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The Wisconsin Equal Rights (ER) Decision Digest -- Sections 300-560     

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300 FAMILY AND MEDICAL LEAVE ACT (FMLA) (Sec.103.10, Stats.)

     310  Coverage and Application, Generally
     320  Definition of "serious health condition"
     330  Right to substitute leave
     340  Notice to the employer
     350  Return to equivalent position after leave
     360  Taking partial leave and related issues
     370  Remedies
     380  Cases
     390  Procedural matters; judicial review

310 Coverage and application, generally

311 Number of employes

The State is to be considered one employer for the purposes of the Wisconsin Family and Medical Act. The Complainant’s employment for two state agencies should, therefore, be considered as work for one employer. Butzlaff v. DHSS (Wis. Personnel Comm., 09/19/90); rev’d on other grounds sub nom. Butzlaff v. Wis. Personnel Comm. (Dane Co. Cir. Ct., 04/23/91); aff’d, 166 Wis. 2d 1028, 480 N.W.2d 559 (Ct. App. 1992).

The Family and Medical Leave Act applies to all employers engaged in business in Wisconsin as long as they employ at least fifty people, regardless of their location. Benefit Trust Life Ins. v. DILHR (Milwaukee Co. Cir. Ct., 12/17/90).

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312 Length of employment

The requirement in sec. 103.10(2)(c), Stats., that an employe be employed by the same employer for more than 52 consecutive weeks during the preceding 52-week period must be liberally construed. The 52 consecutive weeks need not be the weeks immediately preceding those in which the employe requests family or medical leave. Butzlaff v. Wisconsin Personnel Comm., 166 Wis. 2d 1028, 480 N.W.2d 559 (Ct. App. 1992).

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313 Statute of limitations

In a case under the Wisconsin Family and Medical Leave Act, the Respondent should be given an opportunity to show good cause for failing to raise the statute of limitations defense in a timely filed answer before the Department makes a finding that the affirmative defense has been waived. Manor Healthcare Corp. v. DILHR (Dane Co. Cir. Ct., 05/12/94).

Where the Complainant alleged that the Respondent had violated the Wisconsin Family and Medical Leave Act by failing to reinstate him to his former position following his family leave, the complaint was timely even though it was filed more than 30 days after the Complainant's family leave ended. After the Complainant took family leave, he was on administrative leave, and then he used personal holiday or vacation time before returning to work. Sec. 103.13(8), Stats., provides that an employer shall place the employe in his former employment position when the employe returns from family leave. The statute refers to an employe who returns from leave, rather than an employe who has completed their family leave. Boinski v. UW-Milwaukee (Wis. Personnel Comm., 04/23/93).

A claim under the Family and Medical Leave Act must be brought within 30 days after a violation accrues or a cause of action has accrued. In this case, sufficient information concerning the medical circumstances surrounding the Complainant's absence from work was given to the Respondent before the date of the Complainant's discharge for a violation of the Act to have accrued. Therefore, the alleged violation occurred on the date when the Respondent discharged the Complainant. Jicha v. DILHR, 169 Wis. 2d 284, 485 N.W.2d 256 (1992).

The Respondent had an open door policy which provided a post-termination procedure whereby an employe could seek reinstatement. The Respondent's review procedure was a post-termination procedure, rather than part of the termination decision-making process. Therefore, the essential facts supportive of a claim under the Family and Medical Leave Act reasonably should have been apparent to the Complainant when he received his termination letter. The 30-day statute of limitations began running on that date. Jicha v. DILHR, 169 Wis. 2d 284, 485 N.W.2d 256 (1992).

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314 Posting requirement

The notice-posting provision in the Family and Medical Leave Act requires an employer to post a notice in a conspicuous location where employee notices are customarily posted, but it does not require an employer to ensure that every employee actually reads the notice. Muck v. Humana Employers Health Ins. (ALJ Decision, 07/27/03).

The Respondent’s posting of the Family and Medical Leave Act notice met the requirements of the law when it posted the notice in a common break room shared by employees from all areas of the building. The fact that the Complainant may not have chosen to read the notices posted on the bulletin board was not the Respondent’s failing, but the Complainant’s. Therefore, the statute of limitations was not tolled. Javenkoski v. DOT (Wis. Personnel Comm., 08/28/00).

The Wisconsin Family and Medical Leave Act requires employers to post readily visible notices in a place where employes could reasonably expect notices to be placed. In-Sink-Erator v. DILHR, 200 Wis. 2d 770, 547 N.W.2d 792 (Ct. of App. 1996).

The Complainant did not have standing to raise the issue of the employer's failure to post notice of the Family and Medical Leave Act because the Complainant knew his rights and was not prejudiced in any way by the employer's failure to post the notice. Zuech v. DILHR (Eau Claire Co. Cir. Ct., 07/02/93).

Where the employer did not post the required notice under sec. 103.10(14)(a), Stats., a general admission by the employes that they gained knowledge of the Act is not an admission that they specifically knew of the 30-day time limit claim provision. School District of River Falls v. DILHR (Pierce Co. Cir. Ct., 10/03/91).

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315 Preemption issues

The Wisconsin Family and Medical Leave Act is not preempted by ERISA. Aurora Medical Group v. DWD, ERD and Meyers, 2000 WI 70, 236 Wis. 2d 1, 612 N.W.2d 646.

A claim under the Wisconsin Family and Medical Leave Act challenging an employer's refusal to allow an employe to substitute her paid sick leave for the six weeks of unpaid family leave provided for by sec. 103.10(5)(b), Stats., is not preempted by sec. 301 of the federal Labor Management Relations Act. The collective bargaining agreement in this case unambiguously provided for reserve paid sick leave to be accumulated by the employes governed by the agreement. It was not necessary to interpret this unambiguous provision of the collective bargaining agreement. It was clear that the Respondent provided the type of substituted leave that the employe requested under the Family and Medical Leave Act. Nor was it necessary to interpret the agreement in order to determine whether the reserve paid sick leave had accrued to the Complainant. Miller Brewing Co. v. DILHR and Kozera, 210 Wis. 2d 26, 563 N.W.2d 460 (1997).

Congress intended, through passage of the Federal Family and Medical Leave Act, to restrict ERISA from preempting laws such as the Wisconsin Family and Medical Leave Act. In this case, the Complainant filed a complaint with the Equal Rights Division alleging that the Respondent had violated the Wisconsin Family and Medical Leave Act when it denied her request to substitute paid sick leave for unpaid statutory leave she had taken to care for her sick father. The Respondent sought to have the case removed to federal court. However, since the Complainant's action under the Wisconsin Family and Medical Leave Act was not preempted by ERISA, removal to federal court was not appropriate. Bean v. Aid Association for Lutherans (E.D. Wis., 07/17/95).

The Respondent's self-funded disability plan was not an "employee benefit plan" within the meaning of ERISA and, therefore, the substitution provision of the Wisconsin Family and Medical Leave Act was not preempted by ERISA. The Respondent's plan was a "payroll practice" within the meaning of sec. 29 C. F. R. 2510.3-1(b)(2). Phase I of the Respondent's disability plan addressed short-term disability leave such as the Complainant in this case sought. Further, the leave time the Complainant was entitled to was definite and calculable. The Complainant had accrued enough time for the leave he sought and he was entitled to substitute that leave for unpaid leave under the Act. Northwestern Mut. Life Ins. Co. v. DILHR (Milw. Co. Cir. Ct., 01/16/95), aff'd., Court of Appeals, Dist. I, unpublished summary disposition, 06/12/98.

The Respondent attempted to remove a charge filed under the Family and Medical Leave Act to federal court claiming preemption under 301 of the Labor Management Relations Act of 1947. The case was remanded to the Department because a claim based on the FMLA is not a claim founded directly on rights created by the collective bargaining agreement and no analysis of the collective bargaining agreement was necessary. Leher v. Consolidated Papers Co., 786 F. Supp. 1480 (W.D. Wis., 1992).

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316 Miscellaneous

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. Dept. of Workforce Dev., (unpublished opinion, Ct. App., Dist. III, 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 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).

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 employe 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 employe is denied leave for health reasons. Janssen v. Department of Correction (Wis. Personnel Comm., 10/20/93).

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

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320 Family and Medical Leave Act, Definition of "serious health condition"

A Respondent’s claims manager denied the Complainant’s requests for leave. The claims manager had a paramedic license and fifteen years of experience in occupational medicine. However, there was no evidence that the claims manager was qualified to give the type of “second medical opinion” a Respondent is authorized to seek under sec. 103.10(7)(c), Stats. Rothe v. Oshkosh Truck Corp. (ALJ Decision, 01/30/08).

Where the side effects of a medication prescribed for the treatment of a medical condition render an individual unable to perform his job duties, this is tantamount to the medical condition itself rendering the individual unable to perform his job duties. The fact that the side effects which resulted from taking prescribed medication for a medical condition caused the Complainant to be unavailable for work (rather than the unavailability for work being caused by the medical condition itself) did not deprive the Complainant in this case from coverage under sec. 103.10, Stats. Rothe v. Oshkosh Truck Corp. (ALJ Decision, 01/30/08).

For an employer to ignore the options of obtaining a health care certification or to seek a second opinion and to deny a leave request based on its own doubts about the medical necessity for the leave, puts the employer at risk of being in violation of the Wisconsin Family and Medical Leave Act, if at a later hearing the employee presents sufficient evidence of the medical necessity for the leave. Burton v. UW Hospital & Clinics (ALJ Decision, 11/30/07).

The Wisconsin Family and Medical Leave Act does not provide detailed guidance on what kind of care qualifies as care for a spouse with a serious health condition entitling an employee to take family leave. However, the Act should be liberally construed because it is remedial in nature. In this case, a physician indicated that the Complainant’s husband needed assistance for transportation to receive medical care. Construing the term “care” liberally, transporting someone who cannot transport himself so that that person can get medical treatment is itself a form of care. Therefore, the Complainant was entitled to take family leave. Weekes v. Verizon (ALJ Decision, 05/31/07).

An employer has the right to require medical certification under the Wisconsin Family and Medical Leave Act. When the Complainant provides such certification, the employer has a choice of either: (1) accepting the medical opinion and granting the leave; (2) asking the medical provider or the employee for clarification (if they clearly tell the employee what needs clarification); (3) getting a second opinion at their own expense to challenge the expert medical opinion; or (4) having a lay person review the document to determine if the request for leave substantiates a right to that leave under the Family and Medical Leave Act. A Respondent taking this last option does so at its own peril. A Respondent cannot develop simple rules and apply them to cases irrespective of the medical evidence presented. Each case must be considered on its own merits, with due consideration to the medical opinions expressed in the health care provider certification. In this case, the certification forms from the Complainant's physician clearly showed that the Complainant was entitled to medical leave under the law. The Respondent's lay suspicions and opinions were not credible evidence on the issue of medical necessity or serious health condition. Harvot v. Hoffmaster Solo Cup (ALJ decision, 11/03/06).

The Respondent had the right to request a second medical opinion at its own cost, but it never requested a second opinion in this case. Absent that second opinion, when the medical evidence offered by the Complainant provided sufficient proof of a serious health condition, the Respondent could not simply claim not to believe that medical evidence and deny the Complainant his rights under the Wisconsin Family and Medical Leave Act. Further, while the law requires continuing care for outpatient care, it does not impose a requirement of "recent" care, nor does it place any time limitation on the continuing care as the Respondent in this case did. While most often the continuing care will be recent, there are circumstances where the condition is chronic and is monitored regularly with continuing care that is not closely connected with the employee's absence from work. That absence can still qualify for family leave. Biscontine v. County of Milwaukee (ALJ Decision, 10/07/04).

The Complainant’s kidney infection was serious under any commonly understood meaning of the word "serious." If left untreated, the consequences could very well be life-threatening. However, the term "serious health condition" has been defined as meaning a direct, continuous and firsthand contact by a healthcare provider subsequent to the initial outpatient contact. That did not happen here. The Complainant went to the doctor, who prescribed medication. She was not required to return. Accordingly, the Complainant did not suffer from a serious health condition within the meaning of the Family and Medical Leave Act. Fuchs v. Semling-Menke (ALJ Decision, 09/29/03).

Expert medical opinion is not required under the WFMLA for purposes of showing that an employee’s serious health condition prevented the employee from being able to perform his or her job. A physical condition, such as the recurrent back pain at issue in this particular case, can have overt manifestations that are easily identifiable by laypersons. The Complainant testified credibly that during her episodes of back pain she experienced severe pain when she engaged in the kind of physical activities that she performed on the job, including standing, walking, bending and lifting. Her testimony in that regard was corroborated by her physician’s medical excuses and certification form. This was sufficient proof of the Complainant’s disabling back condition. McKee v. Rock-Tenn (ALJ Decision, 04/04/03).

Sec. 103.10(4)(a), Stats., states that "an employee who has a serious health condition. . .may take medical leave," and sec. 103.10(4)(b), Stats., states that "[n]o employee may take more than 2 weeks of medical leave. . ." (Emphasis added). By contrast, paragraph 103.10(4)(c), Stats., states that "[a]n employee may schedule medical leave as medically necessary." (Emphasis added). The difference in terminology is significant. The use of the word "schedule" suggests that that statutory provision was intended to apply only to situations where an employee is asking to take leave for scheduled or planned medical treatment, not to cases where leave is requested, after the fact, for an absence that arose due to an unplanned medical situation. By contrast, the statutory provisions which refer to the "taking" of leave and make no reference to "scheduled" or "planned" leave, seem to apply more broadly to any type of medical leave, regardless of whether it was planned or unplanned. In this case, the issue of whether the Complainant "scheduled" her leave as "medically necessary" did not arise because this case involved a request for leave made after an unplanned medical situation (i.e., a flare-up of back pain that made the Complainant temporarily unable to perform her job duties). Therefore, the requirement in sec. 103.10(4)(c), Stats., that employees "schedule" leave as "medically necessary" is not applicable to the facts of this case. McKee v. Rock-Tenn (ALJ Decision, 04/04/03).

The Administrative Law Judge concluded that the evidence did not support a finding that the Complainant had a serious health condition where the only evidence regarding her health condition came from the Complainant’s testimony. The Complainant is not a medical expert and is not competent to diagnose that she had a urinary tract infection. Her testimony was unreliable hearsay. There was no competent evidence to establish the reasons for the Complainant’s doctor’s visits, that the two doctor’s visits were related, or even that the Complainant’s medical condition on the days in question made her unable to work. Reinke v. Oshkosh Coil Spring (ALJ Decision, 03/27/03).

The Complainant established that he had a disabling condition. The Respondent contended that the condition did not constitute a serious health condition because it did not require direct, continuous and firsthand contact by a healthcare provider subsequent to the initial outpatient contact. The Complainant was released to return to work after his initial outpatient care. However, he did need to have his stitches removed as part of the continuing care and treatment of his wounds. The single follow-up care visit required by the stitches was sufficient to qualify this as continuous care. These facts establish that the Complainant had a serious health condition within the meaning of the Wisconsin Family and Medical Leave Law. Hornes v. Great Northern Corp. (ALJ Decision, 02/06/03).

No medical expert testimony was required to establish that the Complainant's serious health condition interfered with her ability to perform her work duties because there existed outward or overt manifestations of that fact that were easily recognizable by lay persons. However, expert medical testimony was necessary to establish that her leave was medically necessary because her serious health condition did not manifest symptoms that lay people would recognize as necessitating a leave. (In this case, the Complainant had requested one week of medical leave on the suggestion of her physician, who was providing her psychiatric care for depression.) Sieger v. Wisconsin Personnel Comm., 181 Wis. 2d 845, 512 N.W.2d 220 (Ct. App. 1994).

Routine preventative visits after a mastectomy are covered as medical leave. Wisconsin Gas Co. v. DILHR (Milwaukee Co. Cir. Ct., 01/05/94).

Ongoing pregnancy satisfies the definition of "serious health condition" because it is a physical condition requiring outpatient care both before and after birth. Morning sickness, as a symptom of pregnancy, may be considered a "serious health condition" within the meaning of the Family and Medical Leave Act. Haas v. DILHR, 166 Wis. 2d 288, 479 N.W.2d 229 (Ct. App. 1991).

In order for a serious health condition to be "disabling", it should fall within the dictionary definition which includes incapacitation or the inability to pursue an occupation or perform services for wages because of physical or mental impairment. MPI Wisconsin Machining Div. v. DILHR, 159 Wis. 2d 358, 464 N.W.2d 79 (Ct. App. 1990).

The term "continuing treatment or supervision by a health care provider" contemplates direct, continuous and first-hand contact by a health care provider subsequent to the initial outpatient contact. MPI Wisconsin Machining Div. v. DILHR, 159 Wis. 2d 358, 464 N.W.2d 79 (Ct. App. 1990).

