By: Alan E. Seneczko, Esq.

Although many Wisconsin employers do not realize it, the damages available for violations of the Wisconsin Family Medical Leave Act (WFMLA) are not limited to traditional "make whole" remedies such as reinstatement, back pay and attorney fees. Under the WFMLA, employees who prevail in administrative proceedings are permitted to bring an action in circuit court to recover additional relief, such as compensatory and punitive damages, caused by the employer's violation.

The statute creating this right, Wis. Stat. § 103.10(13), does not, however, indicate whether prevailing employees also have the right to have a jury determine those damages - and the Wisconsin Supreme Court recently held that they do not. In Harvot v. Solo Cup, 2009 WI 85 (2009), the court found that there is no implied right to a jury trial in a civil action for damages under §103.10(13), nor does such a right exist under the Wisconsin Constitution. As a result, if employees are to recover any additional damages for violations of the WFMLA, they will be determined by a judge, not a jury.

Questions? Please contact WS Shareholder and Senior Attorney Alan Seneczko in our Oconomowoc office at (262) 560-9696, or alseneczko@wesselssherman.com.