Wisconsin Supreme Court Rules Worker’s Comp Statute Does Not Require Employer to Accommodateby Randy Enochs (Enochs Law Firm)
In a case overturning a worker’s compensation administrative law judge, the Wisconsin Labor and Industry Review Commission (LIRC) AND circuit court, the Wisconsin Supreme Court upheld the Court of Appeals finding that LIRC applied an unreasonable interpretation of Wis. Stat. § 102.35(3), the statute for an unreasonable refusal to rehire. If you recall from my previous post, an unreasonable refusal to rehire is where an employee sustains an injury in the course of employment and is subsequently terminated or denied rehire.Ray Hutson Chevrolet, Inc. v. Labor & Indus. Review Comm’n, 186 Wis. 2d 118, 122, 519 N.W.2d 713 (Ct. App. 1994). “If the employee makes [this] showing, the burden shifts to the employer to show a reasonable cause for the refusal to rehire.” Id. The employer may meet this burden by showing “that it refused to rehire an injured employee because the employee’s position [was] eliminated to reduce costs and increase efficiency[.]” Id. at 123. At issue in this case was whether the employer failed to show reasonable cause for its refusal to rehire Swenson and if LIRC applied an unreasonable interpretation of § 102.35(3),, or based its conclusion on findings of fact that were not supported by credible and substantial evidence in the record.
The summary of this case’s evolution is long and somewhat complex but the Supreme Court ultimately took issue with LIRC’s finding that the employer violated the unreasonable refusal to rehire statute when it refused to change one of its policies for the employee-respondent. Specifically, the employee worked the graveyard shift because of his ailing father’s needs and when the employer required an overnight check-ride, the employee-respondent requested an accommodation to complete the check-ride, which the employer refused to do. LIRC found the employer’s unwillingness to accommodate the employee-respondent troubling and therefore found it reasonable to infer that Swenson’s injury played a role in deBoer’s refusal to rehire Swenson.
In reaching it’s decision, the Supreme Court noted that there is no accommodation requirement present in the worker’s compensation statute like there is in the Wisconsin Fair Employment Act (WFEA) (§ 111.34(1)(b)). Under § 111.34(1)(b), employers are required to make reasonable accommodations for employees with disabilities. See, e.g., Crystal Lake, 264 Wis. 2d 200.
The case also highlights the numerous unsettled issues surrounding the unreasonable refusal to rehire statute which are worth a read. The case is DeBoer Transportation v. Swenson, Docket: 2009AP000564 07-12-11.