831.41 Unconditional offer of reinstatement

A valid offer of reinstatement will end the accrual of back pay. To be valid, an offer of reinstatement must be specific and unconditional. It must be for the same position, or a substantially equivalent position. Further, the employee must be afforded a reasonable time to respond to the offer of reinstatement. In addition, the offer should come directly from the employer or its agent who is authorized to hire and fire, rather than from another employee or other unauthorized individual. In this case, there was no indication what type of job the Respondent’s attorney had discussed with the Complainant prior to the hearing. Further there was some suggestion that there was some impediment as a reason for the Complainant’s unwillingness to go back to work for the Respondent. Further, the record failed to disclose whether the Respondent’s attorney had the authority to make an offer of reinstatement to the Complainant. Therefore, the Complainant’s statement prior to the hearing that he declined to return to the job did not cut off his back pay as of the date of the hearing. Goldsworthy v. Elite Marble (LIRC, 10/15/04).

A valid offer of reinstatement terminates the accrual of the employer’s backpay obligation. The offer of reinstatement must be for the same position or a substantially equivalent position. “Substantially equivalent” employment means employment that affords virtually identical promotional opportunities, compensation, job responsibilities, working conditions and status. Ramos v. Stoughton Trailers (LIRC, 08/16/01).

The Respondent’s offer to reinstate the Complainant to a second shift supervisor position (as opposed to the first shift position the Complainant had previously held) tolled the Respondent’s backpay liability. There was no evidence to establish that the working conditions on the second shift were worse on the day shift. The Respondent’s practice has been to transfer supervisors to different shifts and plants. The Complainant had been transferred to another plant before. There was a good chance, due to changes in the Respondent’s operations, that had the Complainant’s employment not been terminated he would have been assigned to a different plant location anyway. A travel distance of twenty-six miles to work does not appear to be an unreasonable distance for the Complainant to travel to work. The Complainant’s position is not a unique position. Finally, requiring the Respondent to reinstate the Complainant to his former position would likely have required the displacement of another employee at that location. Ramos v. Stoughton Trailers (LIRC, 08/16/01).

The Respondent’s offer to reinstate the Complainant did not end the accrual of the Complainant’s back pay period where the offer of reinstatement was made with the condition that the Complainant withdraw her complaint. Cintron v. Phil Wrobbel Serv. Corp. (LIRC, 04/29/96).

A Respondent's liability for back pay terminates at the point a Complainant waives an offer of reinstatement. The Complainant in this case had been constructively discharged by the Respondent when she quit after being subjected to unlawful sexual harassment. The Complainant testified at hearing that she did not want reinstatement and that she could not go back to work for the Respondent. The Complainant's testimony amounted to an unequivocal waiver of reinstatement and the Respondent’s liability for back pay ended as of that date. Miller v. Oak-Dale Hardwood Prod. (LIRC, 12/13/94), remanded on other grounds sub nom. Oak-Dale Hardwood Prod. v. LIRC (Pierce Co. Cir. Ct., 02/16/96).

In order to toll the accrual of back pay, an offer of reinstatement must be for the same position, or a position which is substantially equivalent to the position that the employee held prior to the alleged discriminatory act. In a Wisconsin Family and Medical Leave Act case, Kelley Co. v. Marquardt, the Wisconsin Supreme Court stated that comparability in salary is only one factor to be considered in determining whether a new position was substantially equivalent to the employee’s previous position, and that comparability in status is another important factor. In this case, the Respondent made a valid offer of reinstatement to the Complainant when it offered him a punch press operator position, which was not substantially different from the position of large press set-up person that the Complainant had worked in prior to his discharge. Because the positions were substantially equivalent, the Complainant's failure to accept the offer of reinstatement constituted a failure to mitigate his damages. The Respondent’s reinstatement offer tolled the accrual of back pay as of the date of the Complainant's refusal to accept the position. Woltman v. Atlas Metal Parts Co. (LIRC, 01/07/94).

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 Complainant's entitlement to back pay was extinguished by her failure to accept an unconditional offer of reemployment communicated directly to her by the Respondent. An offer of reemployment does not need to be accompanied by an offer to make the Complainant whole for all financial losses in order to be "unconditional." It may leave the question of back pay and similar remedies entirely uncovered. All that is necessary is that it offer employment, unconditioned on any requirement that the employee abandon her right to pursue further remedies. Frostman-Messier v. Nancy Lee Employment Agency (LIRC, 02/22/91).

Back pay liability ends at the time the employer's valid offer of reinstatement is rejected. To be valid, the offer must: 1) be for the same or a substantially similar position; 2) be unconditional; 3) afford the Complainant a reasonable time to respond; and 4) be made directly by the employer or agent authorized to hire and fire. A Complainant's rejection of an offer because she was happily working elsewhere does not waive the requirement that the offer be unconditional. Anderson v. LIRC, 111 Wis. 2d 245, 330 N.W.2d 594 (1983).