The Complainant did not have a serious health condition where she: (1) experienced difficulty in breathing, (2) was taken to the hospital emergency room, (3) was treated for bronchitis, (4) was released the same day after an unspecified amount of time, and (5) was not told to return for a follow-up visit. The Complainant's condition did not call for outpatient care that required continuing treatment or supervision by a health care provider and her absence from work on this occasion was not covered by the Act. MPI Wisconsin Machining Div. v. DILHR, 159 Wis. 2d 358, 464 N.W.2d 79 (Ct. App. 1990).

The Complainant's five year old son had a serious health condition where he was kept under observation for six hours in the emergency room after suffering a concussion. This was outpatient care that required continuing treatment or supervision by a health care provider entitling the Complainant to take family leave under the Act. MPI Wisconsin Machining Div. v. DILHR, 159 Wis. 2d 358, 464 N.W.2d 79 (Ct. App. 1990).

The Complainant's daughter suffered from a serious health condition when she was hospitalized overnight and part of the following day for high fever and dehydration. MPI Wisconsin Machining Div. v. DILHR, 159 Wis. 2d 358, 464 N.W.2d 79 (Ct. App. 1990).

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330 Family and Medical Leave Act, Right to substitute leave

The Complainant in this case established that she had "accrued" paid sick leave for which she could substitute leave under the Wisconsin Family and Medical Leave Act. Her sick leave benefits arose from a collective bargaining agreement between her employer and her union. The amount of paid sick leave available to her was "specified and quantifiable." Under the terms of the collective bargaining agreement, the Complainant was eligible for 12 weeks of sick leave at full pay and 13 weeks of sick leave at half pay. In addition, her sick leave benefits had a "draw-down feature." (For example, she would have depleted her sick leave benefit entirely if she had been absent for 25 weeks during the fall of 2001 and into the winter of 2002 due to illness. Her sick leave benefits would have renewed only if she had worked a period of 13 consecutive weeks after taking the sick leave). Finally, the Complainant’s sick leave benefits accumulated over time because (1) the amount of leave available to her renewed to the maximum if she worked for 13 consecutive weeks after taking sick leave, and (2) the maximum amount of sick leave available to her increased based on her longevity with the Respondent. Zeigle v. Verizon North (ALJ Decision, 03/14/03).

Once an employee chooses to substitute one type of leave for WFMLA leave under sec. DWD 225.03(1), Wis. Stats., the new leave replaces the WFMLA leave. As a result, only one leave is being used by the employee – the substituted leave. Therefore, only one leave can be reduced. In this case, the Complainant only wanted to take compensatory time off ("CTO") leave. He never requested WFMLA leave. He never checked the WFMLA leave box on the leave request form, and he never discussed WFMLA leave with his employer. He substituted WFMLA leave with CTO leave. The Respondent’s policy treating the Complainant’s leave as both CTO leave and WFMLA leave (regardless of whether the Complainant wanted to or not) is contrary to the Wisconsin Administrative Code. "Substitution" means replacement of one thing by another. "Deem," as used in the administrative rules, means to cause one thing to be treated as if it were something else. Therefore, the Respondent cannot deem the Complainant’s leave to be WFMLA leave by utilizing sec. DWD 225.03(1), Wis. Adm. Code. Only substitution applies under that section. City of Madison Water Util. v. DWD (Dane Co. Cir. Ct., 10/10/02).

The Complainants had accrued sick leave available to them for substitution under sec. 103.10(5)(b), Stats., where their employer’s sick leave benefit met the following criteria: (1) The sick leave benefit arose from the parties’ collective bargaining agreement, (2) the amount of paid sick leave available to a given employee is specified and quantifiable (for example, if an employee has worked for the Respondent for six years, he has ten weeks of sick leave available in a twelve-month period.), (3) the benefit has a "draw-down" feature, by which the amount of available leave decreases as the employee uses it, (4) although there is no leave "carryover" feature, the benefit "accumulates" over time because (a) the amount of leave available renews to the maximum every twelve months, and (b) the maximum amount of leave available increases with an employee’s longevity. The fact that an employee must be sick for several days before receiving paid sick leave benefits does not render the benefit "indefinite" or "incalculable." Once the waiting period requirement is met, the entitlement is clear and the employer may not, in its discretion, deny a request for payment of the benefit. Further, the employer must allow substitution commencing on the first day of family leave. The employer’s sick leave benefit accrues irrespective of the waiting period, and the waiting period requirement is a non-transferring condition when sick leave is substituted for family leave. Kraft Foods v. DWD, 2001 WI App 69, 242 Wis. 2d 378, 625 N.W.2d 658.

The Wisconsin Family and Medical Leave Act gives an employee the unambiguous right to substitute unpaid medical leave under the Act for paid sick leave offered by the employer. Milw. Transport Services v. DWD, 2001 WI App 40, 241 Wis.2d 336, 624 N.W.2d 895.

A claim under the Wisconsin Family and Medical Leave Act challenging an employer's refusal to allow an employe to substitute her paid sick leave for the six weeks of unpaid family leave provided for by sec. 103.10(5)(b), Stats., is not preempted by sec. 301 of the federal Labor Management Relations Act. Miller Brewing Co. v. DILHR and Kozera, 210 Wis. 2d 26, 563 N.W.2d 460 (1997)

To prove a violation of sec. 103.10(5)(b), Wis. Stats., the Complainant must establish that (1) at the time the employee requested leave, the employee was covered by the Wisconsin Family and Medical Leave Act; (2) the employee asked to substitute other leave for family leave; (3) the employer provided leave that could be substituted; (4) the employee had accrued the leave to be substituted; and (5) the employer denied the substitution request. Miller Brewing Co. v. DILHR and Kozera, 210 Wis. 2d 26, 563 N.W.2d 460 (1997).

Section 103.10(5)(b), Wis. Stats., permits an employe to pick and choose the dates on which to substitute paid days for unpaid leave days. Barry-Chamberlain v. DILHR (Dane Co. Cir. Ct., 06/30/94).

Extended sick leave which does not accumulate from year to year is still "accumulated leave" for purposes of the substitution of leave provision in the Wisconsin Family and Medical Leave Act. Wisconsin Gas Co. v. DILHR (Milwaukee Co. Cir. Ct., 01/05/94).

The substitution clause, sec. 103.10(5)(b), Stats., permits an employe to substitute paid leave accumulated under a collective bargaining agreement for family and medical leave when the employe does not meet all the conditions for leave eligibility set forth in the collective bargaining agreement. Only those types of leave which an employment contract allows an employe to accumulate over time are available for substitution. Richland School Dist. v. DILHR, 174 Wis. 2d 878, 498 N.W.2d 826 (1993).

An employer must provide leave that is definite and quantifiable in order for such leave to be available for substitution under the Wisconsin Family and Medical Leave Act. Richland School Dist. v. DILHR, 174 Wis. 2d 878, 498 N.W.2d 826 (1993).

The plain reading of sec. 103.10(5)(b), Stats., permits an employe to substitute any type of leave provided by the employer for family leave or medical leave. Clintonville v. DILHR (Waupaca Co. Cir. Ct., 01/14/91); City of Milwaukee v. Department of Industry, Labor and Human Relations (Pohlmann) (Milw. Co. Cir. Ct., 11/13/91); Waukesha Co. Dept. of Human Resources v. DILHR (Caldwell) (Waukesha Co. Cir. Ct., 06/05/91).

If the leave provided by the employer does not have as liberal a substitution provision as found in sec. 103.10(5), Stats., then the leave is more restrictive than is available under sec. 103.10(3)(b)1, Stats. Lawless v. UW-Madison (Wis. Personnel Comm., 06/01/90).

The Personnel Commission granted a rehearing on request from a person aggrieved who was not a party in the original hearing because it concluded that its implicit conclusion that the leave granted by the Respondent was not more restrictive than the leave available under sec. 103.10(3)(b), Stats., constituted a material error of law. Lawless v. UW-Madison (Wis. Personnel Comm., 06/01/90).

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340 Family and Medical Leave Act, Notice to the employer

An employe's request for leave under the Wisconsin Family and Medical Leave Act need only be reasonably calculated to advise the employer that the employe is requesting medical leave under the Act and the reason for the request. The burden is on the employee to demonstrate that, at the time medical leave was requested, the employe (1) has a serious health condition, (2) that renders the employe unable to perform the employe's duties during a specific time period, and (3) that a leave during that time is medically necessary. If the employer desires more information, it can request certification under sec. 103.10(7), Stats. Essentially, the Act affords employers three choices of action when an employe requests medical leave: (1) approve the leave, (2) disapprove the leave, or (3) request more information through the certification process in sec. 103.10(7), Stats. Sieger v. Wisconsin Personnel Comm., 181 Wis. 2d 845, 512 N.W.2d 220 (Ct. App. 1994).

Several letters to the employer from the Complainant's psychologist were not adequate to satisfy the employer's request that the employe provide certification from a health care provider explaining the extent to which the employe was unable to perform his or her employment duties under the Wisconsin Family and Medical Leave Act. The letters did not address specifically the employe's ability to perform his employment duties and the general finding of a 50 percent disability from the Department of Veteran Affairs failed to specifically address the Complainant's ability to perform his employment duties. Therefore, the letters did not comply with the employer's request for medical certification. Randolph v. DILHR (Ct. App., Dist. II, unpublished decision, 05/13/92).

The Wisconsin Family and Medical Leave Act does not require that the employee utter magic words or make a formal application in order to invoke the protections of the Act.  In this case, a telephone conversation between the Complainant’s attorney and the employer gave the employer reasonable notice of a serious health condition.  Jicha v. DILHR, 164 Wis. 2d 94, 473 N.W.2d 578 (Ct. App. 1991), aff’d, 169 Wis. 2d 284, 485 N.W.2d 256 (1992)

The Complainant's failure to provide medical excuses for her absences did not render her without protection under the Family and Medical Leave Act where the employer never informed her by personal notice or posting information in the workplace as required by the Act that such certification was necessary for protection under the Act. Haas v. DILHR, 166 Wis. 2d 288, 479 N.W.2d 229 (Ct. App. 1991).

The Complainant was lawfully terminated where she failed to provide medical certification concerning her condition to the Respondent within a reasonable time. Wysocki v. DILHR (Marinette Co. Cir. Ct., 03/11/91).

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350 Family and Medical Leave Act, Return to equivalent position after leave

If an employer can successfully show that, for reasons wholly unrelated to family or medical leave, an employee's position or equivalent position no longer existed when that employee returned from leave, the employer will not be in violation of sec. 101.10(8), Stats., which requires an employer to immediately restore an employee returning from family or medical leave to the position he held before the leave began, or to an equivalent position. Hull v. PFS Corp. (ALJ decision, 04/07/06).

The employer must immediately place the employe in his or her former employment, or an equivalent employment position if the employe's former position is not vacant. An equivalent employment position means a position with equivalent compensation, benefits, working shift, hours of employment, job status, responsibility and authority. An employe who returned from family leave was not placed in an equivalent employment position where: her supervisory duties were reduced from supervising four employes to supervising one employe, her former position required no clerical work while her new position required 23 percent clerical work, and (despite still being designated as a manager) her new job duties were far less significant than those she performed prior to leave. Kelley Co. v. Marquardt, 172 Wis. 2d 234, 493 N.W.2d 68 (1992).

While the Complainant was taking family leave under the Family and Medical Leave Act, her employer informed the employes that it was closing its office in Wisconsin. Employes were given the option of relocating to Illinois or being discharged. Complainant was not offered this option. The employer is liable under the Act because it did not give an employe who was taking advantage of her rights under the Act the same privileges as employes who took no qualifying leave of absence. Benefit Trust Life Ins. v. DILHR (Milwaukee Co. Cir. Ct., 12/17/90).

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360 Family and Medical Leave Act, Taking partial leave and related issues

Any noncontinuous increment of the six-week family leave allowed for the birth of a child under sec. 103.10(3)(b)1, Stats., must begin within sixteen weeks of the child's birth. Schwedt v. DILHR, 188 Wis. 2d 500, 525 N.W.2d 130 (Ct. App. 1994).

An employe taking non-consecutive family leave may take non- consecutive leave during the first 16-week period before or after the birth or adoption of a child and begin the remaining non- consecutive increment as late as 16 weeks after the birth or adoption date, provided that the remaining non-consecutive increment has been properly commenced within the 16 weeks before after the birth or adoption of the child. Fuller v. DILHR (Milwaukee Co. Cir. Ct., 04/05/93).

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370 Family and Medical Leave Act, Remedies

The Complainant was not entitled to an award of back pay where he misused part of his family leave by markedly increasing the number hours he worked for a second employer. Rabehl v. DILHR (Dodge Co. Cir. Ct., 03/22/95).

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. DILHR (Dodge Co. Cir. Ct., 03/22/95).

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 employe voluntarily quit his or her employment with an employer is an appropriate factor for the Department to consider in determining whether the employe 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 School 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 School 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 employe and pay the employe 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 employe voluntarily quit her employment with an employer is an appropriate factor for the Department to consider in determining whether the employe mitigated her damages. Not all voluntary terminations constitute a lack of reasonable diligence. On remand the Department must determine whether the employe 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. School Dist. of River Falls v. DILHR (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 employes brought suit against the employer alleging a violation of the posting requirement. School 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 Co. Dept. of Human Resources v. DILHR (Caldwell) (Waukesha Co. Cir. Ct., 06/05/91).

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380 Family and Medical Leave Act, Cases

The FMLA provides that an employer may require an employee, in advance of taking leave, to have in escrow with the employer an amount equal to health insurance premiums for an eight-week period. If the employee resigns within 30 days of the completion of the leave, the employer may deduct the amount of the premiums for the leave from the escrowed amount, and return any remaining escrowed amount to the employee. Section 103.10(9)(c)4., Stats., states that an employer 'may' deduct from an escrow account any premium paid by the employer while the employee was on FMLA leave if the employee does not return to work. Nothing in the statute states that an employer waives its right to collect the debt if it fails to escrow the employee's funds. Port Edwards School Dist. v. Reissmann (Ct. App., Dist. IV, unpublished decision, 03/20/08).

The idea behind the medical certification process is for medical determinations to be made by health care providers, not laypersons. In this case, there was probable cause to believe that the Respondent had rejected two medical certifications provided by the Complainant’s physician based, at least in part, on the unsupported lay opinion of the Complainant’s supervisor about the nature of her medical condition. Kontny v. Rock Co. Health Care Center (ALJ Decision, 08/10/07).

In this case, the Respondent granted the Complainant a total of twenty-six consecutive weeks of leave related to her serious health condition (breast cancer and reconstructive surgery due to the cancer) that spanned from August 25, 2004 through February 28, 2005. Thus, the leave included at least two weeks of leave within each calendar year of 2004 and 2005. Under secs. 225. 01(9) and (10), Wis. Adm. Code, it does not appear to make any difference whether this leave granted by the employer for the Complainant's serious health condition was independent of, concurrent with, or consecutive to any other leave that the Complainant may have been entitled to (whether the Respondent's own "Medical Leave" or some other leave offered by the Respondent were leave the Complainant may have been entitled to under another law such as the federal Family and Medical Leave Act). So long as the Complainant was granted a leave relating to the Complainant's own health which was no more restrictive than the leave that the Complainant had available under sec. 103.10(4), Stats., the Complainant's use of the leave granted by the employer constituted the use of her leave available under sec. 103.10, Stats. Since the maximum leave available under the Wisconsin Family and Medical Leave Act is two weeks in each calendar year, the Complainant received both in 2004 and 2005 the maximum amount of Wisconsin Family and Medical Leave Act leave that she was entitled to for her own health condition under sec. 103.10(4), Stats. Therefore, there was no probable cause to believe that the Respondent violated sec. 103.10(11)(a), Stats., when it discharged her when she was unable to return to work at the end of six months, which was the maximum period of time the Respondent allowed for a leave of absence. Berg v. Gold 'n Plump Poultry (ALJ decision, 01/11/06);  aff'd sub nom. Berg v. Dept. of Workforce Dev. (Ct. App. Dist. 3, 01/23/07, unpublished)

The concept of opposing a discriminatory practice involves more than just requesting leave under the Wisconsin Family and Medical Leave Act. There has to be some decision or practice by the employer that is discriminatory, or that the Complainant reasonably believes is discriminatory. There must be evidence that the Complainant took some action to stand in opposition to that allegedly discriminatory practice. Frank v. US Bank (ALJ Decision, 12/04/03).

Where an employee has previously arranged to take vacation on a scheduled work day and, prior to the vacation commencing, a situation subsequently arises that would entitle the employee to take family leave under sec. 103.10, Stats. on the scheduled work day for which the vacation had previously been approved, the employer must permit the Complainant to take the statutory family leave and then to substitute paid or unpaid leave of any other type provided by the employer. Where the Respondent denied the Complainant family leave because it had a policy of requiring its police officers to schedule their vacation at the beginning of each year, and prohibiting them from rescheduling vacation leave or trading vacation leave during certain specified time periods (including the time period in which the Complainant in this case requested family leave) it violated the FMLA. Felker v. City of Oshkosh (ALJ Decision, 07/18/03).

