency-dwd--DWD 279.09}

(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.

(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.

(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.

History

Cr. Register, March, 1991, No. 423, eff. 4-1-91.

Wis. Admin. Code § DWD 279.10 Complaint {#sec-dwd-279.10 omnilex-key=us-wi-regs-official--agency-dwd--DWD 279.10}

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.

History

Cr. Register, March, 1991, No. 423, eff. 4-1-91.

Wis. Admin. Code § DWD 279.11 Reviews {#sec-dwd-279.11 omnilex-key=us-wi-regs-official--agency-dwd--DWD 279.11}

(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.

(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.

History

Cr. Register, March, 1991, No. 423, eff. 4-1-91.

Wis. Admin. Code § DWD 279.12 Referrals {#sec-dwd-279.12 omnilex-key=us-wi-regs-official--agency-dwd--DWD 279.12}

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

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.

History

Cr. Register, March, 1991, No. 423, eff. 4-1-91.

Wis. Admin. Code § DWD 279.13 Records and inspections {#sec-dwd-279.13 omnilex-key=us-wi-regs-official--agency-dwd--DWD 279.13}

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.

History

Cr. Register, March, 1991, No. 423, eff. 4-1-91.

Chapter DWD 290 CONTRACTS FOR CONSTRUCTION OF PUBLIC WORKS

Wis. Admin. Code § DWD 290.001 Scope {#sec-dwd-290.001 omnilex-key=us-wi-regs-official--agency-dwd--DWD 290.001}

This chapter applies to all prevailing wage rate determinations under ss. 66.0903, 66.0904, and 103.49, 2009 Stats., and to the certification of prevailing wage rates and the notification of minor subcontractors under s. 103.50, 2009 Stats.

History

Cr. Register, September, 1997, No. 501, eff. 10-1-97; correction made under s. 13.93 (2m) (b) 7., Stats., Register, July, 2000, No. 535; CR 10-092: am. Register December 2010 No. 660, eff. 1-1-11; correction made under s. 13.92 (4) (b) 7., Stats., Register June 2017 No. 738.

Wis. Admin. Code § DWD 290.01 Definitions {#sec-dwd-290.01 omnilex-key=us-wi-regs-official--agency-dwd--DWD 290.01}

The following definitions shall apply to all prevailing wage rate determinations issued by the department pursuant to this chapter:

(1) “Allowable rate” means the rate determined by the department from its review of a collective bargaining agreement by subtracting items which do not represent bona fide fringe benefits.

Note: This term is used in s. DWD 290.015 (3). Two examples of items which do not represent bona fide fringe benefits are industry or contract administration funds.

(2) “Area” has the same meaning as in ss. 66.0903 (1) (a), 66.0904 (1) (a), 103.49 (1) (a), and 103.50 (1) (a), 2009 Stats.

Note: Section 66.0903 (1) (a), 2009 Stats., provides that “area” means “the county in which a proposed project of public works that is subject to this section is located or, if the department determines that there is insufficient wage data in that county, “area” means those counties that are contiguous to that county or, if the department determines that there is insufficient wage data in those counties, “area” means those counties that are contiguous to those counties or, if the department determines that there is insufficient wage data in those counties, “area” means the entire state or, if the department is requested to review a determination under sub. (3) (br), “area” means the city, village or town in which a proposed project of public works that is subject to this section is located.” The same definition is provided in s. 66.0904 (1) (a), 2009 Stats., except that the cross-reference relating to the review of a determination is to s. 66.0904 (4) (e), 2009 Stats. The same definition is provided in s. 103.49 (1) (a), 2009 Stats., except that the cross-reference relating to the review of a determination is to s. 103.49 (3) (c), 2009 Stats. The same definition is provided in s. 103.50 (1) (a), 2009 Stats., except that there is no cross-reference relating to the review of a determination.

(3) “Bona fide economic benefit” has the same meaning as in ss. 66.0903 (1) (am), 66.0904 (1) (am), and 103.49 (1) (am), 2009 Stats.

Note: Sections 66.0903 (1) (am) and 66.0904 (1) (am), 2009 Stats., both provide that “bona fide economic benefit” has the meaning given in s. 103.49 (1) (am), 2009 Stats. Section 103.49 (1) (am), 2009 Stats., provides that “bona fide economic benefit” means “an economic benefit for which an employer makes irrevocable contributions to a trust or fund created under 29 USC 186(c) or to any other bona fide plan, trust, program or fund no less often than quarterly or, if an employer makes annual contributions to such a bona fide plan, trust, program or fund, for which the employer irrevocably escrows moneys at least quarterly based on the employer’s expected annual contribution.”

(4) “Contractor” means a person, including but not limited to a sole proprietor, a partnership, a corporation, a limited liability company, a construction manager or consultant, a Wisconsin state agency as defined in s. 103.49 (1) (f), 2009 Stats., or a local governmental unit as defined in s. 66.0903 (1) (d), 2009 Stats., who has entered into a contract with a state agency or local governmental unit for a project of public works, or who has entered into a contract with an owner or developer of real property for a publicly funded private construction project.

Note: In an Opinion of the Attorney General issued on November 12, 2009, OAG-5-09, the Attorney General states that, effective January 1, 2010, state prevailing wage rates must be paid to the employees of a local governmental unit that enters into an agreement to perform services for another local governmental unit on a project of public works. Under this rule, the same requirement also applies to any agreement for services entered into before January 1, 2010, and to any work that is claimed to be done pursuant to the joint exercise of powers or duties under s. 66.0301 (2), 2009 Stats., before or after January 1, 2010, when the circumstances show that the work comes under the definition of work done by a “contractor” or “employer.”

(5) “Department” means the state of Wisconsin department of workforce development.

(5m) “Direct financial assistance” has the same meaning as in s. 66.0904 (1) (c), 2009 Stats.

Note: Section 66.0904 (1) (c), 2009 Stats., provides that “direct financial assistance” means moneys, in the form of a grant or other agreement or included as part of a contract, cooperative agreement, or any other arrangement, including a redevelopment agreement under s. 66.1333 (5), economic development agreement, contract under s. 66.1105 (3), or assistance provided under s. 66.1109, that a local governmental unit directly provides or otherwise directly makes available to assist in the erection, construction, repair, remodeling, demolition, of a private facility. “Direct financial assistance” does not include any of the following:

1. A public works contract, a supply procurement contract, a contract of insurance or guaranty, a collective bargaining agreement, or any other contract under which moneys are not directly provided or otherwise directly made available for that assistance.

2. Any moneys allocated by the city of Milwaukee for the purchase of public access easements that are located entirely in the Milwaukee Riverwalk Site Plan Review Overlay District established by the city of Milwaukee, as amended to June 1, 2009, or for the construction of dockwalls, walkways, plazas, parks, private roadways open to the public, or similar improvements, or for any other public infrastructure improvements, that are located entirely in that district, if the work on those improvements is subject to s. 66.0903, 2009 Stats., or is exempted from that section under s. 66.0903 (6), 2009 Stats.

(6) “Employer” means any contractor, subcontractor, agent or other person, including a Wisconsin state agency as defined in s. 103.49 (1) (f), 2009 Stats., or a local governmental unit as defined in s. 66.0903 (1) (d), 2009 Stats., doing or contracting to do all or a part of the work.

(6m) “Facility” means all or any portion of a building, a structure, land, infrastructure, or other real property.

(9) “Hourly basic rate of pay” has the meaning given in s. 103.49 (1) (b), 2009 Stats.

(10) “Hourly contributions” is the per hour cost of the economic benefits paid to a laborer, worker, mechanic or truck driver by his or her employer, in addition to the hourly basic rate of pay. Payment for food, lodging, mileage, riding time, waiting time, call-in pay, uniforms, and the use of an employer’s vehicle are excluded.

Note: Specific economic benefits. (Interpretation)

(a) The term “other bona fide economic benefit” is the so-called “open end” provision. This was included so that new economic benefits may be recognized by the department as they become prevailing. A particular economic benefit need not be recognized beyond a particular area in order for the department to find that it is prevailing in that area.

(b) To insure against considering or giving credit to any and all economic benefits, some of which might be illusory or not genuine, the qualification required by the department is that the economic benefits must be bona fide. No difficulty is anticipated in determining whether a particular economic benefit is bona fide in the ordinary case where benefits are those common in the construction industry and which are established under a usual fund, plan or program. The following are typical conventional economic benefits: medical or hospital care, pensions on retirement or death, compensation for injuries or illness resulting from occupational activity, or insurance to provide any of the foregoing, unemployment benefits, life insurance, disability and sickness insurance, or accident insurance, vacation and holiday pay, defrayal of costs of apprenticeship or other similar programs, or other bona fide economic benefits, but only where the employer is not required by other federal, state, or local law to provide any of the benefits. Employers may take credit for contributions made under such conventional plans without requesting the approval of the department.

(c) Economic benefits which an employer is required to pay pursuant to other federal, state, or local law are excluded. No credit shall be taken for the payments made for these economic benefits. For example, payments for worker’s compensation insurance under either a compulsory or elective state statute are not payments for economic benefits under s. 66.0903 or 103.49, 2009 Stats. The omission in the above-mentioned statutes of any express reference to these payments, which are common in the construction industry, suggests that these payments shall not be regarded as an economic benefit.

(a) Contribution irrevocably made by an employer to a trustee or to a third person. Contributions for bona fide economic benefits made to a trustee or to a third person irrevocably shall be considered in ascertaining any hourly contribution. The “third person” must be one who is not affiliated with the employer. The trustee must assume the usual fiduciary responsibilities imposed upon trustees by applicable law. The trust or fund, except those used for apprenticeship training, must be set up so that the employer be unable to recapture any of the required contributions paid in or to divert the funds.

Note: Although contributions made to a trustee or third person pursuant to a benefit plan must be irrevocably made, this does not prevent return to the employer of sums which were paid in excess of the contributions actually called for by the plan, as where such excess payments result from error or from the necessity of making payments to cover the estimated cost of contributions at a time when the exact amount of the necessary contributions under the plan is not yet ascertained. For example, a benefit plan may provide for definite insurance benefits for employees in the event of the happening of a specified contingency such as death, sickness, accident, etc., and may provide that the cost of such definite benefits, either in full or any balance in excess of specified employee contributions, will be borne by the employer. In such case the return by the insurance company to the employer of sums paid in excess of the amount required to provide the benefits which, under the plan, are to be provided through contributions by the employer, will not be deemed a recapture or diversion by the employer of contribution made pursuant to the plan.

(b) Fund, plan or program. The contribution for an economic benefit must be made pursuant to a bona fide fund, plan, or program.

Note: The phrase “fund, plan, or program” is intended merely to recognize the various types of arrangements commonly used to provide economic benefits through employer contributions. In interpreting this phrase, the department will be guided by the experience of the United States department of labor and United States treasury department in administering the Employee Retirement Income Security Act of 1974, of the U.S. department of labor in administering other related programs, and of the Wisconsin state insurance commissioner in administering employee welfare funds under ch. 641, Stats.

Note: Chapter 641, Stats., was repealed by 2003 Wis. Act 261.

The reasonable anticipated cost to an employer pursuant to an enforceable written commitment to carry out a financially responsible plan or program shall be considered as an economic benefit.

Note: These provisions are intended to permit the consideration of economic benefits that meet the requirements and are provided from the general assets of an employer.

No type of economic benefit is eligible for consideration as a so-called unfunded plan unless all of the following criteria apply:

a. A copy has been supplied to the department.

b. It could be reasonably anticipated to provide economic benefits described in s. 66.0903 or 103.49, 2009 Stats., and this subsection.

c. It is a bona fide commitment.

d. The plan or program providing the economic benefits has been communicated in writing to the affected laborers, workers, mechanics and truck drivers.

Note: As in the case of fringe benefit contributions made to a fund, plan, or program, an unfunded plan or program must be “bona fide” and not a mere simulation or sham to avoid compliance with s. 66.0903 or 103.49, 2009 Stats. In evaluating the per hour cost of the fringe benefit contribution for employers that “self-insure” all or a portion of their employees’ health insurance, the department may use guidance from the discussion on determining the applicable premium for self-insured plans under the Consolidated Omnibus Reconciliation Act (COBRA) in the Employer’s Handbook: Mandated Health Benefits, Thompson Publishing Group, 1725 K Street, N.W., Suite 200, Washington, D.C. 20006.

(10m) “Incidental work” means work performed in a classification other than an employee’s primary classification that is paid a lower prevailing wage rate and performed for 15% or less of the employee’s time spent working on a particular project of public works or a particular publicly funded private construction project during a given work week.

(11) “Laborers, workers, mechanics and truck drivers” includes subjourneypersons and properly registered and indentured apprentices but excludes clerical, supervisory, and other personnel not performing manual labor.

(12)

(a) For the projects of a local governmental unit under s. 66.0903, 2009 Stats., “minor service or maintenance work” has the same meaning as in s. 66.0903 (1) (dr), 2009 Stats.

Note: Section 66.0903 (1) (dr), 2009 Stats., provides that “minor service or maintenance work” means “a project of public works that is limited to minor crack filling, chip or slurry sealing, or other minor pavement patching, not including overlays, that has a projected life span of no longer than 5 years; the depositing of gravel on an existing gravel road applied solely to maintain the road; road shoulder maintenance; cleaning of drainage or sewer ditches or structures; or any other limited, minor work on public facilities or equipment that is routinely performed to prevent breakdown or deterioration.”

(b) For the projects of the state or a state agency under s. 103.49, 2009 Stats., “minor service or maintenance work” has the same meaning as in s. 103.49 (1) (bj), 2009 Stats.

Note: Section 103.49 (1) (bj), 2009 Stats., provides that “minor service or maintenance work” means “a project of public works that is limited to minor crack filling, chip or slurry sealing, or other minor pavement patching, not including overlays, that has a projected life span of no longer than 5 years cleaning of drainage or sewer ditches or structures; or any other limited, minor work on public facilities or equipment that is routinely performed to prevent breakdown or deterioration.”

(c) For the projects of owners or developers under s. 66.0904, 2009 Stats., “minor service or maintenance work” has the same meaning as in s. 66.0904 (1) (fm), 2009 Stats.

Note: Section 66.0904 (1) (fm), 2009 Stats., provides that “minor service or maintenance work” means “a publicly funded private construction project that is limited to minor crack filling, chip or slurry sealing, or other minor pavement patching, not including overlays, that has a projected life span of no longer than 5 years; the depositing of gravel on an existing gravel road applied solely to maintain the road; road shoulder maintenance; cleaning of drainage or sewer ditches or structures; or any other limited, minor work on private facilities or equipment that is routinely performed to prevent breakdown or deterioration.”

(13) “Minor subcontract” means a subcontract with an estimated cost that is less than $2,000.00 and an estimated work duration of less than 3 days.

(15) “Prevailing hours of labor” has the same meaning as in s. 103.49 (1) (c), 2009 Stats.

(16)

(a) “Prevailing wage rate” has the same meaning as in ss. 66.0903 (1) (g), 66.0904 (1) (h), 103.49 (1) (d), and 103.50 (1) (d), 2009 Stats.

Note: Section 66.0903 (1) (g), 2009 Stats., provides: “1. Except as provided in subd. 2., “prevailing wage rate” for any trade or occupation engaged in the erection, construction, remodeling, repairing or demolition of any project of public works in any area means the hourly basic rate of pay, plus the hourly contribution for health insurance benefits, vacation benefits, pension benefits and any other bona fide economic benefit, paid directly or indirectly, for a majority of the hours worked in the trade or occupation on projects in the area.

2. If there is no rate at which a majority of the hours worked in the trade or occupation on projects in the area is paid, “prevailing wage rate” for any trade or occupation engaged in the erection, construction, remodeling, repairing or demolition of any project of public works in any area means the average hourly basic rate of pay, weighted by the number of hours worked, plus the average hourly contribution, weighted by the number of hours worked, for health insurance benefits, vacation benefits, pension benefits and any other bona fide economic benefit, paid directly or indirectly for all hours worked at the hourly basic rate of pay of the highest-paid 51% of hours worked in that trade or occupation on projects in that area.” Sections 103.49 (1) (d) and 103.50 (1) (d), 2009 Stats., contain the same definition. Section 66.0904 (1) (h), 2009 Stats., contains the same definition except that it refers to a “publicly funded private construction project” instead of a “project of public works.”

(b) In determining whether there is a majority of hours worked at a particular rate of pay, the department shall consider the sum of the hourly basic rate of pay plus corresponding hourly contributions rate. If there is a majority of hours worked at the rate that is that sum and there is more than one combination of hourly basic rates plus hourly contributions rates that equal that sum, the prevailing wage rate shall be the hourly basic rate of pay and corresponding hourly contributions rate with the most hours reported that resulted in that sum.

(c) In calculating the weighted average of the “highest-paid 51% of hours worked” in a trade or occupation, the department shall include all hours worked at the sum of the hourly basic rates of pay and corresponding hourly contributions rates that include the highest-paid 51% of hours worked.

(16m) “Prevailing wage rate determination” includes the original determination and subsequent determinations modifying or otherwise changing the provisions of the original determination.

(17)

(a) For the projects of a local governmental unit under s. 66.0903, 2009 Stats., “project of public works” or “public works project” or “project” has the same meaning as in s. 66.0903 (2), 2009 Stats.

Note: Section 66.0903 (2), 2009 Stats., provides: “Subject to sub. (5), this section applies to any project of public works erected, constructed, repaired, remodeled, demolished for a local governmental unit, including all of the following:

(a) A highway, street, bridge, building, or other infrastructure project.

(b) A project erected, constructed, repaired, remodeled, demolished by one local governmental unit for another local governmental unit under a contract under s. 66.0301 (2), 83.03, 83.035, or 86.31 (2) (b) or under any other statute specifically authorizing cooperation between local governmental units.

(c) A project in which the completed facility is leased, purchased, lease purchased, or otherwise acquired by, or dedicated to, a local governmental unit in lieu of the local governmental unit contracting for the erection, construction, repair, remodeling, demolition of the facility.

(d) A road, street, bridge, sanitary sewer, or water main project in which the completed road, street, bridge, sanitary sewer, or water main is acquired by, or dedicated to, a local governmental unit, including under s. 236.13 (2), for ownership or maintenance by the local governmental unit.”

(b) For the projects of the state or a state agency under s. 103.49, 2009 Stats., “project of public works” or “public works project” or “project” has the same meaning as in s. 103.49 (1m), 2009 Stats.

Note: Section 103.49 (1m), 2009 Stats., provides: “Subject to sub. (3g), this section applies to any project of public works erected, constructed, repaired, remodeled, demolished for the state or a state agency, other than a highway, street, or bridge construction or maintenance project, including all of the following:

(a) A project erected, constructed, repaired, remodeled, demolished by one state agency for another state agency under any contract or under any statute specifically authorizing cooperation between state agencies.

(b) A project in which the completed facility is leased, purchased, lease purchased, or otherwise acquired by, or dedicated to, the state in lieu of the state or a state agency contracting for the erection, construction, repair, remodeling, demolition of the facility.

(c) A “sanitary sewer” or water main project in which the completed sanitary sewer or water main is acquired by, or dedicated to, the state for ownership or maintenance by the state.”

(17m) “Publicly funded private construction project” has the same meaning as in s. 66.0904 (1) (i), 2009 Stats.

Note: Section 66.0904 (1) (i), 2009 Stats., provides that “publicly funded private construction project” means: “a construction project in which the developer, investor, or owner of the project receives direct financial assistance from a local governmental unit for the erection, construction, repair, remodeling, demolition, including any alteration, painting, decorating, or grading, of a private facility, including land, a building, or other infrastructure. ‘Publicly funded private construction project’ does not include a project of public works or a housing project involving the erection, construction, repair, remodeling, demolition of any of the following:

1. An residential property, if the project is supported by affordable housing grants, home improvement grants, or grants from a local housing trust fund.

2. A residential property containing 4 dwelling units or less.

3. A residential property that contains retail, office, or commercial components, if the project is intended to increase the supply of affordable housing in a community.”

(18)

(a) “Site of project” means the physical place or places where the construction called for in the contract will remain when work on it has been completed and other adjacent or nearby property used by a contractor or subcontractor in connection with the project.

(b) “Site of project” includes fabrication plants, mobile factories, batch plants, borrow pits, job headquarters, tool yards and similar facilities, when these facilities are substantially dedicated to the performance of the contract or project and are located in proximity to the actual construction location.

A permanent home office, branch plant establishment, fabrication plant or tool yard whose location and continued operation is determined without regard to a particular contract or project.
A fabrication plant, batch plant, borrow pit, job headquarters, tool yard or similar facility which is established by a supplier of materials before the opening of bids, whether or not the operations of the facility may be substantially dedicated to the performance of the contract for a period of time.

(19) “Subcontractor” means any subcontractor of a contractor and subcontractor of a subcontractor, regardless of tier of subcontractor.

(20) “Subjourneyperson” means a worker who primarily works under the direction of, and assists, a skilled trade employee by frequently using the tools of a specific trade. “Subjourneyperson” does not include an apprentice, a laborer, a heavy equipment operator or a truck driver.

(20p) “Supply and installation contract” has the same meaning as in ss. 66.0903 (1) (im), 66.0904 (1) (im), and 103.49 (1) (fm), 2009 Stats.

Note: Each of the statutes cited provides that “supply and installation contract” means “a contract under which the material is installed by the supplier, the material is installed by means of simple fasteners or connectors such as screws or nuts and bolts and no other work is performed on the site, and the total labor cost to install the material does not exceed 20 percent of the total cost of the contract.”

(21) “Trade or occupation” means one of the job classifications recognized by the department that identifies the primary purpose and typical duties regularly performed by laborers, workers, mechanics and truck drivers employed in the erection, construction, remodeling, repairing or demolition of any building or any other public works project.

(22) “Volunteer” means an individual who by choice offers and performs the work identified in s. 66.0903 (4), 66.0904 (3), or 103.49 (2m), 2009 Stats., without compensation or expectation of compensation and under the direction of the project owner, except that a volunteer may receive reimbursement payments for the costs of food, lodging, mileage and other reasonable expenses.

History

Cr. Register, January, 1967, No. 133, eff. 2-1-67; am. (intro.), (1), (4), (9) (a), (c) 1., (c) 2a, (10), (11), (12), (14), (15), r. and recr. (8) and (9) (intro.), cr. (16) to (18), Register, January, 1976, No. 241, eff. 2-1-76; am. (4) to (6), (9) (d), (10) to (13) and (15), Register, January, 1986, No. 361, eff. 2-1-86; am. (intro.),(2), cr. (1), (13), (16) (b) and (18), renum. (3) to (14) and (16) to (18) to be (12), (21), (7), (11), (16) (a), (14), (10), (22), (17), (3), (9), (8), (5), (4) and (19) and am. (11), (16) (a), and (5), r. (15); corrections made under s. 13.93 (2m) (b) 1., Register, September, 1997, No. 501, eff. 10-1-97; am. (intro.), (4), (6), (10) (a) to (c) and (18) (a) to (c) (intro.), r. (3), (7) to (9), (12) and (14), cr. (9), (17m) and (20p), r. and recr. (10) (intro.), (17) and (21), renum. (22) to be (16m) and am., Register, July, 2000, No. 535, eff. 8-1-00; corrections in (2), (10) (c) 2. b., (16) (a) and (17) made under s. 13.93 (2m) (b) 7., Stats., Register, July, 2000, No. 535; CR 04-081: renum. (16) (b) to be (16) (c) and am., cr. (16) (b), Register December 2006 No. 612, eff. 1-1-07; CR 10-092: am. (2), (4), (6), (16) (a), (20), (20p), cr. (3), (5m), (6m), (10m), (12), (22), r. and recr. (17), (17m) Register December 2010 No. 660, eff. 1-1-11; renumbering of (10m) and correction in (12) (c) made under s. 13.92 (4) (b) 1. and 7., Stats., Register December 2010 No. 660; correction in (2) to (4), (5m), (6), (9), (10) (c) 2. b., (12), (15), (16) (a), (17), (17m), (20p), (22) made under s. 13.92 (4) (b) 7., Stats., Register June 2017 No. 738.

Wis. Admin. Code § DWD 290.015 Collecting and compiling wage rate information {#sec-dwd-290.015 omnilex-key=us-wi-regs-official--agency-dwd--DWD 290.015}

(1) Annual survey. For the purpose of making prevailing wage rate determinations, the department shall conduct an annual survey of employers and compile the prevailing wage rate for each trade or occupation in each area. The survey shall consist of forms mailed by the department to employers or an electronic survey application for completion and return.

Note: The form referred to in this subsection may be obtained from the Department of Workforce Development, Equal Rights Division, P. O. Box 8928, Madison, WI 53708.

(2) Survey deadline. The department shall include a deadline date on the forms sent to employers. A survey form shall be accepted for initial compilation if it is received at the department’s offices with a postmark or an electronic filing date that is on or before the deadline date and it is properly completed.

(3) Collective bargaining agreements. If the sum of the hourly basic rate of pay and allowable hourly contributions rate in a collective bargaining agreement that has been filed with the department for the current survey period is equal to the sum of the hourly basic rate of pay and hourly contributions rate that is found to prevail in a particular area for that particular trade or occupation on that particular type of work and the majority of hours used to determine the prevailing wage rates were submitted under a collective bargaining agreement, the department shall include in its determinations any future contractual increase or decrease provided for in the collective bargaining agreement or a successor agreement, that is filed before January 1 of the calendar year following the end of the survey period. The department, upon request, shall also include in its determinations any future contractual increase or decrease in overtime and premium pay, with the exception of height pay, pay for work with particular products, shift differential, and supervisory pay.

(4) Corrections. The department may correct errors in compiling data from the completed surveys, based upon its own determination or its inquiry to an employer.

(5) Insufficient data. If the wage rate data which the department may consider from all sources is insufficient to determine the prevailing wage rate for a particular trade or occupation in a particular area or for a particular type of project, the department may consider wage rate data compiled for a similar trade or occupation.

(6) Initial determinations and recalculation requests.

(a) The department shall issue its initial prevailing wage determinations based on the annual survey. Any person may request a recalculation of any portion of an initial determination, based upon the submission of the evidence required by s. 66.0903 (3) (bm), 66.0904 (4) (d), or 103.49 (3) (b), 2009 Stats., if the request and the accompanying evidence are received at the department’s offices within 30 days after the initial determination date.

(b) The department will accept a recalculation request on the basis of evidence that the employer did not receive a survey, that the employer properly mailed a survey form which the department did not receive, or that the survey data previously submitted was erroneous. A recalculation request will not be granted for the consideration of data that could have been submitted as a part of the annual survey but was not submitted on time.

Note: The department is required to affirm or modify the initial determination within 15 days after the date on which the department receives the request for recalculation. Sections 66.0903 (3) (bm), 66.0904 (4) (d), and 103.49 (3) (b), 2009 Stats.

(7) Final determinations. The department shall issue its final annual prevailing wage determinations after it has issued decisions on all timely recalculation requests. No corrections under sub. (4) or recalculations under sub. (6) for the preceding year’s survey may be completed after March 1.

History

Cr. Register, January, 1986, No. 361, eff. 2-1-86; correction in (5) (e) and (7) made under s. 13.93 (2m) (b) 7., Stats., Register, June, 1987, No. 378; r. and recr. Register, September, 1997, No. 501, eff. 10-1-97; correction in (6) (a) made under s. 13.93 (2m) (b) 7., Stats., Register, July, 2000, No. 535; CR 04-081: am. (3) Register December 2006 No. 612, eff. 1-1-07; CR 10-092: am. (1), (2), (3), (6), (7), r. (6m) Register December 2010 No. 660, eff. 1-1-11; correction in (6) (a) made under s. 13.92 (4) (b) 7., Stats., Register June 2017 No. 738.

