Riech, 113018 WIWC, 2016-029538
|Case Date:||November 30, 2018|
Any employer who without reasonable cause refuses to rehire an employee who is injured in the course of employment, when suitable employment is available within the employee's physical and mental limitations, upon order of the department or the division, has exclusive liability to pay to the employee, in addition to other benefits, the wages lost during the period of such refusal, not exceeding one year's wages. In determining the availability of suitable employment the continuance in business of the employer shall be considered and any written rules promulgated by the employer with respect to seniority or the provisions of any collectivebargaining agreement with respect to seniority shall govern.As the court of appeals noted in Dielectric Corp. v. LIRC, the practical effect of the statute is to modify the employment-at-will doctrine in Wisconsin. “Normally, in an employment at will situation, the burden is on the employee to show bad faith on the part of the employer”; however, the court held:
Under [Wis. Stat. § 102.35(3)], once the employee has suffered a worker's compensation injury, the question initially becomes: does the employer have good cause not to rehire. If the employee is rehired, the rehiring cannot be a pro forma rehiring. Therefore, if there is an eventual discharge, the employer must show that there is no bad faith on its part to evade this statute and that the rehired employee was discharged with good cause.The Dielectric court further held that Wis. Stat. § 102.35(3) applies to unreasonable discharges after a return to work following a work injury, as well as simple failures to rehire.
Under this approach, the employee must first make a prima facie case of an unreasonable failure to rehire. It is undisputed that as part of the prima facie case, the employee must show that: (1) the claimant was an employee of the employer from which he or she seeks benefits; (2) the claimant was injured in the scope of employment; and (3) subsequent to the injury, the employer refused to rehire the employee. …
* * *
…when the employee brings forth facts that support all the elements of a prima facie case, the burden shifts to the employer to show reasonable cause for its refusal to rehire the claimant. [citations omitted] We have defined “reasonable cause” under Wis. Stat. § 102.35(3) to mean that “an employer, if there is suitable employment available, can  refuse to rehire [only] for a cause or reason that is fair, just, or fit under the circumstances.” West Allis, 116 Wis.2d at 426.The purpose of the statute is “to prevent...
To continue readingFREE SIGN UP