Wis. Admin. Code Employment Relations Commission ERC 92.02 - Fees for filing appeals

(1) Notwithstanding s. 230.44(3), Stats., and s. ERC 92.01, payment of a fee or filing of a hardship affidavit in lieu of fee payment is required for appeals subject to the fee payment of s. 230.45(3), Stats.

Note Appeals subject to the fee payment of s. 230.45(3), Stats., include appeals filed under:

1) s. 230.44(1) (a), Stats. (relating to personnel decisions made or delegated by the administrator of the Division of Merit Recruitment and Selection),

2) s. 230.44(1) (b), Stats. (relating to personnel decisions made or delegated by the Director of the Office of State Employment Relations - including classification decisions),

3) s. 230.45(1) (c), Stats. (relating to final step arbitration under s. 230.04(14), Stats.), or

(2) Except as provided under sub. (6), the commission may take no action to resolve an appeal for which the payment of a fee is required until the commission receives the fee or hardship affidavit as required under this section.

(3) PAYMENT OF FEES.

(a) Fee amount. Except as provided for hardship cases in subs. (4) and (5), the fee for filing an appeal with the commission is $50.00.

(b) How fees are paid. Fees shall be paid by money order, certified check, cashier's check or bank check made payable to the "State Treasurer of Wisconsin" and must be received, whether in person or by mail, at the commission's offices. Fees may not be paid in cash, by personal check or in installments.

Note The fee requirements of this section apply to each appellant who submits an appeal, whether such submission is alone or in conjunction with other appellants.

(4) EXCEPTIONS FOR HARDSHIP CASES.

(a) Income definition. "Income" means total annual cash receipts before taxes from all sources, including but not limited to: money wages before any deductions; net receipts from self-employment; regular payments from social security, retirement, unemployment compensation, workers' compensation, veterans' payments, and public assistance; alimony; child support; college or university scholarships, grants, fellowships and assistantships; and net rental income. Excluded are noncash benefits such as the employer-paid portion of health insurance or other employee fringe benefits, food or housing received in lieu of wages, and such noncash federal benefit programs as food stamps, school lunches and housing assistance.

(b) The hardship exception. An appellant may qualify for a hardship exception if either of the following conditions are met:

1. The appellant's income is at or lower than the federal poverty level as defined by the federal department of labor under 42 USC 9902(2), and where the appellant has cash resources totalling exactly or less than one month's rent and food for appellant's family.

2. Similar circumstances exist which demonstrate that appellant is unable to pay the filing fee without suffering severe financial hardship.

Note The 2014 poverty level for a family unit of one was set at $11,670, with an additional $4,060 added for each additional family member.

(c) Entitlement to the hardship exception. An appellant may demonstrate entitlement to the hardship exception by completing and timely filing a notarized affidavit stating that the appellant meets one of the conditions set forth in par. (b).

(d) Penalty for affidavit made in bad faith. The commission may dismiss an appeal on the merits if it determines that the appellant falsified a hardship affidavit to avoid payment of the filing fee.

Note Falsification of a hardship affidavit also might be considered as a Class D felony, under s. 946.31(1) (e), Stats.

(5) TIME LIMITS FOR PAYING FEES.

(a) Requirements at time of filing. Except as provided under par. (b), the fee or the hardship affidavit for filing an appeal shall be received by the commission at the time the appeal is filed.

(b) Exceptions; time limits.

1. If an appeal is filed without each appellant enclosing either the fee payment or hardship affidavit, the commission shall send each remiss appellant a letter advising of the requirement to either pay the fee or to submit a hardship affidavit.

2. A fee payment meeting the requirements of sub. (3) (a) and (b), received by the commission within 30 days of the date appearing on the commission's letter mailed under subd. 1., will be considered a timely paid fee. Alternatively, a hardship affidavit meeting the requirements of sub. (4) (b) and (c) received by the commission within 30 days of the date appearing on the commission's letter will be considered to meet the requirements of this section.

(c) Exceptions; defective hardship affidavit.

1. An appellant whose initial hardship affidavit does not meet the requirements of this section shall be sent a letter from the commission which provides an opportunity to resubmit.

2. A hardship affidavit meeting the requirements of sub. (4) (b) and (c) received by the commission within 30 days of the date appearing on the commission's letter mailed under subd. 1., shall be considered to meet the requirements of this section. Alternatively, a fee payment meeting the requirements of sub. (3) (a) and (b), which is received by the commission within 30 days of the date appearing on the commission's letter shall be considered to meet the requirements of this section.

(6) EFFECT OF FAILING TO TIMELY FILE FEE PAYMENT OR HARDSHIP AFFIDAVIT. The commission shall dismiss without prejudice the appeal of any appellant who has failed to submit the required fee payment or hardship affidavit within the time limits under sub. (5).

(7) REFILED APPEALS. The filing date for an appeal which is refiled after dismissal under sub. (6), shall be determined by the date upon which the commission receives the refiled action rather than the filing date of the initial appeal.

Notes

Wis. Admin. Code Employment Relations Commission ERC 92.02

Adopted by, correction in (1) made under s. 13.92(4) (b) 7, Stats., Wisconsin Register December 2014 No. 708, eff.1/1/2015.

For example, where an initial appeal was filed on January 7, 1995, and was later dismissed by the commission for nonpayment of fees, the filing date for the refiled appeal would be the date the commission receives the refiled appeal, rather than January 7, 1995.