Wis. Admin. Code § DWD 290.02 Apprentices {#sec-dwd-290.02 omnilex-key=us-wi-regs-official--agency-dwd--DWD 290.02}

(1) Apprentices may work at less than the prevailing wage rate for the work they perform when they are employed pursuant to and individually registered in a bona fide apprenticeship program administered by the U.S. department of labor, a state agency recognized by the U.S. department of labor, or under Wisconsin’s apprenticeship law, ch. 106, Stats.

(2) Any employee who is not properly registered as an apprentice under sub. (1) shall be paid not less than the prevailing wage rate applicable to the work actually performed.

(3) Apprentices shall be paid a percentage of the applicable journeyperson’s hourly basic rate of pay and hourly fringe benefit contributions specified in the prevailing wage rate determination issued for a project.

(4) The appropriate percentage shall be obtained from each apprentice’s contract or indenture.

History

Cr. Register, January, 1967, No. 133, eff. 2-1-67; am. Register, January, 1976, No. 241, eff. 2-1-76; r. and recr. Register, January, 1986, No. 361, eff. 2-1-86; am. (3) and (4), r. (5), Register, July, 2000, No. 535, eff. 8-1-00.

Wis. Admin. Code § DWD 290.025 Subjourneypersons {#sec-dwd-290.025 omnilex-key=us-wi-regs-official--agency-dwd--DWD 290.025}

(1) The department shall include a determination of one or more subjourneyperson wage rates for a particular trade or occupation in a prevailing wage determination under the criteria set forth in this section.

(2) The department shall determine whether there are at least 500 countable hours reported for a particular trade or occupation within a county, whether a collectively bargained wage rate and fringe benefit package prevails in the county for that trade or occupation, whether that wage rate is identical to an allowable rate in a collective bargaining agreement for that trade or occupation which has been filed with the department during the current survey period, and whether the collective bargaining agreement includes a wage rate for a classification equivalent to a subjourneyperson. If these conditions are present, the department shall determine subjourneyperson wage rates for the particular trade or occupation, based on the wage rates in the collective bargaining agreement applicable to that county. The department shall not consider data from contiguous counties when making a determination under this subsection.

(3) As an alternative to sub. (2), the department shall determine whether there are at least 500 countable hours reported for a particular trade or occupation within a county and whether the majority of the total hours reported for the trade or occupation were worked under collective bargaining agreements. If these conditions are present, the department shall determine subjourneyperson wage rates for the particular trade or occupation in accordance with the collective bargaining agreement that covers the greatest number of employees in the particular trade or occupation and is applicable to that county. The department shall not consider data from contiguous counties when making a determination under this subsection.

(4) If neither the conditions in sub. (2) nor the conditions in sub. (3) are met, and there are at least 500 countable hours reported for a particular trade or occupation within a county, then the department shall determine subjourneyperson wage rates under this subsection.

(a) The entry-level subjourneyperson hourly basic rate of pay shall be equal to 35% of the journeyperson’s hourly basic rate of pay for the trade or occupation plus 35% of the journeyperson’s fringe benefit package.

(b) The regular subjourneyperson hourly basic rate of pay shall be equal to 65% of the journeyperson’s hourly basic rate of pay for the trade or occupation plus 65% of the journeyperson’s fringe benefit package.

(d) An employee shall not be employed at the entry-level subjourneyperson wage rate after one year of cumulative service in the trade or occupation. After one year of cumulative service, the employee shall be advanced to the regular subjourneyperson wage rate or be enrolled in an apprenticeship program or the employer shall not employ that employee on any project subject to a prevailing wage rate determination.

(e) The department shall determine wage rates for subjourneypersons in accordance with the following required job site ratios:

(f) Subject to the job site ratios in par. (e), an employer may employ one person as an entry-level subjourneyperson for each current apprentice employed in the same trade or occupation.

(g) As an alternative to par. (f) and subject to the job site ratios in par. (e), an employer may employ one person as an entry-level subjourneyperson if the employer has no current apprentice in the same trade or occupation but did employ an apprentice in the same trade or occupation within the last 5 years who completed his or her apprenticeship during that time.

(h) The department shall not consider data from contiguous counties when making a determination under this subsection.

History

Cr. Register, September, 1997, No. 501, eff. 10-1-97.

Wis. Admin. Code § DWD 290.03 Classification of laborers, workers, mechanics and truck drivers {#sec-dwd-290.03 omnilex-key=us-wi-regs-official--agency-dwd--DWD 290.03}

(1) Wages paid for work done in any given trade or occupation shall be computed at a wage rate not less than the prevailing wage rate specified in the prevailing wage rate determination issued for a project. The type of work done for the most similar trade or occupation, and not a previously assigned occupational title, shall determine the required minimum prevailing wage rate payable.

(2) Under ss. 66.0903 (4) and 103.49 (2m), 2009 Stats., a laborer, worker, mechanic or truck driver who is regularly employed to process, manufacture, pick up or deliver materials or products from a commercial establishment that has a fixed place of business from which the establishment regularly supplies processed or manufactured materials or products is not entitled to receive the prevailing wage rate or to receive at least 1.5 times his or her hourly basic rate of pay for all hours worked in excess of the prevailing hours of labor unless any of the following applies:

(a) The laborer, worker, mechanic or truck driver is employed to deliver mineral aggregate such as sand, gravel or stone that is immediately incorporated into the work, and not stockpiled or further transported by truck, to or from the site of a project that is subject to this chapter by depositing the material substantially in place, directly or through spreaders from the transporting vehicle.

(b) The laborer, worker, mechanic or truck driver is employed to transport excavated material or spoil from and return to the site of a project that is subject to this chapter.

(2m) Under s. 66.0904, 2009 Stats., all laborers, workers, mechanics, and truck drivers employed on a publicly funded private construction project site of project, are entitled to receive the prevailing wage rate or to receive at least 1.5 times his or her hourly basic rate of pay for all hours worked in excess of the prevailing hours of labor.

(3) A laborer, worker, mechanic or truck driver that performs work in more than one occupational classification during a given work week shall be cross-classified and compensated for all work performed in each classification, unless work other than the primary classification is incidental work. Incidental work shall be compensated at the higher primary classification prevailing wage rate.

History

Cr. Register, January, 1967, No. 133, eff. 2-1-67; am. Register, January, 1976, No. 241, eff. 2-1-76; am. Register, January, 1986, No. 361, eff. 2-1-86; renum. to be (1), cr. (2), Register, September, 1997, No. 501, eff. 10-1-97; am. (1), cr. (3), Register, July, 2000, No. 535, eff. 8-1-00; CR 10-092: am. (2) (intro.), (3), cr. (2m) Register December 2010 No. 660, eff. 1-1-11; correction in (2) (intro.), (2m) made under s. 13.92 (4) (b) 7., Stats., Register June 2017 No. 738.

Wis. Admin. Code § DWD 290.035 Classification of projects {#sec-dwd-290.035 omnilex-key=us-wi-regs-official--agency-dwd--DWD 290.035}

(1) Building or heavy construction. A building or heavy construction project includes sheltered enclosures with walk-in access for the purpose of housing persons, employees, machinery, equipment, or supplies and nonsheltered work such as canals, dams, dikes, reservoirs, and storage tanks. A sheltered enclosure need not be habitable in order to be considered a building. The installation of machinery or equipment, both above and below grade level, does not change a project’s character as a building. Building or heavy construction includes on-site grading, utility work, and landscaping.

Note: Examples of building or heavy construction projects include, but are not limited to, antenna towers; apartment buildings of 5 or more stories; enclosed arenas; athletic fields, excluding all paving work; auditoriums; automobile parking garages or ramps; banks or financial buildings; barracks; bathhouses; indoor or outdoor bleachers; breakwaters; caissons; canals; channels; channel cut-offs; chemical complexes or facilities; churches; city halls; civic centers; cofferdams; coke ovens; commercial or retail buildings; courthouses; dams; demolition; detention facilities or jails; dikes; docks; dormitories; dredging; factories; fire stations; flood control; fueling facilities; gas and oil pipelines; golf courses; grandstands; hospitals; hotels; industrial buildings; industrial incinerators; institutional buildings; irrigation; jetties; kennels; kilns; land drainage; land leveling; land reclamation; landfills; landscaping; laterals; levees; libraries; lift stations, excluding drop-in type; locks; manufacturing plants; marine work; mausoleums; motels; museums; nursing and convalescent facilities; office buildings; oil refineries; out-patient clinics; outdoor electrification; passenger or freight terminals; police stations; ponds; post offices; power plants; prefabricated buildings; pumping stations; railroad construction; reservoirs; rest areas; restaurants; revetments; schools; service stations; shopping centers; shoreline rehabilitation; ski tows; storage tanks, including above ground, below grade, or removal; stores; swimming pools, excluding projects subject to sub. (5); subways; theaters; tipples; unsheltered piers or wharves; viaducts other than state highway or local street; warehouses; water or sewage treatment plants; water towers; waterways; water wells, excluding projects under sub. (5).

(2) Sewer, water, or tunnel construction. A sewer, water, or tunnel construction project includes those projects that primarily involve public sewer or water distribution, transmission, or collection systems and related tunnel work, excluding buildings. Sewer, water, or tunnel construction performed within the lot line of a building or heavy construction project are subject to sub. (1).

Note: Examples of sewer, water, or tunnel construction projects include, but are not limited to, aqueducts; catch basins; cofferdams; compressed air tunnels; culverts; forcemains; free air tunnels; drop-in lift stations; manholes; marine work; open cut trenches; sanitary sewers; sewage collection or disposal lines; shafts; storm sewers; tunnels, except for subways; water mains; and water supply or distribution lines.

(3) Airport pavement or state highway construction. An airport pavement or state highway construction project includes all airport projects and all projects awarded by the Wisconsin department of transportation that do not include buildings.

Note: Examples of airport pavement or state highway construction projects include, but are not limited to, airport aprons, runways, or taxiways; base courses; bituminous pavement; brick paving; bridges; concrete pavement; curbs; excavation or embankment for road construction; fencing; grade crossing elimination or separation, such as overpasses or underpasses; guard rails; gutters; landscaping; lighting or traffic control; marine work; medians; parkways; public sidewalks; resurfacing; shoulders; signs; stabilizing courses; and storm sewers, sanitary sewers, or water supply lines incidental to airport pavement or state highway construction.

(4) Local street or miscellaneous paving construction. A local street or miscellaneous paving construction project includes roads, streets, alleys, trails, bridges, paths, parking lots and driveways that are not subject to sub. (5), public sidewalks, and racetracks. Projects awarded by the Wisconsin department of transportation are excluded.

Note: Examples of local street or miscellaneous paving construction projects include, but are not limited to, alleys; athletic field paving work; base courses; bike or bridle paths; bituminous pavement; brick paving; bridges; concrete pavement; curbs; driveways; excavation or embankment for road construction; fencing; grade crossing elimination or separation, such as overpasses or underpasses; guard rails; gutters; landscaping; lighting or traffic control; marine work; medians; parking lots; parkways; public sidewalks; racetracks; recreational trails; resurfacing; roadways; shoulders; signs; and stabilizing courses.

(5) Residential or agricultural construction. A residential or agricultural construction project includes single family houses or apartment buildings of no more than 4 stories in height and all buildings, structures, or facilities that are primarily used for agricultural or farming purposes, excluding commercial buildings. For classification purposes, the primary consideration is the exterior height of a residential building in stories. Residential or agricultural construction includes all incidental items such as site work, driveways, parking lots, private sidewalks, swimming pools, and private septic systems or sewer and water laterals connected to a public system.

Note: Examples of residential or agricultural construction projects include, but are not limited to, apartment buildings of 4 stories or less, barns, breeding facilities, condominiums of 4 stories or less, convents, cribs, fencing, garages, grain bins, greenhouses that are not incidental to retail, irrigation wells, land clearing, manure pits, nurseries, sheds, silos, single-family houses, stables, storage or outbuildings, student housing of 4 stories or less, swimming pools, town or row houses, training, riding or exhibition facilities, and water wells that are not subject to sub. (1).

History

Cr. Register, September, 1997, No. 501, eff. 10-1-97; r. and recr. Register, July, 2000, No. 535, eff. 8-1-00.

Wis. Admin. Code § DWD 290.04 Straight time wages {#sec-dwd-290.04 omnilex-key=us-wi-regs-official--agency-dwd--DWD 290.04}

(1) An employer may discharge its obligation for payment for work done less than or equal to the prevailing hours of labor as defined in s. 103.49 (1) (c), 2009 Stats., by paying the total prevailing wage rate in cash or by paying in cash and incurring costs for bona fide economic benefits if the total of the cash payment and the total hourly contribution for the bona fide economic benefits equal or exceed the total prevailing wage rate.

(2) Before an employer can be given credit for any unfunded economic benefit plan or program, the employer shall supply a copy of the plan or program to the department and comply with all other provisions of s. DWD 290.01 (10) (c).

(3) Unconventional plans shall be approved by the department before any credit will be given to an employer.

History

Cr. Register, January, 1967, No. 133, eff. 2-1-67; r. and recr. Register, January, 1976, No. 241, eff. 2-1-76; am. (1), Register, September, 1990, No. 418, eff. 10-1-90; correction in (1) made under s. 13.93 (2m) (b) 7., Stats., Register, April, 1996, No. 484; r. and recr. Register, July, 2000, No. 535, eff. 8-1-00; correction in (1) made under s. 13.92 (4) (b) 7., Stats., Register June 2017 No. 738.

Wis. Admin. Code § DWD 290.05 Overtime wages {#sec-dwd-290.05 omnilex-key=us-wi-regs-official--agency-dwd--DWD 290.05}

All hours worked by a laborer, worker, mechanic or truck driver in excess of the prevailing hours of labor per day or per week must be paid at a rate at least 1.5 times the hourly basic rate of pay. Sums paid by an employer for bona fide economic benefits shall be excluded in the computation of the overtime premium. In no event can the rate upon which the overtime premium is calculated be less than the amount determined by the department as the hourly basic rate of pay. Nor can the rate upon which the overtime premium is calculated be less than the straight time cash payment made to the laborer, worker, mechanic or truck driver or be less than the employee’s normal hourly basic rate of pay, if it is higher. Contributions by employees are not excluded from the rate upon which the overtime premium is computed; that is, an employee’s overtime premium rate is computed on the taxable earnings before any deductions are made for the employee’s contributions to bona fide economic benefits. The employer’s contributions, costs or cash payments for bona fide economic benefits may be excluded in computing the overtime premium rate so long as the exclusions do not reduce the overtime premium rate below the hourly basic rate contained in the prevailing wage rate determination issued for a project.

History

Cr. Register, January, 1967, No. 133, eff. 2-1-67; r. and recr. Register, January, 1976, No. 241, eff. 2-1-76; am. Register, January, 1986, No. 361, eff. 2-1-86; am. Register, July, 2000, No. 535, eff. 8-1-00.

Wis. Admin. Code § DWD 290.08 Prevailing wage rate determinations for individual projects {#sec-dwd-290.08 omnilex-key=us-wi-regs-official--agency-dwd--DWD 290.08}

(1) Every state agency or local governmental unit shall request the department to determine the prevailing wage rates for all trades or occupations required to complete any project of public works which meets or exceeds the dollar thresholds provided in s. DWD 290.155.

(1m) Every owner or developer of a publicly funded private construction project shall request the department to determine the prevailing wage rates for all trades or occupations required to complete the project.

(2) A request under this section shall be made on the form numbered ERD-5719, which shall be provided at no charge by the department, or on an equivalent electronic form.

(3) The department may be notified about ensuing projects as far in advance as possible. However, the official request to the department to determine the prevailing wage rates for all trades and occupations required to complete the work contemplated shall be made between 50 to 60 days before making a contract by direct negotiation or soliciting bids.

(4) A prevailing wage rate determination that is issued on or before June 30 in a particular year shall remain in effect for the remainder of the calendar year. A prevailing wage rate determination that is issued after June 30 shall remain in effect for 180 days.

History

Cr. Register, January, 1967, No. 133, eff. 2-1-67; r. and recr. January, 1976, No. 241, eff. 2-1-76; r. and recr. Register, January, 1986, No. 361, eff. 2-1-86; correction in (1) made under s. 13.93 (2m) (b) 7., Stats., Register, April, 1996, No. 484; cr. (4), Register, September, 1997, No. 501, eff. 10-1-97; am. (1) and (3), Register, July, 2000, No. 535, eff. 8-1-00; CR 10-092: am. (1), (2), cr. (1m) Register December 2010 No. 660, eff. 1-1-11.

Wis. Admin. Code § DWD 290.09 Procedure for requesting exemption from applying for individual project prevailing wage rate determinations {#sec-dwd-290.09 omnilex-key=us-wi-regs-official--agency-dwd--DWD 290.09}

(1) The petition of any local governmental unit for exemption from applying to the department to determine the prevailing wage rates for any individual public works project pursuant to s. 66.0903 (6), 2009 Stats., or the petition of an owner or developer of real property for exemption from applying to the department to determine the prevailing wage rates for any individual publicly funded private construction project pursuant to s. 66.0904, 2009 Stats., shall be sent to the department and shall include:

(a) A certified copy of the ordinance or other enactment setting forth the standards, policy, procedure and practice followed in determining the prevailing wage rates for all trades or occupations required in the work contemplated.

(b) A current schedule of prevailing wage rates for all trades or occupations required for any project of public works or publicly funded private construction project, setting forth all of the following:

The trades or occupations required.
The current and future hourly basic rates of pay, the hourly contribution for bona fide economic benefits and any premium pay, if applicable, for these trades or occupations.
The types of projects of public works or publicly funded private construction projects, by kind and size, that are subject to the ordinance or other enactment.
The effective date of the hourly basic rates of pay and hourly contribution for bona fide economic benefits.

(c) Frequency of, method of, and responsibility for updating the schedule of prevailing wage rates, hours of labor and hourly basic pay rates.

(d) Name, title, address and phone number of person to whom the exemption order is to be mailed.

(2) Upon request of the department, the local government unit or the owner or developer of real property shall also supplement its petition with information pertinent to determining the granting of an exemption.

(3) An exemption will be granted for a period no longer than 18 months. A new petition shall be filed with the department each time continuation of the exemption is desired beyond the termination date granting such exemption.

(4) Each exemption is subject to revocation for cause at any time, and also subject to observance of the applicable provisions of Wisconsin laws, rules and regulations of the department, and of the agreements included in the petition and application. The provisions of ch. DWD 290, and ss. 66.0903 (1), (3), (4), (5), (8), (9) (b) and (c), (10), (11) and (12), and 66.0904 (1), (2), (3), (5), (7) (b) and (c), (8), (9) and (10), 2009 Stats., remain in effect and are not included within an exemption.

(5) No exemption shall be granted unless the local governmental unit has enacted a methodology to enforce the payment of the prevailing wage rates determined pursuant to its ordinance or enactment and that methodology has been approved by the department.

History

Cr. Register, January, 1967, No. 133, eff. 2-1-67; r. and recr. Register, January, 1976, No. 241, eff. 2-1-76; am. (4), Register, September, 1990, No. 418, eff. 10-1-90; correction in (4) made under s. 13.93 (2m) (b) 7., Stats., Register, April, 1996, No. 484; am. (1) (intro.), (a), (2) and (4), r. and recr. (1) (b), cr. (5), Register, July, 2000, No. 535, eff. 8-1-00; corrections in (1) (intro.) and (4) made under s. 13.93 (2m) (b) 7., Stats., Register, July, 2000, No. 535; CR 10-092: am. (1) (intro.), (b) (intro.), 3., (2), (4) Register December 2010 No. 660, eff. 1-1-11; correction in (1) (intro.), (4) made under s. 13.92 (4) (b) 7., Stats., Register June 2017 No. 738.

Wis. Admin. Code § DWD 290.10 Procedure for an administrative review {#sec-dwd-290.10 omnilex-key=us-wi-regs-official--agency-dwd--DWD 290.10}

(1) This section applies to a request for review by a local government unit under s. 66.0903 (3) (br), 2009 Stats., an owner or developer of real property under s. 66.0904 (4) (e), 2009 Stats., or a state agency under s. 103.49 (3) (c), 2009 Stats.

(2) A request for review by a local governmental unit, an owner or developer of real property, or a state agency will be accepted for consideration if the request meets the following requirements:

(a) The request is in writing.

(b) The request is made within 30 days from the date the determination was issued. A request is timely under this section if it is received by mail with a postmark date within the review period.

(d) The request includes wage rate information for the contested trade or occupation on at least 3 projects of the same type located in the city, village or town where the proposed project is located and on which some work was performed within the applicable survey period and which was previously considered by the department in issuing the determination.

(3) In the course of its review, the department shall consider wage rate information from all other similar projects on which work was performed within the city, village or town during the applicable survey period. The department shall follow the same calculation criteria employed in the survey determinations.

Note: The department is required to affirm or modify the determination within 15 days after the date on which the department receives the request for review. Section 66.0903 (3) (br), 66.0904 (4) (e), or 103.49 (3) (c), 2009 Stats.

History

Cr. Register, January, 1967, No. 133, eff. 2-1-67; r. and recr. Register, January, 1976, No. 241, eff. 2-1-76; r. and recr. Register, January, 1986, No. 361, eff. 2-1-86; am. (1) (c), Register, June, 1987, No. 378, eff. 7-1-87; am. (1) (c), Register, September, 1990, No. 418, eff. 11-1-90; correction in (1) (e) made under s. 13.93 (2m) (b) 7., Stats., Register, April, 1996, No. 484; r. and recr. Register, September, 1997, No. 501, eff. 10-1-97; correction in (1) made under s. 13.93 (2m) (b) 7., Stats., Register, July, 2000, No. 535; CR 10-092: am. (1), (2) (intro.) Register December 2010 No. 660, eff. 1-1-11; correction in (1) made under s. 13.92 (4) (b) 7., Stats., Register June 2017 No. 738.

Wis. Admin. Code § DWD 290.11 Procedure when a covered entity fails to request a required prevailing wage rate determination or incorporate a required prevailing wage rate determination into a contract {#sec-dwd-290.11 omnilex-key=us-wi-regs-official--agency-dwd--DWD 290.11}

(1) When the department finds that a state agency or local governmental unit has not requested a prevailing wage rate determination as required under s. 66.0903 (3) (am) or 103.49 (3), 2009 Stats., the department shall promptly notify the state agency or local governmental unit of the noncompliance.

(1m) When the department finds that an owner or developer has not requested a prevailing wage rate determination as required under s. 66.0904 (4) (a), 2009 Stats., the department shall promptly notify the owner or developer of the noncompliance.

(2) The state agency or local governmental unit notified under sub. (1), or an owner or developer notified under sub. (1m), shall file an application for a prevailing wage rate determination, on a form prescribed by the department, within 10 days of the department’s notice of noncompliance.

(3) The department shall issue the prevailing wage rate determination within 30 days of the notice of noncompliance.

(4) The local governmental unit or state agency notified under sub. (1), or an owner or developer notified under sub. (1m), may request a review of the prevailing wage rate determination within 30 days of the issuance of the determination pursuant to s. DWD 290.10.

(5) If the state agency or local governmental unit notified under sub. (1), or an owner or developer notified under sub. (1m), failed to incorporate a prevailing wage rate determination into a contract or bid, the local governmental unit, state agency, owner or developer shall either terminate the contract and resolicit bids using the prevailing wage rate determination or incorporate the determination retroactive to the beginning of construction through supplemental agreement or change order. The employer shall be compensated for any increases in wages resulting from the change and any amount of liquidated damages assessed by the department to the employer under s. 66.0903 (11) (a), 66.0904 (9) (a), or 103.49 (6m) (ag), 2009 Stats. The method of incorporation of the prevailing wage rate determination and the adjustment in the contract or bid price shall be in accordance with applicable procurement law.

History

Cr. Register, January, 1976, No. 241, eff. 2-1-76; r. and recr. (2), cr. (3), Register, January, 1986, No. 361, eff. 2-1-86; am. (1) (intro.), Register, June, 1987, No. 378, eff. 7-1-87; correction in (1) (c) and (2) made under s. 13.93 (2m) (b) 7., Stats., Register, April, 1996, No. 484; r. and recr. Register, September, 1997, No. 501, eff. 10-1-97; r. and recr. Register, July, 2000, No. 535, eff. 8-1-00; correction in (1) made under s. 13.93 (2m) (b) 7., Stats., Register, July, 2000, No. 535; CR 10-092: am. (title), (2), (4), (5), cr. (1m) Register December 2010 No. 660, eff. 1-1-11; correction in (1), (1m), (5) made under s. 13.92 (4) (b) 7., Stats., Register June 2017 No. 738.

Wis. Admin. Code § DWD 290.12 Posting of prevailing wage rates {#sec-dwd-290.12 omnilex-key=us-wi-regs-official--agency-dwd--DWD 290.12}

(1) A clearly legible copy of the prevailing wage rate determination issued by the department or exempted local governmental unit, together with the provisions of s. 66.0903 (10) (a) and (11) (a), 66.0904 (8) (a) and (9) (a), or 103.49 (2) and (6m), 2009 Stats., shall be kept posted in at least one conspicuous and easily accessible place on the site of each project by the contracting state agency, owner or developer of real property, or local governmental unit and the notice shall remain posted during the full time any laborer, worker, mechanic or truck driver is employed on the project.

(2) If there is no appropriate site on a project, a local governmental unit may post the prevailing wage rate determination at the place normally used to post public notices.

(3) Before the date that work is first performed by a minor subcontractor, a contractor or subcontractor that hires a minor subcontractor shall provide a copy of the prevailing wage determination for the project to the minor subcontractor.

History

Cr. Register, January, 1976, No. 241, eff. 2-1-76; am. Register, January, 1986, No. 361, eff. 2-1-86; am. (1) (intro.), Register, June, 1987, No. 378, eff. 7-1-87; renum. to be (1), cr. (2), Register, September, 1997, No. 501, eff. 10-1-97; am. (1), renum. (2) to be (3), cr. (2), Register, July, 2000, No. 535, eff. 8-1-00; correction in (1) made under s. 13.93 (2m) (b) 7., Stats., Register, July, 2000, No. 535; CR 10-092: am. (1), (3) Register December 2010 No. 660, eff. 1-1-11; correction in (1) made under s. 13.92 (4) (b) 7., Stats., Register June 2017 No. 738.

Wis. Admin. Code § DWD 290.13 Evidence of compliance by agent and subcontractor {#sec-dwd-290.13 omnilex-key=us-wi-regs-official--agency-dwd--DWD 290.13}

(1) Affidavit of compliance. Upon completion of their portion of work on a project of public works or a publicly funded private construction project and prior to receiving final payment for work on the project, each agent or subcontractor shall file an agent or subcontractor affidavit of compliance with the prevailing wage rate determination, on a form prescribed by the department, with its prime contractor.

(2) Record retention.

(a) Each agent or subcontractor who performed work on a project of public works or a publicly funded private construction project shall retain the following records for at least 3 years after the last day on which the prime contractor and all its agents or subcontractors completed work on the site of the project:

An accurate record of the name, trade or occupation, hours worked, and actual wages paid for all of its employees who performed work on the project.
A properly completed agent or subcontractor affidavit of compliance with the prevailing wage rate determination, on a form prescribed by the department, from each of its agents or subcontractors that performed work on the project.

(b) The required records shall be made available for inspection upon request of the department, state agency, or local governmental unit.

(c) The location of the required records shall be designated in the affidavit required under sub. (1). The records shall not be moved from the designated location without prior notice of the new location and the expected move date to the state agency or local governmental unit.

(3) Subcontractor notification. Any contractor, subcontractor, contractor’s agent or subcontractor’s agent who fails to provide its subcontractors and agents the applicable prevailing wage determination for the project as noted in s. DWD 290.17 is liable for any amount of liquidated damages assessed by the department to the subcontractor or agent under s. 66.0903 (11) (a), 66.0904 (9) (a), or 103.49 (6m) (ag), 2009 Stats.

