LIRC Review – Refusal to Rehire

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WI Court of Appeals – District III

Case Name: Daniel P. Anderson v. Labor and Industry Review Commission, et al.,

Case No.: 2020AP27

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: LIRC Review – Refusal to Rehire

Daniel Anderson sustained injuries while working for Northridge Chevrolet GEO (Northridge) as a parts advisor. He appeals an order affirming a decision of the Labor and Industry Review Commission (LIRC) that determined Northridge had not violated WIS. STAT. § 102.35(3) (2019-20) by refusing to rehire Anderson without reasonable cause following Anderson’s recovery.

We conclude Northridge is not liable to Anderson under the penalty provisions of WIS. STAT. § 102.35(3) for its refusal to rehire him in his previous position as a parts advisor. There is sufficient evidence supporting LIRC’s determination that Northridge had reasonable cause for refusing to rehire him in that position, including business necessity and the medical limitations ultimately placed upon Anderson following his recovery.

We also reject Anderson’s assertion that he is entitled to lost wages under WIS. STAT. § 102.35(3) because Northridge did not rehire him for an available sales position. We conclude that when an employee’s § 102.35(3) claim is predicated upon an employer’s allegedly unreasonable refusal to rehire the employee to fill a different position than the one the employee previously occupied, the employee must demonstrate that he or she made the employer aware, in some fashion, of his or her willingness to accept other work. Because Anderson failed to communicate any such willingness to Northridge, he has failed to make a prima facie case for liability under § 102.35(3). Accordingly, we affirm.

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Derek A Hawkins is Corporate Counsel, at Salesforce.