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315 Preemption issues

Employers must abide by the Wisconsin FMLA regardless of an employee’s immigration status. Once employed, employees have the right to take medical leave for the period during which a serious health condition renders them unable to perform their employment duties. An employer that terminates an employee based on the exercise of his or her right to take medical leave has violated the Wisconsin FMLA and is subject to liability. Nonetheless, the Division may consider an employee’s undocumented status in tailoring the remedy in such cases. Burlington Graphic Sys., Inc. v. Dep't Workforce Dev., Equal Rights Div. (Ct. of App., 12/23/14).

The Wisconsin Family and Medical Leave Act is preempted by ERISA when it is applied to (i) mandate employee benefit structures; (ii) interfere with nationally uniform plan administration; and/or (iii) create alternative enforcement mechanisms for the recovery of benefits provided under an ERISA plan. Where the Wisconsin FMLA required the payment of STD benefits contrary to the terms of the employer-Respondent’s nationally administered plan, ERISA thus preempted it on all three of the above-listed bases. Nationwide Mutual Ins. Co. v. DWD (6th Cir. Sept. 30, 2014) (unavailable online).

A City's ordinance requiring that its employees be paid sick leave is not preempted by Wisconsin's Family/Medical Leave Act, Wis. Stat. §103.10; Wisconsin's Minimum Wage law, Wis. Stat. ch. 104; or Wisconsin's Workers Compensation Act, ch. 102. The text of Wisconsin's Family/Medical Leave Act does not logically conflict with the city ordinance, and there is nothing in Wisconsin's Family/Medical Leave Act which prohibits employers from providing medical leave benefits which are more generous than those provided under the statute. Metro Milwaukee Association of Commerce, Inc. v. City of Milwaukee, 2011 WI App 45, 332 Wis. 2d 459, 798 N.W.2d 287.

The Wisconsin Family and Medical Leave Act is not preempted by ERISA. Aurora Medical Group v. DWD, 2000 WI 70, 236 Wis. 2d 1, 612 N.W.2d 646.

A claim under the Wisconsin Family and Medical Leave Act challenging an employer’s refusal to allow an employee to substitute her paid sick leave for the six weeks of unpaid family leave provided for by sec. 103.10(5)(b), Stats., is not preempted by sec. 301 of the federal Labor Management Relations Act. The collective bargaining agreement in this case unambiguously provided for reserve paid sick leave to be accumulated by the employees governed by the agreement. It was not necessary to interpret this unambiguous provision of the collective bargaining agreement. It was clear that the Respondent provided the type of substituted leave that the employee requested under the Family and Medical Leave Act. Nor was it necessary to interpret the agreement in order to determine whether the reserve paid sick leave had accrued to the Complainant. Miller Brewing Co. v. DILHR, 210 Wis. 2d 26, 563 N.W.2d 460 (1997).

Congress intended, through passage of the Federal Family and Medical Leave Act, to restrict ERISA from preempting laws such as the Wisconsin Family and Medical Leave Act. In this case, the Complainant filed a complaint with the Equal Rights Division alleging that the Respondent had violated the Wisconsin Family and Medical Leave Act when it denied her request to substitute paid sick leave for unpaid statutory leave she had taken to care for her sick father. The Respondent sought to have the case removed to federal court. However, since the Complainant’s action under the Wisconsin Family and Medical Leave Act was not preempted by ERISA, removal to federal court was not appropriate. Bean v. Aid Ass'n for Lutherans (E.D. Wis., 07/17/95).

The Respondent's self-funded disability plan was not an “employee benefit plan” within the meaning of ERISA and, therefore, the substitution provision of the Wisconsin Family and Medical Leave Act was not preempted by ERISA. The Respondent's plan was a “payroll practice” within the meaning of sec. 29 C.F.R. 2510.3-1(b)(2). Phase I of the Respondent’s disability plan addressed short-term disability leave such as the Complainant in this case sought. Further, the leave time the Complainant was entitled to was definite and calculable. The Complainant had accrued enough time for the leave he sought, and he was entitled to substitute that leave for unpaid leave under the Act. Northwestern Mutual Life Ins. Co. v. DILHR (Milwaukee Co. Cir. Ct., 01/16/95), aff’d., Ct. App., Dist. I, 06/12/98.

The Respondent attempted to remove a charge filed under the Family and Medical Leave Act to federal court claiming preemption under § 301 of the Labor Management Relations Act of 1947. The case was remanded to the Department because a claim based on the FMLA is not a claim founded directly on rights created by the collective bargaining agreement and no analysis of the collective bargaining agreement was necessary. Leher v. Consol. Papers Co., 786 F. Supp. 1480 (W.D. Wis., 1992).