Family Medical Leave Act (FMLA) in Wisconsin

WISCONSIN COURT OF APPEALS CASE REGARDING WISCONSIN
FMLA IS DOUBLE-EDGED SWORD FOR EMPLOYERS

The Good News: An employee whose WFMLA claim fails in the administrative process cannot bring a WFMLA action in state court.

The Bad News: The Court of Appeals determined that the apparent purpose of providing a civil action to an employee who prevailed in the administrative process is to provide the employee with supplemental damages. This statement opens the door for employees who prevail in the administrative process to bring civil actions for compensatory and punitive damages.

In Butzloff v. State of Wisconsin Department of Health and Family Services, the Wisconsin Court of Appeals held that § 130.10(13) of the Wisconsin FMLA does not permit an employee who has not prevailed on his or her WFMLA claim in the administrative process to file a civil action seeking damages for the same violation asserted in the administrative proceeding. Section 103.10(13) states, inter alia:

Civil Action. (a) An employe or the department may bring an action in circuit court against an employer to recover damages caused by a violation of sub. (11) after the completion of an administrative proceeding, including judicial review, concerning the same violation.

The Court of Appeals first determined that this language is ambiguous as to whether an employee who lost in the administrative proceeding (including judicial review) could proceed in a civil action. The Court then addressed the legislative intent behind the provision and determined that the intent was to permit only parties that prevailed in the administrative hearing and judicial review to file a claim for damages. The Court went on to say that the use of the term "damages" in § 103.10(13) as the remedy in a civil action "suggest[s] that the purpose of the civil action is to supplement the remedies available in the administrative proceedings." The Court reasoned that because the legislature designated specific remedies available in the administrative proceedings (reinstatement, provision of the leave, back pay and attorneys’ fees) and then stated that "damages" were available in a civil action, the appropriate reading of § 103.10(13) is that it provides supplemental damages. Presumably, these damages would be compensatory and punitive damages.

This case changes the prevailing view that WFMLA cases are relatively less dangerous than other employment actions due to the limitation of an employee’s potential recovery. The bottom line to employers is that WFMLA cases have just become more attractive to plaintiffs due to the increase in potential damages. There are many nuances between the Wisconsin FMLA and the federal FMLA, and it is important for employers to comply with both laws.

Posted 7/2/1999