The employer’s requirement that employees respond to a request for certification of a serious health condition within 15 days of the request was a reasonable amount of time under the Wisconsin Family and Medical Leave Act. The Complainant’s failure to comply with the policy entitled the employer to refuse to grant his request for family leave, and his request to substitute paid leave for unpaid leave. Eberhardt v. Morningstar Foods (ALJ Decision, 02/07/03).

The term "leave to an employee for the birth of the employee’s natural child" in sec. DWD 225.01(6), Wis. Adm. Code, applies only to leave specifically designated for the birth of a child. Here, the Complainant requested two weeks of compensatory time off at the time that his child was born. The employer granted him the compensatory time off, but also deducted two weeks from the Complainant’s WFMLA leave. The Respondent did this because its policy mandates that the City deduct from an employee’s WFMLA leave if the employee "requests paid leave for a reason covered by [WFMLA]," citing sec. 225.01(6), Wis. Adm. Code, as authority. Sec. 225.01(6), Wis. Adm. Code, was created to prevent "stacking" of family and medical leaves. Stacking would occur if an employer granted its employees leave for a specific reason that is also covered under the Act, and the employee then "stacked" those two leaves by using them back to back. Legislative history of the WFMLA shows that the concern over stacking did not include the use of WFMLA leave immediately followed by use of another leave created for a different purpose. In this case, the Complainant was taking compensatory time off, which was leave that had nothing to do with WFMLA leave and was distinct leave that the Complainant himself earned by working overtime. The Respondent violated the Act by also deducting WFMLA leave. City of Madison Water Util. v. DWD (Dane Co. Cir. Ct., 10/10/02).

The Respondent did not unlawfully interfere with or restrain the exercise of the Complainant’s rights under the Wisconsin Family and Medical Leave Act by denying her request for a paid day off under the Respondent’s Sick Leave Incentive Program (SLIP) provisions of the collective bargaining agreement governing her employment. The SLIP program provides eligible employees with up to one paid day off if the employee (among other things) did not use any paid sick leave during the applicable trimester period for each calendar year. The Complainant took two weeks of medical leave for surgery, exercising her option to substitute paid sick leave (accrued under her union’s collective bargaining agreement with the employer) for unpaid medical leave under the WFMLA. Several months later, the Complainant requested a paid day off under SLIP. The employer denied her request because she had used paid sick leave during the preceding trimester, having substituted that leave for unpaid WFMLA leave. Both sec. 103.10(9)(a)(2), Stats. and sec. DWD 225.03(4) Wis. Admin. Code, established that the denial of the Complainant’s request for the SLIP paid day off did not interfere with, restrain, or deny her WFMLA rights. The denial of the SLIP day off was a contractual consequence of substituting paid sick leave for unpaid WFMLA leave. Heibler v. DWD, 2002 WI App 21, 250 Wis. 2d 152, 639 N.W.2d 776.

The Complainant established that he was entitled to take leave under the Wisconsin Family and Medical Leave Act to care for his adult son. The Complainant substituted pay under the Respondent’s sick leave policy for seven and one-half days during which he cared for his son while he was hospitalized, and during which he provided direct and necessary assistance and services to his son, in addition to psychological comfort. Racine Co. v. DWD (Racine Co. Cir. Ct., 08/15/00).

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. DILHR (Dodge Co. Cir. Ct., 03/22/95).

Where an employe is found to have used part of his family leave for the purpose of benefiting a secondary employer or business, that action by the employe may be characterized as a misuse of family leave. Rabehl v. DILHR (Dodge Co. Cir. Ct., 03/22/95).

Read together, secs. 103.10(9)(a) and 103.10(9)(b), Stats., provide that an employe returning from family leave is not entitled to a right or employment benefit to which the employe would not have been entitled had he or she not taken family leave, except that, with respect to group health insurance coverage, an employer is required to maintain group health insurance coverage during an employe's family leave and an employe returning from family leave is entitled to group health insurance coverage under the conditions that applied immediately before the family leave or medical leave began. Barry-Chamberlain v. DILHR (Dane Co. Cir. Ct., 06/30/94).

The Complainant was discharged for excessive absenteeism. The Complainant established that he had a serious health condition on four of the days for which he was disciplined. The Family and Medical Leave Act prohibits the Respondent from disciplining the Complainant for these days of statutory leave. The Respondent failed to offer any evidence to support a conclusion that it would have still terminated the Complainant's employment if it had not considered these absences. Therefore, the Respondent violated the Act. Meyer v. DHSS (Wis. Personnel Comm., 06/11/92).

The Complainant was given a warning for "excessive absenteeism" when she was absent for two days to care for her son, who had a serious health condition. The warning interfered with the Complainant's rights under the Act because the employer's personnel policies treated the accumulation of such warnings as grounds for dismissal. Haas v. DILHR, 166 Wis. 2d 288, 479 N.W.2d 229 (Ct. App. 1991).

The Respondent's discharge of the Complainant for accumulating twenty-one points in a six-month period under the Respondent's no-fault attendance policy violated the Act when five of those points were assessed for time during which the Complainant took leave protected under the Act. MPI Wisconsin Machining Div. v. DILHR (Schimmel), 159 Wis. 2d 358, 464 N.W.2d 79 (Ct. App. 1990).

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390 Family and Medical Leave Act, procedural matters, judicial review

The 60-day limitation period found in Wis. Stat. sec. 103.10(13)(b)  for commencing a civil action under the FMLA, runs consecutively to the 30-day period for commencing an action for judicial review of an ERD decision under the FMLA.  Thus, 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. Dept. of Health & Family Services, 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 employment 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. M.P.I. Wisconsin Machining Div. v. DILHR (Schimmel) , 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).

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500 OTHER LAWS:

     510  Public Employe Safety And Health Law (Sec. 101.055, Stats.)
     520  Employes' Right To Know Law (Sec. 101.58, Stats.)
     530  Discrimination In Admission To Postsecondary Education (Sec. 106.56, Stats.)

     540 Statutes Relating To Retaliation For Reports Of Abuse Or Neglect
          541
Retaliation For Reports To Board On Aging And Long-Term Care (Sec. 16.009(5), Stats.)
          542 Retaliation For Reports Of Elder Abuse  (Sec. 46.90(4)(b), Stats.)
          543
Retaliation For Reports As To Residential Care Facilities (Sec. 50.07(3), Stats.)
          544
Health Care Worker Protection (Sec. 146.997, Stats.)
     550  State Employees "Whistleblower" Law (Sec. 230.80-89
, Stats.)
          551 Coverage
          552 Disclosure of Information
          553 Processing of Information by Governmental Unit
          554 Retaliatory Action Prohibited
          555 Procedures for Enforcement
          556 Cases 
    560 Statutes Relating To Certain Military Service And Emergency Worker Rights
          561 Re-employment Rights After National Guard, state defense force or public health emergency service (Sec. 321.65, Stats.)
          562 Discrimination based on Civil Air Patrol Membership (Sec. 321.66, Stats)
          563 Absence from work of volunteer firefighter, emergency medical technician, first aid responder or ambulance driver (Sec. 103.88, Stats)


510 PUBLIC EMPLOYE SAFETY AND HEALTH LAW (Sec. 101.055, Stats.)

[Pursuant to sec. 101.055(8), it is unlawful for public employers to discriminate against public employes because of their exercise of rights under the Public Employe Health and Safety Law.  Enforcement of this law for state employees was previously the responsibility of the Personnel Commission, while enforcement of the law for public employees other than state employees was the responsibility of the Equal Rights Division.  With the elimination of the Personnel Commission, the Equal Rights Division is now responsible for enforcement of this law for all public employees.  A public employee who believes that he or she has been discharged or otherwise discriminated against by a public employer in violation of this provision may file a complaint with the Equal Rights Division.  Decisions of the ERD under this provision are subject to direct judicial review under ch. 227;  there is no intervening review by LIRC.

The Complainant was not entitled to appeal the initial determination of no probable cause because neither the Public Employee Safety and Health Law, sec. 101.055, Stats., nor the rules of the Equal Rights Division give the Department of Workforce Development jurisdiction to hear an appeal from an initial determination of no probable cause in cases filed under that law. The Complainant's only remedy was to petition for judicial review under ch. 227, Stats. Weiner v. Dept. of Workforce Dev. (Milwaukee Co. Cir. Ct., 05/12/06). [Ed. Note: Since this decision was issued, the Equal Rights Division has adopted rules specifically providing for appeals of initial determinations of no probable cause under this statute. See, sec. DWD 223.08, Wis. Adm. Code.]

The complaint was properly dismissed for failure to state a claim upon which relief could be granted where the Complainant filed two reports relating to an injury he suffered when he broke up an inmate fight at the correctional institution where he was employed. The Complainant was not complaining of either an unsafe or unhealthy condition, a condition that was correctable, or an injury that was preventable. These reports fall outside of the protections set forth in sec. 101.055(5), Stats. which provides that a public employee "who believes that a safety or health standard or variance is being violated, or that a situation exists which poses a recognized hazard likely to cause death or serious physical harm" may request an inspection. The Complainant, therefore, did not exercise a right related to occupational safety and health under sec. 105.055, Stats. Process v. DOC (Wis. Personnel Comm., 03/08/01).

The Public Employee Safety and Health Law protects public employees from retaliation for participation in protected disclosure of health or safety hazards. The method of analysis applied to this law is similar to that employed for retaliation claims under the Wisconsin Fair Employment Act.  The Complainant in this case failed to establish a prima facie case of public employee safety and health retaliation where he failed to present any evidence of having participated in a protected disclosure of health or safety hazards. Hawkinson v. DOC (Wis. Personnel Comm., 10/09/98).

Workplace violence is regulated under the general duty clause of the Federal Occupational Safety and Health Act. Because the comparable state law (sec. 101.55, Stats.) was intended to give state employees "rights and protections. . . equivalent to those granted to employees in the private sector" under federal law, the Respondent’s motion to dismiss the Complainant’s Public Employee Safety and Health claim relating to workplace violence was denied. Cygan v. DOC (Wis. Personnel Comm., 09/10/97).

The Complainant’s occupational safety and health retaliation claim was not defeated by his failure to report unsafe conditions to the Department of Commerce. The Complainant had filed an incident report regarding unsafe working conditions with management and his union. Leinweber v. DOC (Wis. Personnel Comm., 08/14/97).

Workplace violence is regulated under the general duty clause of the federal Occupational Safety and Health Act. Wisconsin’s public employees’ safety and health provisions were intended to give covered state employees the same protections as employees in the private sector. The Complainant’s incident report to management and his union relating to threatening telephone calls in the absence of any staff member other than the Complainant (a social worker) on a floor at a hall in the Drug Abuse Correctional Center, related to dangers protected under state law. Leinweber v. DOC (Wis. Personnel Comm., 08/14/97).

Comments and ratings on a performance evaluation are reviewable under the public employee health and safety provisions. McKibbins v. UW-Milwaukee (Wis. Personnel Comm., 04/04/95).

Filing Abnormally Hazardous Task Reports and making other disclosures to the Department of Industry, Labor and Human Relations were protected public employee health and safety activities. McKibbins v. UW-Milwaukee (Wis. Personnel Comm., 04/04/95).

No retaliation was shown in regard to the Complainant’s performance evaluation where the Complainant had reported safety and health problems over a considerable period of years and had not suffered any adverse employment consequences, but had been complimented and rewarded for her efforts. The Complainant (a building maintenance helper) had more recently failed to notify her supervisors of health and safety violations in her building, had failed to communicate effectively with her supervisors on various occasions, had failed to carry out a work assignment and had failed to wear proper safety equipment. McKibbins v. UW-Milwaukee (Wis. Personnel Comm., 04/04/95).

The Complainant failed to establish a prima facie case of retaliation where the person who decided not to rescind the Complainant’s resignation was not aware of the Complainant’s protected activity. Radtke v. UW-Madison (Wis. Personnel Comm., 11/22/94).

Claims meeting the standard of "discipline" under the Whistleblower Law (secs. 230.80 et seq., Stats.) constitute adverse actions under the Public Employee Safety and Health Law. Sadlier v. DHSS (Wis. Personnel Comm., 03/30/89).

Nothing in the statutes suggests that a grievance directed to management and relating to a health or safety concern cannot constitute the exercise of a right under the law entitling the grievant to protection from retaliation. Comments to the media were also protected conduct. However, a grievance referring only to a single instance of prior conduct by management with no indication that the conduct represented a policy did not relate to an ongoing safety concern. Sadlier v. DHSS (Wis. Personnel Comm., 03/30/89).

The Public Employe Safety and Health law, sec. 101.055, Stats., is intended to provide employes rights and protections equivalent to employees in the private section under OSHA. Strupp v. UW-Whitewater (Wis. Personnel Comm., 07/24/86).

The Complainant had a reasonable and good faith belief that the delivery of a drum of sulfuric acid by hand involved a danger of serious injury or death.  He presented an expert witness who testified that moving the drum down stairs by hand would not be safe. Although the delivery could have been effected safely with the use of a dolly, this factor alone did not lead to a conclusion that the Complainant's refusal was unreasonable. Strupp v. UW-Whitewater (Wis. Personnel Comm., 07/24/86).

The Complainant reasonably refused to assist in the delivery of a drum of sulfuric acid because of a reasonable and good faith belief that the task involved a danger of serious injury or death. The Complainant also engaged in protected activity when he sent DILHR a copy of a memo to his supervisor specifically questioning the safety of moving the acid. The Complainant’s subsequent termination was based in part on these activities. However, in order to establish a violation of the law, it must be found that the protected activity was a "substantial reason" for the discharge, or that the discharge would not have taken place "but for" the protected activity.  In this case, the Respondent had independent reasons for discharging the Complainant.  The Complainant’s attitude towards management throughout the course of his four months of employment was contentious and in some respects contumacious (including one statement that the supervisor’s memo would "make good toilet paper").  The Complainant's discharge did not violate the Public Employee Safety and Health Law. Strupp v. UW-Whitewater (Wis. Personnel Comm., 07/24/86); aff’d sub nom. Strupp v. Wis. Personnel Comm. (Milw. Co. Cir. Ct., 01/28/87).

A violation of the Public Employe Safety and Health Law was found where the Complainant, a union representative on a joint safety committee, was disciplined for handing out his business card in a work area without authorization. The business card indicated Complainant's title of "Chief Safety Coordinator" for the union. Marchewka v. Milwaukee County (Milw. Co. Cir. Ct., 11/25/85).

Under the Public Employe Safety and Health law, sec. 101.055, Stats., the specific language "within 30 days after the employe received a knowledge of the discrimination or discharge" means that, with respect to discharges, it is the date of the discharge, rather than the date on which the employe obtained or should have obtained knowledge that the discharge was discriminatory, that triggers the running of the 30 day statute of limitations. Sprenger v. UW Systems (Wis. Personnel Comm. 09/13/85).

The Labor and Industry Review Commission does not have jurisdiction to review Equal Rights Division decisions issued under sec. 101.055, Stats., regarding public employe occupational safety and health. Marchewka v. Milwaukee County (LIRC, letter ruling, 04/16/85).

The Complainant was found not to have engaged in a protected activity where the only evidence of safety-related activity was that the Complainant discussed health and safety matters with a coworker, and where the Complainant failed to establish that the Respondent believed that he had "filed" an oral safety complaint. Even if the Complainant had shown that he had engaged in a protected activity, he failed to establish a causal connection with his subsequent discharge. Branski v. UW-Milwaukee (Wis. Personnel Comm., 02/29/84).

 
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520 EMPLOYEES' RIGHT TO KNOW LAW (secs. 101.58-101.599, Stats.)

[Pursuant to sec. 101.599, an employee or or employee representative who has not been afforded his or her rights by an employer in violation of the Employees' Right To Know Law may file a complaint with the department alleging the violation. The department shall investigate the complaint and shall attempt to resolve the complaint by conference, conciliation or persuasion. If the complaint is not resolved and the department finds probable cause to believe a violation has occurred, the department shall proceed with notice and a hearing on the complaint as provided in ch. 227.  If the department finds a violation, it may order such action as will remedy the effects of the violation.

Pursuant to sec. 101.595(2), it is unlawful for employers to discharge or otherwise discriminate against employes because of their exercise of rights under the Employees' Right To Know Law.  Section 111.322(2m) applies to discharge and other discriminatory acts arising in connection with any proceeding under ss. 101.58 to 101.599.]

The Employees' Right to Know Law is a broad and comprehensive statutory scheme designed to protect public employees' health, safety, and welfare.  This legislation ensures that employees receive adequate information and training necessary to protect them.  Thus, the legislation is remedial in nature and must be read broadly to effect its purpose.  Door Co. Highway Dept. v. DILHR, 137 Wis. 2d 280, 404 N.W.2d 548 (Ct. App. 1987).

