By: WISCONSIN LAW JOURNAL STAFF//December 23, 2014//
Wisconsin Court of Appeals
Civil
Employment – FMLA – illegal aliens
An employer’s discharge of an employee can violate the Wisconsin FMLA, even if the employee is an illegal alien
“We read the Wisconsin FMLA and federal immigration law in a way that allows both statutes to serve their respective goals. See Racine Unified Sch. Dist. v. LIRC, 164 Wis. 2d 567, 590-91, 476 N.W.2d 707 (Ct. App. 1991). Read together, these laws ‘promote dignified employment conditions’ for Wisconsin workers ‘regardless of immigration status, while firmly discouraging the employment of individuals who lack work authorization.’ Lucas v. Jerusalem Cafe, LLC, 721 F.3d 927, 936 (8th Cir. 2013) (applying the Fair Labor Standards Act to award minimum wage to undocumented workers). ‘If an employer realizes there will be no advantage under the’ Wisconsin FMLA ‘in preferring [unauthorized] aliens to legal resident workers, any incentive to hire such … aliens is correspondingly lessened.’ Id. (alterations in original) (quoting Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 893 (1984)). Requiring an employer who illegally employs an undocumented worker to provide fair working conditions, such as medical leave, is in harmony with federal immigration law. See id. at 936-37.”
Affirmed.
Recommended for publication in the official reports.
2014AP762 Burlington Graphic Systems, Inc., v. DWD
Dist. II, Racine County, Jude, J., Reilly, J.