Employer Cannot Evade WFMLA Obligations to Undocumented Workers

In an interesting decision from the Wisconsin Court of Appeals, the court was faced with an issue of first impression involving the Wisconsin Fair Employment Act (“WFEA”) and what legal obligations an employer has towards an undocumented worker.  The court held that the fact that the employee is an undocumented worker is not an absolute defense to a violation of the WFMLA and that an employer must abide by the law regardless of the employee’s immigration status.

In Burlington Graphic Systems, Inc. v. Wisconsin Department of Workforce Development, 2015 WI App 11, 359 Wis. 2d 647, 859 N.W.2d 446, the employee had worked for the employer for nearly ten years as a printing press operator.  The employee required surgery to remove a glass fragment embedded in her face and to alleviate the swelling, discomfort, headaches and blurry vision caused by the embedded glass fragment.  The surgery and recovery time took approximately one week.  Upon her return to work, the employer fired her for being absent too many times and counted at least one of her WFMLA protected recovery days as an unexcused absence.

The employee filed a WFMLA complaint and the Department of Workforce Development found probable cause based on the circumstances present.  The employer then rehired the employee and required her to provide documentation of her legal status.  When the employee was unable to provide such documentation, the employer fired her again.  The employee’s WFMLA complaint then proceeded to a hearing on the merits before an ALJ to determine whether the employer had violated the WFMLA.  The ALJ found that the employee was an employee within the statutory meaning under the WFEA, that the employee had a serious health condition and that the employer had violated the WFMLA when it held a WFMLA protected absence against her when it discharged her.  After a series of appeals, the issues ended up before the Wisconsin Court of Appeals.

Most of the issues involved in the case were relatively routine and unremarkable.  However, the employer seized upon the language of the WMLFA that an employee returning from family or medical leave is not “entitle[d]…to a right, employment benefit or employment position to which the employee would not have been entitled had he or she not taken family or medical leave.”  Wis. Stat. §103.10(9)(a).  The employer argued that, because the employee was an undocumented worker, she had no right to employment in the first place and that her discharge was mandated by federal law.  Thus, when returning from medical leave, she was not “entitled” to her position.

Despite the facial appeal of such an argument, the court quickly disposed of it finding that just because an employee may be discharged, an employer is not relieved of its obligation to abide by the WFMLA.  The court further found that accepting the employer’s argument would undermine the purpose of the WFEA and the Immigration Reform and Control act and create an incentive for employers to hire undocumented workers whose rights they could then violate without consequence.  The court upheld the decision of the ALJ that the employer violated the WFEA.  The only saving grace for the employer was that, as an undocumented worker, there was no remedy available for backpay or other wages.  Thus, the employer was only obligated to pay the requisite attorney’s fees and to implement policies to train employees regarding its WFMLA obligations.

One wonders whether the result may have been different had the employee not been employed at the company for ten years – seemingly for much of the time as an undocumented worker.  One gets the sense that the Court was not pleased with the company readily accepting the employee’s services for ten years only to use the employee’s undocumented status as an attempt to evade its WFMLA obligations.  This may be a case of bad facts making bad law.

If you have questions about this article, please contact an attorney at Mallery & Zimmerman.