The Respondent persistently failed to comply with the provisions of the Employees' Right to Know Law, even after complaints had been made and it was made aware of its obligations under those provisions.  The Respondent's continued disregard for the Complainant's welfare and his rights afforded under those statutory provisions was willful.  Therefore, the Department was empowered under sec. 101.599(3)(b), Stats., to impose a $10,000 forfeiture.  The Department's order imposing the forfeiture or, alternatively, requiring the Respondent to install a ventilation booth, was an appropriate incentive for the Respondent to remedy the violation.  Door Co. Highway Dept. v. DILHR, 137 Wis. 2d 280, 404 N.W.2d 548 (Ct. App. 1987).

The Respondent's baling facility was processing hazardous materials including pesticides, herbicides, and infectious materials.  The baling facility was also accepting asbestos, a known carcinogen and toxic substance.  The compacting of these materials during the baling process released hazardous and toxic substances into the workplace.  The Respondent failed to comply with sec. 101.581, Stats., and post a sign advising employees of their right to know of the existence of hazardous materials in the workplace.  The Respondent also failed to comply with sec. 101.597, Stats., and provide the Complainant with an education or training program to ensure his safety.  The Respondent also failed to notify the Complainant of his rights under sec. 101.055, Stats.  Two of the rights granted by that statutory provision are the employee's right to request a Department inspection of a workplace if the employee believes a hazardous situation exists, and the right to reasonably refuse to work in such a situation.  Door Co. Highway Dept. v. DILHR, 137 Wis. 2d 280, 404 N.W.2d 548 (Ct. App. 1987).

The Respondent's failure to educate and train the Complainant in the use of equipment that would ensure his safety was a critical factor in the Complainant's decision not to return to work.  Because the Respondent's violation of the Employees' Right to Know Law was directly responsible for the Complainant's ultimate termination, reinstatement with back pay was an appropriate remedy.  Door Co. Highway Dept. v. DILHR, 137 Wis. 2d 280, 404 N.W.2d 548 (Ct. App. 1987).

Pursuant to sec. 111.322(2m), Stats., it is an act of employment discrimination to discharge or otherwise discriminate against any individual because he files a complaint or attempts to enforce any right under the Wisconsin Employees’ Right to Know Law (secs. 101.58 to 101.599, Stats.).  Presumably, the 300-day filing requirement stated in sec. 111.39(1), Stats., would apply to charges filed pursuant to this provision.  Prior to his termination on June 16, 2003, the Complainant in this case filed requests for information pursuant to the Employees’ Right to Know Law with his employer.  The requests for information related to substances to which he was being exposed in the course of his employment.  The employee suspected that these substances were causing or exacerbating certain medical problems he was experiencing at that time.  The Complainant asserts that he was unaware until November of 2004 of his right to file a charge of retaliation based upon his exercise of rights under the Employees’ Right to Know law.  However, ignorance of the law does not toll the statutory filing period.  The Complainant also indicated that he did not believe that the Respondent had acted improperly until he learned from OSHA in December of 2004 that the Respondent “had an overexposure record of a hazardous chemical.”  However, the belief that the Complainant asserts he first formed in December of 2004 was not the belief that he had been retaliated against when he was disciplined and discharged by the Respondent (which would be the only basis for invoking the jurisdiction of the Equal Rights Division), but instead the belief that the Respondent had violated the Employees’ Right to Know law by withholding information from him as to the nature and level of substances to which he had been exposed.  The limitations period for filing the complaint began to run on the date that the Complainant received notice of his termination on or before June 16, 2003.  No basis was established for tolling the statute of limitations in this case.  Van Deraa v. Asten Johnson (LIRC, 06/30/05).

 

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530 DISCRIMINATION IN ADMISSION TO POSTSECONDARY EDUCATION (Sec. 106.56, Stats.)

[Pursuant to sec. 106.56, it is unlawful for an institution of postsecondary education to discriminate, in admissions or otherwise,  on the basis of disability.  Complaints charging discrimination or discriminatory practices in violation of this provision may be filed with the Equal Rights Division, and such complaints are processed by the ERD in the same manner that employment discrimination complaints are processed under the Fair Employment Act.  Decisions of the ERD under this provision may be reviewed by LIRC as provided in s. 106.52 (4) (b), which is part of the Public Places of Accommodation or Amusement law.]

Section 106.56, Stats., applies only to acts of alleged discrimination by a school, university or other institution which offers courses or programs in post-secondary education or vocational training which is supported wholly or in part by public funds. The Division of Vocational Rehabilitation ('DVR') of the Department of Workforce Development is a state agency which is not covered by this law. The word 'institution' in the statute does not cover DVR. The statute is clearly intended to apply only to institutions which are similar to 'schools' and 'universities.' Daniels v. Wisconsin Division of Vocational Rehabilitation (LIRC, 03/25/11).

The Wisconsin Personnel Commission lacks jurisdiction over complaints filed under sec. 101.233, Wis. Stats., which prohibits postsecondary education institutions from discriminating on the basis of physical condition or development disability. Fischer-Guex v. UW-Madison (Wis. Personnel Comm., 12/17/92).

The Complainant failed to establish probable cause that the Respondent was a school, university or other institution within the meaning of sec. 101.223(1), Stats. Steidl-Cox v. Skilled Trades Improvement Program (LIRC, 11/18/92).

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540  STATUTES RELATING TO RETALIATION FOR REPORTS OF ABUSE OR NEGLECT

     541 Retaliation For Reports To Board On Aging And Long-Term Care (Sec. 16.009(5), Stats.)
     542 Retaliation For Reports Of Elder Abuse  (Sec. 46.90(4)(b), Stats.)
     543
Retaliation For Reports As To Residential Care Facilities (Sec. 50.07(3), Stats.)
     544
Health Care Worker Protection (Sec. 146.997, Stats.)

 

541 Retaliation For Reports To Board On Aging And Long-Term Care (Sec. 16.009(5), Stats.)

[Pursuant to s. 16.009(5), it is unlawful to retaliate against employees for contacting, providing information to or otherwise cooperating with any representative of the Board On Aging And Long-Term Care.  An employee who is discharged or otherwise retaliated or discriminated against in violation of this provision may file a complaint with the Equal Rights Division under s. 106.54 (5), and such complaints are processed in the same manner that employment discrimination complaints are processed under the Fair Employment Act.  Decisions of the Equal Rights Division under this law are appealable to LIRC.]

 

A complaint was dismissed for failure to state a claim under either sec. 16.009(5), 46.90(4) or 50.07(30), Wis. Stats. Those statute sections are contained within statutory provisions relating to long-term care facilities, to elder abuse and other care and service residential facilities. They afford persons protection against being discharged or otherwise retaliated or discriminated against: 1) for "contacting, providing information to or otherwise cooperating with any representative of the Board (on aging and long-term care)," 2) for "reporting in good faith to the county agency or to any State official, including any representative of the Office of the Long-Term Care Ombudsman. . .that he or she believes that abuse, managerial abuse or neglect has occurred. . ." and 3) for "contacting or providing information to any State official, including any representative of the Office of the Long-Term Care Ombudsman. . .or for initiating, participating in, or testifying in an action for any remedy authorized under (subchapter 1 of ch. 50, Wis. Stats.)." The common thread through all of these statutory provisions is that the protective report must be made before the alleged discriminatory or retaliatory conduct takes place in order for the protections of the statutes to be in effect. In this case, the Complainant did not allege that he contacted, provided information to or cooperated with any representative of the Board on Long-Term Care, that he reported suspected abuse to the county agency or any State official, or that he had initiated, participated in or testified in an action for any remedy under ch. 50 before the discriminatory or retaliatory conduct complained of had occurred. DeGroot v. Parkview Adult Family Home (LIRC, 07/17/00).

 

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542 Retaliation For Reports Of Elder Abuse (Sec. 46.90(4)(b), Stats.)

[Pursuant to s. 46.90(4), it is unlawful to retaliate against employees for reporting suspected abuse or neglect of an elder person to the designated county official, any state official, or the long-term care ombudsman. Any employee who is discharged or otherwise retaliated or discriminated against in violation of this provision may file a complaint with the Equal Rights Division under s. 106.54 (5), and such complaints are processed in the same manner that employment discrimination complaints are processed under the Fair Employment Act.  Decisions of the Equal Rights Division under this law are appealable to LIRC.]

The Complainant, who was a daycare aide in a community-based residential facility, left a telephone message for the ombudsman stating that she was "calling regarding non-care of resident at group home she worked at." Even if this message constituted a "report" within the meaning of sec. 46.90, Stats., the message does not state that the Complainant believed that "abuse, material abuse or neglect has occurred." Moreover, even if her message was considered to be a report that abuse or neglect has occurred, it fails to satisfy the requirement under sec. 46.90(4)(a)1, Stats., that "[t]he person shall indicate the facts and circumstances of the situation as part of the report." Clearly, the Complainant’s message did not indicate any facts or circumstances regarding asserted abuse or neglect of a resident at the Respondent’s facility. The Complainant argued that a failure to conclude that her message constitutes a report of a fact-based abuse or neglect sufficient to bring sec. 46.90, Stats. into play would not advance the stated public purpose of the statute. In Hausman v. St. Croix Care Center, 214 Wis. 2d 655, 571 N.W.2d 393 (1997), the Supreme Court stated that sec. 46.90(4)(b), Stats., demonstrated a fundamental and well-defined public policy of protecting nursing home residents from abuse and neglect. Nevertheless, the Complainant’s message fails to meet all of the requirements of sec. 46.90(4), Stats. Her public policy argument is a matter better addressed by the Legislature. Schultz v. Community Living Arrangements (LIRC, 08/28/03).

A complaint was dismissed for failure to state a claim under either sec. 16.009(5), 46.90(4) or 50.07(30), Wis. Stats. Those statute sections are contained within statutory provisions relating to long-term care facilities, to elder abuse and other care and service residential facilities. They afford persons protection against being discharged or otherwise retaliated or discriminated against: 1) for "contacting, providing information to or otherwise cooperating with any representative of the Board (on aging and long-term care)," 2) for "reporting in good faith to the county agency or to any State official, including any representative of the Office of the Long-Term Care Ombudsman. . .that he or she believes that abuse, managerial abuse or neglect has occurred. . ." and 3) for "contacting or providing information to any State official, including any representative of the Office of the Long-Term Care Ombudsman. . .or for initiating, participating in, or testifying in an action for any remedy authorized under (subchapter 1 of ch. 50, Wis. Stats.)." The common thread through all of these statutory provisions is that the protective report must be made before the alleged discriminatory or retaliatory conduct takes place in order for the protections of the statutes to be in effect. In this case, the Complainant did not allege that he contacted, provided information to or cooperated with any representative of the Board on Long-Term Care, that he reported suspected abuse to the county agency or any State official, or that he had initiated, participated in or testified in an action for any remedy under ch. 50 before the discriminatory or retaliatory conduct complained of had occurred. DeGroot v. Parkview Adult Family Home (LIRC, 07/17/00).

The protection outlined under sec. 46.90(4)(b)1, Stats., does not extend to reports of abuse or neglect to governmental agencies other than to the designated county agency as provided under the statute. In this case, the Complainant did not make a complaint to the Pierce County Office on Aging Lead Elder Abuse Agency, the agency designated under sec. 46.90, Stats, for the purpose of receiving reports of abuse or neglect of elderly persons. Therefore, her complaint was properly dismissed for failure to state a claim upon which relief could be granted. Hausman v. St Croix Care Center (LIRC, 03/07/96); Wright v. St. Croix Care Center (LIRC, 03/07/96); both cases aff'd sub nom. Hausman v. LIRC (Dane Co. Cir. Ct., 5/8/97).

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543  Retaliation For Reports As To Residential Care Facilities (Sec. 50.07(3), Stats.)

[Pursuant to s. 50.07(3), it is unlawful to retaliate against employees for making a report concerning a residential care facility to any state official or the long-term care ombudsman. Any employee who is discharged or otherwise retaliated or discriminated against in violation of this provision may file a complaint with the Equal Rights Division under s. 106.54 (5), and such complaints are processed in the same manner that employment discrimination complaints are processed under the Fair Employment Act.  Decisions of the Equal Rights Division under this law are appealable to LIRC.]

 

The Complainant was employed as a day program aide at the Respondent, which is a non-profit organization that operates community-based residential facilities and adult family homes for individuals with severe developmental and physical disabilities. The Complainant established a prima facie case of retaliation under sec. 50.07(1)(e), Stats. She engaged in protected activity by contacting a state ombudsman and leaving a message that she was calling regarding the non-care of a resident at her group home. Four days later, the Respondent terminated the Complainant’s employment. A causal connection between the Complainant’s protected activity and her discharge can be inferred because of the close proximity in time between her protected activity and her discharge. The reasons given by the Respondent for discharging the Complainant were found to be unworthy of credence. The Respondent contended that it defied logic to suggest that the Respondent would make ombudsman contact information readily available to employees and then fire people who use it. However, the Respondent is required by administrative rule to post ombudsman contact information. (HFS 83.07(15), Wis. Admin. Code). Further, although the ombudsman could not impose a fine or remove the Respondent’s license, the Respondent did have reason to fear the ombudsman because the ombudsman had authority to investigate complaints concerning improper conditions or treatment of aged or disabled persons at community-based residential facilities, and because the ombudsman refers suspected abuse or neglect directly to the state licensing specialist who could impose a fine or remove the Respondent’s license. The evidence established that the only reason the Respondent discharged the Complainant was because she had contacted an ombudsman. The non-discriminatory reasons proffered by the Respondent for the Complainant’s discharge were not the true reasons for the discharge, but were a pretext for retaliation. Schultz v. Community Living Arrangements (LIRC, 08/28/03).

A complaint was dismissed for failure to state a claim under either sec. 16.009(5), 46.90(4) or 50.07(30), Wis. Stats. Those statute sections are contained within statutory provisions relating to long-term care facilities, to elder abuse and other care and service residential facilities. They afford persons protection against being discharged or otherwise retaliated or discriminated against: 1) for "contacting, providing information to or otherwise cooperating with any representative of the Board (on aging and long-term care)," 2) for "reporting in good faith to the county agency or to any State official, including any representative of the Office of the Long-Term Care Ombudsman. . .that he or she believes that abuse, managerial abuse or neglect has occurred. . ." and 3) for "contacting or providing information to any State official, including any representative of the Office of the Long-Term Care Ombudsman. . .or for initiating, participating in, or testifying in an action for any remedy authorized under (subchapter 1 of ch. 50, Wis. Stats.)." The common thread through all of these statutory provisions is that the protective report must be made before the alleged discriminatory or retaliatory conduct takes place in order for the protections of the statutes to be in effect. In this case, the Complainant did not allege that he contacted, provided information to or cooperated with any representative of the Board on Long-Term Care, that he reported suspected abuse to the county agency or any State official, or that he had initiated, participated in or testified in an action for any remedy under ch. 50 before the discriminatory or retaliatory conduct complained of had occurred. DeGroot v. Parkview Adult Family Home (LIRC, 07/17/00).

Section 50.07(2), Stats., punishes employers for wrongful termination of reporting employees with up to six months in jail.  This provision does not bar an employee from filing an individual civil action for wrongful discharge.  Hausman v. St. Croix Care Center, 214 Wis.2d 655, 571 N.W.2d 393 (1997).

 

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544  Health Care Worker Protection Act (Sec. 146.997, Stats.)

[Pursuant to s. 146.997, no health care facility or provider may discipline a person for making certain types of reports relating to health care and health care facilities and providers.  Under sec. 146.997(4)(a), any employee of a health care facility or provider who is threatened with or subjected to disciplinary action in violation of this provision may file a complaint with the department under s. 106.54 (6), and such complaints are processed in the same manner that employment discrimination complaints are processed under the Fair Employment Act.  Decisions of the Equal Rights Division under this law are appealable to LIRC.

In addition, sec. 146.997(4)(b) provides that Section 111.322(2m)  applies to discharge and other discriminatory acts arising in connection with any  complaint proceeding under sec. 146.997(4)(a).]

In order to be covered under the Health Care Worker Protection Act, the Complainant had to be an employee of the Respondent health care facility or provider. In this case, the Complainant worked as an unpaid intern. She received no salary or other monetary compensation. The complaint was appropriately dismissed because the Complainant was not covered by the Health Care Worker Protection Act. Masri v. Medical College of Wisconsin (LIRC, 08/31/11).  AffirmedAsma Masri v. LIRC and Medical College of Wisconsin, 2013 WI App  62, 348 Wis.2d 1, 832 N.W.2d 139.