History

Cr. Register, January, 1976, No. 241, eff. 2-1-76; r. and recr. Register, January, 1986, No. 361, eff. 2-1-86; r. and recr. Register, July, 2000, No. 535, eff. 8-1-00; CR 10-092: am. (1), (2) (a) (intro.), cr. (3) Register December 2010 No. 660, eff. 1-1-11; correction in (3) made under s. 13.92 (4) (b) 7., Stats., Register June 2017 No. 738.

Wis. Admin. Code § DWD 290.14 Evidence of compliance by prime contractor {#sec-dwd-290.14 omnilex-key=us-wi-regs-official--agency-dwd--DWD 290.14}

(1) Affidavit of compliance. Upon completion of the project of public works or publicly funded private construction project and prior to receiving its final payment for work on the project, each prime contractor shall file a prime contractor affidavit of compliance with the prevailing wage rate determination, on a form prescribed by the department, with the state agency, local governmental unit, or owner or developer of real property that awarded the contract.

(2) Record retention.

(a) Each prime contractor shall retain the following records for at least 3 years after the last day on which the prime contractor and all its agents or subcontractors completed work on the site of the project:

An accurate record of the name, trade or occupation, hours worked, and actual wages paid for all of its employees who performed work on the project.
A properly completed agent or subcontractor affidavit of compliance with the prevailing wage rate determination, on a form prescribed by the department, from each of its agents or subcontractors that performed work on the project.

(b) The required records shall be made available for inspection upon request of the department, state agency, or local governmental unit.

(3) Subcontractor notification. Any prime contractor who fails to provide its subcontractors and agents the applicable prevailing wage determination for the project as noted in s. DWD 290.17 is liable for any amount of liquidated damages assessed by the department to the subcontractor or agent under s. 66.0903 (11) (a), 66.0904 (9) (a), or 103.49 (6m) (ag), 2009 Stats.

History

Cr. Register, January, 1976, No. 241, eff. 2-1-76; r. and recr. (2), Register, January, 1986, No. 361, eff. 2-1-86; correction in (1) made under s. 13.93 (2m) (b) 7., Stats., Register, April, 1996, No. 484; r. and recr. Register, July, 2000, No. 535, eff. 8-1-00; CR 10-092: am. (1), cr. (3) Register December 2010 No. 660, eff. 1-1-11; correction in (3) made under s. 13.92 (4) (b) 7., Stats., Register June 2017 No. 738.

Wis. Admin. Code § DWD 290.145 Evidence of compliance by owner or developer of real property {#sec-dwd-290.145 omnilex-key=us-wi-regs-official--agency-dwd--DWD 290.145}

Prior to the local governmental unit accepting the dedication of any work completed under s. 66.0903 (2), 2009 Stats., each owner or developer of real property shall file an owner or developer affidavit of compliance with the prevailing wage rate determination, on a form prescribed by the department, with the local governmental unit.

History

CR 10-092: cr. Register December 2010 No. 660, eff. 1-1-11; correction made under s. 13.92 (4) (b) 7., Stats., Register June 2017 No. 738.

Wis. Admin. Code § DWD 290.155 Minimum estimated project costs {#sec-dwd-290.155 omnilex-key=us-wi-regs-official--agency-dwd--DWD 290.155}

(1) This chapter does not apply to any project of public works for which the estimated cost of completion is below $25,000.

(1m) This chapter does not apply to a publicly funded private construction project that receives less than $1,000,000 in direct financial assistance from a local governmental unit.

(2) The estimated cost of completion of a project of public works shall include all contracts and subcontracts that are closely related in purpose, time, and place. Similar or related work may be considered a separate project of public works only if all of the following apply to each portion of work:

(b) It is advertised separately.

(d) It is awarded separately.

(e) It is not dependent on another segment of work for completion.

(3) The estimated cost of completion of a project of public works shall include labor costs based on the most current prevailing wage rates available from the department, material, furnishings, and other things of value required to be supplied by a contractor or its subcontractors to construct a specific project.

(4) The estimated cost of completion of a project of public works shall not include land cost, architectural fees, engineering fees, planning and research costs, the projected value of the hourly labor performed by volunteers, the value of donated materials, and administrative costs.

History

Cr. Register, November, 1976, No. 251, eff. 12-1-76; r. and recr. Register, January, 1980, No. 289, eff. 2-1-80; am. Register, May, 1982, No. 317, eff. 6-1-82; am. Register, December, 1984, No. 348, eff. 1-1-85; am. Register, June, 1987, No. 378, eff. 7-1-87; am. Register, October, 1990, No. 418, eff. 11-1-90; am. Register, November, 1993, No. 455, eff. 12-1-93; am., Register, September, 1997, No. 501, eff. 10-1-97; emerg. am. eff. 2-13-98; am. Register, August, 1998, No. 512, eff. 9-1-98; emerg. am. eff. 1-4-99; am. Register, May, 1999, No. 521, eff. 6-1-99; renum. to be (1) and am., cr. (2) to (4), Register, July, 2000, No. 535, eff. 8-1-00; CR 02-011: am. (1), Register June 2002 No. 558, eff. 7-1-02; emerg. am. (1), eff. 1-1-03; CR 03-008: am. (1) Register May 2003 No. 569, eff. 6-1-03; emerg. am. (1), eff. 1-1-04; CR 04-006: am. (1) Register May 2004 No. 581, eff. 6-1-04; emerg. am. (1) eff. 1-1-05; CR 05-007: am. (1) Register May 2005 No. 593, eff. 6-1-05; emerg. am. (1), eff. 1-1-06; CR 06-004: am. (1) Register May 2006 No. 605, eff. 6-1-06; emerg. am. eff. 1-1-07; CR 07-003: am. (1) Register June 2007 No. 618, eff. 7-1-07; emerg. am. (1), eff. 1-1-08; CR 08-003: am. (1) Register May 2008 No. 629, eff. 6-1-08; EmR0838: emerg. am. (1), eff. 1-1-09; CR 09-001: am. (1) Register June 2009 No. 642, eff. 7-1-09; CR 10-092: am. (1), (2) (intro.), (3), (4), cr. (1m), r. (2) (a) Register December 2010 No. 660, eff. 1-1-11.

Wis. Admin. Code § DWD 290.16 Complaints {#sec-dwd-290.16 omnilex-key=us-wi-regs-official--agency-dwd--DWD 290.16}

Any person may request an inspection pursuant to s. 66.0903 (10) (c), 66.0904 (8) (c), or 103.49 (5) (c), 2009 Stats. The request shall be in writing and shall identify the involved project; contractor, subcontractor, or agent; and trade or occupation. The requestor shall sign a statement that he or she understands the obligation to pay costs assessed pursuant to s. 66.0903 (10) (c), 66.0904 (8) (c), or 103.49 (5) (c), 2009 Stats., if the contractor, subcontractor, or agent is found to be in compliance.

History

Cr. Register, January, 1976, No. 241, eff. 2-1-76; r. and recr. Register, January, 1986, No. 361, eff. 2-1-86; r. and recr. Register, July, 2000, No. 535, eff. 8-1-00; correction made under s. 13.93 (2m) (b) 7., Stats., Register, July, 2000, No. 535; CR 10-092: am. Register December 2010 No. 660, eff. 1-1-11; correction made under s. 13.92 (4) (b) 7., Stats., Register June 2017 No. 738.

Wis. Admin. Code § DWD 290.17 Standard contract language {#sec-dwd-290.17 omnilex-key=us-wi-regs-official--agency-dwd--DWD 290.17}

(1) Every state agency or local governmental unit shall insert or cause to be inserted a clause in every prime contract that clearly states that the applicable project of public works is subject to the provisions of either s. 66.0903 or 103.49, 2009 Stats., and ch. DWD 290.

(2) Every owner or developer of real property shall insert or cause to be inserted a clause in every prime contract that clearly states that the applicable publicly funded private construction project is subject to the provisions of s. 66.0904, 2009 Stats., and ch. DWD 290.

(3) Every contractor who contracts with another contractor, subcontractor or agent to complete work on a project of public works or a publicly funded private construction project shall provide a copy of the applicable prevailing wage determination for the project to the contractor.

History

Cr. Register, July, 2000, No. 535, eff. 8-1-00; correction made under s. 13.93 (2m) (b) 7., Stats., Register, July, 2000, No. 535; CR 10-092: renum. to be (1) and am., cr. (2), (3) Register December 2010 No. 660, eff. 1-1-11; correction in (1), (2) made under s. 13.92 (4) (b) 7., Stats., Register June 2017 No. 738.

Wis. Admin. Code § DWD 290.18 Electronic certified payroll records {#sec-dwd-290.18 omnilex-key=us-wi-regs-official--agency-dwd--DWD 290.18}

(1) Contractor reporting. Except as noted in sub. (2), by the 7th day of the month following a month in which a contractor, subcontractor, or contractor’s or subcontractor’s agent performs work on a prevailing wage project, the contractor, subcontractor, or contractor’s or subcontractor’s agent shall upload certified payroll records to the department’s website that comply with the applicable electronic formatting requirements, including the identification of each person who has performed work on the prevailing wage project.

(2) Union contractor reporting.

(a) If the contractor, subcontractor, or contractor’s or subcontractor’s agent has persons who are subject to a collective bargaining agreement performing work on a prevailing wage project for which the collective bargaining agreement wage rates equal or exceed the prevailing wage rate, then, by the 7th day of the month following the first month in which the contractor, subcontractor, or contractor’s or subcontractor’s agent performs work on the prevailing wage project, the contractor, subcontractor, or contractor’s or subcontractor’s agent shall upload certified payroll records that comply with the applicable electronic formatting requirements and upload an electronic copy of the applicable collective bargaining agreement if it does not already appear on the prevailing wage public display of collective bargaining agreements. For any month in which there is a change to the collective bargaining agreement wage rate, the contractor, subcontractor, or contractor’s or subcontractor’s agent shall upload subsequent certified payroll records that comply with the applicable electronic formatting requirements for union contractors and upload an electronic copy of the collective bargaining agreement if it does not already appear on the prevailing wage public display of collective bargaining agreements.

(b) If the contractor, subcontractor, or contractor’s or subcontractor’s agent has persons who are subject to a collective bargaining agreement performing work on a prevailing wage project for which the collective bargaining agreement wage rates do not equal or exceed the prevailing wage rate, then the contractor, subcontractor, or contractor’s or subcontractor’s agent is subject to sub. (1).

History

CR 10-092: cr. Register December 2010 No. 660, eff. 1-1-11.

Wis. Admin. Code § DWD 290.19 Application of effective date {#sec-dwd-290.19 omnilex-key=us-wi-regs-official--agency-dwd--DWD 290.19}

(1) Projects of public works, requests for bids. For projects under s. 66.0903, 2009 Stats., which are subject to bidding, the department shall apply the threshold amount of $25,000 to projects for which a request for bids is issued after January 1, 2010.

(2) Projects of public works, negotiated contracts. For projects under s. 66.0903, 2009 Stats., which are covered by negotiated contracts, the department shall apply the threshold amount of $25,000 to projects for which an agreement is made after January 1, 2010, as shown by a signed contract or other evidence of an agreement.

(3) Publicly funded private construction projects, requests for bids. For projects under s. 66.0904, 2009 Stats., which are subject to bidding, the department shall apply the threshold amount of $1,000,000 to projects for which a request for bids is issued after January 1, 2010 and for which at least $1,000,000 in direct financial assistance is committed as of the date that the request for bids is issued.

(4) Publicly funded private construction projects, negotiated contracts. For projects under s. 66.0904, 2009 Stats., which are covered by negotiated contracts, the department shall apply the threshold amount of $1,000,000 to projects for which an agreement is made after January 1, 2010, as shown by a signed contract or other evidence of an agreement, and for which at least $1,000,000 in direct financial assistance is committed as of the date that the negotiated agreement has been signed by all of the parties to the agreement.

History

CR 10-092: cr. Register December 2010 No. 660, eff. 1-1-11; correctios made under s. 13.92 (4) (b) 7., Stats., Register June 2017 No. 738.

Chapter DWD 294 DEBARMENT OF PUBLIC WORKS CONTRACTORS

Wis. Admin. Code § DWD 294.01 Applicability {#sec-dwd-294.01 omnilex-key=us-wi-regs-official--agency-dwd--DWD 294.01}

(1) Scope of chapter. This chapter:

(a) Prescribes certain policies and procedures governing the debarment of contractors from contracts involving any state agency or local governmental unit.

(b) Sets forth the treatment to be accorded to debarred contractors.

(c) Prescribes the procedures to be used to inform state agencies, local governmental units and the general public of the contractors that have been declared ineligible to perform work on public works projects.

(2) Policy.

(a) Every state agency or local governmental unit shall solicit bids from, negotiate with, award contracts to, and approve or allow subcontracts with only responsible contractors. Debarment is an appropriate means to effectuate this policy.

(b) Debarment is a serious action imposed only to protect the public interest.

History

Cr. Register, August, 1987, No. 380, eff. 9-1-87; am. (1) (a), (c) and (2) (a), Register, July, 2000, No. 535, eff. 8-1-00.

Wis. Admin. Code § DWD 294.02 Definitions {#sec-dwd-294.02 omnilex-key=us-wi-regs-official--agency-dwd--DWD 294.02}

In this chapter:

(1) “Consolidated list” means a list compiled and maintained by the department which contains the names, addresses and other pertinent information as required by this chapter of all contractors that have been debarred under this chapter within a 3 year period from the date of publication.

(2) “Construction business” means:

(a) Any business engaged in erecting, constructing, remodeling, repairing, demolishing, altering, painting or decorating buildings, structures, or facilities; and

(b) Any business engaged in the delivery of mineral aggregate or the transporting of excavated material or spoil as provided by s. 66.0903 (4) or 103.49 (2m), Stats.

(3) “Contractor” means any individual or legal entity in a construction business involved on a public works project, including its responsible officers, directors, members, shareholders, or partners, irrespective of the name by which the group is designated, provided that any officer, director, member, shareholder, or partner is vested with the management of the affairs of the individual or legal entity.

(4) “Conviction” means a judgment or conviction of a criminal offense by any court of competent jurisdiction, whether entered upon a verdict or a plea and includes a conviction entered upon a nolo contendere plea.

(5) “Debarment” means action taken by the department under s. DWD 294.05 to exclude a contractor from performing work, either as a prime contractor or subcontractor, for any state agency or local governmental unit for a specified period. A contractor so excluded is“debarred.”

(6) “Department” means the Wisconsin department of workforce development.

(7) “Designated representative” means a designee of the secretary who is authorized to conduct a debarment hearing and who may be authorized to issue debarment decisions pursuant to this chapter.

(8) “Judgment” means a judgment in a civil action by any court of competent jurisdiction.

(9) “Local governmental unit” has the meaning given in s. 66.0903 (1) (d), Stats.

(10) “Secretary” means the secretary of the Wisconsin department of workforce development or an authorized representative or designee.

(11) “State agency” has the meaning given in s. 103.49 (1) (f), Stats.

History

Cr. Register, August, 1987, No. 380, eff. 9-1-87; correction in (5) made under s. 13.93 (2m) (b) 7., Stats., Register, April, 1996, No. 484; am. (2) and (5), r. and recr. (3), (9) and (11), Register, July, 2000, No. 535, eff. 8-1-00; correction in (2) (b) and (9) made under s. 13.93 (2m) (b) 7., Stats., Register, July, 2000, No. 535.

Wis. Admin. Code § DWD 294.03 List and records of debarred contractors {#sec-dwd-294.03 omnilex-key=us-wi-regs-official--agency-dwd--DWD 294.03}

(1) List.

(a) The department shall compile and maintain a current consolidated list of all debarred contractors.

(b) The department shall use the consolidated list to ensure that every state agency or local governmental unit does not solicit bids from, negotiate with, award contracts to, and approve or allow subcontracts with listed contractors, except as otherwise provided in s. DWD 294.05.

(2) Records. The department shall maintain records relating to each debarred contractor. Records shall contain the following:

(a) Name and address of each debarred contractor.

(b) Cause for each debarment and the date each cause occurred.

(d) Effective and termination dates of the debarment.

History

Cr. Register, August, 1987, No. 380, eff. 9-1-87; correction in (1) made under s. 13.93 (2m) (b) 7., Stats., Register, April, 1996, No. 484; am. (1) (b), Register, July, 2000, No. 535, eff. 8-1-00.

Wis. Admin. Code § DWD 294.04 Treatment of listed contractors {#sec-dwd-294.04 omnilex-key=us-wi-regs-official--agency-dwd--DWD 294.04}

(1) Effect. No state agency or local governmental unit may knowingly solicit bids from, negotiate with or award contracts to, and approve or allow subcontracts with a debarred contractor, except as otherwise provided in s. DWD 294.05.

(2) Review. Prior to any of the procurement actions enumerated in sub. (1), with respect to a particular bidder, offeror or proposed subcontractor, every state agency or local governmental unit shall review the consolidated list. If a bidder, offeror or proposed subcontractor is listed, it may not be awarded a contract or allowed to participate as a subcontractor, except as otherwise provided in s. DWD 294.05.

(3) Inadvertently awarded contracts or subcontracts.

(a) If the department learns that a debarred contractor is employed on a public works project, it shall require the state agency or local governmental unit to terminate the employment of the contractor, except as otherwise provided in s. DWD 294.05.

(b) Contract termination decisions shall be made only after review by and in consultation with the state agency or local governmental unit purchasing personnel, department legal counsel and designated representative, and affected contractors to assure the propriety of the proposed contract termination.

History

Cr. Register, August, 1987, No. 380, eff. 9-1-87; corrections made under s. 13.93 (2m) (b) 7., Stats., Register, April, 1996, No. 484; am. Register, July, 2000, No. 535, eff. 8-1-00.

Wis. Admin. Code § DWD 294.05 Debarment {#sec-dwd-294.05 omnilex-key=us-wi-regs-official--agency-dwd--DWD 294.05}

(1) General.

(a) The department may, in the public interest, debar a contractor for any of the causes contained in sub. (2), using the procedures in sub. (3). The existence of a cause for debarment, as specified in sub. (2), shall not always require that a contractor be debarred. The seriousness of a contractor’s acts or omissions, past compliance history, attitude and any other mitigating factors shall be considered in making any debarment decision.

(b) Debarment of a contractor constitutes a debarment of all divisions or other organizational elements of the contractor that are engaged in construction business activities, unless the debarment is explicitly limited to specific divisions or organizational elements. The department shall determine whether a debarment shall apply to a contractor affiliated with a debarred contractor. A corporation is an affiliate of another corporation if substantially the same group of persons owns and manages the 2 corporations.

(c) A contractor may not be debarred from performing work on a project that is being bid or negotiated if a written or oral offer to perform work for another contractor was received or accepted before the name of the contractor making the offer initially appeared on the consolidated list.

(d) A contractor may not be debarred from completing any work on a project if the contract for the work was awarded to the contractor prior to the date that the name of the contractor initially appeared on the consolidated list.

(2) Causes for debarment. The department may debar a contractor for any one or more of the following causes:

(a) A conviction or civil judgment of a Wisconsin court, a finding of any Wisconsin state agency or local governmental unit, a finding of the department or an admission of:

Failing to pay an employe the proper prevailing wage rate determined for a public works project.
Failing to pay an employe at least 1.5 times the proper hourly basic rate of pay for all hours worked in excess of the prevailing hours of labor determined for a public works project.
Inducing any employe to give up, waive or return any part of the proper prevailing wage rate determined for a public works project.
Falsifying, deliberately destroying, or failing to keep required payroll records on a public works project.

(3) Procedures for debarment.

(a) Referral. Department employes and all other persons having information appropriate for department consideration under this section shall promptly report that information to the secretary or designated representative.

(b) Decision-making process.

The debarment decision-making process shall be as informal as practical, consistent with fundamental fairness principles. The process shall permit contractors to request a hearing before the department. If a request for a hearing is received by the department, then a hearing shall be afforded to the requesting party.
The hearing shall be conducted by a designated representative and shall:

a. Permit the contractor to appear with counsel, to submit documents, to present witnesses and to confront and cross-examine any witness the department presents; and

b. Ensure that an accurate written summary or tape recording of the hearing is prepared or taken and made available to the contractor, if one is requested before the hearing.

(4) Notice of proposal to debar. The department shall initiate a debarment proceeding by notifying the involved contractor by certified mail to its last known address. The mail notice shall state:

(a) The department is considering a debarment;

(b) The causes for the proposed debarment in terms sufficient to inform the contractor of the conduct or transaction upon which debarment is proposed;

(c) The contractor may submit, within 20 calendar days from the date of receipt of the department’s mailed notice, a written response or argument in opposition to the proposed debarment;

(d) The department’s procedures governing debarment decision-making as specified in sub. (5);

(e) The potential effect of the proposed debarment as provided under s. DWD 294.04; and

(f) The contractor may request a hearing before the department within the period provided for in par. (c).

(5) Department’s debarment decision.

(a) The designated representative shall issue a proposed findings of fact and order within 60 calendar days after the department received the last written response providing information or arguments in opposition to the proposed debarment as provided for in sub. (4) (c) or within 60 calendar days after a hearing has been held as provided for in sub. (4) (f). Any party to the action may request a copy of the proposed findings of fact and order and appeal it within 20 calendar days from the date of issuance by requesting, in writing, an opportunity to present oral or written arguments to the designated representative.

(b) If a timely appeal is filed, the designated representative shall hold a hearing or review the written arguments on why the proposed order should be modified or reversed. The designated representative shall issue a findings of fact and final order within 30 calendar days of the receipt of the last argument filed.

(c) If a timely appeal is not filed, the designated representative shall issue a findings of fact and final order within 20 calendar days after the appeal period expires.

(6) Notice of debarment decision.

(a) If a debarment is imposed, the department shall promptly notify the contractor by certified mail to its last known address, of the following:

Reference to the notice of proposed debarment that initiated the action under sub. (4);
Reasons for debarment; and
Period of debarment, specifying the effective and termination dates.

(b) If debarment is not imposed, the department shall give prompt notice of that fact to the contractor by certified mail to its last known address.

(7) Period of debarment.

(a) Debarment shall be for a period commensurate with the seriousness of the cause or causes for debarment. Debarment shall not exceed 3 years. Debarment begins on the date the department issues its notice of debarment, or on the date of final disposition by a court of competent jurisdiction, whichever is later.

(b) The department may terminate a debarment, or may reduce the period or extent of a debarment, upon the contractor’s request, for reasons considered appropriate by the department, such as:

Newly discovered relevant evidence;
Reversal of the conviction or judgment upon which the debarment was based;
A bona fide change in ownership or management of the contractor; or
Elimination of the cause or causes for which the debarment was imposed.

(c) A contractor may not request the department to terminate or reduce the period or extent of a debarment until full restitution of any unpaid wages has been made to all employes.

History

Cr. Register, August, 1987, No. 380, eff. 9-1-87; correction in (4) (e) made under s. 13.93 (2m) (b) 7., Stats., Register, April, 1996, No. 484; am. (2) (a) (intro.), 4., (3) (b) 2. b. and (5), Register, July, 2000, No. 535, eff. 8-1-00.

Wis. Admin. Code § DWD 294.06 Notification to state agencies and local governmental units {#sec-dwd-294.06 omnilex-key=us-wi-regs-official--agency-dwd--DWD 294.06}

(1) The department shall notify all state agencies and local governmental units of the names of all debarred contractors by providing them with a copy of the most current consolidated list available at the same time that the department issues a prevailing wage rate determination to them.

(2) Local governmental units exempted from applying to the department for prevailing wage rate determinations, pursuant to s. 66.0903 (6), Stats., and all state agencies shall be sent a copy of the most current consolidated list at least quarterly, if any addition or deletion was made to the most current list.

Note: Section 66.0903 (6) was repealed by 2011 Wis. Act 32, removing exemptions for local governmental units. Sub. (2) will be repealed by future rulemaking.

History

Cr. Register, August, 1987, No. 380, eff. 9-1-87; am. Register, July, 2000, No. 535, eff. 8-1-00; correction in (2) made under s. 13.93 (2m) (b) 7., Stats., Register, July, 2000, No. 535.

Wis. Admin. Code § DWD 294.07 Distribution of consolidated list to the general public {#sec-dwd-294.07 omnilex-key=us-wi-regs-official--agency-dwd--DWD 294.07}

To ensure that the general public is kept fully informed of the names of the debarred contractors, the department shall supplement the notification requirements provided under s. DWD 294.06 by distributing a copy of the current consolidated list, using a variety of methods including, but not limited to, the use of the state newspaper, press releases and the periodicals of associations that have members who are affected by, or are interested in, the information on the list.

History

Cr. Register, August, 1987, No. 380, eff. 9-1-87; correction made under s. 13.93 (2m) (b) 7., Stats., Register, April, 1996, No. 484.

Wis. Admin. Code § DWD 294.08 Disclosure of ownership of other construction business that failed to observe prevailing wage law {#sec-dwd-294.08 omnilex-key=us-wi-regs-official--agency-dwd--DWD 294.08}

On the date a contractor submits a bid to or completes negotiations with a state agency or local governmental unit, the contractor shall disclose the name of any other construction business which the contractor, or a shareholder, officer, or partner of the contractor, owns or has owned within the preceding 3 years only if both of the following apply:

(1) The contractor, or a shareholder, officer or partner of the contractor, presently owns or has owned, within the preceding 3 years, at least a 25% interest in the other construction business; and

(2) The department has determined that the other construction business failed to pay the prevailing wage rate or at least 1.5 times the hourly basic rate of pay for hours worked in excess of the prevailing hours of labor to any employe at any time within the preceding 3 years.

Note: “Disclosure of Ownership,” form ERD-7777, may be obtained at no charge from the Department of Workforce Development, Equal Rights Division, P.O. Box 8928, Madison, WI 53708 or the DWD web site at http://www.dwd.state.wi.us/er/pdfforms.htm.

History

Cr. Register, August, 1987, No. 380, eff. 9-1-87; r. and recr. (1) (a), Register, October, 1990, No. 418, eff. 11-1-90; am. (intro.), Register, July, 2000, No. 535, eff. 8-1-00.

Chapter DWD 295 APPRENTICESHIP

Wis. Admin. Code § DWD 295.001 Definitions {#sec-dwd-295.001 omnilex-key=us-wi-regs-official--agency-dwd--DWD 295.001}

In this chapter:

(1) “Apprentice” has the meaning specified in s. 106.001 (1), Stats.

(2) “Assignment” means the initial placement of an apprentice with an employer.

Note: See also the definitions in this section of “reassignment” and “unassignment.”

(3) “Cancellation” means the termination of the registration or approval status of a program at the request of the sponsor, or the termination of an apprentice contract at the request of any party to the contract.

(4) “Certificate” or “certification” means documentary evidence that:

(a) The department has established that an individual is eligible for probationary employment as an apprentice under a registered apprenticeship program.

(b) The department has established that an individual is eligible for probationary employment as an apprentice under a registered apprenticeship program [The department has registered an apprenticeship program as evidenced by a certificate of registration].

Note: CR 14-032 amended this paragraph by striking a semicolon and underscoring a period. However, without striking or underscoring any new text, CR 14-032 replaced the previously existing text, which is shown in brackets, with the text not shown in brackets. The text not shown in brackets repeats the language of par. (a). The change of text was unintended by the department and the language of this paragraph will be clarified by future rulemaking

(c) The department has determined that an apprenticeship [apprentice] has successfully met the requirements to receive an interim credential.

Note: CR 14-032 amended this paragraph by striking a semicolon and underscoring a period. However, without striking or underscoring any new text, CR 14-032 replaced “apprentice,” which is shown in brackets, with “apprenticeship.” The change of text was unintended by the department and the language of this provision will be clarified by future rulemaking

(d) The department has determined that an individual has successfully completed apprenticeship.

(5) “Competency” means the attainment of manual, mechanical, or technical skills and knowledge, as specified by an occupational standard and demonstrated by an appropriate written and hands-on proficiency measurement.

