316 Miscellaneous

The definition of employee under the Wisconsin Fair Employment Act includes undocumented workers. Burlington Graphic Sys., Inc. v. Dep't Workforce Dev., Equal Rights Div. (Ct. of App., 12/23/14).

Where the Complainant had already been granted and exhausted all his state family medical leave and remained off of work on unpaid leave at the time the Respondent canceled his health care benefits for non-payment, there was no basis in law for his claim that the Respondent interfered with, restrained or denied him the exercise of a right under the Wisconsin Family and Medical Leave Act. Carrington v. Milwaukee County Transit Sys. (ALJ Decision, 07/31/14).

The Complainant had the right to take family leave in relation to the adoption of his stepdaughter under sec. 103.10(3)(b)2., Stats., even though the Complainant’s stepdaughter had been living with him for several years at the time of the adoption. Sec. 103.10(b)2., Stats., provides that family leave is allowed for “placement of a child with the employee for adoption.” Since “placement of a child for adoption” is distinguished from “placement of a child with the employee… is a precondition to adoption under s. 48.90(2), Stats.,” it would appear that a reasonable construction of the statute is that placement “for adoption” is something different than placement “as a precondition to adoption,” and that placement “for adoption” relates to the adoption itself. Leavens v. Crown Cork & Seal (ALJ decision, 10/02/08).

Both federal and Wisconsin regulations establish twelve-month periods for when medical leave may be taken, but they differ on what that time period means. The federal law allows employers to choose between four methods of calculating twelve-month periods applicable to FMLA leave. However, these federal FMLA rights are subject to exceptions required by State or local governments regarding their own leave provisions. The Wisconsin Family and Medical Leave Act provides that no employee may take more than two weeks of medical leave during a twelve-month period (sec. 103.10(4), Stats). The administrative rules applying the Wisconsin Family and Medical Leave Act require that twelve-month periods governing leaves under that Act are calendar years. (Sec. DWD 225.01(1)(m), Wis. Adm. Code). Accordingly, employees in Wisconsin are governed by a calendar year method regarding any leave time under the Wisconsin FMLA. Berg v. DWD (Ct. App., Dist. III, unpublished opinion, 01/23/07).

Sec. 103.10(11), Stats., provides that no person may interfere with, restrain or deny the exercise of any right provided under the Wisconsin Family and Medical Leave Act. The statute does not suggest that a violation can exist only if the person interfering with the leave has acted on some improper motive. The employer’s motive is irrelevant. To prevail, a Complainant need only establish that he was entitled to a right under the Act, and that the employer interfered with or denied that right. Hull v. PFS Corp. (ALJ decision, 04/07/06).

The Complainant wanted to take leave to care for her mother-in-law, but her mother-in-law died before the leave was taken. The Wisconsin Family and Medical Leave Law does not apply to funeral leave. The Respondent did not violate the law when it charged the Complainant with an absence for taking one more day of funeral leave than the Respondent allowed under its policy. Frank v. US Bank (ALJ Decision, 12/04/03).

An employee’s adult son may be a “child” for purposes of the Wisconsin Family and Medical Leave Act. Racine Co. v. DWD (Racine Co. Cir. Ct., 08/15/00).

With respect to allegations of “retaliation” under the Wisconsin Family and Medical Leave Act, sec. 103.10(11)(b), Stats., provides protection for individuals who have opposed a practice prohibited under the Act. The term “opposing” has been used to describe informal self-help activities in opposition to a practice of an employer without actual resort to a government agency. Violations of Sections 103.10(11)(a) or (b) of the Family and Medical Leave Act are expressly made subject to the remedial procedures of the Act itself. The Labor and Industry Review Commission has no jurisdiction in these cases. These cases are subject to review in circuit court. However, sec. 103.10(11)(c) of the Family and Medical Leave Act provides that sec. 111.322(2m) of the Wisconsin Fair Employment Act applies to discharge or other discriminatory acts arising in connection with any proceeding under the Act. A “proceeding” does not exist unless there has been some kind of resort to a governmental agency charged with enforcement of that right. Employer retaliation cases relating to Section 103.10 of the Family and Medical Leave Act of the type listed under sec. 111.322(2m) of the Fair Employment Act are appealable to the Labor and Industry Review Commission rather than to circuit court. Kayler v. Stoughton Trailers (LIRC, 10/27/97).

The Wisconsin Family and Medical Leave Act prohibits discharging or discriminating against an individual for opposing a practice prohibited under the Act. Other kinds of retaliation relating to the Family and Medical Leave Act are now defined as discrimination under the omnibus anti-retaliation provision of the Wisconsin Fair Employment Act, sec. 111.322(2m), Stats. Roncaglione v. Peterson Builders (LIRC, 08/11/93), aff’d., sub nom. Roncaglione v. LIRC (Dane Co. Cir. Ct., 05/06/94).

A Complainant's claim under the Wisconsin Family and Medical Leave Act was precluded by the compromise of her worker’s compensation claim. Because the Complainant settled her worker’s compensation claim, she is estopped from asserting in a Family and Medical Leave Act case that her injury (depression) was not work-related. Because the Complainant sustained her injury under the conditions enumerated in sec. 102.03(1), Stats., the compensation provided by the Worker’s Compensation Act is her exclusive remedy. Consequently, the Complainant cannot recover on a theory that she was terminated at a time when she should have been permitted to take a medical leave. Finnell v. DILHR, 186 Wis. 2d 187, 519 N.W.2d 731 (Ct. App. 1994). [Ed. note: In Byers v. LIRC, 208 Wis. 2d 388, 561 N.W.2d 678 (1997), the Supreme Court overruled Finnell to the extent that it stands “for the proposition that ‘(t)he right of the employee to recover compensation provided for by worker’s compensation is exclusive of all remedies against the employer’.” (emphasis included)]. The same absence for medical reasons can be both a medical leave under the Wisconsin Family and Medical Leave Act and sick leave under a collective bargaining agreement. An employee is not required to choose whether to file a grievance under the applicable collective bargaining agreement or to file a charge under the Family and Medical Leave Act when the employee is denied leave for health reasons. Janssen v. DOC (Wis. Pers. Comm'n, 10/20/93).

The Family and Medical Leave Act should be liberally construed because it is remedial in nature. The legislature intended employee leave rights to be expansive, not limited. Butzlaff v. Wis. Pers. Comm'n, 166 Wis. 2d 1028, 480 N.W.2d 559 (Ct. App. 1992).