370 Remedies

It was within the Division’s discretion to award only attorney’s fees and costs, and no back pay, where it found that the Respondent had violated the Wisconsin Family Medical Leave Act by discharging the Complainant, but the Complainant was undocumented. Burlington Graphic Sys., Inc. v. Dep't Workforce Dev., Equal Rights Div. (Ct. of App., 12/23/14).

The Complainant was not entitled to an award of back pay where he misused part of his family leave by markedly increasing the number of hours he worked for a second employer. Rabehl v. DILHR (Dodge Co. Cir. Ct., 03/20/95).

A Respondent's ad hoc rule prohibiting the Complainant from working during the Respondent's normal working hours while he was on family leave was a violation of the Wisconsin Family and Medical Leave Act. The Respondent's termination of the Complainant for violation of this unwritten rule was also a violation of the Act. Rabehl v. DILHRM (Dodge Co. Cir. Ct., 03/20/95).

A constructive discharge is not a prerequisite for reinstatement or back pay under the Wisconsin Family and Medical Leave Act. However, the fact that an employee voluntarily quit his or her employment with an employer is an appropriate factor for the Department to consider in determining whether the employee mitigated his or her damages. Marten Transport v. DILHR, 176 Wis. 2d 1012, 501 N.W.2d 391 (1993).

The term "actual attorney's fees" in sec. 103.10(12)(d), Stats., does not preclude an award when a successful Complainant is represented by a nonprofit legal organization. Richland Sch. Dist. v. DILHR, 174 Wis. 2d 878, 498 N.W.2d 826 (1993).

A Complainant may recover attorney's fees for successful representation in the Circuit Court and the Court of Appeals on review of the department's order. Richland Sch. Dist. v. DILHR, 174 Wis. 2d 878, 498 N.W.2d 826 (1993).

The Department may order an employer who violates the Family and Medical Leave Act to reinstate the employee and pay the employee back pay plus reasonable actual attorney's fees. Although the Act does not expressly provide that back pay awards are to be reduced by interim earnings or amounts earnable with reasonable diligence, the principles of mitigation of lost wages should apply in cases arising under the Act. Kelley Co. v. Marquardt, 172 Wis. 2d 234, 493 N.W.2d 68 (1992).

The Family and Medical Leave Act does not state that constructive discharge is a requirement for reinstatement or back pay. The fact that an employee voluntarily quit her employment with an employer is an appropriate factor for the Department to consider in determining whether the employee mitigated her damages. Not all voluntary terminations constitute a lack of reasonable diligence. On remand the Department must determine whether the employee acted reasonably in quitting after her return from family leave. Kelley Co. v. Marquardt, 172 Wis. 2d 234, 493 N.W.2d 68 (1992).

The statutory provision that DILHR is authorized to order the payment of "reasonable actual attorney's fees to the Complainant" is not ambiguous and must be given its ordinary meaning. Therefore, the Administrative Law Judge was not authorized to award attorney's fees to the Complainants and the Complainants' attorneys because the attorneys were employed by WEAC, and no fees were charged to the Complainants. Sch. Dist. of River Falls v. DILHRM (Pierce Co. Cir. Ct., 10/03/91).

Only one forfeiture of $100.00 should be assessed against an employer for failing to post notice of the Family and Medical Leave Act, even though two employees brought suit against the employer alleging a violation of the posting requirement. Sch. Dist. of River Falls v. DILHR (Pierce Co. Cir. Ct., 10/03/91).

Sec. 103.10(12)(d), Wis. Stats., does not authorize reimbursement to the Complainant for wages lost during the litigation of her case. Waukesha County Dep't of Human Resources v. DILHR (Caldwell) (Waukesha Co. Cir. Ct., 06/05/91).