(6) “Completion rate” means the percentage of an apprenticeship cohort who receive a certificate of apprenticeship completion within one year of the projected completion date. An “apprenticeship cohort” is the group of individual apprentices registered to a specific program during a one-year time frame, except that a cohort does not include the apprentices whose apprentice contract has been cancelled during the probationary period or transferred.

(7) “Department” means the department of workforce development, which is the state registration agency for the purposes of 29 CFR 29.

(8) “Employer” has the same meaning as in s. 106.001 (5), Stats.

(9) “Electronic media” means media that utilize electronics or electromechanical energy for the end user to access the content; and includes electronic storage media, transmission media, the Internet, extranet, lease lines, dial-up lines, private networks, and the physical movement of removable or transportable electronic media or interactive distance learning.

(10) “Federal purposes” includes any federal contract, grant, agreement or arrangement dealing with apprenticeship; and any federal financial or other assistance, benefit, privilege, contribution, allowance, exemption, preference, or right pertaining to apprenticeship.

(11) “Interim credential” means a credential issued by the department, upon request of the appropriate sponsor, as certification of competency attainment by an apprentice.

(12) “Journeyworker” means a worker who has attained a level of skill, abilities, and competencies recognized within an industry as having mastered the skills and competencies required for the occupation.

Note: The use of this term may also refer to a mentor, technician, specialist, or other skilled worker who has documented sufficient skills and knowledge of an occupation, either through formal apprenticeship or through practical on-the-job experience and formal training.

(13) “Local apprenticeship committee” means an apprenticeship committee to which the department has delegate the authority to act under ss. DWD 295.02 and 295.03.

(14) “Office of Apprenticeship” means the office designated by the employment and training administration of the U. S. department of labor to administer the national apprenticeship system or its successor organization.

(15) “Provisional registration” means the initial approval of a newly registered program that meets the required standards for program registration.

(16) “Quality assurance assessment” means a comprehensive review conducted by the department regarding all aspects of an apprenticeship program’s performance, including determining if apprentices are receiving on-the-job learning in all phases of the apprenticeable occupation, scheduled wage increases consistent with the registered standards, and related instruction through appropriate curriculum and delivery systems, and that the department is receiving notification of all new registrations, cancellations, and completions as required in this chapter.

(17) “Reassignment” means the assignment of an apprentice from one employer to another within the same apprenticeship program.

(18) “Registration of an apprentice contract” means the acceptance and recording of an apprentice contract by the department as evidence of the apprentice’s participation in a particular registered apprenticeship program.

(19) “Registration of an apprenticeship program” means the acceptance and recording of such program by the department as meeting the basic standards and requirements of the department for approval of such program for federal and state purposes, as shown by a certificate of registration.

(20) “Related instruction” means an organized and systematic form of instruction designed to provide the apprentice with the knowledge of the theoretical and technical subjects related to the apprentice’s occupation. Such instruction may be given in a classroom, through occupational or industrial courses, or by correspondence courses of equivalent value, electronic media, or other forms of self-study approved by the department.

(21) “Sponsor” has the meaning given in s. 106.001 (8), Stats.

(22) “Technical assistance” means guidance provided by department staff in the development, revision, amendment, or processing of a potential or current program sponsor’s standards of apprenticeship or apprentice contracts; or advice or consultation with a program sponsor to further compliance with this chapter; or guidance from the department on how to remedy nonconformity with this chapter.

(23) “Transfer” means a shift of apprenticeship registration from one program to another, where there is agreement between the apprentice and the affected apprenticeship committees or program sponsors.

(24) “Unassignment” means the temporary interruption of an apprentice contract.

(25) “Wisconsin apprenticeship advisory council” means the council created by s. 15.227 (13), Stats.

History

Cr. Register, May, 1981, No.305, eff. 6-1-81; CR 07-010: r. (3), Register June 2007 No. 618, eff. 7-1-07; CR 10-073: am. (1), r. (4), renum. (2) to be (7) and am., cr. (2) to (6), (8) to (25) Register November 2010 No. 659, eff. 12-1-10; CR 14-032: am. (4) (a) to (c), (21) Register May 2015 No. 713, eff. 6-1-15.

Wis. Admin. Code § DWD 295.01 Eligibility and procedure for registration of an apprenticeship program {#sec-dwd-295.01 omnilex-key=us-wi-regs-official--agency-dwd--DWD 295.01}

(1) The eligibility for registration of an apprenticeship program for federal and state purposes is conditioned upon a program’s conformity with the apprenticeship program standards published in this chapter. For a program to be determined by the department as being in conformity with this chapter, the program shall apply for registration and be registered with the department. The determination by the department that the program meets the apprenticeship program standards is made only through such registration.

(2) An apprenticeship program or any apprentice contract is eligible for registration by the department if it meets all of the following criteria:

(a) The program or contract is in conformity with the requirements of this chapter and the training is in an apprenticeable occupation having the characteristics set forth in s. DWD 295.15 (2).

(b) The program or contract is in conformity with the requirements of ch. DWD 296 relating to equal employment opportunity.

(3) Apprentices shall be registered in accordance with s. DWD 295.02. Such individual registration may be effected by completing an apprentice contract in accordance with s. 106.01 (1), Stats.

(4) A person applying for the registration of an apprenticeship program or an apprentice contract shall appear personally before an apprenticeship committee when the committee requests the applicant to appear. If no recommendation is received by the department from the committee within 40 days after receipt of an application by the committee, the department shall act on the application without committee recommendation. This time limit may be extended by the department on a showing of good cause. A recommendation on an individual application shall be subject to review and revision by the department in the event that an applicant is dissatisfied with the committee action.

(5) The sponsor shall notify the department within 40 days of persons who have successfully completed apprenticeship programs, transfers, unassignments, and of apprentice contracts and shall provide a statement of the reasons for any cancellations.

(6) Programs approved by the department shall be accorded registration or approval evidenced by a certificate.

(7) When the department determines that an application for a new program meets the required standards for program registration, the department shall give provisional approval to the program for a period of a full training cycle. The department shall review each new program for quality and for conformity at the end of each year during the training cycle. At the end of the initial training cycle:

(a) A program that conforms with the requirements of this chapter shall be made permanent.

(b) A program not in operation or not conforming to this chapter shall be recommended for deregistration procedures.

(8) The department shall review each program for quality and for conformity at least once every 5 years. If a program is not in operation or not conforming to the requirements of this chapter, the department shall recommend the program for deregistration procedures.

(9) A proposal or application to modify or change a registered program or established apprenticeship standards shall be submitted to the department. The department shall make a determination which approves or disapproves the proposal or application within 90 days from the date of receipt. If the department approves the modification or change, the department shall record and acknowledge the approval as an amendment to the program within 90 days. If the department does not approve a proposed modification or change, it shall notify the sponsor of the disapproval and the reasons therefore and provide the appropriate technical assistance.

(10) When proposing an individually sponsored apprenticeship program for registration by an employer or employers’ association that provides for participation by a union, the department shall require a written statement of union agreement or no objection to the program. If a program proposed by an employer or employers’ association does not provide for union participation, the employer or employers’ association shall furnish to any existing union which is the collective bargaining agent of the employees to be trained a copy of its application for registration and of the apprenticeship program. The department shall allow 45 days for the receipt of union comments, if any, before final action on the application for registration or approval.

(11) When the employees to be trained in an individually sponsored apprenticeship program have no collective bargaining agreement, an employer or group of employers, or an employer association may propose an apprenticeship program.

History

Cr. Register, March, 1957, No.15, eff. 4-1-57; am. Register, November, 1978, No. 275, eff. 12-1-78; renum. from Ind 85.01, Register, April, 1981, No. 304, eff. 5-1-81; CR 10-073: r. and recr. Register November 2010 No. 659, eff. 12-1-10.

Wis. Admin. Code § DWD 295.02 Standards {#sec-dwd-295.02 omnilex-key=us-wi-regs-official--agency-dwd--DWD 295.02}

(1) The department may adopt statewide or local apprenticeship standards covering minimum training requirements, procedure in processing apprentice contracts, qualification of applicant employers and apprentices, functions of local apprenticeship committees, and such other matters as constitute an apprenticeship program in a particular trade.

(2) To be eligible for approval and registration by the department, an apprenticeship program shall conform to all of the following standards:

(a) The program shall have an organized, written plan, also referred to as program standards, embodying the terms and conditions of employment, training, and supervision of one or more apprentices in an apprenticeable occupation, which meets the criteria in s. DWD 295.15 (2) and is subscribed to by a sponsor who has undertaken to carry out the apprentice training program. The term of apprenticeship may be measured either through the completion of the industry standard for on-the-job learning of at least 2,000 hours, known as the time-based approach, the attainment of competency, known as the competency-based approach, or a blend of the time-based and competency-based approaches, known as the hybrid approach.

(b) The program standards shall contain provisions that address all of the following:

The employment and training of the apprentice in a skilled occupation.
For standards using the time-based approach, the measurement of skill acquisition through the individual apprentice’s completion of at least 2,000 hours of on-the-job learning as described in a work process schedule.
For standards using the competency-based approach, the measurement of skill acquisition through the individual apprentice’s successful demonstration of acquired skills and knowledge, as verified by the program sponsor. Programs utilizing this approach shall still require apprentices to complete an on-the-job learning component of registered apprenticeship. The program standards shall address how on-the-job learning will be integrated into the program, describe competencies, and identify an appropriate means of testing and evaluation for such competencies.
For standards using the hybrid approach, the measurement of the individual apprentice’s skill acquisition through a combination of specified minimum number of hours of on-the-job learning and the successful demonstration of competency as described in a work process schedule.
An outline of the work processes in which the apprentice will receive supervised work experience and learning on the job, and the allocation of the approximate amount of time to be spent in each major process.
Provision for organized, related, and supplemental instruction in technical subjects related to the occupation. A minimum of 144 hours for each year of apprenticeship is required. This instruction in technical subjects may be accomplished through such media as: Classroom, occupational or industry courses, electronic media, or other instruction approved by the department. Apprenticeship instructors shall meet the educational and occupational requirements of the Wisconsin Technical College System Board, or be a subject matter expert, which is an individual, such as a journeyworker, who is recognized within an industry as having expertise in a specific occupation, and have training in teaching techniques and adult learning styles, which may occur before or after the apprenticeship instructor has started to provide the related technical instruction.
A progressively increasing schedule of wages to be paid to the apprentice consistent with the skill acquired. The entry wage shall not be less than the minimum wage prescribed by the Fair Labor Standards Act, 29 USC 206, or Wisconsin’s minimum wage law.
Periodic review and evaluation of the apprentice’s performance on the job and in related instruction; and the maintenance of appropriate progress records.
A numeric ratio of apprentices to journeyworkers consistent with proper supervision, training, safety, and continuity of employment, and applicable provisions in collective bargaining agreements, except where such ratios are expressly prohibited by the collective bargaining agreements. The ratio language shall be specific and clearly described as to its application to the job site, workforce, department, or plant.
A probationary period reasonable in relation to the full apprenticeship term, with full credit given for such period toward completion of apprenticeship. The probationary period may not exceed 25 percent of the length of the program, or 12 months, whichever is shorter.
Adequate and safe equipment and facilities for training and supervision, and safety training for apprentices on the job and in related instruction.
The minimum qualifications required by a sponsor for persons entering the apprenticeship program, with an eligible starting age not less than 16 years.
The placement of an apprentice under a written contract that meets the requirements of ch. 106, Stats. The contract shall directly, or by reference, incorporate the standards of the program as part of the contract.
The granting of advanced standing or credit for demonstrated competency, acquired experience, training, or skills for all applicants equally, with commensurate wages for any progression step so granted.
The transfer of an apprentice between apprenticeship programs and within an apprenticeship program shall be based on agreement between the apprentice and the affected local apprenticeship committees or program sponsors and the department, and shall comply with all of the following requirements:

a. The transferring apprentice shall be provided a transcript of related instruction and on-the-job learning by the committee or program sponsor.

b. Transfer shall be to the same occupation.

c. A new apprentice contract shall be executed when the transfer occurs between program sponsors.

Assurance of qualified training personnel and adequate supervision on the job.
Recognition for successful completion of apprenticeship evidenced by an appropriate certificate issued by the department.
Program standards that utilize the competency-based or hybrid approach for progression through an apprenticeship and that choose to issue interim credentials shall clearly identify the interim credentials, demonstrate how these credentials link to the components of the apprenticeable occupation, and establish the process for assessing an individual apprentice’s demonstration of competency associated with the particular interim credential. Further, interim credentials shall only be issued for recognized components of an apprenticeable occupation, thereby linking interim credentials specifically to the knowledge, skills, and abilities associated with those components of the apprenticeable occupation.
Identification of the department.
Provision for the registration, cancellation and deregistration of the program; and for the prompt submission of any program standard modification or amendment to the department for approval.
Provision for registration of apprenticeship agreements, modifications, and amendments; notice to the department of persons who have successfully completed apprenticeship programs; and notice of transfers, unassignments, and cancellations of apprentice contracts and a statement of the reasons therefor.
Authority for the cancellation of an apprentice contract during the probationary period by either party without stated cause; cancellation during the probationary period shall not have an adverse impact on the sponsor’s completion rate.
Compliance with 29 CFR 30, including the equal opportunity pledge prescribed in 29 CFR 30.3 (c) and in s. DWD 296.03 (3); an affirmative action plan complying with s. DWD 296.04; and a method for the selection of apprentices authorized by s. DWD 296.10, or compliance with parallel requirement contained in a state plan for equal opportunity in apprenticeship adopted under ch. DWD 296 and approved by the department. The apprenticeship standards shall also include a statement that the program shall be conducted, operated and administered in conformity with applicable provisions of ch. DWD 296, as amended, or, if applicable, an approved state plan for equal opportunity in apprenticeship.

Note: 29 CFR 30.3(c) reads: “(1) Each sponsor of an apprenticeship program must include in its Standards of Apprenticeship and apprenticeship opportunity announcements the following equal opportunity pledge:

[Name of sponsor] will not discriminate against apprenticeship applicants or apprentices based on race, color, religion, national origin, sex (including pregnancy and gender identity), sexual orientation, genetic information, or because they are an individual with a disability or a person 40 years old or older. [Name of sponsor] will take affirmative action to provide equal opportunity in apprenticeship and will operate the apprenticeship program as required under Title 29 of the Code of Federal Regulations, part 30.

(2) The nondiscrimination bases listed in this pledge may be broadened to conform to consistent State and local requirements. Sponsors may include additional protected bases but may not exclude any of the bases protected by this part.”

Contact information, including name, address, telephone number and email address, for the appropriate individual with authority under the program to receive, process and make disposition of complaints.
Recording and maintenance of all records concerning apprenticeship as may be required by the department and other applicable law.

(3) In trades for which no uniform apprenticeship courses or schedules of training have been adopted by the department, the sponsor may execute an apprentice contract with approved standards, subject to the approval of the department.

History

CR 10-073: cr. Register November 2010 No. 659, eff. 12-1-10; CR 14-032: am. (2) (intro.), (b) (intro.), 15. (intro.), a., b. Register May 2015 No. 713, eff. 6-1-15; CR 19-003: am. (2) (b) 23. Register September 2019 No. 765, eff. 10-1-19.

Wis. Admin. Code § DWD 295.03 Local committees {#sec-dwd-295.03 omnilex-key=us-wi-regs-official--agency-dwd--DWD 295.03}

(1) The function of local apprenticeship committees is to act in an advisory capacity to the department and to be parties to apprentice contracts. Candidates for membership are nominated by the organizations which the members are to represent. To be recognized as a local apprenticeship committee each individual member shall be officially so designated by the department. The geographical jurisdictional area of each such local apprenticeship committee shall be determined by the department.

(2) This rule does not apply to shop or plant sponsored apprenticeship programs or to local apprenticeship committees created under the terms of a bargaining agreement between the management and its employees within that plant or shop program.

History

Cr. Register, March, 1957. No.15, eff. 4-1-57; am. (1), Register, November, 1978, No.275, eff. 12-1-78; renum. from Ind. 85.02, Register, April, 1981, No. 304, eff. 5-1-81; CR 10-073: renum. from DWD 295.02 and am. Register November 2010 No. 659, eff. 12-1-10.

Wis. Admin. Code § DWD 295.04 Application forms {#sec-dwd-295.04 omnilex-key=us-wi-regs-official--agency-dwd--DWD 295.04}

Where the department requires application forms to be filled out by applicant employers, applicant sponsors, and applicants for apprenticeships, the forms shall be approved by the department.

Note: All forms referred to may be obtained at no charge from the Department of Workforce Development, Bureau of Apprenticeship Standards, P.O. Box 7972, Madison, WI 53707.

History

Cr. Register, March. 1957, No.15, eff. 4-1-57; am. Register, November, 1978, No. 275, eff. 12-1-78; renum. from Ind 85.03, Register, April, 1981, No.304, eff. 5-1-81; CR 10-073: renum. from DWD 295.03 and am. Register November 2010 No. 659, eff. 12-1-10.

Wis. Admin. Code § DWD 295.05 Apprentice wages {#sec-dwd-295.05 omnilex-key=us-wi-regs-official--agency-dwd--DWD 295.05}

(1) An apprentice contract wage scale is deemed adequate when, during the term of training, it averages 60% of the current journeyworker rate or skilled wage rate. The apprentice contract shall provide for a graduated scale progressing in periods as approved by the department.

(2) In determining the journeyworker or skilled wage rate, for the construction sector for the apprentices who are covered under a collective bargaining agreement, the specified rate applies. Where apprentices are not covered by the collective bargaining agreement, the skilled wage rate is the rate average, calculated as the mean, based on the geographical area of the appropriate local committee. The department will not normally approve a skilled rate for apprenticeship purposes more than 20% below the journeyworker rate in the area. In controversial cases, growing out of the fact that the committee’s jurisdictional area is so great as to extend into communities in which application of this policy proves impracticable, the department reserves the right to make exceptions.

(3) In other industry sectors in which collective bargaining is on the basis of an individual program, the skilled rate is that rate specified in the bargaining agreement. In individual programs not covered by bargaining agreements, the skilled rate is that rate paid the greatest number of competent journeyworkers in like establishments in the community, or such other rate deemed adequate by the department.

History

Cr. Register, March, 1957, No. 15, eff. 4-1-57; am. Register, November, 1978, No. 275, eff. 12-1-78; renum. from Ind 85.04, Register, April, 1981, No.304, eff. 6-1-81; CR 10-073: renum. from DWD 295.04 and am. Register November 2010 No. 659, eff. 12-1-10.

Wis. Admin. Code § DWD 295.06 Effect of bargaining agreements {#sec-dwd-295.06 omnilex-key=us-wi-regs-official--agency-dwd--DWD 295.06}

(1) Where conditions of employment of apprentices are stipulated by collective bargaining agreement, the department will be guided by the terms of such agreement provided such terms are not in conflict with state statutes or this chapter.

(2) The department shall similarly be guided by any special provision for veterans, minority persons, or women in the standards, apprentice qualifications or operation of the program, or in the apprentice contract, which is not otherwise prohibited by law, executive order, or authorized regulation.

History

Cr. Register, March, 1957, No.15, eff. 4-1-57; am. Register, November, 1978, No. 275, eff. 12-1-78; renum. from Ind 85.06, Register, April, 1981. No.304, eff. 5-1-81; correction made under s. 13.93 (2m) (b) 7, Stats., Register, June, 1984; correction made under s. 13.93 (2m) (b) 7., Stats., Register, February, 1996, No. 482; CR 10-073: renum. DWD 295.06 to be (1), cr. (2) Register November 2010 No. 659, eff. 12-1-10.

Wis. Admin. Code § DWD 295.07 Apprentice contract {#sec-dwd-295.07 omnilex-key=us-wi-regs-official--agency-dwd--DWD 295.07}

(1) All apprentice contracts shall be made upon the forms provided by the department.

(2) No apprentice contract shall be considered in force unless it has had the approval of the department.

(3) The apprentice contract shall contain, explicitly or by reference, all of the following information:

(a) Names and signatures of the contracting parties (apprentice, the program sponsor, and the department), and the signature of a parent or guardian if the apprentice is a minor.

(b) The date of birth of the apprentice, and, on a voluntary basis, the social security number of the apprentice.

(d) A statement of the occupation in which the apprentice is to be trained, and the beginning date and term constituting the duration of apprenticeship.

(e) A statement showing all of the following:

The number of hours to be spent by the apprentice in work on the job in a time-based program; or a description of the skill sets to be attained by completion of a competency-based program, including the on-the-job learning component; or the minimum number of hours to be spent by the apprentice and a description of the skill sets to be attained by completion of hybrid program.
The number of hours to be spent in related instruction in technical subjects related to the occupation consistent with s.106.01 (6) (a) and (b), Stats.

(f) A statement setting forth a schedule of the work processes in the occupation or industry divisions in which the apprentice is to be trained and the approximate time to be spent at each process.

(g) A statement of the graduated scale of wages to be paid to the apprentice and whether or not the required related instruction is compensated.

(h)

The apprentice contract shall state the length of the probationary period, which may be up to 25% of the contract hours of the apprenticeship but in no case shall it exceed 12 calendar months. The probationary period shall constitute part of the apprenticeship period.
During the probationary period, apprentice contracts are voidable by any party to the contract upon written notice to the department.
After the probationary period, the apprentice contract may be cancelled consistent with this chapter.

(i) A reference incorporating as part of the contract the standards of the apprenticeship program as they exist on the date of the contact and as they may be amended during the period of the contract, upon approval of the department.

(j) A statement that the apprentice shall be accorded equal opportunity in all phases of apprenticeship employment and training, without discrimination because of race, color, religion, national origin, sex, sexual orientation, or age.

(k) Contact information of the department when the controversies or differences cannot be resolved locally.

(L) A statement of advance standing including work and related instruction wages shall be commensurate for the credit granted or an amendment thereto.

(4) A minor with an apprentice contract under the provisions of ch. 106, Stats., shall not be subject to the law relating to prohibited employments for minors, to the extent that the minor is performing service within the provisions of an apprentice contract approved by the department.

(5) The terms of an existing apprentice contract may be modified subject to approval of the department.

History

Cr. Register, March, 1957. No.15, eff. 4-1-57; am. Register, November, 1978. No. 275, eff. 12-1-78; renum. from Ind 85.08, Register, April, 1981, No.304, eff. 5-1-81; CR 02-087: am. (4) Register November 2002 No. 563, eff. 12-1-02: CR 10-073: r. and recr. (title), (3), am. (1), (2), r. (4), (5), (6), renum. (7), (8) to be (4), (5) and am. Register November 2010 No. 659, eff. 12-1-10; CR 14-032: am. (3) (e) (intro.), 1. Register May 2015 No. 713, eff. 6-1-15.

Wis. Admin. Code § DWD 295.08 Manual {#sec-dwd-295.08 omnilex-key=us-wi-regs-official--agency-dwd--DWD 295.08}

The department shall keep on record and make available to all interested persons the apprenticeship manual as approved by the department effective January 2008, or as thereafter amended.

History

Cr. Register, March, 1967. No.15, eff. 4-1-57; am. Register, November, 1978. No. 275. eff. 12-1-78; renum. from Ind 85.09, Register, April, 1981, No. 304, eff. 5-1-81; CR 07-010: am. Register June 2007 No. 618, eff. 7-1-07; CR 10-073: am. Register November 2010 No. 659, eff. 12-1-10.

Wis. Admin. Code § DWD 295.10 Family-owned construction business {#sec-dwd-295.10 omnilex-key=us-wi-regs-official--agency-dwd--DWD 295.10}

(1) In this section, “family-owned construction business” means a construction business which is owned or a majority of whose stock is owned by one person or jointly by 2 persons who are related by blood or marriage.

(2) An owner of a family-owned construction business may select any of his or her sons or daughters or any person necessary to an approved affirmative action plan as an apprentice when the person has met the qualification standards for a trade and the business has met the qualification standards for training the type of apprentice involved.

(3) This section may not be used by a family-owned construction business to replace an apprentice already registered and assigned to the business.

(4) Where conditions of employment of apprentices are stipulated by a collective bargaining agreement, the department will be guided in its actions under this section by the terms of the agreement. Such stipulated conditions may require that sons and daughters of owners receive the same treatment as all other apprenticeship applicants.

Note: The qualification standards referred to in sub. (2) are set by joint apprenticeship committees and the department. Copies are available from the division of apprenticeship and training, P.O. Box 7946, Madison, WI 53707.

History

Cr. Register, June, 1984, No. 342, eff. 7-1-84; CR 10-073: am. (2), (3) Register November 2010 No. 659, eff. 12-1-10.

Wis. Admin. Code § DWD 295.15 Criteria for apprenticeable occupations {#sec-dwd-295.15 omnilex-key=us-wi-regs-official--agency-dwd--DWD 295.15}

(1) Duties of the department.

(a) No apprentice contract or program may be approved pursuant to ch. 106, Stats., unless the occupation involved has been approved by the department as one suitable as an apprenticeable occupation under the criteria provided in this section.

(b) The department shall maintain a list of approved apprenticeable occupations.

(2) Occupational criteria. In order for a new occupation to be approved by the department as an apprenticeable occupation, the department shall find that the occupation includes all of the following:

(a) Involves skills that are customarily learned in a practical way through a structured, systematic program of on-the-job supervised learning.

(b) Is clearly identified and commonly recognized throughout an industry.

(c) Involves the progressive attainment of manual, mechanical, or technical skills and knowledge which, in accordance with the industry standard for the occupation, would require the completion of at least 2,000 hours of on-the-job learning to attain.

(d) Requires related instruction to supplement the on-the-job learning.

History

Cr. Register, October, 1981, No. 310, eff. 11-1-81; CR 10-073: am. (1) (a), (2) (a), (b), r. and recr. (2) (c), (d), r. (2) (e), (3) Register November 2010 No. 659, eff. 12-1-10; CR 14-032: am. (2) (intro.), (a) to (c) Register May 2015 No. 713, eff. 6-1-15.

Wis. Admin. Code § DWD 295.20 Enforcement of indenture agreements {#sec-dwd-295.20 omnilex-key=us-wi-regs-official--agency-dwd--DWD 295.20}

(1) Complaints. The department may accept complaints arising under an apprentice contract which cannot be adjusted locally alleging that an apprentice contract entered into under ch. 106, Stats., is not being complied with by another party to the agreement. This section does not apply to any complaint concerning discrimination or other equal opportunity issues covered by ch. DWD 296, or subject matter covered by a collective bargaining agreement.

(2) Requirements. The complaint shall be in writing and signed by the complainant, or authorized representative, and shall be submitted within 20 days of the final local decision. It shall set forth the specific matters complained of, together with relevant facts and circumstances. Copies of pertinent documents and correspondence shall accompany the complaint.

(3) Initial procedure. The department, as appropriate, shall render an opinion within 90 days after receipt of the complaint, based upon such investigation of the matters submitted as may be found necessary, and the record before it. During the 90-day period, the department shall make reasonable efforts to effect a satisfactory resolution between the parties involved. If so resolved, the parties shall be notified that the case is closed. Where an opinion is rendered, copies shall be sent to all interested parties. Nothing in this section precludes an apprentice from pursuing any other remedy authorized under another federal, state, or local law.

(4) Notice.

(a) Notice of intent to cancel. If any party to the apprentice contract requests that the department cancel the contract, the department shall send a written notice of intent to cancel to the complainant and the other party or parties. The notice shall state that the apprentice contract will be cancelled 20 days from the date of the notice, unless the department receives a written objection from any party within the 20-day period. An objection shall be on the form provided by the department with the notice.

(b) No objection to cancellation. If no party to the apprentice contract objects by the expiration of the 20-day period in the notice of intent to cancel, the apprentice contract is cancelled effective the date of the cancellation notice under par. (d).

