Unreasonable Refusal to Rehire

Picture this: an employee tweaks his back at work. He goes to Human Resources like he’s always been told to do and tells HR that he hurt himself. HR sends the employee to see a doctor and when he returns the next day, he’s pulled into a meeting and told that he’s fired or perhaps that “The company is going in a different direction.” Seems a bit “odd,” right? Like maybe there’s some sort of law against this sort of thing? Congratulations, this may be the only time you get told today that you are 100% correct! 

We all know that Wisconsin is an “at-will” state – meaning an employer can terminate an employee for any reason or no reason whatsoever, so long as the termination isn’t unlawful – but this scenario, commonly referred to as an “Unreasonable Refusal to Rehire” claim, is an exception to the at-will doctrine. Under Wisconsin law, if an employer fires an employee or refuses to hire one after he suffers a compensable injury (aka, an injury subject to coverage under worker’s compensation), the employee could be entitled to up to one year’s wages.

In order to establish an Unreasonable Refusal to Rehire claim, an employee must prove the following: (1) that he is an employee of the employer; (2) that he suffered a compensable (aka, work-related and covered) injury; (3) that the employer denied rehire to or terminated him; and (4) that the denial or termination was because of his compensable injury. Once these facts are established, the employer can rebut or disprove the claim by showing that the action it took (denial or termination) was reasonable and unrelated to the injury.

The purpose of the law is obvious: to prevent employers from/punish them for discriminating against employees who suffer work-related injuries. In this regard, employers must be diligent in ensuring that if an employee suffers a work-related injury, that employee is not terminated due to or because of that injury.

Does this mean that an employee who suffers a workplace injury cannot be fired in any circumstance? No. However, it does mean that if you are thinking about firing that employee, you better have a good (and well-documented) reason to do it that is unrelated to his injury. The timing alone will raise red flags in the employee’s mind and those of others, which has a tendency to lead to quality time with your attorney.

**NOTE: These claims are not covered by insurance! Because Wisconsin employers are required to carry worker’s compensation insurance, it often comes as a surprise that Unreasonable Refusal to Rehire claims are not covered, meaning that employers face direct, out-of-pocket liability. Be sure to immediately contact a knowledgeable, Wisconsin attorney (wink) if you get notice of such a claim.

If you are or may be facing an Unreasonable Refusal to Rehire claim, immediately contact our attorneys in our Brookfield, Appleton, or Kenosha offices. At Walcheske & Luzi, LLC, YourWork is Our Work – whether you live in Milwaukee, Sussex, Oshkosh, Green Bay, Racine, or anywhere in between, our experienced attorneys will work with you to create practical, cost-effective solutions to your workplace issues.