2023 Wisconsin Statutes & Annotations › Chapter 102 - Worker's compensation. › 102.35 - Penalties.

102.35
Penalties.
(1)
Every employer and every insurance company that fails to keep the records or to make the reports required by this chapter or that knowingly falsifies such records or makes false reports shall pay a work injury supplemental benefit surcharge to the state of not less than $10 nor more than $100 for each offense. The department may waive or reduce a surcharge imposed under this subsection if the employer or insurance company that violated this subsection requests a waiver or reduction of the surcharge within 45 days after the date on which notice of the surcharge is mailed to the employer or insurance company and shows that the violation was due to mistake or an absence of information. A surcharge imposed under this subsection is due within 30 days after the date on which notice of the surcharge is mailed to the employer or insurance company. Interest shall accrue on amounts that are not paid when due at the rate of 1 percent per month. All surcharges and interest payments received under this subsection shall be deposited in the fund established under s. 102.65.
(2)
Any employer, or duly authorized agent thereof, who, without reasonable cause, refuses to rehire an employee injured in the course of employment, or who, because of a claim or attempt to claim compensation benefits from such employer, discriminates or threatens to discriminate against an employee as to the employee's employment, shall forfeit to the state not less than $50 nor more than $500 for each offense. No action under this subsection may be commenced except upon request of the department.
(3)
Any employer who without reasonable cause refuses to rehire an employee who is injured in the course of employment, when suitable employment is available within the employee's physical and mental limitations, upon order of the department or the division, has exclusive liability to pay to the employee, in addition to other benefits, the wages lost during the period of such refusal, not exceeding one year's wages. In determining the availability of suitable employment the continuance in business of the employer shall be considered and any written rules promulgated by the employer with respect to seniority or the provisions of any collective bargaining agreement with respect to seniority shall govern.
History:  1975 c. 147; 1977 c. 29, 195; 2003 a. 144; 2005 a. 172; 2011 a. 183; 2015 a. 55.
An employer cannot satisfy sub. (3) by rehiring with an intent to fire at a later date. Dielectric Corp. v. LIRC, 111 Wis. 2d 270, 330 N.W.2d 606 (Ct. App. 1983).
An employer's termination of an employee, during the healing period, because of the work-related injury constitutes a refusal to rehire without reasonable cause in violation of sub. (3). To require a terminated employee to report to work in order to recover under sub. (3) as a prerequisite to recovery under sub. (3) is an unreasonable construction of the statute and would impose an unreasonable burden on any employee. L&H Wrecking Co. v. LIRC, 114 Wis. 2d 504, 339 N.W.2d 344 (Ct. App. 1983). But see Anderson v. LIRC, 2021 WI App 44, 398 Wis. 2d 668, 963 N.W.2d 89, 20-0027.
An employer has the burden to prove that rehiring was in good faith. West Allis School District v. DILHR, 116 Wis. 2d 410, 342 N.W.2d 415 (1984).
A one-day absence from work due to an injury triggered the rehire provision under sub. (3). Link Industries, Inc. v. LIRC, 141 Wis. 2d 551, 415 N.W.2d 574 (Ct. App. 1987).
For liability under sub. (3), the employee must show that the employee: 1) was an employee; 2) sustained a compensable injury; 3) applied for rehire; and 4) had the application for rehire refused due to the injury. Universal Foods Corp. v. LIRC, 161 Wis. 2d 1, 467 N.W.2d 793 (Ct. App. 1991).
Sub. (3) does not bar an employee from seeking arbitration under a collective bargaining agreement to determine whether termination following an injury violated the agreement. Sub. (3) relates to harm other than worker injuries and is not subject to the exclusive remedy provision of s. 102.03 (2); the “exclusive liability" language in sub. (3) does not bar lawsuits but imposes a penalty on the employer for refusal to hire. County of La Crosse v. WERC, 182 Wis. 2d 15, 513 N.W.2d 579 (1994).
A Labor and Industry Review Commission interpretation of sub. (3), that a violation requires an employee who is unable to return to a prior employment to express an interest in reemployment in a different capacity, was reasonable. Hill v. LIRC, 184 Wis. 2d 101, 516 N.W.2d 441 (Ct. App. 1994). See also Anderson v. LIRC, 2021 WI App 44, 398 Wis. 2d 668, 963 N.W.2d 89, 20-0027.
If an employer shows that it refused to rehire an injured employee because the employee's position was eliminated to reduce costs and increase efficiency, reasonable cause has been shown under sub. (3). Ray Hutson Chevrolet, Inc. v. LIRC, 186 Wis. 2d 118, 519 N.W.2d 713 (Ct. App. 1994).
An attendance policy that includes absences due to work-related injuries as part of the total of absences allowed before termination violates sub. (3). Great Northern Corp. v. LIRC, 189 Wis. 2d 313, 525 N.W.2d 361 (Ct. App. 1994).
Sub. (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. Sub. (3) does not contain “accommodation" requirements and does not require an employer to change its legitimate and long-standing safety policies in order to assist an employee in meeting personal obligations. DeBoer Transportation, Inc. v. Swenson, 2011 WI 64, 335 Wis. 2d 599, 804 N.W.2d 658, 09-0564.
When an employee's sub. (3) claim is predicated upon an employer's allegedly unreasonable refusal to rehire the employee to fill a different position than the one the employee previously occupied, the employee must demonstrate that he or she made the employer aware, in some fashion, of the employee's willingness to accept other work. Anderson v. LIRC, 2021 WI App 44, 398 Wis. 2d 668, 963 N.W.2d 89, 20-0027.
Neither sub. (2) nor case law authorizes employees who are terminated for filing worker's compensation claims to bring wrongful discharge claims against their employers. Brown v. Pick 'n Save Food Stores, 138 F. Supp. 2d 1133 (2001).