The Complainant did not engage in any conduct that was protected under the Health Care Worker Protection Act. The Complainant worked as a respiratory therapist. He questioned the amount of medication which one of the Respondent's doctors prescribed for a child. The Complainant informed his supervisor about the matter and he added a note to the child's chart indicating that the prescribed dosage was only recommended for patients six years and under. A notation on a patient's chart does not constitute a report made to an officer, director or supervisor of the medical center as contemplated under the Health Care Worker Protection Act. Moreover, the Complainant did not indicate that he believed that any law or regulation had been violated in prescribing the medication, nor did not he suggest that the quality of health care services provided violated any legal or professional standard or posed a potential threat to public health or safety. At the hearing, the Complainant acknowledged that it was the doctor's prerogative to order a higher dose of medication than recommended. Betts v. Bay Area Medical Center (LIRC, 06/09/11).

The Health Care Worker Protection Act ('HCWPA') applies to reports of any information that would lead a reasonable person to believe: (1) that the health care facility or any of its employees has violated any state law or rule or any federal law or regulation, or (2) that there exists a situation in which the quality of any health care service provided by the health care facility or by any of its employees violates any standard established by any state rule or law or any federal regulation and poses a potential risk to public health or safety. The HCWPA expressly provides that it covers reports made to a supervisor, as well as to reports to some outside agency. Cook v. Delphi Healthcare (LIRC, 02/10/11).

In this case, the Complainant gave a report to a supervisory employee of a health care facility and she was disciplined in part for what she put in the report. Whether this was prohibited retaliatory discipline under the Health Care Worker Protection Act depended on whether the report was about the kinds of things described in secs. 146.997(2)(a)1. and 2, Stats. There was no violation of any state rule or law or federal law or regulation suggested in what the Complainant wrote. Nor did her report provide reason to believe that any health care service violated any applicable standard or posed a potential risk. Two separate reports that the Complainant submitted to a supervisor were both reports the making of which was protected conduct under the Health Care Worker Protection Act. However, the Complainant did not establish that she was disciplined 'because' she made these protected reports. The Complainant was eventually discharged because the Respondent discovered that she had engaged in a serious failure to comply with required procedures concerning the report of an injury to a resident. Dieterich v. Lindengrove (LIRC, 09/28/10).

Section 146.997(3)(a), Stats., prohibits retaliation against a person because that person: (1) reported in good faith any information listed under sec. 146.997(2)(a), (2) in good faith initiated, participated in or testified in any action or proceeding under sec. 146.997(2)(c), or (3) in good faith provided information to a legislator under sec. 146.997(2)(d), Stats.; or because the health care facility, health care provider or employee believed that the person did any of those things. The Health Care Worker Protection Act does not protect employees against retaliation because the employer believes that the employee may engage in protected activity in the future. Dieterich v. Lindengrove (LIRC, 09/28/10).

The Complainant was disciplined after she included information in a 'quality assurance' report about a nursing assistant being ill and not paying attention, and about a patient sustaining an injury as a result.  The Complainant was ultimately discharged.  The Complainant's inclusion of this information in the report was information that would lead a reasonable person to believe that there existed a situation in which the quality of the health care service provided by the health care facility violated standards established by state law, rule, or federal law or regulation or clinical or ethical standards established by a professionally recognized accrediting or standard-setting body, and that it posed a potential risk to public health or safety, within the meaning of sec. 146.997(2), Stats.  Because this report was given to employees of the Respondent who were in a supervisory capacity, or in a position to take corrective action, its submission was protected conduct.  The fact that the Complainant's discharge followed so closely on the heels of her submission of this report, as well as direct evidence that its submission was a factor in her discharge, was sufficient to establish a prima facie case of retaliation under the Health Care Worker Protection Act.  Dieterich v. Lindengrove (LIRC, 12/29/08).

The Health Care Worker Protection Act prohibits employers from retaliating against an employee because the employer believes that the employee made a report of the kind protected under sec. 146.997(3), Stats.  It is not necessary that such a report actually has been made if the employer is retaliating because of its belief that the report was made.  In this case, there was evidence to suggest that managers of the Respondent believed that the Complainant had made a report to the Bureau of Quality Assurance concerning matters including an injury to a patient.  Dieterich v. Lindengrove (LIRC, 12/29/08).

Unlike the anti-retaliation protection provided by sec. 111.322(2m)(d), Stats., which expressly protects employees from retaliation because the employer believes that they 'may engage in,' (i.e., in the future) covered protected activity, the anti-retaliation protection provided by sec. 146.997(3), Stats., uses only the past tense.  That provision expressly refers only to an employer's beliefs that an employee 'reported', participated in or testified in'[or] provided' certain information or proceedings.  Dieterich v. Lindengrove (LIRC, 12/29/08).

Neither the Health Care Worker Protection Act nor the pleading requirements of the Equal Rights Division require that a Complainant specifically identify which state law or rule the Complainant believes has been violated in order to obtain protection under the Health Care Worker Protection Act (sec. 146.997, Stats.).  Bruneau v. Olas House (LIRC, 10/19/08).

The Equal Rights Division does not have authority to receive or process complaints under secs. 146.997(5) or (6), Stats.  These sections of the Health Care Worker Protection Act relate to penalties and forfeitures for failing to post notices.  Achilli v. Sienna Crest Assisted Living (LIRC, 07/18/08).

The willingness of the administrator of a health care center to hear and address standard of care issues brought to her attention by staff members strongly suggested that she had no reason to harbor any retaliatory animus against the Complainant for bringing patient care issues to her attention.  In this case, the administrator's decision to remove the Complainant as the director of nursing was due to the Complainant's poor interpersonal skills, and not because of her reporting alleged standard of care issues to the administrator.  Brown v. Maple Lane Health Care Center (LIRC, 06/20/08).

The Complainant failed to establish a causal connection between her protected disclosures and her termination where the record did not establish who made the termination decision.  In order to establish a causal connection, it must be shown that the individual who made the termination decision was aware of, or had reason to be aware of, the Complainant's protected activity.  Matson v. Aurora Health Care (LIRC, 03/21/08).

Neither the Health Care Worker Protection Act nor the pleading requirements of the Equal Rights Division require that a Complainant specifically identify which state or federal law or rule, or ethical or clinical standard, she believes has been violated in order to obtain protection under the Health Care Worker Protection Act.  The information reported by the Complainant to her supervisor and to the clinic administrator in this case would lead a reasonable person to believe that a physician had violated a state law or rule, and would constitute a protected HCWPA disclosure as a result.  It is important to note that the relevant question is not whether the Complainant's allegations were sufficient to establish that a law or rule had been violated but, rather, whether they were sufficient to provide a motive for the Respondent to retaliate.  Matson v. Aurora Health Care (LIRC, 03/21/08).

The Complainant filed a complaint against his former employer when he was subsequently not re-hired by that employer. His complaint under sec. 146.997, Stats., was dismissed. Sec. 146.997 prohibits taking "disciplinary action" as defined in sec. 230.80(2), Stats. This statute pertains only to employees, in spite of the reference in sec. 146.997(3), Stats., to the prohibition against a healthcare facility or healthcare provider taking "disciplinary action" against "any person," and despite the fact that the forms of "disciplinary action" listed under sec. 230.80(2), Stats., is not an exhaustive list. The reason for this is that sec. 230.80(2), Stats., defines what the term "disciplinary action" means (i.e., any action taken with respect to an employee), and because all of the types of actions listed under that statute are actions that could only be taken against a current employee. It would be inappropriate to find that a failure to hire an individual comes within the meaning of a disciplinary action as defined under sec. 230.80(2), Stats. Ratsch v. Memorial Medical Center (LIRC 03/10/06).

The 300-day filing period specified in sec. 111.39(1), Stats., is made applicable to charges filed under the Healthcare Worker Protection Act by operation of sec. 146.997(4)(a), Stats. This 300-day filing limit is not a jurisdictional prerequisite. It is a statute of limitations which is subject to waiver, estoppel, and equitable tolling. Welsh v. Dept. of Corrections (LIRC 01/13/06).

It was inappropriate to dismiss a case for failure to state a claim for relief because the Complainant failed to identify a “state law or rule or federal law or regulation” within the meaning of sec. 146.997(2)(a)1., Stats., in his charge of retaliation.  Neither the Health Care Worker Protection Act nor the pleading requirements of the Equal Rights Division require that a Complainant specifically identify which state law or rule he believes has been violated in order to obtain protection under the Act.  In his various communications to management prior to his discharge, the Complainant stated that he believed that an alleged falsification of time cards constituted “fraud.”  The Complainant’s description of the alleged time reporting irregularities, as well as his allusion to fraud (which is an act subject to both civil and criminal penalties), would lead a reasonable person to believe that an employee of the Respondent’s health care facility had violated a state rule or law within the meaning of sec. 146.997(2)(a)1., Stats.  Lobacz v. Wisconsin Dept. of Corrections (LIRC, 11/03/05)

Sec. 146.997(2)(a)1., Stats., does not limit its application to violations of laws or rules relating to patient care or treatment.  Lobacz v. Wisconsin Dept. of Corrections (LIRC, 11/03/05)

The Complainant identified sec. 946.12(4), Stats., as the specific state law he believed was violated when his supervisor and a co-worker falsified their time records.  The Respondent argued that this statutory provision could not be relied upon to obtain a criminal conviction of a state employee engaging in falsification of a time card because its language was not sufficiently definite.  However, the question is not whether the allegations set forth in the employee’s report are sufficient to establish a violation of a specific state or federal statute or rule, but rather whether they were sufficient to provide a motive for the Respondent to retaliate.  Lobacz v. Wisconsin Dept. of Corrections (LIRC, 11/03/05)

The Health Care Worker Protection Act protects from retaliation only those who are employees of a "health care facility" or of a "health care provider" as defined in secs. 146.997(1)(c) and (d), Stats. The Complainant's employer, the Douglas County Department of Human Services, is not the type of person or entity specified in either of these definitions. Moreover, given the Act's reference to "county home," "county infirmary," "county hospital," and "county mental health complex," it would have to be concluded that the Legislature intended to exclude from the Act's coverage other county entities such as county human services departments. Jasmin v. County of Douglas (LIRC, 03/15/04).

The Health Care Worker Protection Act is limited to protecting employees to the extent that they make reports about things which they believe may result in inadequate care or mistreatment of patients. Here, the complaints which the Complainant made about a physician were in large part complaints about the way he treated staff at the hospital. To the extent that the Complainant's reports were related to allegations having some connection to patient care, they were largely outside the scope of the Act because of who she made them to. The Act is limited to protecting employees who make reports about inadequate care or mismanagement of patients to: (1) a state agency, (2) a professionally recognized accrediting or standard-setting body, (3) an officer or director of the facility, or (4) an employee of the facility in a supervisory capacity, or in a position to take corrective action. (Sec. 146.997(2), Stats.) The Complainant complained to other employees of the Respondent who were not in either a supervisory capacity or in a position to take corrective action, and she made threats to go to the local newspaper with accusations against the physician. Accordingly, there was no probable cause to believe that the Respondent violated the Health Care Worker Protection Act when it discharged the Complainant. Korn v. Divine Savior Healthcare (LIRC, 01/16/04).

The Health Care Worker Protection Act protects employees only to the extent that their reports are made in good faith. Sec. 146.997(3), Stats. Some of the Complainant's complaints about a physician in this case were false and misleading. They were motivated by a desire to see the hospital where the Complainant worked punished regardless of the truth of the allegations, and were not made in good faith. Korn v. Divine Savior Healthcare (LIRC, 01/16/04).

Where the Complainant filed a complaint under the Healthcare Worker Protection Act, sec. 146.997(3), Stats., it was inappropriate for the Equal Rights Division to issue an initial determination making a conclusion as to whether sec. 111.322(2m), Stats., had also been violated. The complaint was drafted and filed on the Complainant's behalf by an attorney. Presumably, if the Complainant had intended to allege not only a violation of the Healthcare Worker Protection Act, but also a violation of sec. 111.322(2m), Stats., she would have done so. Korn v. Divine Savior Healthcare (LIRC, 01/16/04).

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550  STATE EMPLOYEE "WHISTLEBLOWER" LAW

[Pursuant to sec. 230.80-89, Stats., it is unlawful to retaliate against state employees for making certain disclosures.  Enforcement of this law was previously the responsibility of the Personnel Commission.  With the elimination of the Personnel Commission, the Equal Rights Division is now responsible for enforcement of this law.  An employee who believes that a supervisor or appointing authority has retaliated against him or her may file a written complaint with the Equal Rights Division.   Decisions of the ERD under this provision are subject to direct judicial review under ch. 227;  there is no intervening review by LIRC.

 

551 State Employee "Whistleblower" Law;  Coverage

     551.1 Coverage, Generally
     551.2 Coverage; Which Entities are Covered

551.1 State Employee "Whistleblower" Law;  Coverage, Generally

Sec. 230.88(2), Stats., provides that upon an employee’s commencement of an action in a court of record alleging matters prohibited under sec. 230.83(1), Stats., the Personnel Commission had no jurisdiction to process a complaint filed under sec. 230.85, Stats., except to dismiss the complaint.  The Personnel Commission lost subject matter jurisdiction over the Complainant’s whistleblower complaint once he filed an action in federal district court that included allegations of state whistleblower violations.  It had no authority to place the case in abeyance.  Albrechtsen v. Wis. Dept. of Workforce Dev., 2005 WI App 241, ___ Wis. 2d ___, ___ N.W.2d ___.

A complaint under the Whistleblower Law was dismissed where the Complainant was not a state employee. Kochanowski v. Mid-State Technical College (Wis. Personnel Comm., 03/21/02).

A whistleblower disclosure must relate to circumstances which are not already common knowledge in order for the alleged retaliator to have any reason to retaliate because of it. Lane v. DOC (Wis. Personnel Comm., 06/07/01).

The Complainant was not permitted to amend his whistleblower complaint to include the State of Wisconsin as an additional respondent. There was clear evidence of a legislative intent not to permit the State the Wisconsin to be named as a respondent in a complaint of whistleblower retaliation. Oriedo v. DPI (Wis. Personnel Comm., 08/12/98).

A prima facie case involving alleged assistance "in any action or proceeding relating to the lawful disclosure of information under sec. 230.81 by another employee," sec. 230.80(8)(b), Stats., does not require that the Complainants disclose information as provided in sec. 230.81, Stats. (e.g., in writing to the supervisor or in writing to an agency designated by the Personnel Commission). Pierce v. Wisconsin Lottery and DER (Wis. Personnel Comm., 09/17/93).

To establish a prima facie case in the whistleblower retaliation context, there must be evidence that: (1) the employee participated in a protected activity and the alleged retaliator was aware of that participation, (2) there was a disciplinary action, and (3) there is a causal connection between the first two elements. Sadlier v. DHSS (Wis. Personnel Comm., 03/30/89).

The statutory requirement that the Whistleblower Act be liberally construed has no relation to the burdens of proof of parties to litigation under the law, and does not entitle the Complainant to the benefit of the doubt in resolving questions of credibility. Morkin v. UW-Madison (Wis. Personnel Comm., 11/23/88; aff'd sub nom. Morkin v. Wis. Personnel Comm. (Dane Co. Cir Ct., 09/27/89).

Where the Complainant's immediate supervisor was within an executive salary group, the Complainant was not an employee under the Whistleblower law and was ineligible to file a complaint under that law. Crownhart v. Investment Bd. (Wis. Personnel Comm., 01/13/88).

The definition of "employee" in sec. 230.80(3), Stats., should be liberally construed to permit claims arising from an earlier employment relationship, even if the alleged retaliation occurred after the Complainant had stopped working for the employer. Hollinger v. UW-Milwaukee (Wis. Personnel Comm., 11/21/85).

 

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551.2 State Employee "Whistleblower" Law; Coverage; Which Entities are Covered

[Ed. Note: Some of the cases summarized in this section were decided under the Wisconsin Fair Employment Act. They are included here for guidance they may provide for questions about which entities are subject to suit under the State Employee Whistleblower Law].

The State of Wisconsin is not considered a single employing entity. Wongkit v. UW-Madison (Wis. Personnel Comm., 10/21/98).

The Complainant was not permitted to amend his whistleblower complaint to include the State of Wisconsin as an additional respondent. There was clear evidence of a legislative intent not to permit the State the Wisconsin to be named as a respondent in a complaint of whistleblower retaliation. Oriedo v. DPI (Wis. Personnel Comm., 08/12/98).

Madison Area Technical College, a district technical school authorized under chapter 38, Stats., is not an agency of the state for the purpose of the Wisconsin Fair Employment Act. Thomas v. Madison Area Technical College (Wis. Personnel Comm., 08/04/95).

Private Industry Councils are created by federal, not state law, so they are not state agencies as defined in the Wisconsin Fair Employment Act. Kemp v. DILHR (Wis. Personnel Comm., 03/02/95).

The Wisconsin Housing and Economic Development Authority is not a state agency for purposes of the Wisconsin Fair Employment Act. Connor v. WHEDA (Wis. Personnel Comm., 12/14/94).

The Department of Employee Relations was properly a party to a whistleblower claim where it was alleged that it violated the Whistleblower Law with respect to the determination of the Complainant’s protective occupation status. Pierce v. Wisconsin Lottery and DER (Wis. Personnel Comm., 09/17/93).

