WisBar News: Uncompensated Interns Not Entitled to Health Care Worker Protections:

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  • Uncompensated Interns Not Entitled to Health Care Worker Protections

    Joe Forward

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    doctors conversingAug. 1, 2014 – A 5-2 majority of the Wisconsin Supreme Court, granting due weight deference to the Wisconsin Labor and Industry Review Commission (LIRC), has ruled that unpaid interns do not have the same protections as regular paid employees.

    Specifically, in Masri v. Labor and Industry Review Commission, 2014 WI 81 (July 22, 2014), the majority ruled that an intern, a doctoral student at the Medical College of Wisconsin, has no retaliation claim for being fired soon after reporting an alleged medical ethics violation against an employee who worked in her unit.

    Under Wis. Stat. section 146.997(3)(a), health care providers cannot take “disciplinary action” against someone who reports potential medical ethics violations in good faith. “Disciplinary action” means actions taken with respect to an “employee.” The provision protects whistleblowers from retaliation, such as termination, by the employer.

    Asma Masri was working as an unpaid Psychologist Intern at Froedtert Memorial Lutheran Hospital. She worked 40 hours per week and had an all-access badge. In November of 2008, Masri spoke with an administrator about possible ethics violations.

    Five days later, Masri’s supervisor terminated the internship. Masri filed a retaliation complaint with the Equal Rights Division (ERD) of the Department of Workforce Development. The Medical College responded that Masri was not protected.

    Eventually, the ERD dismissed Masri’s complaint, concluding that her status as an intern did not entitle her to the anti-retaliation protection afforded to “employees.” On appeal, Masri argued that she was an “employee” because she received tangible benefits, including an all-access pass, office space, and networking opportunities.

    Masri also claimed that her supervisor promised to get her health insurance benefits and free parking, which did not materialize, but would be considered “tangible benefits.” However, an administrative law judge ruled that Masri was not an “employee.”

    LIRC upheld the administrative law judge’s conclusions. LIRC determined that “tangible benefits” could give rise to “employee” status, but not in this case – the benefits that Masri received were merely related to her duties and had no independent value.

    LIRC also rejected the policy argument that interns should be protected, because interns are in a position to report unethical conduct that could injure the public.

    Next, the circuit court upheld LIRC’s decision. It said the ruling was reasonable and the anti-retaliation statute at issue did not apply to protect Masri as an intern. On appeal, the appeals court affirmed, concluding that Masri was not a protected “employee.”

    Recently, the Wisconsin Supreme Court put the case to rest. A 5-2 majority also upheld LIRC’s determinations, granting due weight deference to that agency’s interpretations.

    “Under due weigh deference, a reviewing court will not interfere with the agency’s reasonable interpretation if it fits within the purpose of the statute unless there is a more reasonable interpretation available,” wrote Justice David Prosser for the majority.

    The majority declined to interpret the term “employee” independently under section 146.997, despite the argument that it was a matter of first impression.

    “Although Masri is correct that LIRC has not yet determined whether an unpaid intern is an ‘employee’ under [the statute], DWD and LIRC have experience interpreting statutes relating to employment relationships,” Justice Prosser noted.

    Under the due weight deference standard, the majority found LIRC’s interpretation to be reasonable and could not point to a more reasonable interpretation after reviewing the language, context, and structure of the anti-retaliation statute. Prosser concluded:

    “Because Masri received no compensation or tangible benefits, she was not an employee of MCW and was therefore not entitled to anti-retaliation protection.”

    Dissent

    Justice Ann Walsh Bradley wrote a dissenting opinion, joined by Chief Justice Shirley Abrahamson. Justice Bradley said the majority’s decision will silence medical interns like Masri, who worked full time, resulting in lower quality patient care.”

    The dissent also argued that under the canons of statutory interpretation, Masri is a protected “employee” regardless of her status as an unpaid intern.

    “I conclude that the Health Care Worker Protection Act means what it expressly provides: its coverage extends to any person,” Justice Bradley wrote.

    “Further, even if the Act’s coverage were limited to employees only, the canons of statutory construction mandate that ‘employee’ be interpreted broadly in order to fulfill the remedial purpose of the Act.” The dissenters would have vindicated Masri.