(c) Timely objection. If the department receives an objection within the 20-day period provided in the notice of intent to cancel, all of the following provisions apply:

The apprentice contract shall remain in the status it is in at the time that the department receives the objection, until the department cancels the apprentice contract under par. (d).
The department shall determine whether the information provided by the complainant and the objecting party supports the complainant’s allegation that another party is not complying with the terms of the apprentice contract and whether the apprentice contract should be cancelled. If the information provided is unclear or incomplete, the department shall investigate further.
If the department determines that the apprentice contract should be cancelled, the department shall send a cancellation notice under par. (d) and the apprentice contract is cancelled effective the date of the notice. If the department determines that the apprentice contract should not be cancelled, the department shall rescind the intent to cancel notice.

(d) Cancellation notice. If the apprentice contract is cancelled, the department shall send a written cancellation notice to the parties. Any party who objects may make a request for a hearing within 20 days from the date of the notice.

(5) Appropriate subject matter.

(a) The department shall hold a hearing if a timely request is made under sub. (3) on any complaint alleging that the provisions of the apprentice contract are not being complied with by a party to the contract. The department may not hold a hearing on complaints which consist of matters which are unrelated to the provisions of the apprentice contract.

(b) Examples of violations of the apprentice contract which may be appropriate subject matter for a hearing on a complaint to the department under this chapter may include any of the following:

That the employer or other party to the apprentice contract has not provided to the apprentice the proper on-the-job learning as required in the apprentice contract.
That the employer or other party to the apprentice contract has failed to provide to the apprentice the proper related instruction as required in the apprentice contract.
That the employer or other party to the apprentice contract has assigned the apprentice to perform job duties which do not provide the proper on-the-job learning as required in the apprentice contract.
That the employer or other party to the apprentice contract has failed to pay the wages as required in the apprentice contract.
That the apprentice is not satisfactorily progressing in the on-the-job learning or related instruction required under the apprentice contract.

(c) Examples of matters which are unrelated to the provisions of the apprentice contract which are not appropriate subjects for a hearing by the department under this chapter may include any of the following:

Employee absenteeism or tardiness at work or school.
Employee use of drugs or alcohol on the job at work or school.
Insubordination.
Refusal to perform work as assigned.
Employee violations of the employer’s printed work rules.

(d) If the department’s investigation reveals that the dispute between the apprentice and the employer or other party to the apprentice contract is unrelated to the provisions of the apprentice contract, the department may cancel the apprentice contract.

(6) Hearing procedures.

(a) When the department sets a date for a hearing, it shall notify each party to the apprentice contract at least 20 days prior to the date of the hearing.

(b) The person appointed by the department as the hearing examiner may not be any person who has participated in an initial investigation of the complaint.

(d) The person making the complaint shall present evidence at the hearing to support the allegations in the complaint. If the person making the complaint fails to appear at the hearing without good cause or refuses to present evidence to support the allegations in the complaint, the hearing examiner may dismiss the complaint.

(e) The hearing examiner is not bound by the strict statutory or common law rules of evidence. Evidence shall be admitted as provided in s. 227.45, Stats.

(f) The hearing shall be transcribed. Any party may obtain a copy of the transcript by purchasing a copy from the transcription agency.

(g) At the conclusion of the hearing, the hearing examiner shall make written findings and orders and serve them upon the parties. The hearing examiner may make orders to enforce the apprentice contract, order penalties as provided in s. 106.01, Stats., cancel the apprentice agreement, or dismiss the complaint.

(h) If the hearing examiner finds that a penalty as provided in s. 106.01, Stats., is appropriate, the department may request the attorney general to seek a court order directing the party to pay the penalty. If any party fails to comply with an order of the hearing examiner, the department may request the attorney general to seek enforcement of the order or penalty in the circuit court.

(i) The decision of the hearing examiner is the final order of the department. Any party may seek judicial review of an order of the hearing examiner, as provided in ch. 227, Stats.

(7) Cancellation. This section does not apply to the request of either party that an apprentice contract be cancelled during the probationary period specified in the apprentice contract.

History

Cr. Register, May, 1981, No.305, eff. 6-1-81; correction in (5) (e) made under s. 13.93 (2m) (b) 7., Stats., Register, February, 1996, No. 482; CR 07-010: am. (1), (4) (a), (b), (c), and (d), (5) (a), (b), and (f) and (6), r. (2), r. and recr. (3), Register June 2007 No. 618, eff. 7-1-07; CR 10-073: am. (1), cr. (2), (3), renum. (3), (4), (5), (6) to be (4), (5), (6), (7) and am. Register November 2010 No. 659, eff. 12-1-10; correction in (2) (title), (3) (title) made under s. 13.92 (4) (b) 2., Stats., Register November 2010 No. 659; CR 14-032: am. (4) (c) (intro.), (5) (b) (intro.), 1. to 4., (c) (intro.), 1. to 4. Register May 2015 No. 713, eff. 6-1-15.

Wis. Admin. Code § DWD 295.21 Deregistration of a registered program {#sec-dwd-295.21 omnilex-key=us-wi-regs-official--agency-dwd--DWD 295.21}

(1) Types of deregistration. Deregistration of a program may be effected upon the voluntary action of the sponsor by submitting a request for cancellation of the registration in accordance with sub. (2), or upon reasonable cause, by the department instituting formal deregistration proceedings in accordance with sub. (3).

(2) Deregistration at the request of the sponsor. The department may cancel the registration of an apprenticeship program by written acknowledgement of such request stating all of the following:

(a) The registration is cancelled at the sponsor’s request, and the effective date thereof.

(b) That, within 15 days of the date of the acknowledgment, the department shall notify all apprentices of such cancellation and the effective date; that such cancellation automatically deprives the apprentice of individual registration; that the deregistration of the program removes the apprentice from coverage for federal and state purposes which require the U. S. secretary of labor’s approval of an apprenticeship program, and that all apprentices are referred to the department for information about potential transfer to other registered apprenticeship programs.

(3) Deregistration by the department upon reasonable cause.

(a) Deregistration proceedings may be undertaken when the apprenticeship program is not conducted, operated, or administered in accordance with the program’s registered provisions or with the requirements of this chapter, including: failure to provide on the-job learning; failure to provide related instruction; failure to pay the apprentice a progressively increasing schedule of wages consistent with the apprentices skills acquired; or persistent and significant failure to perform successfully. Deregistration proceedings for violation of equal opportunity requirements shall be processed in accordance with the provisions under ch. DWD 296.

(b) For purposes of this section, persistent and significant failure to perform successfully occurs when a program sponsor consistently fails to register at least one apprentice, shows a pattern of poor quality assessment results over a period of several years, demonstrates an ongoing pattern of very low completion rates over a period of several years, or shows no indication of improvement in the areas identified by the department during a review process as requiring corrective action.

(4) Notice. Where it appears the program is not being operated in accordance with the registered standards or with requirements of this chapter, the department shall notify the program sponsor in writing.

(5) Notice requirements. The notice sent to the program sponsor’s contact person shall include all of the following:

(a) Be sent by registered or certified mail, with return receipt requested.

(b) State the shortcomings and the remedy required.

(c) State that a determination of reasonable cause for deregistration shall be made unless corrective action is effected within 30 days.

(6) Extension. Upon request by the sponsor for good cause, the 30-day term may be extended another 30 days. During the period for corrective action, the department shall assist the sponsor in every reasonable way to achieve conformity.

(7) Notice of deregistration. If the required correction is not effected within the allotted time, the department shall send a notice to the sponsor, by registered or certified mail, return receipt requested, stating all of the following:

(a) The notice is sent under this paragraph.

(b) Certain deficiencies were called to the sponsor’s attention, enumerating them and the remedial measures requested, with the dates of such occasions and letters, and that the sponsor has failed or refused to effect correction.

(c) Based upon the stated deficiencies and failure to remedy them, a determination has been made that there is reasonable cause to deregister the program and the program may be deregistered unless, within 15 days of the receipt of this notice, the sponsor requests a hearing by the department; and

(d) If the sponsor does not request a hearing, the entire matter shall be submitted to the department for a decision on the record with respect to deregistration.

(8) Nonhearing order. If the sponsor does not request a hearing, the department shall prepare a report containing all pertinent facts and circumstances concerning the nonconformity, including the findings and recommendation for deregistration, and copies of all relevant documents and records. Statements concerning interviews, meetings, and conferences shall include the time, date, place, and persons present. The department shall make a final order on the basis of the record presented.

(9) Hearing. If the sponsor requests a hearing, the department shall prepare a report containing all the data listed in sub. (8), and the department shall refer the matter to a hearing officer. The hearing officer shall convene a hearing in accordance with ch. 227, Stats., and issue a decision as required in ch. 227, Stats.

(10) Contents of order. Every order of deregistration shall contain a provision that the sponsor shall, within 15 days of the effective date of the order, notify all registered apprentices of the deregistration of the program, the effective date thereof, that such cancellation automatically deprives the apprentice of individual registration; that the deregistration removes the apprentice from coverage for federal purposes which require the U. S. secretary of labor’s approval of an apprenticeship program; and that all apprentices are referred to the department for information about potential transfer to other registered apprenticeship programs.

History

CR 10-073: cr. Register November 2010 No. 659, eff. 12-1-10; correction to (4) (title) to (10) (title) made under s. 13.92 (4) (b) 2., Stats., Register November 2010 No. 659; CR 14-032: am. (2) (intro.), (a), (5) (intro.), (a), (b), (7) (intro.), (a) to (c) Register May 2015 No. 713, eff. 6-1-15.

Wis. Admin. Code § DWD 295.22 Reinstatement of program registration {#sec-dwd-295.22 omnilex-key=us-wi-regs-official--agency-dwd--DWD 295.22}

Any apprenticeship program deregistered under s. DWD 295.21 may be reinstated by the department upon presentation to the department of adequate evidence that the apprenticeship program is operating in accordance with this chapter.

History

CR 10-073: cr. Register November 2010 No. 659, eff. 12-1-10.

Wis. Admin. Code § DWD 295.23 Hearings for deregistration {#sec-dwd-295.23 omnilex-key=us-wi-regs-official--agency-dwd--DWD 295.23}

(1) Within 10 days of receipt of a request for a hearing, the department shall designate a hearing officer to preside over the hearing. The hearing officer shall give reasonable notice of such hearing by registered mail, return receipt requested, to the appropriate sponsor. The notice shall include all of the following:

(a) A reasonable time and place of hearing.

(b) A statement of the provisions of this chapter pursuant to which the hearing is to be held.

(c) A concise statement of the matters pursuant to which the action forming the basis of the hearing is proposed to be taken.

(2) The procedures contained in ch. 227, Stats., shall apply to the disposition of the request for hearing except that:

(a) The hearing officer shall receive, and make part of the record, documentary evidence offered by any party and accepted at the hearing. Copies thereof shall be made available by the party submitting the documentary evidence to any party to the hearing upon request.

(b) Technical rules of evidence shall not apply to hearings conducted pursuant to this chapter, but rules or principles designed to assure production of the most credible evidence available and to subject testimony to test by cross-examination shall be applied, where reasonably necessary, by the hearing officer conducting the hearing. The hearing officer may exclude irrelevant, immaterial, or unduly repetitious evidence.

(c) The hearing officer shall issue a written decision within 90 days of the close of the hearing record. The hearing officer’s decision constitutes final agency action unless, within 20 days from the date of the decision, a party dissatisfied with the decision files a petition for rehearing with the department, specifically identifying the procedure, fact, law or policy to which exception is taken. Any exception not specifically noted is deemed to have been waived. A copy of the petition for rehearing shall be sent to the opposing party at the same time. Thereafter, the decision of the hearing officer remains final agency action unless the hearing officer, within 30 days of the filing of the petition for rehearing, notifies the parties that it has accepted the case for rehearing. The hearing officer may set a briefing schedule or decide the matter on the record. The hearing officer shall decide any case that the hearing officer accepts for review within 180 days of the close of the record. If not so decided, the hearing officer’s previous decision constitutes final agency action.

History

CR 10-073: cr. Register November 2010 No. 659, eff. 12-1-10; CR 14-032: am. (1) (intro.), (a), (b) Register May 2015 No. 713, eff. 6-1-15.

Wis. Admin. Code § DWD 295.25 Apprenticeship completion award program {#sec-dwd-295.25 omnilex-key=us-wi-regs-official--agency-dwd--DWD 295.25}

(1) Definitions. In this section:

(a) “Sponsor” has the meaning given under s. 106.001 (8), Stats. “Sponsor” does not include a state agency or local governmental unit.

(b) “Tuition costs” has the meaning given under s. 106.05 (1) (b), Stats.

Note: Examples of costs which are not “tuition costs” include student fees charged for use of a health center, parking fees, or late fees.

Note: Section 106.001 (8), Stats., defines ”sponsor” as follows:

“Sponsor” means any employer, organization of employees, association of employers, committee, or other person operating an apprenticeship program and in whose name the apprenticeship program is approved by the department.

Note: Section 106.05 (1) (b), Stats., defines ”tuition costs” as follows:

“Tuition costs” means any fee that is charged for an apprentice to participate in related instruction under s. 106.01 (6), Stats.

Note: Section DWD 295.001 (20), defines ”related instruction” as follows:

“Related instruction” means an organized and systematic form of instruction designed to provide the apprentice with the knowledge of the theoretical and technical subjects related to the apprentice’s occupation. Such instruction may be given in a classroom, through occupational or industrial courses, or by correspondence courses of equivalent value, electronic media, or other forms of self-study approved by the department.

(2) Notice of eligibility. After the first 12 months of the apprenticeship contract under s. DWD 295.07, and upon successful completion of the apprenticeship contract, the department will notify the apprentice and sponsor in writing or by computer-based programs, of eligibility to apply for an apprenticeship completion award. This notice will include specific details on applying for an apprenticeship completion award.

(3) Eligibility. The department shall provide an apprenticeship completion award under s. 106.05, Stats., to an apprentice or sponsor who has incurred tuition costs and meets all of the following requirements:

(a) The apprentice has a valid apprenticeship contract under s. DWD 295.07.

(b) The apprentice or sponsor has not been reimbursed for any tuition costs by any other entity.

(c) The apprentice or sponsor completes and files an application under sub. (4), within 60 days of the date of the notice provided by the department under sub. (2), that the apprentice or sponsor is eligible for an apprenticeship completion award. If an application for a completion award is not received within 60 days of the date of the notice provided by the department, the department does not guarantee the payment of an apprenticeship completion award.

(d) The apprentice has successfully completed the first year of the apprenticeship contract or has fully completed the apprenticeship contract and the apprentice is employed in the trade, occupation, or business in which the apprentice is being trained.

(e) If the applicant is delinquent in child support or maintenance payments, or owes past support medical expenses or birth expenses, then the applicant must meet the requirements under s. 106.05 (3) (b), Stats.

(4) Application for apprenticeship completion award. The application for an apprenticeship completion award shall contain all of the following:

(a) The name and address of the apprentice and sponsor, and identification of who is applying for reimbursement.

(b) A copy of all invoices and documents containing tuition costs eligible for apprenticeship completion awards. This information shall include all of the following:

The name and address of the entity to whom the tuition costs were paid.
The amount and description of all tuition costs.
The dates on which tuition costs were paid.
Cancelled checks or other information documenting that the apprentice or sponsor has paid all costs under subd. 2.
Any other relevant information requested by the department.

The apprentice has successfully completed the first year under the apprenticeship contract.
The apprentice has successfully completed the full apprenticeship contract.

Note: The application for apprenticeship completion awards can be found online at http://www.wisconsinapprenticeship.org.

(5) Completion award rates and recalculations.

(a) The department shall reimburse all eligible tuition costs under this section in an amount not to exceed 25%, or $1,000, whichever is less, upon successful completion of an apprenticeship contract.

(b) The department shall reimburse an apprentice or sponsor up to $250 after the apprentice has successfully completed the first year under the apprenticeship contract. The total award granted in the first year under this paragraph, combined with any award received after the first year, may not exceed the amount specified in par. (a).

(c) The department may calculate the amount of an apprenticeship completion award on a pro rata basis when both the apprentice and sponsor incur eligible tuition costs. The total amount of the apprenticeship completion award may not exceed the amounts identified under pars. (a) and (b).

(d) If the amount of funds to be distributed under this section exceeds the amount available under s. 20.445 (1) (b), Stats., the department may deny applications for apprenticeship completion awards that would otherwise qualify under sub. (4).

History

CR 14-032: cr. Register May 2015 No. 713, eff. 6-1-15; correction in numbering of (5) made under s. 13.92 (4) (b) 1., Stats., Register May 2015 No. 713; correction in (5) (b) made under s. 13.92 (4) (b) 7., Stats., Register June 2017 No. 738.

Chapter DWD 296 FEDERAL EQUAL EMPLOYMENT OPPORTUNITY STANDARDS FOR APPRENTICESHIP PROGRAMS

Wis. Admin. Code § DWD 296.01 Applicability {#sec-dwd-296.01 omnilex-key=us-wi-regs-official--agency-dwd--DWD 296.01}

This chapter applies to all sponsors of registered apprenticeship programs under ch. 106, Stats.

History

CR 19-003: cr. Register September 2019 No. 765, eff. 10-1-19.

Wis. Admin. Code § DWD 296.02 Definitions {#sec-dwd-296.02 omnilex-key=us-wi-regs-official--agency-dwd--DWD 296.02}

In this chapter:

(1) “ADA” means the Americans with Disabilities Act, as amended.

(2) “Affirmative action plan” means a written tool designed to assist a sponsor in detecting, diagnosing, and correcting any barriers to equal opportunity that may exist in the sponsor’s registered apprenticeship program.

(3) “Affirmative action program” has the meaning given in 29 CFR 30.4 (a).

Note: 29 CFR 30.4 (a) reads: (1) An affirmative action program is designed to ensure equal opportunity and prevent discrimination in apprenticeship programs. An affirmative action program is more than mere passive nondiscrimination. Such a program requires the sponsor to take affirmative steps to encourage and promote equal opportunity, to create an environment free from discrimination, and to address any barriers to equal opportunity in apprenticeship. An affirmative action program is more than a paperwork exercise. It includes those policies, practices, and procedures, including self-analyses, that the sponsor implements to ensure that all qualified applicants and apprentices are receiving an equal opportunity for recruitment, selection, advancement, retention and every other term and privilege associated with apprenticeship. An affirmative action program should be a part of the way the sponsor regularly conducts its apprenticeship program.

(2) A central premise underlying affirmative action is that, absent discrimination, over time a sponsor’s apprenticeship program, generally, will reflect the sex, race, ethnicity, and disability profile of the labor pools from which the sponsor recruits and selects. Consistent with this premise, affirmative action programs contain a diagnostic component which includes quantitative analyses designed to evaluate the composition of the sponsor’s apprenticeship program and compare it to the composition of the relevant labor pools. If women, individuals with disabilities, or individuals from a particular minority group, for example, are not being admitted into apprenticeship at a rate to be expected given their availability in the relevant labor pool, the sponsor’s affirmative action program must include specific, practical steps designed to address any barriers to equal opportunity that may be contributing to this underutilization.

(3) Effective affirmative action programs include internal auditing and reporting systems as a means of measuring the sponsor’s progress toward achieving an apprenticeship program that would be expected absent discrimination.

(4) An affirmative action program also ensures equal opportunity in apprenticeship by incorporating the sponsor’s commitment to equality in every aspect of the apprenticeship program. Therefore, as part of its affirmative action program, a sponsor must monitor and examine its employment practices, policies and decisions and evaluate the impact such practices, policies and decisions have on the recruitment, selection and advancement of apprentices. It must evaluate the impact of its employment and personnel policies on minorities, women, and persons with disabilities, and revise such policies accordingly where such policies or practices are found to create a barrier to equal opportunity.

(5) The commitments contained in an affirmative action program are not intended and must not be used to discriminate against any qualified applicant or apprentice on the basis of race, color, religion, national origin, sex, sexual orientation, age (40 or older), genetic information, or disability.

(4) “Apprentice” has the meaning prescribed under s. 106.001 (1), Stats.

(4m) “Apprenticeship program” has the meaning prescribed under s. 106.001 (4), Stats.

(5) “Department” means the department of workforce development.

(5m) “Deregistration” means the voluntary or involuntary cancellation of an apprenticeship program by the department.

(6) “EEO” means equal employment opportunity.

(7) “Employer” has the meaning prescribed under s. 106.001 (5), Stats.

(10) “Ethnic group” or “ethnicity” means any of the following:

(a) Hispanic or Latino - An individual of Cuban, Mexican, Puerto Rican, South or Central American, or other Spanish culture or origin, regardless of race.

(b) Not Hispanic or Latino.

(11)

(a) “Genetic information” means any of the following:

An individual’s genetic tests.
The genetic tests of an individual’s family members.
The manifestation of disease or disorder in family members of an individual.
An individual’s request for, or receipt of, genetic services, or participation in clinical research that includes genetic services by an individual or a family member of an individual.
The genetic information of a fetus carried by an individual or by a pregnant woman who is a family member of the individual and the genetic information of any embryo legally held by the individual or family member using an assisted reproductive technology.

(b) “Genetic information” does not include information about the sex or age of an individual, the sex or age of family members, or information about the race or ethnicity of an individual or family members that is not derived from a genetic test.

(12) “Individual with a disability” means any of the following:

(a) An individual who has a physical or mental impairment that substantially limits one or more major life activities or limits the capacity to work.

(b) An individual who has a record of such impairment.

(13) “Journeyworker” means an individual who has attained a level of skill, abilities and competencies recognized within an industry as having mastered the skills and competencies required for the occupation.

(14) “Major life activities” includes caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working. “Major life activities” also includes the operation of a major bodily function, including functions of the immune system, special sense organs, and skin; normal cell growth; and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions. “The operation of a major bodily function” includes the operation of an individual organ within a body system.

(15) “Physical or mental impairment” means any of the following:

(a) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine.

(b) Any mental or psychological disorder, such as intellectual disability, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

(16) “Pre-apprenticeship program” means a training model designed to assist individuals who do not possess the minimum selection criteria established in a program sponsor’s apprenticeship standards, as required under this chapter, and that maintains at least one documented partnership with an apprenticeship program. It involves a form of structured workplace education and training in which an employer, employer group, industry association, labor union, community-based organization, or educational institution collaborates to provide formal instruction that introduces participants to the competencies, skills, and materials used in one or more apprenticeable occupations.

(17) “Qualified applicant or apprentice” means an individual who, with or without reasonable accommodation, can perform the duties of the apprenticeship program for which the individual applied or is enrolled.

(18) “Reasonable accommodation” means any of the following:

(a) Modifications or adjustments to a job application process that enable a qualified applicant or apprentice with a disability to be considered for the position a qualified applicant or apprentice desires.

(b) Modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified applicant or apprentice with a disability to perform the duties of that position.

(c) Modifications or adjustments that enable a sponsor’s apprentice with a disability to enjoy equal benefits and privileges of apprenticeship as are enjoyed by its other similarly situated apprentices without disabilities.

Note: Examples of reasonable accommodations include:

1. Making existing facilities used by apprentices readily accessible to and usable by individuals with disabilities.

2. Job restructuring; part-time or modified work schedule; reassignment to a vacant position; acquisition or modification of equipment or devices; appropriate adjustment or modifications of examinations, training materials, or policies; the provision of qualified readers or interpreters; and other similar accommodations for individuals with disabilities.

Note: To determine the appropriate reasonable accommodation, it may be necessary for the sponsor to initiate an informal, interactive process with the qualified individual in need of the accommodation. This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.

(19) “Registered” or “registration” means the approval of an apprenticeship program by the department.

(20) “Respondent” means the individual or entity identified in a complaint in which discrimination is alleged.

(21) “Sponsor” has the meaning prescribed under s. 106.001 (8), Stats.

(22) “UGESP” means the Uniform Guidelines on Employee Selection Procedures under 41 CFR 60.3.

(23) “Wisconsin equal rights division” means the division of equal rights within the department.

History

CR 19-003: cr. Register September 2019 No. 765, eff. 10-1-19; (4m), (5m) renumbered from (8), (9) and (11) (intro.) renum. (11) (a) and (11) (a) to (e) renum. 1. to 5. (11) under s. 13.92 (4) (b) 1., Stats., and correction in (14), (16) made under s. 35.17, Stats., Register September 2019 No. 765.

Wis. Admin. Code § DWD 296.03 Equal opportunity standards applicable to all sponsors {#sec-dwd-296.03 omnilex-key=us-wi-regs-official--agency-dwd--DWD 296.03}

(1) Discrimination prohibited. A sponsor of a registered apprenticeship program shall not discriminate against an apprentice or applicant for apprenticeship on the basis of race, color, religion, national origin, sex, sexual orientation, age (40 or older), genetic information, or disability as it relates to any of the following:

(a) Recruitment, outreach, and selection process.

(b) Hiring, placement, upgrading, periodic advancement, promotion, demotion, transfer, layoff, termination, right of return from layoff, and rehiring.

(d) Imposition of penalties or other disciplinary action.

(e) Rates of pay or any other form of compensation or changes in compensation.

(f) Conditions of work.

(g) Hours of work and hours of training provided.

(h) Job assignments.

(i) Leaves of absence, sick leave, or any other leave.

(j) Any other benefit, term, condition, or privilege associated with apprenticeship.

(2) General duty to engage in affirmative action. A sponsor of a registered apprenticeship program shall take affirmative steps to provide equal opportunity in apprenticeship that shall include all of the following:

(a) Assignment of responsibility. A sponsor shall designate an individual with appropriate authority in the registered apprenticeship program, to act as an apprenticeship coordinator that is responsible for and accountable for overseeing the registered apprenticeship program’s commitment to equal opportunity, including the development and implementation of an affirmative action program under s. DWD 296.04. A sponsor shall provide resources, support, and access to leadership to ensure effective implementation. The individual designated under this section shall be responsible for all of the following:

Monitoring all registered apprenticeship activity to ensure compliance with the nondiscrimination and affirmative action obligations required in this chapter.
Maintaining records required in this section.
Generating and submitting reports as required by the department.

(b) Internal dissemination of equal opportunity policy. A sponsor shall inform all applicants for apprenticeship, apprentices, and individuals connected with the administration or operation of the registered apprenticeship program of its commitment to equal opportunity and affirmative action obligations. In addition, a sponsor shall require that individuals connected with the administration or operation of the apprenticeship program take the necessary action to aid the sponsor in meeting its nondiscrimination and affirmative action obligations under this section. A sponsor shall do all of the following:

Publish the equal opportunity pledge prescribed under sub. (3) in its standards of apprenticeship required in s. DWD 295.02 and in apprentice and employee handbooks, policy manuals, newsletters, or other documents circulated by the sponsor that describe the nature of the sponsorship.
Post the equal opportunity pledge required in sub. (3) on bulletin boards, including through electronic media, or any other location accessible to all apprentices and applicants for apprenticeship.
Conduct orientation and periodic information sessions for individuals connected with the administration or operation of the registered apprenticeship program, including all apprentices and journeyworkers who regularly work with apprentices, to inform and remind individuals of the sponsor’s equal employment opportunity policy in the apprenticeship program and provide anti-harassment training required in par. (d) 1.
Maintain records necessary to demonstrate compliance with the requirements under this section and provide a copy of these records as requested by the department.

(c) Universal outreach and recruitment. A sponsor shall implement all of the following measures to ensure the outreach and recruitment efforts for apprentices extend to all individuals available for apprenticeship within the sponsor’s relevant recruitment area without regard to race, sex, ethnicity, or disability:

Develop, and update on an annual basis, a list of current recruitment sources that generate referrals from all demographic groups within the relevant recruitment area.

Note: Examples of relevant recruitment sources include: local workforce investment boards and job centers, community-based organizations, community colleges, vocational, career, and technical schools, pre-apprenticeship programs, and federally funded, youth job-training programs.

Provide the name, mailing address, telephone number, and email address for each recruitment source.
Provide recruitment sources advance notice, preferably 30 days, of apprenticeship openings to allow recruitment sources the opportunity to notify and refer candidates. This notice shall include documentation of the sponsor’s equal opportunity pledge prescribed under sub. (3).

