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313 Statute of limitations

In a case under the Wisconsin Family and Medical Leave Act, the Respondent should be given an opportunity to show good cause for failing to raise the statute of limitations defense in a timely filed answer before the Department makes a finding that the affirmative defense has been waived. Manor Healthcare Corp. v. DILHR (Dane Co. Cir. Ct., 05/12/94).

Where the Complainant alleged that the Respondent had violated the Wisconsin Family and Medical Leave Act by failing to reinstate him to his former position following his family leave, the complaint was timely even though it was filed more than 30 days after the Complainant's family leave ended. After the Complainant took family leave, he was on administrative leave, and then he used personal holiday or vacation time before returning to work. Sec. 103.13(8), Stats., provides that an employer shall place the employee in his former employment position when the employee returns from family leave. The statute refers to an employee who returns from leave, rather than an employee who has completed their family leave. Boinski v. UW-Milwaukee (Wis. Pers. Comm'n, 04/19/93).

A claim under the Family and Medical Leave Act must be brought within 30 days after a violation accrues or a cause of action has accrued. In this case, sufficient information concerning the medical circumstances surrounding the Complainant's absence from work was given to the Respondent before the date of the Complainant's discharge for a violation of the Act to have accrued. Therefore, the alleged violation occurred on the date when the Respondent discharged the Complainant. Jicha v. DILHR, 169 Wis. 2d 284, 485 N.W.2d 256 (1992).

The Respondent had an open-door policy which provided a post-termination procedure whereby an employee could seek reinstatement. The Respondent's review procedure was a post-termination procedure, rather than part of the termination decision-making process. Therefore, the essential facts supportive of a claim under the Family and Medical Leave Act reasonably should have been apparent to the Complainant when he received his termination letter. The 30-day statute of limitations began running on that date. Jicha v. DILHR, 169 Wis. 2d 284, 485 N.W.2d 256 (1992).