834.3 Remedies for loss of compensation and benefits not incident to termination

The remedy provided in this case does not include payment of the costs of the health care that would have been paid by the insurance the Complainant would have had, because she did not take reasonable steps to mitigate her loss by attempting to obtain insurance comparable to that by which she would have been covered if the Respondent had not discriminated against her. Hill v. Stanton Optical (LIRC, 09/26/14), dismissed by stipulation sub nom. Stanton Optical v. LIRC and (Hill) Martin (Dane Co. Cir. Ct. 08/17/15).

The Respondent discriminated against the Complainant in compensation on the basis of disability by failing to pay her for hours worked. Because, however, it was clear that the underpayment of wages was the subject of a separate wage and hour complaint which had been settled with a payment to the Complainant, the Complainant was not entitled to any monetary relief on her discrimination complaint. Even though there was no evidence that the Complainant executed a release of her discrimination claim when she accepted the settlement of the wage claim, the Complainant is not entitled to a second recovery for the same underpayment. Schloemer v. Cupola House (LIRC, 06/14/13).

Had the Complainant not been discharged, he would have continued to receive health insurance and pension contributions. The Complainant does not have the burden to establish the specific cost of his health care or the value of his pension benefits at the hearing. Those are matters the parties can resolve during the compliance phase of the litigation. Smith v. Wis. Bell (LIRC, 04/19/12).

The Complainant was not entitled to compensation for loss of paid vacation because such a loss was not financial. If someone was entitled to 52 weeks of back pay and would have been eligible for two weeks of paid vacation with the employer that discharged him, the fact that the Complainant may not have been entitled to any paid vacation with a subsequent employer was a non-financial loss that could not be quantified and remedied. The Complainant would have received back pay for the entire period including the controverted two weeks and would have lost only the vacation; i.e., the right not to have worked for the controverted two weeks of pay. Holbrook v. Coffee Sys. (LIRC, 04/10/92).

It would go beyond the boundaries of the Act to award a cash payment in lieu of restoration of sick leave and vacation days. Ray v. UW-La Crosse (Wis. Pers. Comm’n, 07/07/83).

Where an employer had an informal policy of paying employees for sick leave except for pregnancy-related absences, an employee disabled for 37 days because of her pregnancy was awarded sick pay for 30 days, the use of vacation time for the remainder of the days, and was credited with vacation time where she would not have had to use vacation time had she been treated like employees with other temporary disabilities. Payrow-Ouia v. Marshall & Ilsley (LIRC, 05/15/79).

An unlawfully discharged firefighter was entitled to all the benefits he would have received absent the discrimination, including outside part-time earnings, lost medical expenses incurred after his health insurance coverage lapsed and veteran's benefits he would have received if he had been allowed to complete his probationary period. Berndt v. City of Wis. Rapids (DILHR, 12/01/76), aff’d sub nom. City of Wis. Rapids v. DILHR (Wood Co. Cir. Ct., 08/23/77).