STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

ASMA MASRI, Complainant

MEDICAL COLLEGE OF WISCONSIN, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. CR200902766,


An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge (copy attached) is affirmed.

Dated and mailed August 31, 2011
masrias . rsd : 164 : 5

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

The question presented in this case is whether the complainant need be an employee of the respondent in order to be covered under the Health Care Worker Protection Act (hereinafter "HCWPA") and, if so, whether the complainant could be considered an employee of the Medical College of Wisconsin for purposes of the HCWPA. The administrative law judge found that employee status is required and that the complainant in this case did not demonstrate she was eligible for coverage under the HCWPA. The commission agrees, for the reasons set forth herein.

In Ratsch v. Memorial Medical Center, ERD Case No. CR200504192 (LIRC March 10, 2006), the commission found that the HCWPA applies only to an "employee" of a health care facility or provider. The commission reasoned that § 146.997(2) of the HCWPA, the portion of the statute which protects the right to report information suggesting that a health care provider has violated a rule or law, specifically refers to "Any employee of a health care facility or health care provider." While the commission recognized that § 146.997(3) references the prohibition against a health care facility or health care provider taking disciplinary action against "any person," it noted that Wis. Stat. § 230.80(2) defines the term "disciplinary action" as "action taken with respect to an employee" and, concluded that the use of the term "any person" did not expand the statute to cover non-employees. The commission therefore concluded that Mr. Ratsch, who was a former employee of Memorial Medical Center, but had not worked for the medical center for several years at the time he filed his complaint, was not covered by the statute.

In her petition for commission review the complainant argues that in Ratsch the commission held the statute applies "only to current, but not former, protected individuals" and that the focus was on the proximity in time of the alleged retaliatory events to Mr. Ratsch's employment. However, this is a misreading of the Ratsch decision. The commission held that the HCWPA protects employees, not other categories of "protected individuals." Under Ratsch, the mere fact that the complainant had a current relationship with the respondent at the time of the events that are the subject of her complaint does not confer on her the protections of the statute, unless she can establish that she was an employee of the respondent.

The complainant worked for the respondent as an unpaid intern. She received no salary or other monetary compensation. The commission has previously focused on compensation as the key to determining employment status. In Ficken v. Harmon Solutions Group, ERD Case No. CR200003282 (LIRC Feb. 7, 2003), the commission found that the complainant, who sought an opportunity to perform services for the respondent as an unpaid volunteer, was not covered by the Wisconsin Fair Employment Act. Similarly, in Langer v. City of Mequon, et al, ERD Case No. 199904168 (LIRC March 19, 2001), the commission found no employment relationship for an unpaid zoning board member, where the complainant was not on the city's payroll and received no tangible benefit in exchange for her services.

In her brief to the commission the complainant makes an argument that, under Langer, she could be considered an employee based solely upon "tangible benefits," even if she received no salary. The commission does not find this argument persuasive. Accepting the possibility that there could be other "tangible benefits" of employment apart from salary, the complainant's assertions do not establish that she received such benefits. The complainant characterizes her "all access" security badge for the respondent's facilities, office space, support staff, and parking, as tangible benefits. However, parking, office space, and the like were provided to enable the complainant to perform her assigned duties and did not constitute a form of compensation. None of these items were for the complainant's personal benefit, nor did they have any value to her independent of her services for the respondent. The complainant also contends that she received tangible benefits in terms of networking and development opportunities that would benefit her future professional career. However, while networking may indeed be a benefit of her internship, it is not a tangible one nor something to which a value can be assigned.

In her brief the complainant also maintains that her supervisor promised her health insurance and applied for grants to compensate her work financially. However, neither a promise of health insurance that has not been made good on, nor a willingness to pay a salary at some future time, contingent upon the receipt of grant funding, is sufficient to render the complainant an employee of the respondent's. The complainant also points out that the university's internship handbook states that interns are to be financially reimbursed for their work and should be employed under a contract comparable to the psychological services staff contracts within the internship setting. While it does appear that the university may have contemplated a different relationship than what occurred, it was not shown that the respondent had a similar handbook, and the complainant and the respondent never entered into the type of contract envisioned by the university.

Finally, the complainant contends that public policy considerations dictate that she be protected from retaliation under the HCWPA. The complainant points out that she was acting as a medical professional with daily and routine access to HIPAA protected patient information and was in an ideal position to protect the public by reporting illegal or unethical activities. She contends that it is contrary to the express public purpose and goals of the HCWPA that she should be denied the statute's protections. The commission has considered this argument, but finds it unpersuasive. The HCWPA applies only to employees, and the commission cannot expand the coverage of the statute beyond that which was intended by the legislature, whether or not there may be valid reasons to do so. Moreover, while there can be no doubt that the complainant performed an important function for the respondent, there is no authority to consider an unpaid activity employment simply because of the importance of the activity. Langer v. City of Mequon, ERD Case No. 199904168 (ALJ Decision Oct. 30, 2000), aff'd. (LIRC March 19, 2001). Because the commission agrees with the administrative law judge that the complainant was not covered by the HCWPA, the dismissal of the complaint is affirmed.

 

NOTE: In a letter to the commission, a copy of which was sent to counsel for Respondent A, the complainant's attorney has advised that the complainant does not wish to pursue her claim with regard to Respondent B, Froedert Memorial Lutheran Hospital. At the complainant's request, Respondent B has been removed from the complaint.

 

cc:
Froedtert Memorial Lutheran Hospital
Attorney Lawrence Albrecht
Attorney Amy Schmidt Jones


Appealed to Circuit Court. Affirmed April 2, 2012. Appealed to the Court of Appeals. Affirmed, Asma Masri v. LIRC and Medical College of Wisconsin, 2013 WI App 62, 348 Wis.2d 1, 832 N.W.2d 139. Appealed to the Supreme Court. Affirmed, Asma Masri v. LIRC and Medical College of Wisconsin, 2014 WI 81, __ Wis.2d __, __ N.W.2d __.

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