(d) Maintaining apprenticeship programs free from harassment, intimidation, and retaliation. A sponsor shall develop and implement procedures to ensure apprentices are not harassed because of race, color, religion, national origin, sex, sexual orientation, age (40 or older), genetic information, or disability and ensure the registered apprenticeship program is free from intimidation and retaliation as prescribed in s. DWD 296.17. A sponsor shall promote an environment in which all apprentices feel safe, welcomed, and treated fairly and ensure all of the following steps are taken:

Provide anti-harassment training to all individuals connected with the administration or operation of the registered apprenticeship program, including all apprentices and journeyworkers who regularly work with apprentices. Training shall include participation by trainees and may include attending a training session in person or completing an interactive training online. The training content shall include all of the following:

a. That harassing conduct shall not be tolerated.

b. The definition of harassment and the types of conduct that constitute unlawful harassment on the basis of race, color, religion, national origin, sex, sexual orientation, age (40 or older), genetic information, and disability.

c. The right to file a harassment complaint as prescribed under s. DWD 296.14.

Ensure all facilities and apprenticeship activities are available without regard to race, color, religion, national origin, sex, sexual orientation, age (40 or older), genetic information, or disability, except that if a sponsor provides restrooms or changing facilities, a sponsor shall provide access to separate or single user restrooms and changing facilities to assure privacy between sexes.
Establish and implement procedures to handle and resolve complaints about harassment and intimidation on the basis of race, color, religion, national origin, sex, sexual orientation, age (40 or older), genetic information, or disability, and complaints about retaliation for engaging in protected activity under s. DWD 296.17.

(e) Compliance with federal and state equal employment opportunity laws. A sponsor shall comply with all applicable federal and state laws and regulations that require equal employment opportunity without regard to race, color, religion, national origin, sex, sexual orientation, age (40 or older), genetic information, or disability. Failure to comply with this chapter, if related to the equal employment opportunity of apprentices or graduates of an apprenticeship program, may result in deregistration or other enforcement actions prescribed under s. DWD 296.15.

(3) Equal opportunity pledge. A sponsor of a registered apprenticeship program shall include in its standards of apprenticeship, and any apprenticeship opportunity announcements, the following equal opportunity pledge:

(4) Compliance.

(a) A sponsor of a registered apprenticeship program shall comply with the obligations of this subsection within 180 days of January 18, 2019.

(b) A sponsor registering an apprenticeship program after January 18, 2019 shall comply with the obligations under this subsection upon registration or 180 days after January 18, 2019, whichever is later.

(5) Notice on filing a complaint. A sponsor shall provide written notice as prescribed under s. DWD 296.14 to all applicants and apprentices on how to file a discrimination complaint.

History

CR 19-003: cr. Register September 2019 No. 765, eff. 10-1-19; correction in (2) (a), (c) 1., (d) (title), 1. b., (3) made under s. 35.17 Stats., Register September 2019 No. 765.

Wis. Admin. Code § DWD 296.04 Affirmative action program {#sec-dwd-296.04 omnilex-key=us-wi-regs-official--agency-dwd--DWD 296.04}

(1) Adoption of an affirmative action program.

(a) A sponsor of a registered apprenticeship program shall develop and maintain an affirmative action program in a written plan, unless any of the following apply:

A sponsor provides satisfactory evidence of compliance with an equal opportunity program providing for affirmative action in apprenticeship as prescribed in 29 CFR 30.4 (d) (2).
The registered apprenticeship program has fewer than five apprentices, unless such program was adopted to circumvent the requirements of this paragraph.

(b) The components of a written plan shall be developed in accordance with the respective compliance dates and made available to the department upon request.

(2) Contents of an affirmative action program. An affirmative action program under sub. (1) shall include all of the following:

(a) Utilization analysis for race, sex, and ethnicity as prescribed under s. DWD 296.05.

(b) Establishment of utilization goals for race, sex, and ethnicity as prescribed under s. DWD 296.06.

(d) Targeted outreach, recruitment, and retention as prescribed under s. DWD 296.08.

(e) Review of personnel processes as prescribed under s. DWD 296.09.

(f) Invitations to self-identify as prescribed under s. DWD 296.11.

(3) Written affirmative action plans.

(a) A sponsor that is required to adopt an affirmative action program under sub. (1), shall create and update a written affirmative action plan memorializing and discussing the contents of the program identified under sub. (2).

(b) The initial written affirmative action plan for registered apprenticeship programs existing as of January 18, 2018, shall be completed within 2 years of January 18, 2018. The written affirmative action plan shall be updated every time the sponsor completes workforce analysis required under ss. DWD 296.05 (2) and 296.07 (2).

(c) The initial written affirmative action plan for apprenticeship programs registered after January 18, 2018 shall be completed within 2 years of registration. The written affirmative action plan shall be updated every time the sponsor completes workforce analysis required under ss. DWD 296.05 (2) and 296.07 (2).

History

CR 19-003: cr. Register September 2019 No. 765, eff. 10-1-19; correction in (3) (b), (c) made under s. 35.17, Stats., Register September 2019 No. 765.

Wis. Admin. Code § DWD 296.05 Utilization analysis for race, sex, and ethnicity {#sec-dwd-296.05 omnilex-key=us-wi-regs-official--agency-dwd--DWD 296.05}

(1) Utilization analysis. A utilization analysis provides sponsors with a method for assessing whether possible barriers to apprenticeship exist for particular groups of individuals by determining whether the race, sex, and ethnicity of apprentices in a sponsor’s registered apprenticeship program is reflective of individuals available for apprenticeship by race, sex, and ethnicity in the relevant recruitment area. Where significant disparity exists between availability and representation, a sponsor shall be required to establish a utilization goal under s. DWD 296.06.

(2) Analysis of apprenticeship program. A sponsor shall analyze the race, sex, and ethnic composition of its apprentice workforce. A sponsor shall group all apprentices in their registered apprenticeship program by occupation title, then for each occupation represented, a sponsor shall identify the race, sex, and ethnicity of its apprentices within that occupation.

(3) Schedule of analysis. A sponsor shall conduct an apprenticeship program workforce analysis at each compliance review and again if three years have passed without a compliance review. The updated workforce analysis shall be compared to the utilization goal established at the sponsor’s most recent compliance review to determine if the sponsor is underutilized as prescribed under sub. (6).

(4) Compliance date.

(a) An existing sponsor of a registered apprenticeship program as of January 18, 2018 shall conduct its first workforce analysis under this section no later than 2 years after January 18, 2018.

(b) A new sponsor registered after January 18, 2018 shall conduct its initial workforce analysis under this section, no later than 2 years after the date of registration.

(5) Availability analysis.

(a) An availability analysis establishes a benchmark to compare to the demographic composition of a sponsor’s apprenticeship program to determine if barriers to equal opportunity may exist in a sponsor’s registered apprenticeship program.

(b) Availability is an estimate of the number of qualified individuals available for apprenticeship by race, sex, and ethnicity expressed as a percentage of all qualified individuals available for apprenticeship in a sponsor’s relevant recruitment area.

(c) In determining availability, all of the following factors shall be considered for each major occupation group represented in a sponsor’s registered apprenticeship program standards:

The percentage of individuals who are eligible for enrollment in the registered apprenticeship program within a sponsor’s relevant recruitment area broken down by race, sex, and ethnicity.
The percentage of the sponsor’s employees who are eligible for enrollment in the registered apprenticeship program.

(d) In determining availability, the relevant recruitment area is defined as the geographical area from which the sponsor usually seeks or reasonably could seek apprentices. A sponsor shall identify the relevant recruitment area in its written affirmative action plan under s. DWD 296.04 (3). A sponsor may not draw its relevant recruitment area in a way that would have the effect of excluding individuals based on race, sex, or ethnicity from consideration, and shall develop a brief rationale for selection of that recruitment area.

(e) Availability shall be derived from the most current and discrete statistical information available.

Note: Examples of current and discrete statistical information may include census data, data from local job service offices, and data from colleges or other training institutions.

(f) A sponsor, working with the department, shall conduct an availability analysis at each compliance review.

(6) Rate of utilization. To determine the rate of utilization, a sponsor, working with the department, shall group each occupation title in the registered apprenticeship program by major occupation group and compare the racial, sex, and ethnic representation within each major occupation group to the racial, sex, and ethnic representation available in the relevant recruitment area, as determined in sub. (5). When a sponsor’s utilization of women, Hispanics or Latinos, or a particular racial minority group is significantly less than would be reasonably expected given the availability of women, Hispanics or Latinos, or a particular racial minority group for apprenticeship, a sponsor shall establish a utilization goal for the affected group as prescribed under sub. (5). Sponsors are not required or expected to establish goals where no significant disparity in utilization rates have been found.

History

CR 19-003: cr. Register September 2019 No. 765, eff. 10-1-19; correction in (2) made under s. 35.17, Stats., Register September 2019 No. 765.

Wis. Admin. Code § DWD 296.06 Establishment of utilization goals for race, sex, and ethnicity {#sec-dwd-296.06 omnilex-key=us-wi-regs-official--agency-dwd--DWD 296.06}

(1) A sponsor required to establish a utilization goal under s. DWD 296.05 for a particular sex, racial group, or ethnic group in a major occupation in its registered apprenticeship program, working with the department, shall establish a percentage goal at least equal to the availability figure under s. DWD 296.05 (5), for that major occupation group.

(2) A sponsor’s determination under s. DWD 296.05 that a utilization goal is required does not constitute a finding or admission of discrimination.

(3) Utilization goals shall serve as objectives or targets reasonably attainable by means of applying every good faith effort to make all aspects of the entire affirmative action program work. Utilization goals are used to measure the effectiveness of a sponsor’s outreach, recruitment, and retention efforts. In establishing utilization goals, all of the following principles shall be applied:

(a) Utilization goals may not include rigid and inflexible quotas that must be met or be considered either a ceiling or a floor for the selection of particular groups as apprentices. Quotas are expressly forbidden.

(b) Utilization goals may not provide a sponsor with a justification to extend a preference to any individual, select an individual, or adversely affect an individual’s status as an apprentice, on the basis of that individual’s race, sex, or ethnicity.

(c) Utilization goals shall not create set-asides for specific groups and are not intended to achieve proportional representation or equal results.

(d) Utilization goals may not be used to supersede eligibility requirements for apprenticeship. Affirmative action programs prescribed in this chapter do not require sponsors to select an individual who lacks qualifications to participate in the registered apprenticeship program successfully or select a less-qualified person in preference to a more qualified one.

History

CR 19-003: cr. Register September 2019 No. 765, eff. 10-1-19; correction in (3) (intro.) made under s. 35.17, Stats., Register September 2019 No. 765.

Wis. Admin. Code § DWD 296.07 Utilization goals for individuals with disabilities {#sec-dwd-296.07 omnilex-key=us-wi-regs-official--agency-dwd--DWD 296.07}

(1) Utilization goal. The department has established a utilization goal of 7 percent for employment of qualified individuals with disabilities as apprentices for each major occupation group within each sponsor’s registered apprenticeship program. The utilization goal established in this subsection shall act as a benchmark against which a sponsor shall measure the representation of individuals with disabilities in the sponsor’s registered apprenticeship program by major occupation group. The goal serves as an equal opportunity objective that is attainable by complying with all of the affirmative action requirements in this chapter.

(2) Utilization analysis. A utilization analysis is designed to evaluate the representation of individuals with disabilities in a sponsor’s registered apprenticeship program grouped by major occupation. If individuals with disabilities are represented in a sponsor’s registered apprenticeship program in any given major occupation at a rate less than the utilization goal of 7 percent, the sponsor shall take specific measures prescribed under subs. (6) and (7).

(3) Process. A sponsor shall analyze the representation of individuals within their registered apprenticeship program by occupation. A sponsor shall group all apprentices according to occupational titles represented in a sponsor’s registered apprenticeship program. For each occupation represented, a sponsor shall identify the number of apprentices with disabilities.

(4) Schedule of evaluation. A sponsor shall conduct the apprentice workforce analysis at each compliance review and again when three years have passed without a compliance review. The updated workforce analysis shall be compared to the utilization goal established under sub. (1).

(5) Compliance date.

(a) A sponsor with a registered apprenticeship program as of January 18, 2018 shall conduct a workforce analysis under this section no later than 2 years after January 18, 2018.

(b) A sponsor registering an apprenticeship program after January 18, 2018 shall conduct its initial workforce analysis under this section no later than 2 years after the date of registration.

(6) Identification of problem areas. When a sponsor, working with the department, determines the percentage of individuals under sub. (3) is less than the utilization goal established under sub. (1), the sponsor shall take steps to determine if impediments to equal opportunities exist and where impediments to equal opportunity exist. In making this determination, a sponsor shall look at the results of its assessment of personnel processes required under s. DWD 296.09 and the effectiveness of its outreach and recruitment efforts required under s. DWD 296.08, if applicable.

(7) Action-oriented programs. A sponsor shall undertake action-oriented programs, including targeted outreach, recruitment, and retention activities identified in s. DWD 296.08, designed to correct any problem areas that a sponsor identified pursuant to the review of personnel processes and outreach and recruitment efforts.

(8) Utilization goal relation to discrimination. A determination that a sponsor has not attained the utilization goal established under sub. (1) in one or more major occupation groups does not constitute a finding or admission of discrimination in violation of this chapter.

(9) Utilization goal not a quota or ceiling. The utilization goal established under sub. (1) shall not be used as a quota or ceiling that limits or restricts the employment of individuals with disabilities as apprentices.

History

CR 19-003: cr. Register September 2019 No. 765, eff. 10-1-19; correction in (1) made under s. 13.92 (4) (b) 7., Stats., and correction in (2) made under s. 35.17, Stats., Register September 2019 No. 765.

Wis. Admin. Code § DWD 296.08 Targeted outreach, recruitment, and retention {#sec-dwd-296.08 omnilex-key=us-wi-regs-official--agency-dwd--DWD 296.08}

(1) Minimum activities required. A sponsor that has found underutilization and established a utilization goal for a specific group under s. DWD 296.06 or 296.07 shall undertake targeted outreach, recruitment, and retention activities that are likely to generate an increase in applications for apprenticeship and improve retention of apprentices from the targeted group or from individuals with disabilities. A sponsor under this section shall conduct all of the following:

(a) In the written affirmative action plan, identify the specific targeted outreach, recruitment, and retention activities planned for the upcoming program year. These activities shall include all of the following:

Distribution of information to organizations serving the underutilized group regarding the nature of apprenticeship, requirements for selection for apprenticeship, availability of apprenticeship opportunities, and the equal opportunity pledge of the sponsor.

Note: Examples of these organizations include community-based organizations, local high schools, local community colleges, local vocational, career, and technical schools, and local workforce system partners including job centers.

Advertising openings for apprenticeship opportunities by publishing advertisements in appropriate media which have wide circulation in the relevant recruitment areas.
Cooperating with local school boards and the vocational education system to develop or establish relationships with pre-apprenticeship programs targeting students from the underutilized group to prepare them to meet the standards and criteria required to qualify for entry into apprenticeship programs.
Establishing linkage agreements or partnerships enlisting the assistance and support of pre-apprenticeship programs, community-based organizations, advocacy organizations, or other appropriate organizations, in recruiting qualified individuals for apprenticeship.

(b) Evaluate and document, after every selection cycle for registering apprentices, the overall effectiveness of the activities.

(d) Maintain records of the targeted outreach, recruitment, and retention activities and records related to the evaluation of these activities.

(2) Other activities. In addition to the activities in sub. (1), sponsors are encouraged to consider other outreach, recruitment, and retention activities that may assist sponsors in addressing any barriers to equal employment opportunity in its registered apprenticeship program. These activities may include any of the following:

(a) Enlisting the use of journeyworkers from the underutilized group to assist in the implementation of a sponsor’s affirmative action program.

(b) Enlisting the use of journeyworkers from the underutilized group to mentor apprentices and to assist a sponsor’s targeted outreach and recruitment activities.

(c) Conducting exit interviews of each apprentice who leaves the sponsor’s registered apprenticeship program prior to receiving a certificate of completion to understand better why the apprentice is leaving the program and to help shape the sponsor’s retention activities.

History

CR 19-003: cr. Register September 2019 No. 765, eff. 10-1-19.

Wis. Admin. Code § DWD 296.09 Review of personnel processes {#sec-dwd-296.09 omnilex-key=us-wi-regs-official--agency-dwd--DWD 296.09}

(1) Annual review. A sponsor shall engage in an annual review of its personnel processes to ensure that the sponsor is operating a registered apprenticeship program free from discrimination based on race, color, religion, national origin, sex, sexual orientation, age (40 or older), genetic information, and disability. A review under this section is required regardless of whether a sponsor is underutilized under s. DWD 296.05 and shall include a review of all aspects of the registered apprenticeship program at the program, industry, and occupational level, and include all of the following:

(a) The qualifications for apprenticeship, application, and selection procedures.

(b) Wages.

(d) Advancement opportunities.

(e) Promotions.

(f) Work assignments.

(g) Job performance.

(h) Rotations among all work processes of the occupation.

(i) Disciplinary actions.

(j) Handling of requests for reasonable accommodations.

(k) The program’s accessibility to individuals with disabilities, including the use of information and communication technology.

(2) Compliance date.

(a) A sponsor that has a registered apprenticeship program as of January 18, 2018, shall comply with the obligations under sub. (1) within 2 years of January 18, 2018.

(b) A sponsor registered with the department after January 18, 2018, shall comply with the obligations of sub. (1) within 2 years after the date of registration.

(3) Modifications required. Any necessary modifications identified under sub. (1) shall be integrated into the sponsor’s written affirmative action plan to ensure that obligations under this section are met. A sponsor shall include a description of its review in the written affirmative action plan and identify in the written plan any modifications made, or the modifications to be made, to the program as a result of the review.

History

CR 19-003: cr. Register September 2019 No. 765, eff. 10-1-19; correction in (2) (a) made under s. 35.17, Stats., Register September 2019 No. 765.

Wis. Admin. Code § DWD 296.10 Selection of apprentices {#sec-dwd-296.10 omnilex-key=us-wi-regs-official--agency-dwd--DWD 296.10}

(1) A sponsor’s procedures for the selection of apprentices shall be included in the written plan for standards of apprenticeship submitted to and approved by the department under s. DWD 295.02.

(2) A sponsor may utilize any method, or combination of methods, for selection of apprentices if the selection method meets the requirements under 29 CFR 30.10 (b).

Note: 29 CFR 30.10 (b) requires sponsors to utilize any method or combination of methods for selection of apprentices, provided that the selection method used meet the following requirements:

(1) The selection procedures shall comply with the Uniform Guidelines on Employee Selection Procedures (UGESP) in 41 CFR 60.3, including the requirements to evaluate the impact of the selection procedures on race, sex, and ethnic groups (Hispanic/non-Hispanic or Latino) and to demonstrate job-relatedness and business necessity for those procedures that result in adverse impact in accordance with the requirements of UGESP.

(2) The selection procedures shall be uniformly and consistently applied to all applicants and apprentices within each selection procedure utilized.

(3) The selection procedures shall comply with title I of the Americans with Disabilities Act and EEOC’s implementing regulations under part 1630. This procedure shall not screen out or tend to screen out an individual with a disability or a class of individuals with disabilities, on the basis of disability, unless the standard, test or other selection criteria, as used by the program sponsor, is shown to be job-related for the position in question and is consistent with business necessity.

(4) The selection procedure shall be facially neutral in terms of race, color, religion, national origin, sex, sexual orientation, age (40 or older), genetic information, and disability.

History

CR 19-003: cr. Register September 2019 No. 765, eff. 10-1-19.

Wis. Admin. Code § DWD 296.11 Invitation to self-identify as an individual with a disability {#sec-dwd-296.11 omnilex-key=us-wi-regs-official--agency-dwd--DWD 296.11}

(1) Pre-offer invitation. A sponsor adopting an affirmative action program under s. DWD 296.04 shall invite applicants for apprenticeship to inform the sponsor whether the applicant believes he or she is an individual with a disability, as defined in s. DWD 296.02 (12). This invitation shall be provided to each applicant when the applicant applies or is considered for apprenticeship. The invitation may be included with the application materials for apprenticeship but shall be separate from the application.

(2) Post-offer invitation. Any time after acceptance into the registered apprenticeship program, but before the applicant begins his or her apprenticeship, a sponsor shall invite the applicant to inform the sponsor whether the applicant believes they are an individual with a disability, as defined under s. DWD 296.02 (12).

(3) Apprentices. Within the time frame identified under sub. (7) a sponsor shall provide a one-time invitation to each current apprentice to inform that sponsor if the apprentice is an individual with a disability, as defined under s. DWD 296.02 (12). A sponsor shall make this invitation using the language and manner prescribed by the U.S. department of labor employment and training administration. A sponsor shall remind apprentices on a yearly basis that the apprentice may voluntarily update their disability status.

Note: You can access the U.S. Department of Labor Employment Training Administration resources at https://www.doleta.gov/oa/eeo/tools/disability-self-identification.cfm or call (866) 487-2365.

(4) Voluntary self-identification for apprentices. A sponsor shall not compel or coerce an individual to self-identify as an individual with a disability.

(5) Confidentiality. A sponsor shall keep all information on self-identification confidential and shall maintain the information in a data analysis file and not the medical files of individual apprentices as prescribed under s. DWD 296.12 (5). A sponsor shall provide self-identification information to the department as requested and may not use the information except in accordance with this chapter.

(6) Obligation of sponsor. A sponsor under this section is not relieved of its obligation to take affirmative action with respect to applicants and apprentices who identified as an individual with a disability. In addition, a sponsor is not relieved of its liability for discrimination in violation of this section.

(7) Compliance dates.

(a) A sponsor with a registered apprenticeship program shall begin inviting applicants and apprentices to identify as individuals with a disability under this section no later than 2 years after January 18, 2018. A sponsor shall invite each of its current apprentices to voluntarily inform the sponsor whether the apprentice believes that he or she is an individual with a disability, as defined under s. DWD 296.02 (12), no later than 2 years after January 18, 2018.

(b) A sponsor registering with the department after January 18, 2018, shall begin inviting applicants and apprentices to identify as individuals with disabilities, as prescribed in this section, no later than 2 years after the date of registration. A sponsor under this section shall also invite each of its current apprentices to voluntarily inform the sponsor whether the apprentice believes that he or she is an individual with a disability, as defined under s. DWD 296.02 (12), no later than 2 years after the date of registration.

History

CR 19-003: cr. Register September 2019 No. 765, eff. 10-1-19; correction in (1) to (3), (7) made under s. 35.17, Stats., Register September 2019 No. 765.

Wis. Admin. Code § DWD 296.12 Recordkeeping {#sec-dwd-296.12 omnilex-key=us-wi-regs-official--agency-dwd--DWD 296.12}

(1) Obligations of sponsors. A sponsor shall collect data and maintain adequate records necessary for the department to determine if a sponsor is complying with the requirements of this chapter. At a minimum, records shall include all of the following:

(a) Selection for apprenticeship, including applications, tests and test results, interview notes, the bases for selection or rejection, and any other records required to be maintained under UGESP.

(b) The invitation to self-identify as an individual with a disability provided to applicants and apprentices under s. DWD 296.11.

(c) Information relating to the operation of the registered apprenticeship program, including job assignments in all components of the occupation, promotion, demotion, transfer, layoff, termination, rates of pay or other forms or compensation, conditions of work, hours of work, hours of training provided, and any other personnel records relevant to complaints filed with the department under s. DWD 296.14 or filed with other enforcement agencies.

(d) Proof of compliance with the requirements under s. DWD 296.03.

(e) Requests for reasonable accommodations.

(f) Any other records pertinent to a determination of compliance with this chapter.

(2) Sponsor identification of record. For each record maintained under this chapter, a sponsor shall be able to identify the race, sex, ethnicity, and, when known, the disability status of each apprentice. Where possible, a sponsor shall be able to identify the race, sex, ethnicity, and disability status of each applicant to apprenticeship. A sponsor shall supply the information to the department upon request.

(3) Affirmative action programs. A sponsor required under s. DWD 296.04 to develop and maintain an affirmative action program shall retain both the written affirmative action plan under s. DWD 296.04 (3) and documentation of its component elements under ss. DWD 296.05 to 296.09 and 296.11.

(4) Maintenance of records. All records required under this chapter, and any other information relevant to compliance with this chapter, shall be maintained for 5 years from the date of making the record or the date of the personnel action involved, whichever occurs later, and shall be made available as requested by the department or other authorized representative in a form determined by the department, as necessary to determine compliance. Failure to maintain records under this chapter constitutes noncompliance.

(5) Confidentiality and use of medical information. Any information obtained under this chapter regarding the medical condition or history of an applicant or apprentice shall be collected and maintained on separate forms and in separate medical files and treated as a confidential medical record, except when any of the following apply:

(a) Supervisors and managers may be informed regarding necessary restrictions on the work or duties of the applicant or apprentice and necessary accommodations.

(b) First aid and safety personnel may be informed if the disability might require emergency treatment.

(c) Government officials engaged in enforcement of this chapter, of the laws administered by the U.S. department of labor’s office of federal contract compliance programs, or of the ADA, shall be provided relevant information on request.

(6) Access to records. A sponsor shall allow the department access, during normal business hours, to its places of business for the purpose of conducting on-site EEO compliance reviews, complaint investigations, and inspecting and copying books, accounts, and records, including electronic records, and any other material the department deems relevant to the matter under investigation and pertinent to compliance with this chapter. A sponsor shall also provide the department access to these materials, including electronic records, off-site for purposes of conducting EEO compliance reviews and complaint investigations. A sponsor shall provide the department information about all formats, including specific electronic formats, in which the records and other information are available.

History

CR 19-003: cr. Register September 2019 No. 765, eff. 10-1-19; correction in (2) to (4), (5) (intro.), (6) made under s. 35.17, Stats., Register September 2019 No. 765.

Wis. Admin. Code § DWD 296.13 Equal employment opportunity compliance review {#sec-dwd-296.13 omnilex-key=us-wi-regs-official--agency-dwd--DWD 296.13}

(1) Department review. The department shall conduct EEO compliance reviews to determine if a sponsor is in compliance with this chapter regularly, or when circumstances warrant a review.

(2) Conduct of compliance reviews. An EEO compliance review may include any of the following:

(a) A comprehensive analysis and evaluation of each aspect of the registered apprenticeship program through off-site reviews.

Note: An example of an off-site review may include desk audits of records submitted to the department.

(b) On-site reviews conducted at the sponsor’s establishment that may involve examination of records, inspection and copying of documents related to recordkeeping requirements, and interviews with employees, apprentices, journeyworkers, supervisors, managers, and hiring officials.

(3) Notification of compliance review findings. Within 45 business days of completing an EEO compliance review, the department shall present a written notice of compliance review findings to the sponsor. If the compliance review indicates a failure to comply with this chapter, the department shall inform the sponsor in writing and include in the notice all of the following:

(a) The deficiencies identified.

(b) How to remedy the deficiencies.

(d) Enforcement actions that may be taken if compliance is not achieved within the required timeframe.

(4) Compliance.

(a) Within 30 days of a sponsor receiving a notice of compliance review with findings that indicate a failure to comply with this chapter, the sponsor shall implement a compliance action plan and notify the department of the plan, or submit a written rebuttal to the findings to the department. A sponsor may request a one-time, 30-day extension.

(b) If the sponsor submits a written rebuttal to the notice of compliance review findings to the department under par. (a), the department may do any of the following:

Uphold the notice of compliance review findings.
Modify the notice of compliance review findings in whole or in part.

(c) If the department upholds the notice of compliance review findings after receiving a written rebuttal from the sponsor, the sponsor shall implement a compliance action plan within 30 days of receiving the notice from the department upholding the findings.

(d) A compliance action plan required under par. (a) or (c) shall include, at a minimum, all of the following:

A specific commitment, in writing, to correct or remediate the identified deficiencies and areas of noncompliance.
The precise actions to be taken for each deficiency identified.
The time period within which the cited deficiencies shall be remedied and any corrective program changes implemented.
The name of the individual responsible for correcting each deficiency identified.