The Medical College of Wisconsin is not a state agency for the purpose of processing complaints of discrimination or retaliation under the Wisconsin Fair Employment Act. Niroomand-Rad v. Medical College of Wis. (Wis. Personnel Comm., 05/05/88).

 

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552 State Employee "Whistleblower" Law; Disclosure of information 

     552.1 State Employee "Whistleblower" Law; Disclosure of information; Generally
     552.2 State Employee "Whistleblower" Law; Exception for disclosure likely to result in anything of value for the employee 

 

552.1 State Employee "Whistleblower" Law; Disclosure of information; Generally 

The policy behind Wisconsin's Whistleblower Law is to protect employees from retaliation and to encourage disclosure of certain information. However, the statutes provide specific parameters for protection. Although these protective statutes are to be liberally construed, only certain disclosures made a particular way and regarding a subject matter covered in the statute will qualify for protection. In order to gain protection under the Whistleblower Law, an employee must meet the requirements laid out in the relevant statutory provisions. "Retaliatory action" is defined in sec. 230.80(8), Stats., and includes disciplinary action taken because "[t]he employee lawfully disclosed information under s. 230.81 or filed a complaint under s. 230.85(1)." Before an employee is entitled to protection, the employee must make a disclosure of information in writing. "Information" is defined in the statute. Under sec. 230.80(5)(a), Stats., an employee is protected for disclosures of information that relate to one of four issues: mismanagement, abuse of authority in state or local government, substantial waste of public funds, or danger to public health and safety. The only claim made in this case is mismanagement. The Complainant wrote a memo which raised several topics, including a "supervisory style that is arbitrary and capricious," and a lack of guidelines. These actions lack any specific description of mismanagement. They do not even provide enough information to determine if they might reflect a simple disagreement over management techniques. The other topic in the Complainant's memo was an allegation of an excessive workload. Sec. 230.85(5), Stats., defines "information" to include information gained by the employee which the employee reasonably believes demonstrates mismanagement. Mismanagement is more precisely defined in sec. 230.80(7), Stats. as "a pattern of incompetent management actions which are wrongful, negligent or arbitrary and capricious and which adversely affect the efficient accomplishment of an agency function." A "pattern of incompetent management actions" under sec. 230.80(7), Stats., requires more than a claim of a single act of incompetent management. Because the Complainant's memo in this case claimed only a single act of alleged mismanagement, the memo is not a disclosure of information protected under the Whistleblower Law. Hutson v. Wis. Personnel Comm., 2003 WI 97, 263 Wis. 2d 616, 665 N.W.2d 212.

The Complainant verbally made safety concerns known to his supervisor. None of the disclosures listed in his complaint were in writing. The safety concerns that the Complainant raised orally do not satisfy the requirements of sec. 230.81(1)(a), Stats., and they do not satisfy any of the alternative categories of protected activities described in secs. 230.81(1), (2), or (3), Stats. The Complainant also had a claim of retaliation for occupational safety and health reporting activities under sec. 101.055, Stats. He argued that disclosures under that law are not required to be made in writing. However, in order to state a claim under the Whistleblower Law, the Complainant must have engaged in a protected activity under the Whistleblower Law. Because the Complainant did not make a lawful disclosure, his whistleblower claim was dismissed. Young v. DOT (Wis. Personnel Comm., 05/17/01).

The Whistleblower Law is designed to protect an employee who discloses information that the public has an interest in having disclosed. The statute protects disclosures of "information," as defined in sec. 230.80(5), Stats. Some of the terms within that definition are defined elsewhere in sec. 230.80, Stats. (e.g., "abuse of authority," "mismanagement," and "substantial waste of public funds."). The Complainant's e-mail message in this case did not describe "information" as required by the statute, and the e-mail did not qualify as a disclosure because it was not directed to the Complainant's supervisor. The Complainant's position was in the Division of Management Services. The individual to whom he sent the e-mail was a supervisor in the Division of Law Enforcement Services. That individual provided the funding for the Complainant's project, but he was not the Complainant's supervisor. Jenkins v. Dept. of Justice (Wis. Personnel Comm., 10/04/00).

The Complainant worked in the Division of Management Services in the Department of Justice. The Complainant sent an e-mail message to the administrator of another division within the Department of Justice. This e-mail did not qualify as a disclosure because it was not directed to the Complainant's supervisor. The Complainant contended that the individual to whom he sent the e-mail was an agent of the Attorney General, so that a disclosure to him was a disclosure to the Attorney General, who heads the Department of Justice. The Complainant contended that since the Attorney General is in the supervisory chain above the Complainant, his disclosure to the administrator in another division constituted a disclosure to the Attorney General's agent, and thus falls within sec. 230.80(1)(a), Stats. If the Complainant's theory were adopted, the result would be contrary to the clear intent of the Whistleblower Law, which specifies certain routes for obtaining protection under the law. Jenkins v. Dept. of Justice (Wis. Personnel Comm., 10/04/00).

The Whistleblower Law requires that an employee disclose the subject information to his or her supervisor. The Personnel Commission has interpreted this to include any supervisor in the employee's chain of command. This must be done prior to disclosing that information to any other person in order to obtain protection as a whistleblower. Several of the claimed disclosures in this case did not entitle the Complainant to protection as a whistleblower. Those included disclosures which were not authored by the Complainant; disclosures which were not made to supervisors in the Complainant's chain of command; and disclosures which (although copied to supervisors in Complainant's chain of command) were not provided to them prior to their disclosure to other persons and, as a result, do not satisfy the requirements of sec. 230.81, Stats. Ochrymowycz v. UW (Eau Claire) (Wis. Personnel Comm., 06/07/00).

The Respondent's motion to dismiss the complaint for failure to state a claim was granted where the only protected activity identified by the Complainant was a conversation with a representative of the Respondent's human resources department. That activity did not fall within the scope of any portion of sec. 230.81, Stats. Kowing v. UW Hospitals and Clinics Board (Wis. Personnel Comm., 11/05/99).

The filing of a whistleblower complaint with the Personnel Commission is a protected disclosure pursuant to sec. 230.80(8)(a), Stats. Stanley v. DOC (Wis. Personnel Comm., 08/25/99).

Some of the Complainant's union grievances did not constitute protected disclosures where the grievances indicated that another staff worker was harassing the Complainant, but did not allege that the Respondent failed to correct the situation. Nor did the grievances request management to remedy the perceived harassment. However, the Complainant filed another grievance which specifically raised the perceived harassment by another staff person and which contained a request for management to remedy the situation. Another grievance concerned the lack of union representation at certain meetings. These grievances have the potential of being considered as disclosures of information under sec. 230.80(5), Stats. Therefore, the Respondent's motion to dismiss the complaint for failure to state a claim upon which relief could be granted was denied. Stanley v. DOC (Wis. Personnel Comm., 08/25/99).

The Complainant's memo reciting discrepancies of "almost 1%" and "almost 2%" between certain affirmative action report figures and certain veteran report figures were not major differences, and his memo did not satisfy the requirements of a disclosure of "information." Sheskey v. DER (Wis. Personnel Comm., 08/26/98).

Even though the Complainant did not submit copies of the written disclosures that served as the basis for his complaints of retaliation, he described the disclosures in a manner that was sufficiently specific to withstand the Respondent's motion to dismiss for failure to specify the "information" he had disclosed. Benson v. UW (Whitewater) (Wis. Personnel Comm., 08/26/98).

Qualifying disclosures under the Whistleblower Law need not be made to a first-line supervisor in order to qualify as a disclosure to a supervisor within the meaning of sec. 230.81(1)(a), Stats. Benson v. UW (Whitewater) (Wis. Personnel Comm., 08/26/98).

When a faculty member is the "employee" making a whistleblower disclosure, it is reasonable to interpret "supervisor" to include the campus chancellor, the college dean and the department chair of the department containing the employee's position. Benson v. UW (Whitewater) (Wis. Personnel Comm., 08/26/98).

The filing of a complaint under the Wisconsin Fair Employment Act is not a protected activity under the Whistleblower Law that entitles a Complainant to protection under sec. 230.80(8)(a), Stats. Oriedo v. DPI (Wis. Personnel Comm., 08/12/98).

A written disclosure that faulted the conduct of an inmate rather than an employee was insufficient to meet the definition of "information." Bentz v. DOC (Wis. Personnel Comm., 03/11/98).

A written report made at the request of the employer and made to individuals designated by the employer to handle the matter met the whistleblower disclosure requirements, even though it was not made to the Complainant's immediate supervisor. Bentz v. DOC (Wis. Personnel Comm., 03/11/98).

A union grievance filed by the Complainant qualified as a protected whistleblower disclosure to her collective bargaining representative within the meaning of sec. 230.81(3), Stats. Williams v. UW-Madison (Wis. Personnel Comm., 09/17/96); aff'd sub nom. Williams v. Wis. Personnel Comm. (Dane Co. Cir. Ct., 11/19/97).

A disclosure need not be made to a first-line supervisor, but may be made instead to a second-line supervisor, third-line supervisor, or higher level supervisor in the employee's supervisory chain of command in order to qualify as a disclosure to a supervisor within the meaning of sec. 230.81(1)(a), Stats. However, merely because an individual processed grievances originating in the UW-Hospital did not qualify him as a supervisor of the Complainant (who worked for the hospital), and as a result, the Complainant did not make a protected disclosure. Williams v. UW-Madison (Wis. Personnel Comm., 09/17/96); aff'd sub nom. Williams v. Wis. Personnel Comm. (Dane Co. Cir. Ct., 11/19/97).

Under sec. 230.80(5), Stats., the "information" disclosed must have a specific, substantive content in order to be eligible for protection. A note scheduling a meeting cannot somehow utilize its connection with the meeting to become a protected disclosure under the law. Elmer v. DATCP (Wis. Personnel Comm., 11/14/96).

Where the Complainant filed a written disclosure with an employee of the Respondent's affirmative action office and contended that it was with the Complainant's understanding that the employee would provide a copy of the writing to someone in Complainant's supervisory chain of command, the Respondent's motion to dismiss was denied. Kortman v. UW-Madison (Wis. Personnel Comm., 11/17/95).

In ruling on a motion for failure to state a claim, the Complainant's memo, which referred to the absence of a maintenance agreement for the equipment in two offices, could be said to satisfy the requirements for a written disclosure of "mismanagement." Duran v. DOC (Wis. Personnel Comm., 10/04/94).

The Complainant's testimony in federal court was not a disclosure protected by the Whistleblower Law because it did not fit within any of the communications enumerated in sec. 230.81, Stats. Rentmeester v. Wisconsin Lottery (Wis. Personnel Comm., 05/27/94).

The Complainant made a protected disclosure to her legislator when she sent him a copy of a letter she sent to her employer concerning her request for reassignment to her previous route as an accommodation for her handicap. While the letter did not explicitly allege a violation of state laws, considered in the context of other communications with the Legislature and using a liberal construction of the statute, the communication met the requirement of "information gained by the employee which the employee reasonably believes demonstrates a violation of any state. . . law." Rentmeester v. Wisconsin Lottery (Wis. Personnel Comm., 05/27/94).

The Complainant's consultations with her attorney concerning her request for accommodation constituted a covered disclosure pursuant to secs. 230.80(5)(a) and 230.81(1)(3), Stats. Rentmeester v. Wisconsin Lottery (Wis. Personnel Comm., 05/27/94).

A filing of a WFEA complaint is not a protected activity under the Whistleblower Law that entitles a Complainant to protection under sec. 230.80(8)(a), Stats. The court system and, by necessary implication, the system of administrative law, are excluded from the category of "law enforcement agency" in sec. 230.81(2), Stats. Butzlaff v. DHSS (Wis. Personnel Comm., 11/19/92).

The Whistleblower Law covers disclosures to legislators and the Legislature, and thus includes a disclosure to a private sector auditor providing services for the Legislature. Pierce and Sheldon v. Wisconsin Lottery and DER (Wis. Personnel Comm., 10/16/92).

A newspaper advertisement seeking information from other persons regarding the actions of the Complainant's employer is not a protected disclosure. Morkin v. UW-Madison (Wis. Personnel Comm., 11/23/88); aff'd sub nom. Morkin v. Wis. Personnel Comm. (Dane Co. Cir. Ct., 09/27/89).

A disclosure made to three individuals, all of whom were in the supervisory chain above the Complainant, constituted a protected disclosure even though it was not made to the Complainant's first-line supervisor. Morkin v. UW-Madison (Wis. Personnel Comm., 11/23/88); aff'd sub nom. Morkin v. Wis. Personnel Comm. (Dane Co. Cir. Ct., 09/27/89).

It would be contrary to the policy behind the protections of the Whistleblower Law for information exchanged in informal discussions to render subsequent formal written disclosures unprotected. Morkin v. UW-Madison (Wis. Personnel Comm., 11/23/88); aff'd sub nom. Morkin v. Wis. Personnel Comm. (Dane Co. Cir. Ct., 09/27/89).

The Complainant's whistleblower claim was dismissed where her attorney made no allegation that she made any disclosure other than a verbal disclosure. However, the Complainant was still entitled to protection from retaliation for having filed her complaint. Iwanski v. DHSS (Wis. Personnel Comm., 06/21/89).

The statute does not require that a disclosure made under the Whistleblower Law and made in the form of a grievance, indicate on its face that it is a whistleblower disclosure. Sadlier v. DHSS (Wis. Personnel Comm., 03/30/89).

A grievance did not constitute a disclosure of alleged "mismanagement" where the grievance related only to one action by the superintendent of the correctional institution, rather than to a "pattern" of conduct. Sadlier v. DHSS (Wis. Personnel Comm., 03/30/89).

A letter written by the Complainant's attorney and serving to inform the Respondent that the Complainant contended that she had engaged in a protected activity under the Whistleblower Law by making a disclosure to the attorney need not itself meet the requirements of a lawful disclosure. Canter-Kihlstrom v. UW-Madison (Wis. Personnel Comm., 06/08/88).

 

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552.2 State Employee "Whistleblower" Law; Exception for disclosure likely to result in anything of value for the employee 

The Complainants' disclosure was not protected under the Whistleblower Law because it fell within the exception set forth in sec. 230.83(2), Stats., for disclosures for personal benefit. The Complainants' disclosure was that their positions lacked the appropriate arrest authority not withstanding that their position descriptions called for law enforcement certification, and the lack of such authority jeopardized their continued law enforcement certification and protective occupation status. The provision in sec. 230.83(2), Stats., that the law does not apply to an employee whose disclosure is made to receive something of value, clearly applies to an employee who makes a disclosure in order to perpetuate the receipt of benefits to which the employee is not entitled. Here, the Complainants appear to contend that once the disclosure was made their employer should have proceeded to assign them the enforcement authority that was described on their inaccurate position descriptions. This would result in the receipt of something of value – i.e., their retirement benefits would be greater in protective occupation status. Pierce and Sheldon v. Wisconsin Lottery and DER (Wis. Personnel Comm., 10/16/92).

 

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553 State Employee "Whistleblower" Law; Processing of Information by Governmental Unit 

Where the Complainant's disclosure was investigated and the Respondent ultimately disciplined an employee because of it, the employer determined that the protected disclosure merited further investigation. Therefore, the Complainant was entitled to the presumption of retaliation with respect to the Respondent's decision to discharge her, where the discharge was within two years of when she made her protected disclosure. Bentz v. DOC (Wis. Personnel Comm., 03/11/98).

Where the protected disclosure consisted of a union grievance relating to the presence of cockroaches in campus buildings, and where the Respondent processed the grievance as it was required to do under the applicable collective bargaining agreement, there was no showing that the Respondent concluded that investigation of the health and safety issue presented in the grievance was merited, or that such an investigation occurred. Therefore, the Complainant failed to establish the prerequisite for presuming, under sec. 230.85(6), Stats., that a subsequent suspension constituted whistleblower retaliation. Williams v. UW-Madison (Wis. Personnel Comm., 09/17/96); aff'd sub nom. Williams v. Wis. Personnel Comm. (Dane Co. Cir. Ct., 11/19/97).

The statutory presumption of retaliation established in sec. 230.85(6), Stats., was inapplicable to that component of a written disclosure by the Complainant to the Department Secretary relating to an allegation that a coworker of the Complainant's was violating the Respondent's fraternization policy where: (1) the Complainant had raised the fraternization issue once before, (2) it had been investigated and resolved by a previous secretary and (3) as a result, the Respondent did not feel that this part of the Complainant's more recent disclosure merited further investigation. However, where the second component of the Complainant's written disclosure (that an employee used work phones for personal calls) was the subject of individual meetings with employees in the Complainant's work unit after the date of the disclosure, it appeared as though the Respondent felt that this part of the disclosure merited further investigation and, as a result, the statutory presumption of retaliation would apply. King v. DOC (Wis. Personnel Comm., 03/22/96).

