Timothy Barber
Timothy Barber

Employee May Be Required to Complete Retraining Program

March 3, 2011

Under Wis. Stat. § 102.35, an employer may be held liable for up to a year’s worth of wages if it refuses to rehire, without reasonable cause, a former employee who was injured on the job. A recent decision by the Wisconsin Court of Appeals clarifies that under the statute, you are not required to deviate from facially (apparently) reasonable and universally applied rehiring policies to accommodate the personal, nonwork-related circumstances of a returning employee. 

Employee Failed to Complete Retraining Program 
Charles Swenson was a truck driver for DeBoer. His job required him to drive a daily route, which allowed him to be home part of the day to care for his terminally ill father. Swenson injured his knee and missed several months of work. After his doctor cleared him to return to work, Swenson participated in an employee reorientation program used by DeBoer to retrain and reevaluate employees missing more than 60 days of work. The program includes a physical exam, substance abuse screening, a review of company policies, a road test required by the state of Wisconsin, and an overnight “check-ride.” Swenson completed all parts of the reorientation program except the check-ride, which required him to be away from his home for multiple days, and he had no one else to care for his father.

Swenson asked to perform the check-ride locally so he could return home each day to care for his father. Alternatively, he requested that DeBoer pay the cost of hiring an in-home caretaker for his father during the days he would be away on the check-ride. DeBoer denied both requests and refused to rehire Swenson after he failed to complete the check-ride.

LIRC Rules in Favor of Employee
Swenson filed an administrative complaint with the Labor and Industry Review Commission (LIRC), which concluded that DeBoer violated Wis. Stat. § 102.35 by unreasonably refusing to rehire him. The commission found that the purpose of the company’s check-ride requirement is to ensure that returning drivers can operate their vehicles safely. It also concluded that the policy was facially reasonable.

Nonetheless, the LIRC ruled against DeBoer because it failed to explain why it couldn’t modify the check-ride requirement for Swenson to allow him to care for his father and because it couldn’t demonstrate that paying for the cost of care for Swenson’s father during the days of the check-ride was unreasonable. In essence, the LIRC concluded it was unreasonable for DeBoer to refuse to accommodate Swenson’s request. The circuit court affirmed the LIRC’s decision, and DeBoer filed an appeal.

Employer Not Required to Deviate from Reasonable Rehiring Policy
In a split decision, the Wisconsin Court of Appeals reversed the circuit court and the LIRC, concluding that both applied an incorrect legal standard. According to the court of appeals, the proper standard under § 102.35 is whether the employer’s rehiring policies and procedures are reasonable and serve a legitimate business purpose — not whether the employer’s refusal to accommodate the personal needs of an employee is reasonable.

The court of appeals explained that the Wisconsin Legislature didn’t intend for employers to have to make judgment calls to assess what kinds of nonwork- and noninjury-related personal circumstances require them to deviate from established and reasonable rehiring policies. The court stated that an employer shouldn’t be forced to assess the importance of an employee’s nonwork-, noninjury-related reason for requesting a deviation in a rehiring policy. Instead, the court ruled:

The reasonable cause standard in Wis. Stat. § 102.35(3) does not contemplate requiring employers to either deviate from a facially reasonable and uniformly applied policy, or explain why it would be burdensome to do so, when a returning employee requests the deviation to accommodate a non-work and non-injury related personal need.

Because DeBoer’s rehiring policy, including the check-ride requirement, had a legitimate business purpose — ensuring that it hired safe drivers — and because the policy was longstanding and uniformly applied, the court of appeals held that the company met its burden in establishing that it refused to rehire Swenson for “reasonable cause.”
Potential Impact of Decision 
Although seemingly broad, the court of appeals’ decision is limited by several important considerations. First, it addresses only circumstances in which an employee requests a deviation from a standard rehiring policy because of personal, nonwork- and noninjury-related factors. In other words, the result may be different if an employer refused to modify a retraining program so that a returning employee could keep doctors’ appointments for an injury incurred on the job. Second, the court of appeals indicated that DeBoer acted with reasonable cause in refusing to rehire Swenson because its policy served a legitimate business purpose. You can’t refuse to rehire an injured employee for failing to comply with a retraining policy if the policy serves no legitimate purpose or exists solely as a pretext to cover up discrimination. According to the court, the rehiring policy must be “facially reasonable.” However, the court cautioned that “there may be circumstances in which the application of a facially reasonable business practice . . . to a returning employee does not constitute ‘reasonable cause.’”Third, the court stressed several times that DeBoer’s retraining policy was “longstanding” and “uniformly applied.” Thus, you should ensure that all employees are treated equally under a retraining policy. Employers relying on newly enacted rehiring policies or policies that haven’t been applied consistently may not be able to take advantage of the court’s ruling. DeBoer Transportation, Inc. v. Swenson, Appeal No., 2009AP000564 (Wis. Ct. App., Mar. 25, 2010).Bottom Line
This decision provides protection to employers that refuse to rehire an injured employee who fails to comply with retraining requirements when

  1. The employee’s failure to comply is the result of personal, nonwork-, noninjury-related factors,
  2. The policy is facially reasonable and has a legitimate business purpose, such as ensuring safety, and
  3. The policy is longstanding and applied consistently.

To subscribe to email alerts from Axley Law Firm, click here.