(e) Upon the department’s approval of the compliance action plan, a sponsor may be considered in compliance under this chapter provided that the compliance plan is implemented.

(5) Enforcement actions. A sponsor that fails to implement a compliance action plan within the specified timeframes may be subject to an enforcement action under s. DWD 296.15.

History

CR 19-003: cr. Register September 2019 No. 765, eff. 10-1-19.

Wis. Admin. Code § DWD 296.14 Complaints {#sec-dwd-296.14 omnilex-key=us-wi-regs-official--agency-dwd--DWD 296.14}

(1) Requirements for individuals filing complaints.

(a) If an applicant or apprentice of a registered apprenticeship program believes he or she has been discriminated against on the basis of race, color, religion, national origin, sex, sexual orientation, age (40 or older), genetic information, or disability with regard to apprenticeship, or been retaliated against in violation of s. DWD 296.17, the applicant or apprentice of a registered apprenticeship program, or the applicant’s or apprentice’s authorized representative, may file a written complaint with the department.

(b) A complaint under par. (a) shall be filed within 300 days of the alleged discrimination or failure to follow the equal opportunity standards. The department may extend the filing time for good cause shown. The time period for filing is for the administrative convenience of the department and does not create a defense for the respondent.

The applicant’s or apprentice of a registered apprenticeship program’s name, address, and telephone number, including best method of contact.
All available information to identify the respondent including name, address, and telephone number.
A short description of the events that the applicant or apprentice of a registered apprenticeship program believes are discriminatory or a failure to follow equal opportunity standards. The description shall include the date and location the events took place, and why the applicant or apprentice believes the actions were discriminatory or a failure to follow equal opportunity standards.
The applicant’s or apprentice’s signature, or the signature of the applicant’s or apprentice’s authorized representative.

(2) Requirements of sponsors. A sponsor of a registered apprenticeship program shall provide written notice to all applicants and apprentices of a registered apprenticeship program of their right to file a complaint and identify the procedures to file. The notice shall include the name, address, and telephone number of the department and shall be provided in the application for apprenticeship and displayed in a prominent, publicly available location where all apprentices can see the notice. The notice shall include the following specific wording:

(3) Requirements of the department.

(a) Complaints received by the department under sub. (1) shall be processed as expeditiously as possible. When conducting complaint investigations, the department shall do all of the following:

Provide written notice to the applicant or apprentice of a registered apprenticeship program, acknowledging receipt of the complaint.
Contact the applicant or apprentice of a registered apprenticeship program to obtain additional information, if necessary to initiate an investigation.
Initiate an investigation upon receiving a complete complaint.
Conduct a thorough investigation of the allegations in the complaint and document, at a minimum, all of the following:

a. Name, address, and telephone number of each individual interviewed.

b. Interview statements.

c. Copies, transcripts, or summaries of pertinent documents.

d. A narrative report of the investigation with references to exhibits and other evidence related to the alleged violations.

Provide written notification of the department’s findings to both the respondent and applicant or apprentice of a registered apprenticeship program.

(b) If the department finds a violation of the nondiscrimination requirements under this chapter, the department shall attempt to resolve the matter as quickly as possible at the department level. If a complaint of discrimination cannot be resolved to the satisfaction of the applicant or apprentice, the department shall refer the complaint to other federal, state, or local EEO agencies.

The U.S. equal employment opportunity commission.
The U.S. attorney general.
The department of labor’s office of federal contract compliance programs.
The Wisconsin equal rights division.

History

CR 19-003: cr. Register September 2019 No. 765, eff. 10-1-19; correction in (1) (a) made under s. 35.17, Stats., and correction in (3) (c) 1., 2. made under s. 13.92 (4) (b) 12., Stats., Register September 2019 No. 765.

Wis. Admin. Code § DWD 296.15 Enforcement actions {#sec-dwd-296.15 omnilex-key=us-wi-regs-official--agency-dwd--DWD 296.15}

(1) If the department determines that a sponsor is not operating its registered apprenticeship program as specified under this chapter because of a compliance review, complaint investigation, or other reason, the department shall notify the sponsor in writing and identify the specific violations.

(2) The department may take enforcement action if a violation under sub. (1) occurs, including any of the following:

(a) Offering the sponsor technical assistance to promote compliance.

(b)

Suspending the sponsor’s right to register new apprentices if the sponsor fails to implement a compliance action plan to correct the violation identified within 30 business days from the date the sponsor is notified, or if the sponsor submits a written response to the findings of noncompliance and fails to implement a compliance action plan within 30 days of receiving the department notice upholding the initial noncompliance findings.
If a sponsor has not implemented a compliance action plan within 30 business days of notification of suspension, the department may begin proceedings to deregister the sponsor’s registered apprenticeship program as prescribed under s. DWD 295.21. If the department does not begin proceedings to deregister the sponsor’s program under this paragraph within 45 days of the start of the suspension, the suspension is lifted.

The U.S. equal employment opportunity commission.
Wisconsin equal rights division.
The U.S. department of labor’s office of federal contract compliance programs.

History

CR 19-003: cr. Register September 2019 No. 765, eff. 10-1-19; correction in (1) made under s. 35.17, Stats., and correction in (2) (c) 1. made under s. 13.92 (4) (b) 12., Stats., Register September 2019 No. 765.

Wis. Admin. Code § DWD 296.16 Appeal procedure {#sec-dwd-296.16 omnilex-key=us-wi-regs-official--agency-dwd--DWD 296.16}

A sponsor that is deregistered by the department under s. DWD 296.15 (2) (b) 2. may request a hearing as prescribed under s. DWD 295.23.

History

CR 19-003: cr. Register September 2019 No. 765, eff. 10-1-19; correction made under s. 35.17, Stats., Register September 2019 No. 765.

Wis. Admin. Code § DWD 296.17 Intimidation and retaliation prohibited {#sec-dwd-296.17 omnilex-key=us-wi-regs-official--agency-dwd--DWD 296.17}

(1) An applicant or apprentice in a registered apprenticeship program shall not be intimidated, threatened, coerced, retaliated against, or discriminated against because the individual has done any of the following:

(a) Filed a complaint under s. DWD 296.14.

(b) Opposed a practice prohibited by this chapter or any other federal or state equal opportunity law.

(c) Furnished information to, assisted or participated in any investigation, compliance review, proceeding, or hearing under this chapter or any federal or state equal opportunity law.

(d) Exercised any rights and privileges under the provisions of this chapter.

(2) A sponsor that permits the intimidation of or retaliation against an applicant or apprentice in a registered apprenticeship program, including intimidation or retaliation by participating employers, is subject to enforcement action under s. DWD 296.15 if the sponsor fails to take appropriate steps to prevent the intimidation or retaliation.

History

CR 19-003: cr. Register September 2019 No. 765, eff. 10-1-19.

Wis. Admin. Code § DWD 296.18 Reinstatement of program registration {#sec-dwd-296.18 omnilex-key=us-wi-regs-official--agency-dwd--DWD 296.18}

An apprenticeship program that has been deregistered for failure to comply with this chapter may be reinstated if the sponsor provides evidence to the department that the apprenticeship program is operating as prescribed in this chapter.

History

CR 19-003: cr. Register September 2019 No. 765, eff. 10-1-19.

Wis. Admin. Code § DWD 296.19 Exemptions {#sec-dwd-296.19 omnilex-key=us-wi-regs-official--agency-dwd--DWD 296.19}

A sponsor may request an exemption from any part of this chapter by providing the department with a written statement that identifies the reasons to support the request. With approval from the U.S. department of labor’s office of apprenticeship, the department may grant an exemption in writing for good cause.

History

CR 19-003: cr. Register September 2019 No. 765, eff. 10-1-19.

Chapter DWD 801 WISCONSIN FAST FORWARD WORKFORCE TRAINING GRANTS

Wis. Admin. Code § DWD 801.01 Authority and purpose {#sec-dwd-801.01 omnilex-key=us-wi-regs-official--agency-dwd--DWD 801.01}

This chapter is created to establish the rules that shall govern the administration and granting of funds for the training of unemployed and underemployed workers and incumbent employees in this state, as authorized under s. 106.27 (1), Stats.

History

CR 13-045: cr. Register April 2014 No. 700, eff. 5-1-14; CR 22-056: am. Register May 2023 No. 809, eff. 6-1-23; CR 22-056 (corrected version): am. Register June 2023 No. 810, eff. 7-1-23.

Wis. Admin. Code § DWD 801.02 Applicability {#sec-dwd-801.02 omnilex-key=us-wi-regs-official--agency-dwd--DWD 801.02}

This chapter applies to the department, to applicants for grants awarded by the department, and to public and private organizations that are awarded grants by the department, all in connection with workforce training grants applied for and awarded under s. 106.27 (1), Stats.

History

CR 13-045: cr. Register April 2014 No. 700, eff. 5-1-14; CR 22-056: am. Register May 2023 No. 809, eff. 6-1-23; CR 22-056 (corrected version): am. Register June 2023 No. 810, eff. 7-1-23.

Wis. Admin. Code § DWD 801.03 Definitions {#sec-dwd-801.03 omnilex-key=us-wi-regs-official--agency-dwd--DWD 801.03}

In this chapter:

(1) “Administrative costs” means costs associated with a grantee’s general administration of a grant, such as office supplies and the wages and benefits of staff who perform functions related to the administration of the grant but who do not directly carry out the grant’s objectives or activities.

(2) “Applicant” means a public or private organization that applies for a grant from the department for the development or implementation of a project.

(3) “Capital equipment” means equipment having a value greater than $5000 and a useful life of more than one year.

(4) “Department” means the department of workforce development.

(8) “Grant” means a contract between the department and a grantee whereby the department provides funds from the appropriation under s. 20.445 (1) (b), Stats., for the purposes specified in s. 106.27 (1), Stats.

(9) “Grantee” means a public or private organization receiving a grant from the department, except that if a lead public or private organization serves as the applicant for a consortium of placement partners under s. DWD 801.05 (1) (c), “grantee” means the lead public or private organization and not the placement partners.

(10) “Grant Program Announcement” or “GPA” means a document describing a grant program that includes all of the following:

(a) Solicitation of applications for grants that specifies who may apply and establishes application procedures, including requirements for demonstrating eligibility under s. DWD 801.04.

(b) Criteria for awarding grants.

(c) Conditions and restrictions that accompany grants, including any outcomes the grantee must achieve under the grant program and any matching funds required by the grantee under s. 106.27 (1) (intro.), Stats.

(12) “In-kind contributions” means the monetary value of noncash contributions provided by a grantee or third parties which directly benefit and are specifically identifiable to the project.

(13) “Incumbent employee” means an individual who is currently employed by an applicant or placement partner.

(15) “ONET” means a United States government system of classifying occupations. ONET occupation codes are unique numbers assigned to each occupation. O*NET is used for career exploration, job analysis, and statistical analysis.

Note: More information about ONET can be found at the U.S. Department of Labor websites http://www.onetonline.org/ and http://www.onetcenter.org/.*

(15g) “Placement partner” means an employer, other than an applicant, that commits to hire unemployed and underemployed workers who successfully complete training or to provide incumbent employees who successfully complete training with full-time employment, higher-level employment, or wage increases when the project is complete.

(15r) “Pre-existing training program” means an employment training program that an applicant or placement partner has previously conducted to increase trainees’ or workers’ skills to better match the applicant’s or placement partner’s needs. “Pre-existing training program” does not include a pilot program conducted to evaluate feasibility.

(17) “Private organization” means a private for-profit or non-profit business or service provider.

(17m) “Project” means the development or implementation of a workforce training program that an applicant proposes to conduct under a grant.

(18) “Public organization” means any of the following:

(a) A state or local agency, department, committee, council, or public body created by constitution, statute, ordinance, or rule, including a county, city, village, town, school district, or technical college district.

(b) A formally constituted subunit of an entity specified in par. (a).

(c) A tribal governing body of a federally recognized tribe or band of Indians or an organization appointed by the tribal governing body.

(20m) “Trainee” means an individual receiving workforce training in a project conducted under a grant.

(21) “Underemployed worker” means an individual who is currently employed in a capacity that does not reflect the skills and experience of the individual and that is reflected in less than desirable terms of compensation, hours, or responsibility.

(22) “Unemployed worker” means an individual who is currently out of work and is available for work. “Unemployed worker” includes a secondary education student in a project for which the employer confirms an intent to hire students who successfully complete the project. “Unemployed worker” does not include an individual who is not working but anticipates being called back to his or her regular employment.

History

CR 13-045: cr. Register April 2014 No. 700, eff. 5-1-14; CR 22-056: am. (1), (2), r. (5), (7), am. (8), (9), renum. (10) to (10) (intro.), (a) to (c) and am., am. (12), (13), r. (14), am. (15), cr. (15g), (15r), (17m), renum. (18) to (18) (intro.), (a), (b) and am., cr. (18) (c), r. (20), cr. (20m), am. (21), (22) Register May 2023 No. 809, eff. 6-1-23; CR 22-056 (corrected version): am. (1), (2), r. (5), (7), am. (8), (9), renum. (10) to (10) (intro.), (a) to (c) and am., am. (12), (13), r. (14), am. (15), cr. (15g), (15r), (17m), renum. (18) to (18) (intro.), (a), (b) and am., cr. (18) (c), r. (20), cr. (20m), am. (21), (22) Register June 2023 No. 810, eff. 7-1-23.

Wis. Admin. Code § DWD 801.04 Eligibility {#sec-dwd-801.04 omnilex-key=us-wi-regs-official--agency-dwd--DWD 801.04}

(1) Eligible applicants. Any public or private organization that is current on all federal and state tax obligations, is in compliance with applicable federal and state laws and regulations, and is financially viable is eligible to receive grant funds.

(2) Eligible projects. A project is eligible to receive grant funds if its proposal demonstrates that the project will do all of the following:

(a) Train unemployed workers, underemployed workers, incumbent employees, or any combination of unemployed workers, underemployed workers, or incumbent employees.

(b) Achieve the outcomes required by the GPA, which may include improving employment, reducing layoffs, and increasing overall employment in the state by improving unemployed and underemployed workers’ and incumbent employees’ skills to better match employers’ needs.

History

CR 13-045: cr. Register April 2014 No. 700, eff. 5-1-14; CR 22-056: r. and recr. (title), am. (1), renum. (2) to (2) (intro.), (b) and am., cr. (2) (a) Register May 2023 No. 809, eff. 6-1-23; CR 22-056 (corrected version): r. and recr. (title), am. (1), renum. (2) to (2) (intro.), (b) and am., cr. (2) (a) Register June 2023 No. 810, eff. 7-1-23.

Wis. Admin. Code § DWD 801.05 Application {#sec-dwd-801.05 omnilex-key=us-wi-regs-official--agency-dwd--DWD 801.05}

(1) Who may apply. An applicant may be any of the following:

(a) A public organization.

(b) A private organization.

(2) Solicitation. The department shall solicit applications for grants by publishing a GPA on the department’s website. The department may also distribute copies of the GPA to interested parties.

Note: GPAs can be found on the department’s website at https://wisconsinfastforward.com/wff_standard.htm.

(3) Submission of applications.

(c) An applicant shall submit an application for a grant to the department in accordance with the deadline and processes indicated in the GPA for the grant, which may include instructions for applications on paper or in an electronic format.

(d) The department may issue grant guidelines and may update the guidelines as necessary. The guidelines may contain clarification or additional information on grant application instructions, requirements, and procedures.

(4) Content of application. An application for a grant for a project shall include all of the following:

(b) Identification and contact information for the project point of contact, the financial officer for the project, and the signatories authorized by the proposed grantee to execute legal documents.

(d) A description of the critical work force shortage that exists in the project target area.

(e) An abstract that briefly describes the project and highlights the project’s purpose.

(f) A summary of the budget request, including the amount and source of matching funds to be used in the project in accordance with requirements established by the GPA.

(g) A justification of the proposed budget detailing cost estimates used in compiling the budget request.

(h) A narrative description of the project, including the number of unemployed and underemployed workers and incumbent employees that will be enrolled as trainees in the project and how the project will achieve the outcomes required by the GPA.

(i) A statement of assurances and certifications in accordance with s. DWD 801.12.

(im) If the applicant is the lead for a consortium of placement partners, the names of the placement partners.

(jm) For applicants proposing to use one or more placement partners, in whole or in part, to achieve the outcomes required by the GPA, a letter of commitment from each placement partner describing the commitment the placement partner has made to the applicant to achieve the outcomes required by the GPA. A letter of commitment under this paragraph must be signed by an official of the placement partner who has the authority to enter a binding commitment on its behalf.

(km) A letter of commitment from each organization that will be providing match contributions to the project stating the match contribution that the organization will make. A letter of commitment under this paragraph must be signed by an official of the organization who has the authority to enter a binding commitment on its behalf.

(L) Information on the proposed use of one or more subcontractors in accordance with standards established by the GPA.

(m) Any other information required in the GPA.

(5) Review of applications.

(a) Preliminary review. All grant applications shall meet the eligibility requirements under s. DWD 801.04 and include all of the application contents specified in sub. (4). The department or persons invited by the department shall review each application for eligibility under s. DWD 801.04 and compliance with the format and content specifications of sub. (4) and the GPA. The department may deny any application that fails to meet any of the eligibility requirements or fails to comply with the format and content specifications. Denial of an application under this paragraph is not subject to administrative review.

(b) Evaluation criteria. The department or persons invited by the department shall evaluate grant applications that meet the criteria as specified in par. (a) using the criteria specified in the GPA and all of the following criteria:

The applicant’s organizational and programmatic capacity to implement the proposed project.
The applicant’s understanding and ability to communicate the needs of the target population.
The applicant’s stated purpose and objectives for the project and methods and timetable for implementing the project.
The extent to which the applicant’s proposed budget is clear and justified.
An evaluation plan for the project.
The potential impact on economic development.
The potential impact on economic opportunities for the business, the trainees and the local workforce.
The potential impact of the project on building the capacity of the workforce to find and retain employment.

(6) Ranking applications.

(a) The department or persons invited by the department shall weigh the importance of each evaluation criterion by assigning points to it. The criteria weighting shall be provided in the GPA.

(b) Using the evaluation criteria specified in sub. (5) (b), the department or persons invited by the department shall evaluate each application using each applicable criterion and assign points signifying the degree to which the application meets the criterion up to the maximum number of points specified in the GPA. The total points assigned to the application for all applicable criteria will be the score for the application.

(d) In addition to application rankings, the department or persons invited by the department may consider underserved populations, strategic priorities, past performance, underserved geographic areas, potential to replicate the project, cost per trainee, and available funding.

History

CR 13-045: cr. Register April 2014 No. 700, eff. 5-1-14; CR 22-056: am. (1) (a), (c), r. (1) (d), am. (2), (3) (title), r. (3) (a), (b), am. (3) (c), (d), (4) (intro.), r. (4) (a), am. (4) (b), r. (4) (c), am. (4) (h), (i), cr. (4) (im), r. (4) (j), cr. (4) (jm), r. (4) (k), cr. (4) (km), am. (5) (a), (b) (intro.), 3., (6) (a), (b), (d) Register May 2023 No. 809, eff. 6-1-23; CR 22-056 (corrected version): CR 22-056: am. (1) (a), (c), r. (1) (d), am. (2), (3) (title), r. (3) (a), (b), am. (3) (c), (d), (4) (intro.), r. (4) (a), am. (4) (b), r. (4) (c), am. (4) (h), (i), cr. (4) (im), r. (4) (j), cr. (4) (jm), r. (4) (k), cr. (4) (km), am. (5) (a), (b) (intro.), 3., (6) (a), (b), (d) Register June 2023 No. 810, eff. 7-1-23.

Wis. Admin. Code § DWD 801.06 Grant awards {#sec-dwd-801.06 omnilex-key=us-wi-regs-official--agency-dwd--DWD 801.06}

(1) Making awards. Except as provided in sub. (2), for each GPA, the department shall award a grant to the applicant with the highest numerical score under s. DWD 801.05 (6).

(2) Exceptions. In reviewing a grant application, the department may do any of the following:

(a) Reject any application which fails to meet the content specifications under s. DWD 801.05 (4). Rejection of an application for failure to meet the content specifications under s. DWD 801.05 (4) is not subject to administrative review.

(b) Negotiate the amount of an award, authorized budget items, and programmatic goals and objectives before awarding a grant to an applicant.

(c) Consider additional factors, including underserved populations, strategic priorities, past performance, underserved geographic areas, potential to replicate the project, cost per trainee, and available funding.

(3) Notification. The department shall notify each applicant, in writing, within 60 days of the deadline stated in the GPA for submitting a grant application, of either of the following:

(a) The department’s decision on the application.

(b) The current status of the application and the date by which the department anticipates issuing a decision on the application.

(4) Administrative review. Except as provided in s. DWD 801.05 (5) (a) and sub. (2) (a), an applicant for a grant described in a GPA may request an administrative review of an adverse decision of the department regarding the application. The request shall be in writing. The request shall be received by the department within 10 working days of the date of the department’s notice to the applicant advising the applicant of the adverse decision.

(5) Contract.

(a) The department shall make each grant award through a contract between the department and the applicant selected to receive the grant.

(b) The contract shall provide for the retainage of a percentage of the grant funds, in accordance with a standard established by the GPA, to be paid upon compliance with the conditions of the grant.

(6) Availability of funds.

(a) The department shall decide the amount of funds available for grants from the expected appropriation under s. 20.445 (1) (b), Stats., and shall announce the availability of funds in one or more GPAs.

(b) All funding decisions shall be contingent upon availability of funds under s. 20.445 (1) (b), Stats. Any changes in the amount of funds available which were unforeseen at the time of the department’s release of a GPA shall be accommodated by the department, as appropriate, by means of reduction, elimination, or increase in existing awards, by awarding of funds to applicants previously denied due to insufficient funds, or by release of a new GPA.

(c) Any funds that become available due to a denial of an award to a selected applicant as a result of failure of the selected applicant to sign the required contract, or as a result of termination of a project by the department or the applicant, shall be reallocated by the department at its discretion but within the limits of the intent of the appropriation and this chapter.

History

CR 13-045: cr. Register April 2014 No. 700, eff. 5-1-14; CR 22-056: am. (2), renum. (3) to (3) (intro.) and am., cr. (3) (a), (b), am. (4), (6) (c) Register May 2023 No. 809, eff. 6-1-23; CR 22-056 (corrected version): am. (2), renum. (3) to (3) (intro.) and am., cr. (3) (a), (b), am. (4), (6) (c) Register June 2023 No. 810, eff. 7-1-23.

Wis. Admin. Code § DWD 801.07 Restrictions {#sec-dwd-801.07 omnilex-key=us-wi-regs-official--agency-dwd--DWD 801.07}

(1) Prohibited use of funds. Grant funds shall be used only for the payment or reimbursement of expenses which are allowable under s. DWD 801.09, reasonable, necessary, and properly assignable to the purposes of an approved grant. Any other use of grant funds is prohibited.

(2) Violation of prohibited activities. If a grantee uses grant funds for prohibited activities under sub. (1), the department may terminate the grant and recover funds previously paid to the grantee under the grant.

(4) Ownership of curriculum. Curriculum developed for a project using grant funds is owned by the department. Subject to any conditions established by the grant, any of the following may make future use of the curriculum:

(a) The grantee.

(b) Any placement partner that is part of a consortium for which an application is made under s. DWD 801.05 (1) (c).

History

CR 13-045: cr. Register April 2014 No. 700, eff. 5-1-14; CR 22-056: am. (1), (2), r. (3) Register May 2023 No. 809, eff. 6-1-23; CR 22-056 (corrected version): am. (1), (2), r. (3), cr. (4) Register June 2023 No. 810, eff. 7-1-23.

Wis. Admin. Code § DWD 801.08 Match requirement {#sec-dwd-801.08 omnilex-key=us-wi-regs-official--agency-dwd--DWD 801.08}

Match contributions determined by the department under s. 106.27 (1) (intro.), Stats., are subject to all of the following criteria:

(1) The match contributions shall be from private funds or from public funds specifically authorized by federal or state law to satisfy the matching requirements.

(2) The match contributions may not be used to satisfy any other state or federal matching requirements.

(3) The match contributions shall be made during the required matching period identified in the GPA and the grant.

(5) Trainee wages, stipends, and fringe benefits may be considered as match contributions.

(6) In-kind contributions may be accepted as part of the match contribution if the grantee provides the basis for valuing the contribution.

(7) The GPA or the grant may identify additional match conditions based on the specific nature of the proposal or grant.

History

CR 13-045: cr. Register April 2014 No. 700, eff. 5-1-14; CR 22-056: am. (intro.), (1) to (3), r. (4), am. (5) to (7) Register May 2023 No. 809, eff. 6-1-23; CR 22-056 (corrected version): am. (intro.), (1) to (3), r. (4), am. (5) to (7) Register June 2023 No. 810, eff. 7-1-23.

Wis. Admin. Code § DWD 801.09 Use of grant funds {#sec-dwd-801.09 omnilex-key=us-wi-regs-official--agency-dwd--DWD 801.09}

(1) Allowable uses. A grantee may use grant funds received under this chapter for any of the following:

(a) Developing or implementing curriculum for projects that are designed to do any of the following:

Increase the skills of unemployed workers to meet the needs of one or more employers.
Increase the skills of underemployed workers to a level which would qualify the workers for employment at the current employer or a new employer with higher wages, more hours, or increased functionality.
Increase the skills of incumbent employees to a level which would qualify the employees for employment at the current employer with higher wages, more hours, or increased functionality.

(b) Developing or implementing a special project that generates creative problem-solving skills, creates a competitive work culture and environment, inspires underachieving workers, increases the productivity of an organization, or facilitates and encourages the development of individual employees.

(d) Paying administrative costs pursuant to sub. (3).

(2) Unallowable uses. A grantee may not use grant funds received under this chapter for any of the following:

(a) Purchase of real estate.

(b) Construction or major remodeling.

(d) Support of the enactment, repeal, modification or adoption of any law, regulation or policy, at any level of government.

(e) Sectarian purposes or activities.

(f) Trainee wages, stipends, or fringe benefits.

(g) Purchase of capital equipment.

(h) Pre-existing training programs.

(3) Limit on administrative costs. The department may limit the amount of grant funding that a grantee may spend on administrative costs to no more than 10% of the total project costs reimbursed by the department under the grant.

History

CR 13-045: cr. Register April 2014 No. 700, eff. 5-1-14; CR 22-056: am. (1) (intro.), (a) (intro.), (b), (c), cr. (1) (d), am. (2) (intro.), cr. (2) (g), (h), am. (3), r. (4) Register May 2023 No. 809, eff. 6-1-23; CR 22-056 (corrected version): am. (1) (intro.), (a) (intro.), (b), (c), cr. (1) (d), am. (2) (intro.), cr. (2) (g), (h), am. (3), r. (4) Register June 2023 No. 810, eff. 7-1-23.

Wis. Admin. Code § DWD 801.10 Amount of grants {#sec-dwd-801.10 omnilex-key=us-wi-regs-official--agency-dwd--DWD 801.10}

(1m) Subject to subs. (3) and (4), the amount of a grant shall be based on the following:

(a) The amount requested by the applicant and approved by the department.

(b) The amount of match contributions by the applicant under s. DWD 801.08 that are approved by the department.

(3) No grant may be awarded for an amount of less than $5000.

(4) No grantee may receive more than $400,000 in any combination of grants during a calendar year. This subsection does not apply to a grantee serving as an applicant for a consortium of placement partners under s. DWD 801.05 (1) (c).

History

CR 13-045: cr. Register April 2014 No. 700, eff. 5-1-14; CR 22-056: renum. (intro.), (1), (2) to (1m) (intro.), (a), (b) and, as renumbered, am. (1m) (intro.), (b), am. (4) Register May 2023 No. 809, eff. 6-1-23; CR 22-056 (corrected version): renum. (intro.), (1), (2) to (1m) (intro.), (a), (b) and, as renumbered, am. (1m) (intro.), (b), am. (4) Register June 2023 No. 810, eff. 7-1-23.