Where the Respondent (the Department of Employee Relations) received a letter from the Complainant (who was not a DER employee) regarding the reclassification of his position and protection under the Whistleblower Law, and, in response, referred the complaint to the Personnel Commission as the agency specified in the Whistleblower Law as having responsibility for receiving and deciding complaints of whistleblower retaliation, the Respondent met its obligation under the Whistleblower Law and was not liable for retaliation if the Complainant was the victim of retaliation by his employing agency. Seay v. DER and UW-Madison (Wis. Personnel Comm., 03/31/94); aff'd sub nom. Seay v. Wis. Personnel Comm., (Dane Co. Cir. Ct., 03/03/95).

The Complainant was entitled to the presumption of retaliation even though the Respondent did not investigate the disclosure before issuing the Complainant a letter stating that the information "merits further investigation." The Personnel Commission is only to look at whether the agency found the information merited further investigation rather than to carry out a substantive review of the adequacy of that finding. Sadlier v. DHSS (Wis. Personnel Comm., 03/30/89).

 

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554 State Employee "Whistleblower" Law; Retaliatory Action Prohibited 

     554.1 State Employee "Whistleblower" Law; Retaliatory Action Prohibited; Generally
     554.2 State Employee "Whistleblower" Law; Retaliatory Action Prohibited
; Disciplinary action
     554.3 State Employee "Whistleblower" Law; Retaliatory Action Prohibited
; Presumption of retaliation 
     554.4 State Employee "Whistleblower" Law; Retaliatory Action Prohibited
; Cases 
 

554.1 State Employee "Whistleblower" Law; Retaliatory Action Prohibited; Generally 

Filing a complaint of whistleblower retaliation is itself a protected activity under the Whistleblower Law. Therefore, a disciplinary action threatened or imposed after the Respondent learned of the Complainant's charge of whistleblower retaliation could constitute illegal retaliation under the Whistleblower Law. Benson v. UW (Whitewater) (Wis. Personnel Comm., 08/26/98).

The Whistleblower Law does not include protection against retaliation by coworkers. In this case, a correctional officer's attempt to persuade an inmate to submit a concocted report about the Complainant (a food service worker) and other actions by correctional officers were not carried out by the appointing authority or an agent of the appointing authority as required in sec. 230.83(1), Stats. There was no persuasive evidence from which it would be reasonable to conclude that the Respondent fostered or condoned the officers' actions to such a degree that the officers should be considered as agents of the Respondent. Bentz v. DOC (Wis. Personnel Comm., 03/11/98).

In determining whether a series of incidents constituted "verbal or physical harassment" within the definition of disciplinary action, the possible cumulative impact of the incidents on the employee may be considered. Seay v. DER and UW-Madison (Wis. Personnel Comm., 03/31/94); aff'd sub nom. Seay v. Wis. Personnel Comm. (Dane Co. Cir. Ct., 03/03/95).

The Complainant failed to establish a prima facie case of whistleblower retaliation as to events occurring before his alleged retaliators were aware of his protected disclosures. Seay v. DER and UW-Madison, (Wis. Personnel Comm., 03/31/94); aff'd sub nom. Seay v. Wis. Personnel Comm. (Dane Co. Cir. Ct., 03/03/95).

An employer will not be held accountable for acts of alleged retaliation when the Complainant was given the opportunity to provide information relating to the allegations to representatives of the employer but generally declined to do so. Seay v. DER and UW-Madison (Wis. Personnel Comm., 03/31/94); aff'd sub nom. Seay v. Wis. Personnel Comm., (Dane Co. Cir. Ct., 03/03/95).

The Complainant failed to establish a prima facie case of retaliation where the person who decided not to rescind the Complainant's resignation was not aware of the Complainant's protected activity. Radtke v. UW-Madison (Wis. Personnel Comm., 11/22/94).

The Complainants alleged that the Respondents' settlement offer constituted a threat to terminate their protective occupation status and constituted a threat of retaliation under the Whistleblower Law. The Respondents contended in support of their motion to dismiss for failure to state a claim that its action was not prohibited by the Whistleblower Law. Since the offer presented two options (depending on whether or not the offer was accepted), both of which were penalties, the offer can be seen as a vehicle for retaliation, and covered by the Whistleblower Law. Pierce and Sheldon v. Wisconsin Lottery and DER (Wis. Personnel Comm., 10/16/92).

The Personnel Commission's authority under the Whistleblower Law does not extend to an individual outside the employing agency who may have played some precipitating role in a disciplinary action, but who has no legally recognized role as an appointing authority or employer. The Complainant (a Correctional Officer 3 employed by the Department of Corrections and assigned to the security ward at the UW-Hospital and Clinic) alleged that he had been reassigned to another facility and harassed as a result of complaints of sexual harassment made by UW-Hospital and Clinic employees. UW-Madison was dismissed as a party. Martin v. DOC and UW-Madison (Wis. Personnel Comm., 01/11/91).

While the issue of just cause can be an appropriate consideration at the analytical stage of determining pretext in a claim arising from the imposition of discipline, the ultimate issue in whistleblower cases is whether retaliation occurred, not whether there was just cause for the imposition of discipline. Sadlier v. DHSS (Wis. Personnel Comm., 03/30/89).

A settlement offer made in the context of an ongoing administrative review of an employment decision did not fall within the scope of the prohibition against retaliation because the conditions of settlement required acceptance by the Complainant before they could go into effect. Hollinger v. UW-Milwaukee (Wis. Personnel Comm., 11/21/85).

 

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554.2 State Employee "Whistleblower" Law; Retaliatory Action Prohibited; Disciplinary action 

At some point, maintaining an employee on a leave of absence, even a leave with pay, may reach the level of a disciplinary action, i.e., it may result in a loss of position or other consequences commonly associated with job discipline. Rykal v. DATCP (Wis. Personnel Comm., 12/20/01).

The complaint was dismissed for failure to state a claim upon which relief could be granted where the only disciplinary actions alleged in the complaint were that the Respondent established a policy requiring that personal guests of employees were required to remain in the reception area until they were escorted into the office by the employee, and where program assistants in the office presented flowers to certain probation and parole agents in celebration of "agent week," but did not present any flowers to the Complainant. These actions do not constitute disciplinary actions within the meaning of the whistleblower retaliation statute. Reed v. DOC (Wis. Personnel Comm., 11/15/00).

The introductory clause to sec. 230.80(2), Stats., states that "'disciplinary action' means any action taken with respect to an employee which has the effect, in whole or in part, of a penalty...." The introductory clause clearly states that the action complained of must have the effect, at least in part, of a penalty. The examples of actions having the effect of a penalty are contained in subparagraphs (a) through (d) of the statute, but are not intended to be an all-inclusive list. The Personnel Commission has held that the common understanding of a penalty in connection with a job-related disciplinary action does not cover every potentially prejudicial effect on job satisfaction or ability to perform one's job efficiently. Stanley v. DOC (Wis. Personnel Comm., 08/25/99).

The Respondent's alleged conduct of removing the Complainant from his role as a faculty advisor to a student organization related to the "removal of any duty" under sec. 230.80(2), Stats., and fell within the scope of a disciplinary action. The Respondent's motion to dismiss was denied as to that allegation. Benson v. UW (Whitewater) (Wis. Personnel Comm., 08/26/98).

Where the Complainant, a faculty member, alleged that the Respondent refused to pay him for working with a visiting professor, it was comparable to an allegation that the Complainant's pay had been reduced, thus having the effect of a penalty within the scope of a disciplinary action. The Respondent's motion to dismiss was denied as to that allegation. Benson v. UW (Whitewater) (Wis. Personnel Comm., 08/26/98).

Where the Complainant was a faculty member, his whistleblower allegation that the Respondent had threatened to remove his endowed chair fit within the scope of a disciplinary action. The Respondent's motion to dismiss was denied as to that allegation. Benson v. UW (Whitewater) (Wis. Personnel Comm., 08/26/98).

Where the Complainant, a faculty member, alleged that the Respondent did not promptly respond to his proposal that an artist serve as "artist in residence for a few days," the allegation did not rise to the level of a disciplinary action because it resulted in no loss of pay, position, upgrade or transfer or in any other consequences commonly associated with job discipline. Benson v. UW (Whitewater) (Wis. Personnel Comm., 08/26/98).

Where the Complainant, a faculty member, alleged that the Respondent did not adequately respond to efforts to have several students from a foreign university attend UW-Whitewater, the alleged conduct did not rise to the level of a disciplinary action because it resulted in no loss of pay, position, upgrade or transfer or in any other consequences commonly associated with job discipline. Benson v. UW (Whitewater) (Wis. Personnel Comm., 08/26/98).

The Complainant's whistleblower allegation that campus administrators tried to convince a third party to commence a civil action against the Complainant was not a consequence commonly associated with job discipline, so it did not satisfy the requirement of disciplinary action. Benson v. UW (Whitewater) (Wis. Personnel Comm., 08/26/98).

The Respondent's alleged action of reminding the Complainant that all guest editorials had to be coordinated through the administration did not rise to the level of a disciplinary action. Benson v. UW (Whitewater) (Wis. Personnel Comm., 08/26/98).

Alleged actions taken by the Complainant's superiors (or at their direction) to steal a fax sent to Complainant, to flatten the tires on Complainant's car, to steal his cell phone from his office, to leave anonymous and derogatory notes in the Complainant's office, to vandalize his car, to prevent the Complainant from retrieving his personal belongings, and to take a bottle of copy machine toner that the Complainant had purchased, all allegedly in response to his protected activities, constituted "physical harassment" under sec. 230.80(2)(a), Stats. The Respondent's motion to dismiss was denied as to those allegations. Benson v. UW (Whitewater) (Wis. Personnel Comm., 08/26/98).

The Respondent's alleged action of responding inadequately to the Complainant's request relating to a public expenditure was not a disciplinary action where the Complainant's request was made "as a taxpayer." The allegation did not involve the employment relationship. Benson v. UW (Whitewater) (Wis. Personnel Comm., 08/26/98).

The Respondent's alleged statement that personnel files and records of individual faculty members were public documents and were available for inspection upon demand was not a disciplinary action. Benson v. UW (Whitewater) (Wis. Personnel Comm., 08/26/98).

The Respondent's alleged action of making a notation on a document did not rise to the level of a disciplinary action. Benson v. UW (Whitewater) (Wis. Personnel Comm., 08/26/98).

The Respondent's alleged action of completely barring the Complainant from using the university's mail system rose to the level of a disciplinary action, assuming the Complainant alleged it had a drastic effect on his ability to perform his responsibilities as a member of the faculty and that it was taken in response to the Complainant's protected activities. The Respondent's motion to dismiss was denied as to that allegation. Benson v. UW (Whitewater) (Wis. Personnel Comm., 08/26/98).

The Respondent's alleged action of asking the Complainant to clarify whether the Complainant's activities in Cuba were taken as a private citizen or as a representative of the Respondent was not a disciplinary action. Benson v. UW (Whitewater) (Wis. Personnel Comm., 08/26/98).

The Respondent's alleged activity in the nature of a public criticism by an employer of an employee's or a group of employees' approach to a controversial issue is outside the scope of verbal or physical harassment. Administration officials were quoted in two newspaper articles relating to the Complainant, a faculty member. Benson v. UW (Whitewater) (Wis. Personnel Comm., 08/26/98).

Where the Complainant was a member of the faculty, the Respondent's alleged action of temporarily suspending the Complainant's photocopying privileges at the campus library until the Respondent reviewed the Complainant's justification for his copying requests was not a disciplinary action. Benson v. UW (Whitewater) (Wis. Personnel Comm., 08/26/98).

Where the Complainant was a faculty member, the Respondent's alleged action of failing to support or approve the Complainant's request for a one-year sabbatical rose to the level of a disciplinary action. The Respondent's motion to dismiss was denied as to this allegation. Benson v. UW (Whitewater) (Wis. Personnel Comm., 08/26/98).

Where the Complainant was a faculty member, the Respondent's alleged action of removing the Complainant's printing and labeling privileges rose to the level of a disciplinary action, assuming the Complainant alleged it had a drastic effect on his ability to perform his responsibilities and assuming it was taken in response to the Complainant's protected activities. The Respondent's motion to dismiss was denied as to this allegation. Benson v. UW (Whitewater) (Wis. Personnel Comm., 08/26/98).

A memo informing the Complainant that he was required to obtain approval from the administration for any expenditure request was not a disciplinary action. Benson v. UW (Whitewater) (Wis. Personnel Comm., 08/26/98).

The Respondent's action of merely preventing the Complainant from using the employer's mail service for two specific memos did not rise to the level of a penalty or disciplinary action as listed in sec. 230.80(2), Stats. Benson v. UW (Whitewater) (Wis. Personnel Comm., 08/26/98).

The action of the dean of the college not to include the Complainant in a list of eight individuals who were congratulated in a memo for receiving grants or donations was not a disciplinary action. Benson v. UW (Whitewater) (Wis. Personnel Comm., 08/26/98).

The possibility that the Respondent might forward the name of a candidate for the Complainant, a faculty member, to consider for hire as an LTE was neither a disciplinary action nor a threat thereof. Benson v. UW (Whitewater) (Wis. Personnel Comm., 08/26/98).

Filing a complaint with an agency's EEO office and initiating an investigation of that complaint are not disciplinary actions. Benson v. UW (Whitewater) (Wis. Personnel Comm., 08/26/98).

Where the Complainant, a faculty member, alleged that the Respondent had removed his secretary, thereby denying him secretarial services, the Respondent's alleged conduct qualified as a disciplinary action. The Respondent's motion to dismiss was denied as to this allegation. However, the Complainant's allegation that the Respondent removed a particular photocopy machine, but continued to provide him with photocopying options, was not considered a disciplinary action. Benson v. UW (Whitewater) (Wis. Personnel Comm., 08/26/98).

Where the only actual change in duties or responsibilities that could reasonably be implied related to the Complainant having less independence in setting the schedule for his audits of fire departments, it was not a sufficiently significant change to qualify as a "removal of duties" or a "reassignment" within the meaning of sec. 230.80(2), Stats. Bruflat v. Dept. of Commerce (Wis. Personnel Comm., 07/07/98).

The Complainant stated that all employees in his work unit had been granted home stations in 1994, but that he did not make the move to his home area of Hayward at that time for personal reasons. Approximately two years later, the Complainant requested relocation to Hayward. The Complainant's allegation that the Respondent denied his request was sufficiently akin to a transfer or a reassignment (or to their denial) to qualify as a disciplinary action within the meaning of sec. 230.80(2), Wis. Stats. Bruflat v. Dept. of Commerce (Wis. Personnel Comm., 07/07/98).

A delay in processing a travel voucher does not have the permanence or the long-term impact of penalties cited in sec. 230.80(2), Stats. as disciplinary actions. Bruflat v. Dept. of Commerce (Wis. Personnel Comm., 07/07/98).

Where it was undisputed that a decision had been made to change the duties and responsibilities of the Complainant's position, such an action could be equivalent to removing a duty from a position or reassignment so as to constitute a disciplinary action within the meaning of sec. 230.80(2), Stats. Bruflat v. Dept. of Commerce (Wis. Personnel Comm., 07/07/98).

Two alleged statements, standing alone, were not sufficiently severe or pervasive to support a conclusion that the conditions of the Complainant's employment were affected to the extent required for a finding of verbal harassment within the meaning of sec. 230.80(2)(a), Stats. The Complainant alleged that his manager asked, "How long are we going to keep choking this chicken, Dave?" and then repeated the question, using hand gestures to mimic masturbation. Even when considered with the Complainant's remaining allegations of verbal harassment, the cumulative effect of the allegations was insufficient to support a finding that the requirements of sec. 230.80(2)(a), Stats. had been met. Bruflat v. Dept. of Commerce (Wis. Personnel Comm., 07/07/98).

A statement to the Complainant (a food service worker) by a supervisor of officers in a correctional institution that it was not a good idea to "tick off" correctional officers, did not have a substantial or potentially substantial negative effect on the Complainant. Therefore, it was not a "disciplinary action" within the meaning of the Whistleblower Law. Bentz v. DOC (Wis. Personnel Comm., 03/11/98).

An increased workload due to a vacancy in a subordinate position does not rise to the level of a "penalty" under the Whistleblower Law. Perrien v. DOC (Wis. Personnel Comm., 07/02/97).

Moving the Complainant to a different work station constituted a penalty within the meaning of the whistleblower statute where the Complainant had communicated to the Respondent that the association of the new work station with a fellow employee to whom she had developed an aversion could significantly affect her health and her mental and physical ability to function in her job. King v. DOC (Wis. Personnel Comm., 03/22/96).

