390 Procedural matters; judicial review

ALJ's may rely upon federal law when interpreting "interference" claims under the WFMLA. To succeed on a federal FMLA claim (and therefore the WFMLA), an employee must prove that the employer interfered with the employee's exercise of FMLA rights and that the interference "prejudiced" the employee. To demonstrate "prejudice," an employee must show that he or she lost compensation or benefits because of a violation, sustained a monetary loss because of the violation, or suffered some loss in employment status. The Complainant failed to establish that he was prejudiced by the Respondent's actions. While the WFMLA requires employers to post notices of the employees' rights under the WFMLA, the WFMLA does not require employers to verbally inform employees of their rights under the WFMLA. An employer does not violate the WFMLA by erroneously requiring an employee to complete a form when the employee is not prejudiced by that requirement. Soulek v. Costco Wholesale (ALJ Decision, 04/15/2020), aff'd sub nom. Soulek v. Dept. of Workforce Development, Equal Rights Div. (Brown Co. Cir. Ct. 03/03/2021).

LIRC has authority to review decisions of the Equal Rights Division ("ERD") alleging violations of the Wisconsin Fair Employment Act. It does not have authority to review ERD decisions regarding alleged violations of the Wisconsin Family Medical Leave Act ("WFMLA"), or to give any initial consideration to such allegations. Likewise, LIRC does not have authority (nor does the ERD) to entertain claims under the federal FMLA. Rybak v. Wis. Physicians Serv. (LIRC, 05/31/2013).

When no party seeks judicial review of an Administrative Law Judge’s decision, an employee has sixty days from the date the thirty-day period for judicial review ends to file an action for damages in circuit court under sec. 103.10(13)(b), Stats. Hoague v. Kraft Foods Global, 2012 WI App 130, 344 Wis. 2d 749, 824 N.W.2d 892.

There is no implied right to a jury trial in a civil action for damages under the Family and Medical Leave Act. Harvot v. Solo Cup, 2009 WI 85, 320 Wis. 2d 211, 768 N.W.2d 176.

Delaying the approval of FMLA leave and the right to substitution may, in some circumstances, result in a denial, restraint, or an interference with an employee’s rights under the Wisconsin Family and Medical Leave Act. Therefore, the Respondent’s motion to dismiss the complaint in this matter for failure to state a claim upon which relief could be granted under the Act was denied. Burnick v. AT&T Serv. (ALJ Decision, 04/14/06).

In requesting that the record be held open to allow for the filing of a transcript and post-hearing briefs, the parties waived the provision in sec. 103.10(12)(d), Stats., which provides that a decision should be issued within 30 days after the hearing. McKee v. Rock-Tenn (ALJ Decision, 04/04/03).

In sec. 103.10(7)(c), Stats., the scope of a “second opinion” medical examination is expressly limited to the matters enumerated in sec. 103.10(7)(b), Stats., all of which directly relate to the serious health condition at issue in the case, and to what extent it prevented the employee from being able to perform his or her job. Accordingly, the Administrative Law Judge disregarded those portions of a doctor’s report that delved into aspects of the Complainant’s health history which were not shown to relate to the Complainant’s serious health condition at issue in the case. McKee v. Rock-Tenn (ALJ Decision, 04/04/03).

Only employees who are successful in the required administrative proceedings and judicial review may bring an action for damages in court under sec. 103.10(13), Stats. Butzlaff v. DHFS, 223 Wis. 2d 673, 590 N.W.2d 9 (Ct. App. 1998).

Decisions resulting from an administrative proceeding concerning the Family and Medical Leave Act are those of DILHR rather than of a single hearing examiner. Therefore, administrative decisions concerning the Family and Medical Leave Act are governed by the same rules concerning agency discretion as are applied in other cases dealing with the scope of deference which should be given to conclusions of law and statutory interpretation in agency decisions. The Department has developed considerable specialized knowledge in administering similar discrimination laws. Therefore, the Department's decision is entitled to great weight and should be affirmed if reasonable. Jicha v. DILHR, 169 Wis. 2d 284, 485 N.W.2d 256 (1992).

The de novo standard of review is appropriately applied to conclusions of law by a single hearing examiner interpreting sec. 103.10, Stats. MPI Wis. Machining Div. v. DILHR, 159 Wis. 2d 358, 464 N.W.2d 79 (Ct. App. 1990); Haas v. DILHR, 166 Wis. 2d 288, 479 N.W.2d 229 (Ct. App. 1991).