Wis. Admin. Code § DWD 801.11 Reporting requirements {#sec-dwd-801.11 omnilex-key=us-wi-regs-official--agency-dwd--DWD 801.11}

(1) A grantee shall submit to the department data and information on the use and effect of the grant funds as specified in this section and in any grant guidelines issued under s. DWD 801.05 (3) (d). The grantee shall authorize the department to audit and inspect its records and to use business data for administrative purposes.

(2) A grantee shall submit quarterly Bureau of Labor Statistics multiple worksite survey forms.

(3) As specified in a grant, a grantee shall report all of the following:

(a) The O*NET occupation code for each trainee.

(b) The actual employer worksite location of each trainee after the completion of the training.

(c) The number of trainees initially enrolled in the project, identified by social security number and status at the time of enrollment as an unemployed worker, an underemployed worker, or an incumbent employee.

(d) For each trainee who is employed at the time of enrollment, whether the trainee is an employee of one of the placement partners and the hourly wage of the trainee.

(e) For each trainee who is an unemployed worker at the time of enrollment, whether the trainee has obtained employment during the training, or within a specified time period after successful completion of the training, whether the employment obtained is with one of the placement partners, and the hourly wages of the newly employed worker.

(f) The number of trainees, identified by social security number, that successfully complete the training, and the status of the trainees at the completion of the project as an unemployed worker, underemployed worker, or incumbent employee.

(g) For each trainee who was an underemployed worker at the time of enrollment, whether the trainee has obtained new employment, whether any new employment is with a placement partner, and whether the new employment has provided an increased wage or increased hours of work.

(h) Such other information as may be required by the department.

History

CR 13-045: cr. Register April 2014 No. 700, eff. 5-1-14; correction in (3) (c) made under s. 35.17, Stats., Register April 2014 No. 700; CR 22-056: am. (1), (2), (3) (intro.), (a), (c) to (g) Register May 2023 No. 809, eff. 6-1-23; CR 22-056 (corrected version): am. (1), (2), (3) (intro.), (a), (c) to (g) Register June 2023 No. 810, eff. 7-1-23.

Wis. Admin. Code § DWD 801.12 Assurances and certifications {#sec-dwd-801.12 omnilex-key=us-wi-regs-official--agency-dwd--DWD 801.12}

Each grantee shall assure and certify that the grantee and its contractors are in compliance with all of the following:

(1) Authority to sign and accept funds. The grantee shall certify that the designated signatory official has the authority to sign on behalf of the grantee and has the authority to accept funds.

(2) Compliance statement. The grantee shall provide a statement that it is in compliance with applicable state and federal laws, rules, and regulations, including tax laws, the unemployment insurance and worker’s compensation laws, the requirements of this chapter, and the GPA.

(3) Nondiscrimination and equal opportunity. In accordance with s. 16.765, Stats., the grantee may not discriminate in violation of state or federal law and shall follow equal employment opportunity practices in the administration and delivery of project services and benefits to eligible applicants and participants.

(4) Adequate and documented systems. The grantee shall have adequate and documented administrative, personnel, financial, and project management systems, including the policies, procedures, and controls necessary to ensure effective and efficient use of funds and reporting of how funds are used for the delivery of projects.

History

CR 13-045: cr. Register April 2014 No. 700, eff. 5-1-14; correction in (intro.) made under s. 35.17, Stats., Register April 2014 No. 700; CR 22-056: am. (intro.), (3), (4) Register May 2023 No. 809, eff. 6-1-23; CR 22-056 (corrected version): am. (intro.), (3), (4) Register June 2023 No. 810, eff. 7-1-23.

Wis. Admin. Code § DWD 801.13 Grant Administration {#sec-dwd-801.13 omnilex-key=us-wi-regs-official--agency-dwd--DWD 801.13}

(1) Grant records. A grantee shall maintain grant records and provide access to the records when requested by the department.

(2) Retention. A grantee shall retain grant records for at least three years after the conclusion of the grant.

(3) Invoices. A grantee shall submit invoices for reimbursement in accordance with procedures established by the department.

(4) Monitoring and audits. A grantee shall cooperate with any monitoring and auditing activities of the department related to the grant activities or grant expenditures, including providing the department with any requested records or information and, at the request of the department, appearing before the department to respond to any questions about the grant activities or grant expenditures.

History

CR 13-045: cr. Register April 2014 No. 700, eff. 5-1-14; CR 22-056: am. (1) to (3), cr. (4) Register May 2023 No. 809, eff. 6-1-23; CR 22-056 (corrected version): am. (1) to (3), cr. (4) Register June 2023 No. 810, eff. 7-1-23

Chapter DWD 802 TECHNICAL EDUCATION GRANTS

Wis. Admin. Code § DWD 802.01 Authority and purpose {#sec-dwd-802.01 omnilex-key=us-wi-regs-official--agency-dwd--DWD 802.01}

This chapter is created to establish the rules for administering and awarding technical education grants to applicants, as defined in s. DWD 802.03 (1).

History

EmR2001: emerg. cr., eff. 2-25-20; CR 20-015: cr. Register April 2022 No. 796, eff. 5-1-22; CR 25-046: am. Register September 2025 No. 837, eff. 10-1-25.

Wis. Admin. Code § DWD 802.02 Applicability {#sec-dwd-802.02 omnilex-key=us-wi-regs-official--agency-dwd--DWD 802.02}

This chapter applies to the department, applicants for grants, and school districts in this state that are awarded grants for technical education equipment under s. 106.275, Stats.

History

EmR2001: emerg. cr., eff. 2-25-20; CR 20-015: cr. Register April 2022 No. 796, eff. 5-1-22.

Wis. Admin. Code § DWD 802.03 Definitions {#sec-dwd-802.03 omnilex-key=us-wi-regs-official--agency-dwd--DWD 802.03}

In this chapter:

(1) “Applicant” means a school district or a consortium consisting of multiple school districts in this state that applies to the department for a grant.

(2) “Department” means the department of workforce development.

(3) “Grant” means an agreement between the department and the grantee whereby the department provides funds from the appropriation under s. 20.445 (1) (cg), Stats., for the purposes specified in s. 106.275 (1) (b), Stats.

(4) “Grantee” means an applicant awarded a grant by the department.

(5) “Grant program announcement” or “GPA” means a document that describes the grant program under this chapter, invites applications for a grant, specifies who may apply, establishes application procedures, specifies how the department will evaluate applications based on the criteria for awarding the grants, and establishes conditions and restrictions that accompany grants.

(6) “Non-sparsity aid applicant” means an applicant that is not a sparsity aid applicant.

(7) “Sparsity aid applicant” means an applicant that is either a school district that is eligible for sparsity aid under s. 115.436, Stats., or a consortium that includes at least one school district that is so eligible.

History

EmR2001: emerg. cr., eff. 2-25-20; CR 20-015: cr. Register April 2022 No. 796, eff. 5-1-22; EmR2418: emerg. am. (1), (4), eff. 12-10-24; CR 25-046: am. (1), (4), cr. (6), (7) Register September 2025 No. 837, eff. 10-1-25.

Wis. Admin. Code § DWD 802.04 Application {#sec-dwd-802.04 omnilex-key=us-wi-regs-official--agency-dwd--DWD 802.04}

(1) Procedure. The department shall solicit applications for grants by preparing one or more GPAs, publishing a notice of the availability of each GPA on the department’s website, and distributing copies of the GPA on request. An applicant shall apply for a grant on an application form included in the GPA by the date specified in the GPA and in accordance with the procedures and requirements specified in the GPA.

Note: GPAs can be found on the department’s website at http://wisconsinfastforward.com/wff_standard.htm.

(2) Contents. An applicant for a grant shall describe all of the following:

(a) The purpose and need for the grant.

(b) The projected outcomes the applicant seeks to achieve as a result of receiving the grant.

(c) A summary of the applicant’s proposed budget for the enhancement or improvement of a technical education facility or for the acquisition of equipment used in advanced manufacturing or construction fields in the workplace, including any software necessary for the operation of that equipment and any instructional material necessary to train pupils in the operation of that equipment. The proposed budget shall include the amount, form, and source of the matching funds required under s. DWD 802.06.

(d) A justification of the proposed budget under par. (c) that details cost estimates used in compiling the budget.

(e) A narrative description of the program for which the applicant will enhance or improve a technical education facility or acquire equipment used in advanced manufacturing or construction fields in the workplace.

(f) Any other information required in the GPA.

History

EmR2001: emerg. cr., eff. 2-25-20; CR 20-015: cr. Register April 2022 No. 796, eff. 5-1-22; EmR2418: emerg. am. (2) (b), (c), (e), eff. 12-10-24; CR 25-046: am. (2) (b), (c), (e) Register September 2025 No. 837, eff. 10-1-25.

Wis. Admin. Code § DWD 802.05 Grant awards {#sec-dwd-802.05 omnilex-key=us-wi-regs-official--agency-dwd--DWD 802.05}

(1) Preliminary review. The department shall review each application for compliance with the format and content specifications of s. DWD 802.04 (2) and the GPA. The department may deny any application that fails to meet any of those criteria.

(2) Evaluation criteria.

(a) If the department does not deny a grant application under sub. (1), the department shall evaluate the application against all of the following criteria:

Demand-driven need based on labor market data and employer partnerships.
Leveraging of partnerships with employers and matching funds.
Optimizing regional training capacity and the number of skilled workers as validated by relevant employers.
Building on proven programs.
Demonstrating sustainability of training pupils in the use of equipment that will be acquired with grant moneys.

(b) For each GPA, the department shall establish and make available a grant evaluation rubric and scoresheet that requires the department to assign points to each application signifying the degree to which the application meets each criterion under par. (a), except that the grant evaluation rubric and scoresheet may allow the department to assign a greater number of points to applications for which private sources contribute all or some of the matching funds required under s. DWD 802.06. The total points assigned to the application for all applicable criteria will be the score for the application. The department shall numerically rank each application for each GPA.

Note: Grant evaluation rubrics and scoresheets can be found on the department’s website at http://wisconsinfastforward.com/wff_standard.htm.

(3) Making awards. For each GPA, the department shall award grants to the applicants so that not less than one-third of grant moneys awarded in a fiscal biennium are provided to sparsity aid applicants. For sparsity aid applicants, the department shall award grants to applicants with the highest numerical scores under sub. (2) (b) compared to other sparsity aid applicants and for non-sparsity aid applicants, the department shall award grants to applicants with the highest numerical scores under sub. (2) (b) compared to other non-sparsity aid applicants.

(4) Notification. The department shall notify each applicant in writing of the department’s decision on the application by the date set in the GPA.

(5) Contract. The department shall make each grant award through a contract between the department and the applicant selected to receive the grant.

History

EmR2001: emerg. cr., eff. 2-25-20; CR 20-015: cr. Register April 2022 No. 796, eff. 5-1-22; EmR2418: emerg. am. (3), eff. 12-10-24; CR 25-046: am. (3) Register September 2025 No. 837, eff. 10-1-25.

Wis. Admin. Code § DWD 802.06 Match requirement {#sec-dwd-802.06 omnilex-key=us-wi-regs-official--agency-dwd--DWD 802.06}

An applicant may not be awarded a grant unless the applicant provides matching funds in the form of money or the monetary value of equipment contributed from private sources or the applicant or from both private sources and the applicant and that are equal to one of the following:

(1) Except as provided in sub. (2), if the matching funds are contributed from private sources, 100 percent of the grant amount awarded.

(2) If any of the matching funds are contributed from school district funds, 200 percent of the grant amount awarded.

History

EmR2001: emerg. cr., eff. 2-25-20; CR 20-015: cr. Register April 2022 No. 796, eff. 5-1-22; EmR2418: emerg. renum. DWD 802.06 to (intro.) and am., cr. (1), (2), eff. 12-10-24; CR 25-046: renum. DWD 802.06 to (intro.) and am., cr. (1), (2) Register September 2025 No. 837, eff. 10-1-25.

Wis. Admin. Code § DWD 802.07 Use of grant funds {#sec-dwd-802.07 omnilex-key=us-wi-regs-official--agency-dwd--DWD 802.07}

A grantee may use grant funds only for the enhancement or improvement of technical education facility or for the acquisition of equipment that is used in advanced manufacturing or construction fields in the workplace, together with any software necessary for the operation of that equipment and any instructional material necessary to train pupils in the operation of that equipment.

History

EmR2001: emerg. cr., eff. 2-25-20; CR 20-015: cr. Register April 2022 No. 796, eff. 5-1-22; EmR2418: emerg. am., eff. 12-10-24; CR 25-046: am. Register September 2025 No. 837, eff. 10-1-25.

Wis. Admin. Code § DWD 802.08 Amount of grants {#sec-dwd-802.08 omnilex-key=us-wi-regs-official--agency-dwd--DWD 802.08}

The amount of a grant shall be based on the amount requested by the applicant and approved by the department, except that no grant may be less than $5,000 nor more than $100,000.

History

EmR2001: emerg. cr., eff. 2-25-20; CR 20-015: cr. Register April 2022 No. 796, eff. 5-1-22; EmR2418: emerg. am., eff. 12-10-24; CR 25-046: am. Register September 2025 No. 837, eff. 10-1-25.

Wis. Admin. Code § DWD 802.09 Reporting requirements {#sec-dwd-802.09 omnilex-key=us-wi-regs-official--agency-dwd--DWD 802.09}

A grantee shall file a report with the department by September 1 of each of the first 3 fiscal years following the fiscal year in which the grant was received. In each report, the grantee shall do all of the following:

(1) Describe how the grant moneys were expended.

(2) Describe the outcomes achieved as a result of receiving the grant.

(3) Share the best practices employed by the grantee regarding the training of pupils in the use of any equipment acquired with the grant moneys.

(4) Include a plan for sustainability of any such training described in sub. (3).

(5) Provide such other information as the department may require in the GPA.

History

EmR2001: emerg. cr., eff. 2-25-20; CR 20-015: cr. Register April 2022 No. 796, eff. 5-1-22; EmR2418: emerg. am. (3), (4), eff. 12-10-24; CR 25-046: am. (3), (4) Register September 2025 No. 837, eff. 10-1-25.

Wis. Admin. Code DWD — Department of Workforce Development

Chapter DWD 60 SUPERVISED BUSINESS ENTERPRISES OPERATED BY BLIND PERSONS

Wis. Admin. Code § DWD 60.01 Authority and purpose {#sec-dwd-60.01 omnilex-key=us-wi-regs-official--agency-dwd--DWD 60.01}

Wis. Admin. Code § DWD 60.02 Definitions {#sec-dwd-60.02 omnilex-key=us-wi-regs-official--agency-dwd--DWD 60.02}

Wis. Admin. Code § DWD 60.03 Committee of operators {#sec-dwd-60.03 omnilex-key=us-wi-regs-official--agency-dwd--DWD 60.03}

Wis. Admin. Code § DWD 60.04 Access by operators to program information {#sec-dwd-60.04 omnilex-key=us-wi-regs-official--agency-dwd--DWD 60.04}

Wis. Admin. Code § DWD 60.05 Grievances {#sec-dwd-60.05 omnilex-key=us-wi-regs-official--agency-dwd--DWD 60.05}

Wis. Admin. Code § DWD 60.06 Licensees {#sec-dwd-60.06 omnilex-key=us-wi-regs-official--agency-dwd--DWD 60.06}

Wis. Admin. Code § DWD 60.07 Selection of suitable locations {#sec-dwd-60.07 omnilex-key=us-wi-regs-official--agency-dwd--DWD 60.07}

Wis. Admin. Code § DWD 60.08 Selection of operators {#sec-dwd-60.08 omnilex-key=us-wi-regs-official--agency-dwd--DWD 60.08}

Wis. Admin. Code § DWD 60.09 Setting up the business enterprise {#sec-dwd-60.09 omnilex-key=us-wi-regs-official--agency-dwd--DWD 60.09}

Wis. Admin. Code § DWD 60.10 Operating the business enterprise {#sec-dwd-60.10 omnilex-key=us-wi-regs-official--agency-dwd--DWD 60.10}

Wis. Admin. Code § DWD 60.11 Set-aside funds {#sec-dwd-60.11 omnilex-key=us-wi-regs-official--agency-dwd--DWD 60.11}

Wis. Admin. Code § DWD 60.12 Corrective action {#sec-dwd-60.12 omnilex-key=us-wi-regs-official--agency-dwd--DWD 60.12}

Wis. Admin. Code § DWD 60.13 Other reasons for suspending or terminating a license or transferring an operator to a less-demanding business {#sec-dwd-60.13 omnilex-key=us-wi-regs-official--agency-dwd--DWD 60.13}

Wis. Admin. Code § DWD 60.14 Operator’s agreement {#sec-dwd-60.14 omnilex-key=us-wi-regs-official--agency-dwd--DWD 60.14}

Chapter DWD 65 ORDER OF SELECTION FOR VOCATIONAL REHABILITATION SERVICES

Wis. Admin. Code § DWD 65.01 Authority and purpose {#sec-dwd-65.01 omnilex-key=us-wi-regs-official--agency-dwd--DWD 65.01}

Wis. Admin. Code § DWD 65.02 Applicability {#sec-dwd-65.02 omnilex-key=us-wi-regs-official--agency-dwd--DWD 65.02}

Wis. Admin. Code § DWD 65.03 Definitions {#sec-dwd-65.03 omnilex-key=us-wi-regs-official--agency-dwd--DWD 65.03}

Wis. Admin. Code § DWD 65.04 Imposing an order of selection {#sec-dwd-65.04 omnilex-key=us-wi-regs-official--agency-dwd--DWD 65.04}

Wis. Admin. Code § DWD 65.06 Prohibited practices {#sec-dwd-65.06 omnilex-key=us-wi-regs-official--agency-dwd--DWD 65.06}

Wis. Admin. Code § DWD 65.07 Determining the order of selection {#sec-dwd-65.07 omnilex-key=us-wi-regs-official--agency-dwd--DWD 65.07}

Wis. Admin. Code § DWD 65.08 Notice to affected consumers {#sec-dwd-65.08 omnilex-key=us-wi-regs-official--agency-dwd--DWD 65.08}

Wis. Admin. Code § DWD 65.09 Request for review of category placement {#sec-dwd-65.09 omnilex-key=us-wi-regs-official--agency-dwd--DWD 65.09}

Wis. Admin. Code § DWD 65.10 Review initiated by department {#sec-dwd-65.10 omnilex-key=us-wi-regs-official--agency-dwd--DWD 65.10}

Wis. Admin. Code § DWD 65.11 Appeal of assigned position under an order of selection {#sec-dwd-65.11 omnilex-key=us-wi-regs-official--agency-dwd--DWD 65.11}

Chapter DWD 68 CONFIDENTIAL INFORMATION

Wis. Admin. Code § DWD 68.01 Introduction {#sec-dwd-68.01 omnilex-key=us-wi-regs-official--agency-dwd--DWD 68.01}

Wis. Admin. Code § DWD 68.02 Definitions {#sec-dwd-68.02 omnilex-key=us-wi-regs-official--agency-dwd--DWD 68.02}

Wis. Admin. Code § DWD 68.03 Applicability {#sec-dwd-68.03 omnilex-key=us-wi-regs-official--agency-dwd--DWD 68.03}

Wis. Admin. Code § DWD 68.04 Administration of this chapter {#sec-dwd-68.04 omnilex-key=us-wi-regs-official--agency-dwd--DWD 68.04}

Wis. Admin. Code § DWD 68.05 Informed consent of consumers {#sec-dwd-68.05 omnilex-key=us-wi-regs-official--agency-dwd--DWD 68.05}

Wis. Admin. Code § DWD 68.06 Notation of release of information {#sec-dwd-68.06 omnilex-key=us-wi-regs-official--agency-dwd--DWD 68.06}

Wis. Admin. Code § DWD 68.08 Notification of rights and responsibilities {#sec-dwd-68.08 omnilex-key=us-wi-regs-official--agency-dwd--DWD 68.08}

Wis. Admin. Code § DWD 68.09 Non-consumer requests {#sec-dwd-68.09 omnilex-key=us-wi-regs-official--agency-dwd--DWD 68.09}

Wis. Admin. Code § DWD 68.11 Notice not to re-release {#sec-dwd-68.11 omnilex-key=us-wi-regs-official--agency-dwd--DWD 68.11}

Wis. Admin. Code § DWD 68.12 Release of records for an audit, evaluation, or research {#sec-dwd-68.12 omnilex-key=us-wi-regs-official--agency-dwd--DWD 68.12}

Wis. Admin. Code § DWD 68.13 Release of records to employers {#sec-dwd-68.13 omnilex-key=us-wi-regs-official--agency-dwd--DWD 68.13}

Wis. Admin. Code § DWD 68.14 Release of records to consumers {#sec-dwd-68.14 omnilex-key=us-wi-regs-official--agency-dwd--DWD 68.14}

Wis. Admin. Code § DWD 68.15 Record amendments and additions {#sec-dwd-68.15 omnilex-key=us-wi-regs-official--agency-dwd--DWD 68.15}

Wis. Admin. Code § DWD 68.17 Penalties {#sec-dwd-68.17 omnilex-key=us-wi-regs-official--agency-dwd--DWD 68.17}

Chapter DWD 75 APPEAL PROCEDURES FOR PERSONS APPLYING FOR OR RECEIVING VOCATIONAL REHABILITATION SERVICES

Wis. Admin. Code § DWD 75.01 Authority and purpose {#sec-dwd-75.01 omnilex-key=us-wi-regs-official--agency-dwd--DWD 75.01}

Wis. Admin. Code § DWD 75.02 Applicability {#sec-dwd-75.02 omnilex-key=us-wi-regs-official--agency-dwd--DWD 75.02}

Wis. Admin. Code § DWD 75.03 Definitions {#sec-dwd-75.03 omnilex-key=us-wi-regs-official--agency-dwd--DWD 75.03}

Wis. Admin. Code § DWD 75.04 Right to a hearing {#sec-dwd-75.04 omnilex-key=us-wi-regs-official--agency-dwd--DWD 75.04}

Wis. Admin. Code § DWD 75.05 Filing a hearing request {#sec-dwd-75.05 omnilex-key=us-wi-regs-official--agency-dwd--DWD 75.05}

Wis. Admin. Code § DWD 75.06 Acknowledgment of a hearing request {#sec-dwd-75.06 omnilex-key=us-wi-regs-official--agency-dwd--DWD 75.06}

Wis. Admin. Code § DWD 75.07 Time limit for hearing {#sec-dwd-75.07 omnilex-key=us-wi-regs-official--agency-dwd--DWD 75.07}

Wis. Admin. Code § DWD 75.08 Motions relative to a hearing {#sec-dwd-75.08 omnilex-key=us-wi-regs-official--agency-dwd--DWD 75.08}

Wis. Admin. Code § DWD 75.09 Identification of a representative {#sec-dwd-75.09 omnilex-key=us-wi-regs-official--agency-dwd--DWD 75.09}

Wis. Admin. Code § DWD 75.10 Filing documents {#sec-dwd-75.10 omnilex-key=us-wi-regs-official--agency-dwd--DWD 75.10}

Wis. Admin. Code § DWD 75.11 Services while a hearing officer’s decision is pending {#sec-dwd-75.11 omnilex-key=us-wi-regs-official--agency-dwd--DWD 75.11}

Wis. Admin. Code § DWD 75.12 Hearing officer qualifications {#sec-dwd-75.12 omnilex-key=us-wi-regs-official--agency-dwd--DWD 75.12}

Wis. Admin. Code § DWD 75.13 Authority of the hearing officer {#sec-dwd-75.13 omnilex-key=us-wi-regs-official--agency-dwd--DWD 75.13}

Wis. Admin. Code § DWD 75.14 Prehearing conference {#sec-dwd-75.14 omnilex-key=us-wi-regs-official--agency-dwd--DWD 75.14}

Wis. Admin. Code § DWD 75.15 Agreement prior to a hearing {#sec-dwd-75.15 omnilex-key=us-wi-regs-official--agency-dwd--DWD 75.15}

Wis. Admin. Code § DWD 75.16 Hearing procedures {#sec-dwd-75.16 omnilex-key=us-wi-regs-official--agency-dwd--DWD 75.16}

Wis. Admin. Code § DWD 75.17 Decision of the hearing officer {#sec-dwd-75.17 omnilex-key=us-wi-regs-official--agency-dwd--DWD 75.17}

Wis. Admin. Code § DWD 75.18 Hearing officer’s report {#sec-dwd-75.18 omnilex-key=us-wi-regs-official--agency-dwd--DWD 75.18}

Wis. Admin. Code § DWD 75.19 Review of hearing officer’s decision {#sec-dwd-75.19 omnilex-key=us-wi-regs-official--agency-dwd--DWD 75.19}

Chapter DWD 80 WORKER’S COMPENSATION

Wis. Admin. Code § DWD 80.01 Definitions {#sec-dwd-80.01 omnilex-key=us-wi-regs-official--agency-dwd--DWD 80.01}

Wis. Admin. Code § DWD 80.02 Reports {#sec-dwd-80.02 omnilex-key=us-wi-regs-official--agency-dwd--DWD 80.02}

Wis. Admin. Code § DWD 80.025 Inspection and copying of records {#sec-dwd-80.025 omnilex-key=us-wi-regs-official--agency-dwd--DWD 80.025}

Wis. Admin. Code § DWD 80.03 Compromise {#sec-dwd-80.03 omnilex-key=us-wi-regs-official--agency-dwd--DWD 80.03}

Wis. Admin. Code § DWD 80.06 Parties {#sec-dwd-80.06 omnilex-key=us-wi-regs-official--agency-dwd--DWD 80.06}

Wis. Admin. Code § DWD 80.07 Service {#sec-dwd-80.07 omnilex-key=us-wi-regs-official--agency-dwd--DWD 80.07}

Wis. Admin. Code § DWD 80.10 Stipulations {#sec-dwd-80.10 omnilex-key=us-wi-regs-official--agency-dwd--DWD 80.10}

Wis. Admin. Code § DWD 80.21 Reports by practitioners and expert witnesses {#sec-dwd-80.21 omnilex-key=us-wi-regs-official--agency-dwd--DWD 80.21}

Wis. Admin. Code § DWD 80.23 Common insurance of employer and third party {#sec-dwd-80.23 omnilex-key=us-wi-regs-official--agency-dwd--DWD 80.23}

Wis. Admin. Code § DWD 80.25 Loss of hearing {#sec-dwd-80.25 omnilex-key=us-wi-regs-official--agency-dwd--DWD 80.25}

Wis. Admin. Code § DWD 80.26 Loss of vision; determination {#sec-dwd-80.26 omnilex-key=us-wi-regs-official--agency-dwd--DWD 80.26}

Wis. Admin. Code § DWD 80.27 Forms {#sec-dwd-80.27 omnilex-key=us-wi-regs-official--agency-dwd--DWD 80.27}

Wis. Admin. Code § DWD 80.29 Value of room or meals {#sec-dwd-80.29 omnilex-key=us-wi-regs-official--agency-dwd--DWD 80.29}

Wis. Admin. Code § DWD 80.30 Average weekly earnings for members of volunteer fire companies or fire departments {#sec-dwd-80.30 omnilex-key=us-wi-regs-official--agency-dwd--DWD 80.30}

Wis. Admin. Code § DWD 80.32 Permanent disabilities {#sec-dwd-80.32 omnilex-key=us-wi-regs-official--agency-dwd--DWD 80.32}

Wis. Admin. Code § DWD 80.33 Permanent disabilities; fingertip amputations {#sec-dwd-80.33 omnilex-key=us-wi-regs-official--agency-dwd--DWD 80.33}

Wis. Admin. Code § DWD 80.34 Loss of earning capacity {#sec-dwd-80.34 omnilex-key=us-wi-regs-official--agency-dwd--DWD 80.34}