To be a "disciplinary action," the employer's act must, at the very least, be related to the Complainant's employment. Allegedly retaliatory actions taken against the Complainant's attorney, in public statements made by a supervisor which were not related specifically to the Complainant or to his employment, did not constitute "disciplinary action." However, an alleged failure by the Respondent to promptly investigate allegations of sexual harassment, alleged reductions in the Complainant's responsibilities and alleged negative aspects of a performance evaluation do constitute "disciplinary action." Getsinger v. UW-Stevens Point (Wis. Personnel Comm., 04/30/93).

Actions which occurred after the termination of the Complainant's employment relationship with the Respondent could not, as a matter of law, constitute "disciplinary action" pursuant to sec. 230.80(2)(a), Stats., which refers to "action taken with respect to an employee." Kuri v. UW-Stevens Point (Wis. Personnel Comm., 04/30/93).

To meet the definition of "disciplinary action," the employer's act must be related to the Complainant's employment status. The law does not cover harassment of an employee's attorney. Kuri v. UW-Stevens Point (Wis. Personnel Comm., 04/30/93).

The methods used by the Respondent in carrying out an investigation of the Complainant's work performance and the decision to permit a union official to carry out an investigation of the Complainant's conduct were not "disciplinary actions" as that term is used in the Whistleblower Law. However, an oral reprimand, the denial of a wage increase, and the denial of a promotion fall within the definition. Flannery v. DOC (Wis. Personnel Comm., 07/25/91).

The common understanding of a penalty in connection with a job-related disciplinary action does not stretch to cover every potentially prejudicial effect on job satisfaction or ability to perform one's job efficiently. The Complainant was not retaliated against where his disclosure resulted in no loss of pay, position, upgrade or transfer or other consequences commonly associated with job discipline. Vander Zanden v. DILHR (Outagamie Co. Cir. Ct., 05/25/89).

The following actions did not constitute "disciplinary actions" within the meaning of sec. 230.80(2), Stats.: (1) The denial of a request to publish a thank you note in a correctional institution's daily bulletin; (2) the denial of pay status for one-fourth of an hour during an investigative meeting where the denial was subsequently reversed; and (3) a decision to investigate an incident which could have led to the imposition of discipline against the Complainant. (Seven other actions were found to fall within the definition of "disciplinary actions.") Sadlier v. DHSS (Wis. Personnel Comm., 03/30/89).

A requirement that the Complainant undergo a psychiatric evaluation was not a disciplinary action within the meaning of sec. 230.80(2), Stats., where the evaluation could have been completed within the period of a ten-day suspension imposed against the Complainant, and the requirement did not create a stigma for the Complainant because it was a matter of record that the Complainant had previously been given a leave of absence to enable him to undergo psychiatric treatment. The ten-day suspension and the involuntary leave without pay (which resulted from the Respondent's failure to return the Complainant to work status after the expiration of the suspension) were found to be disciplinary actions. Morkin v. UW-Madison (Wis. Personnel Comm., 11/23/88); aff'd sub nom. Morkin v. Wis. Personnel Comm. (Dane Co. Cir. Ct., 09/27/89).

Only those personnel actions which have a substantial or potentially substantial negative impact on an employee fall within the definition of "disciplinary action" found in sec. 230.80(2), Stats. Limitations placed on the Complainant's contacts with a certain office did not constitute a disciplinary action where the duties and responsibilities of the Complainant's position did not necessitate frequent contacts with that office and the limitations re-routed, but did not prevent, those contacts. Vander Zanden v. DILHR (Wis. Personnel Comm., 08/24/88); aff'd by Outagamie Co. Cir. Ct., 05/25/89.

 

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554.3 State Employee "Whistleblower" Law; Retaliatory Action Prohibited; Presumption of retaliation 

Where the Complainant's disclosure was investigated and the Respondent ultimately disciplined an employee because of it, the employer determined that the protected disclosure merited further investigation. Therefore, the Complainant was entitled to the presumption of retaliation with respect to the Respondent's decision to discharge her, where the discharge was within two years of when she made her protected disclosure. Bentz v. DOC (Wis. Personnel Comm., 03/11/98).

Where the protected disclosure consisted of a union grievance relating to the presence of cockroaches in campus buildings, and where the Respondent processed the grievance as it was required to do under the applicable collective bargaining agreement, there was no showing that the Respondent concluded that investigation of the health and safety issue presented in the grievance was merited, or that such an investigation occurred. Therefore, the Complainant failed to establish the prerequisite for presuming, under sec. 230.85(6), Stats., that a subsequent suspension constituted whistleblower retaliation. Williams v. UW-Madison (Wis. Personnel Comm., 09/17/96); aff'd sub nom. Williams v. Wis. Personnel Comm. (Dane Co. Cir. Ct., 11/19/97).

The statutory presumption of retaliation established in sec. 230.85(6), Stats., was inapplicable to that component of a written disclosure by the Complainant to the Department Secretary relating to an allegation that a coworker of the Complainant's was violating the Respondent's fraternization policy where: (1) the Complainant had raised the fraternization issue once before, (2) it had been investigated and resolved by a previous secretary and (3) as a result, the Respondent did not feel that this part of the Complainant's more recent disclosure merited further investigation. However, where the second component of the Complainant's written disclosure (that an employee used work phones for personal calls) was the subject of individual meetings with employees in the Complainant's work unit after the date of the disclosure, it appeared as though the Respondent felt that this part of the disclosure merited further investigation and, as a result, the statutory presumption of retaliation would apply. King v. DOC (Wis. Personnel Comm., 03/22/96).

The presumption of retaliation does not apply to all discipline occurring within certain time periods. It only applies to that discipline specifically listed in secs. 230.80(2)(a), (b), (c) and (d), Stats., rather than disciplinary actions falling within sec. 230.80(2)(intro), Stats. Sadlier v. DHSS (Wis. Personnel Comm., 03/30/89).

The Complainant was entitled to the presumption of retaliation even though the Respondent did not investigate the disclosure before issuing the Complainant a letter stating that the information "merits further investigation." The Personnel Commission is only to look at whether the agency found the information merited further investigation rather than to carry out a substantive review of the adequacy of that finding. Sadlier v. DHSS (Wis. Personnel Comm., 03/30/89).

 

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554.4 State Employee "Whistleblower" Law; Retaliatory Action Prohibited; Cases 

The Respondent's action temporarily placing the Complainant on leave with pay while it sought clarification of her medical restrictions was not an adverse employment action, where she was not required to use any leave time and there was no demonstrable negative impact on her employment. Rentmeester v. Wisconsin Lottery (Wis. Personnel Comm., 05/27/94).

The Respondent's decision not to allow inclusion of the union steward or attorney requested by the Complainant to represent the Complainant at an investigative meeting was not retaliatory where there was nothing in the department-wide policy which indicated that the represented employee had the choice to select either a personal attorney or a local union grievance representative who was unavailable at the time of the hearing, and there was no evidence that on other occasions delays in the hearings had been permitted to allow for representation by either a personal attorney or by a union representative who was unavailable at that time. Sadlier v. DHSS (Wis. Personnel Comm., 03/30/89).

The Respondent's decision to suspend the Complainant for ten days for unauthorized distribution of literature on the grounds of a correctional institution was upheld where (1) management had previously indicated a strong opposition to the practice of distributing union newsletters in the institution, (2) antagonism between the Complainant and management preceded the Complainant's protected activities, (3) those protected activities were not significant departures from the Complainant's previous conduct, (4) the person who made the final decision to suspend the Complainant was unaware that the Complainant had engaged in any of the specific protected activities and (5) within the previous ten months, the Complainant had received a written reprimand and two three-day suspensions. The Respondent's decision not to modify the suspension after another employee admitted to distributing some of the literature was upheld where the policy violated by the Complainant did not differentiate the degree of malfeasance based on the amount of information found to have been distributed. Sadlier v. DHSS (Wis. Personnel Comm., 03/30/89).

The following actions by the Respondent were found not to be retaliatory: (1) The refusal to provide assistance when the Complainant called for help where testimony indicated assistance was not required, (2) the decision to investigate a report which raised serious questions about the Complainant's conduct, (3) the decision to substitute a day of suspension for a previously scheduled day of vacation where the person who made the change was unaware that the change was not desired by the Complainant, and (4) the decision to deny the Complainant admittance to the correctional institution grounds during the period of his suspension where the Respondent's action was consistent with existing policy. Sadlier v. DHSS (Wis. Personnel Comm., 03/30/89).

No retaliation was found with respect to the Respondent's decision to suspend the Complainant for ten days where (1) the Complainant had disrupted the work and morale at the work site, (2) coworkers made unsolicited complaints about the Complainant to management, and (3) the Complainant had been disciplined several times before (most recently for violent and threatening behavior towards two superiors). Morkin v. UW-Madison (Wis. Personnel Comm., 11/23/88); aff'd sub nom. Morkin v. Wis. Personnel Comm. (Dane Co. Cir. Ct., 09/27/89).

 

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555 State Employee "Whistleblower" Law; Procedures

     555.1 State Employee "Whistleblower" Law; Jurisdictional issues; timeliness of complaint
     555.2 State Employee "Whistleblower" Law;  Remedies; Attorney's fees and costs for frivolous claims
     555.3 State Employee "Whistleblower" Law; Judicial review
 

555.1 State Employee "Whistleblower" Law; Jurisdictional issues; timeliness of complaint

Sec. 230.88(2), Stats., provides that upon an employee’s commencement of an action in a court of record alleging matters prohibited under sec. 230.83(1), Stats., the Personnel Commission had no jurisdiction to process a complaint filed under sec. 230.85, Stats., except to dismiss the complaint.  The Personnel Commission lost subject matter jurisdiction over the Complainant’s whistleblower complaint once he filed an action in federal district court that included allegations of state whistleblower violations.  It had no authority to place the case in abeyance.  Albrechtsen v. Wis. Dept. of Workforce Dev. and Bd. of Regents, 2005 WI App 241, ___ Wis. 2d ___, 708 N.W.2d 1.

The commencement of an action in court alleging matters prohibited by the Whistleblower Law leaves the Personnel Commission with no authority over a Whistleblower complaint but to dismiss it, pursuant to sec. 230.88(2)(c), Stats. In this case, the Complainant alleged violations of the Wisconsin Whistleblower Law along with violations of federal laws in his federal court case. The Complainant relied on the Respondent's assertions in federal court that the exclusive remedy under the Wisconsin Whistleblower Law was with the Personnel Commission, and agreed to the dismissal of his Whistleblower claims by the federal court. The Complainant then advised the Personnel Commission that he wished to pursue his Whistleblower claims before the Commission. The Personnel Commission dismissed the case for lack of subject matter jurisdiction, based on sec. 230.88(2)(c), Stats., which provides that it has no jurisdiction to process a complaint under sec. 230.85, Stats., upon the commencement of an action in court. The Complainant's contention that the Respondent was estopped from arguing that the case should be dismissed based upon its representations in federal court were rejected. The Respondent's assertion in federal court that the Complainant's exclusive state Whistleblower remedy was in the Personnel Commission was at odds with the explicit provisions of the Whistleblower Law, as well as the explicit provisions of sec. 895.65, Stats., which creates a judicial cause of action that parallels the administrative Whistleblower process created by secs. 230.80, et seq., Stats. Because the Complainant's reliance on the Respondent's representations was not reasonable, the Respondent was not equitably estopped from asserting that the Complainant's claim before the Personnel Commission should be dismissed. Albrechtsen v. UW (Whitewater) (Wis. Personnel Comm., 07/23/03).

Allegations of the complaint which related to decisions made prior to the 60-day actionable period were dismissed as untimely. Ochrymowycz v. UW (Eau Claire) (Wis. Personnel Comm., 06/07/00).

The filing of a sec. 1983 action in a court of record deprives the Personnel Commission of jurisdiction over a complaint of whistleblower retaliation based on the same allegedly retaliatory conduct, by operation of sec. 230.88(2)(c), Stats. Dahm v. Wisconsin Lottery (Wis. Personnel Comm., 08/26/92).

 

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555.2 State Employee "Whistleblower" Law;  Remedies; Attorney's fees and costs for frivolous claims 

The Personnel Commission has the authority to assess fees and costs for frivolous claims under the Whistleblower Law only if the case is resolved by a decision issued after a formal hearing, and not where the case is resolved by a summary motion. If the Legislature had intended the Personnel Commission to have the power to assess fees and costs for a frivolous action at any time during the proceeding, then the Legislature would have included in sec. 230.85(3)(b), Stats., a reference to that broad range of authority in sec. 814.025, Stats. Stanley v. DOC (Wis. Personnel Comm., 08/25/99).   [Ed. Note: Sec. 230.85(3)(b), Stats., now provides that in order to find that a complaint is frivolous under the Whistleblower Law, the Equal Rights Division must find that sec. 802.05(2), Stats., has been violated.]

 

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555.3 State Employee "Whistleblower" Law; Judicial review 

(No cases)

 

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556 State Employee "Whistleblower" Law; Retaliatory Action Prohibited; Cases 

No probable cause was found as to the Complainant's WFEA retaliation, occupational and safety whistleblower claims arising from the decision not to reclassify his position where the Respondent contended that the request was denied because the Complainant's position did not meet the requirements of the higher classification and the Complainant did not show that the Respondent's decision was unreasonable, or that the Respondent applied the specification requirements more stringently for him than for employees who had not engaged in protected activities. Holubowicz v. DOC (Wis. Personnel Comm., 04/24/97).

No probable cause was found as to the Complainant's occupational and safety whistleblower claims arising from the decision to require him to undergo an interview for a vacant position along with the other names on the certification list, rather than to transfer into the position without an interview, where (1) the record did not indicate that the alleged retaliator knew the position's classification had been lowered prior to the date the certification list was generated, (2) the Respondent had posted the position for transfer prior to accepting applications for competition, and the record did not indicate that the Respondent would have had an obligation to post the position for transfer a second time, and (3) the Complainant waited until minutes before his interview started before requesting an opportunity to transfer without an interview. Holubowicz v. DOC (Wis. Personnel Comm., 04/24/97).

The following allegedly retaliatory acts did not rise to the level of "verbal or physical harassment" within the meaning of sec. 230.80(2), Stats.: (1) The Complainant was forced off the road when a coworker with whom he had a personality conflict cut him off sharply in traffic and (2) this same coworker would not allow the Complainant to park in the garage with other trucks. Seay v. DER and UW-Madison (Wis. Personnel Comm., 03/31/94); aff'd sub nom. Seay v. Wis. Personnel Comm., (Dane Co. Cir. Ct., 03/03/95).

In deciding a motion to dismiss for failure to state a claim upon which relief can be granted, it was not possible to determine on the limited record before the Personnel Commission whether a conversation with a co-employee concerning a statement made by the agency head would be considered a verbal disclosure to "any other person" that was not preceded by a disclosure under either sec. 230.81(1)(a), Stats. (in writing to the supervisor) or sec. 230.81(1)(b), Stats. (in writing to a governmental unit designated by the Personnel Commission), and hence not a disclosure covered by the Whistleblower Law, or whether the conversation with the co-employee was part of assisting "in any action or proceeding relating to the lawful disclosure of information under sec. 230.81 by another employee" within the meaning of sec. 230.80(8)(b), Stats. Pierce v. Wisconsin Lottery and DER (Wis. Personnel Comm., 09/17/93).

No probable cause was found with respect to a decision to reorganize the Complainant's work unit where the reorganization did not result in any change in the Complainant's classification or his position description and there was no evidence that the reorganization plan was promulgated so as to retaliate against the Complainant. Holubowicz v. DHSS (Wis. Personnel Comm., 09/05/91).

No probable cause was found with respect to the Respondent's decision to bar entry of the Complainant into a correctional institution where such action was standard procedure when there was an investigation pending which directly affected institution security. In addition, the Respondent's action was taken by persons who were unaware that the Complainant had engaged in a protected activity. Holubowicz v. DHSS (Wis. Personnel Comm., 09/05/91).

No probable cause was found with respect to the Respondent's scheduling the Complainant for a pre-disciplinary hearing where the Respondent's practice was to schedule such hearings whenever an investigation had identified a work rule violation and the person who had conducted the investigation was unaware that the Complainant had engaged in a protected activity. Holubowicz v. DHSS (Wis. Personnel Comm., 09/05/91).

 

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560  STATUTES RELATING TO CERTAIN MILITARY SERVICE AND EMERGENCY WORKER RIGHTS

     561 Re-employment Rights After National Guard, state defense force or public health emergency service (Sec. 321.65, Stats.)
     562 Discrimination based on Civil Air Patrol Membership (Sec. 321.66, Stats)
     563 Absence from work of volunteer firefighter, emergency medical technician, first aid responder or ambulance driver (Sec. 103.88, Stats)

 

561 Re-employment Rights After National Guard, state defense force or public health emergency service (Sec. 321.65, Stats.)

 

(No cases)

 

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562 Discrimination based on Civil Air Patrol Membership (Sec. 321.66, Stats)

(No cases)

 

 

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563 Absence from work of volunteer firefighter, emergency medical technician, first aid responder or ambulance driver (Sec. 103.88, Stats)

(No cases)

 

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