Tuesday, March 29, 2011

Wisconsin Court of Appeals Upholds Unreasonable Refusal to Rehire Decision

In a case that screams unreasonable refusal to rehire, the Wisconsin Court of Appeals (District III) upheld the circuit court's decision holding that an employer's terminating only the appellant after he was hurt on the job twice amounted to an unreasonable failure to rehire under WIS. STAT. § 102.35(3).

In Wisconsin an unreasonable refusal to rehire is where an employee sustains an injury in the course of employment and is subsequently terminated or denied rehire. Ray Hutson Chevrolet, Inc. v. Labor & Indus. Review Comm'n, 186 Wis. 2d 118, 122, 519 N.W.2d 713 (Ct. App. 1994). "If the employee makes [this] showing, the burden shifts to the employer to show a reasonable cause for the refusal to rehire." Id. The employer may meet this burden by showing "that it refused to rehire an injured employee because the employee's position [was] eliminated to reduce costs and increase efficiency[.]" Id. at 123.

In Superior Beverages v. LIRC, Docket: 2010AP000608, the appellant, Jerry Axtell, sustained an injury in the course of employment first while hauling two kegs of beer and then upon return when strained his back while bending over to pick up cases of beer from a pallet. Following the second injury and return from work, he was terminated. In justifying the termination (i.e., when the burden shifted), the employer, Superior Beverages, LLC, cited a "lack of work" from a drop in sales. However, Axtell was the only employee terminated and his termination only amounted to a 5% reduction in workforce. The Court of Appeals agreed with the circuit court finding this reason to be merely pretextual in finding for an unreasonable refusal to rehire.

I'm rather surprised Superior Beverages wasn't a case that settled and reached the level of appeal it did. On top of all the evidence showing pretext, the employer even advertised for a new full-time driver after it terminated the appellant and work picked up!

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