Employer policy backs “reasonable cause” for refusal to
rehire injured employee
Supreme court majority overrules LIRC decision to award backpay to an
employee who was terminated by the employer after returning from a
By org jforward wisbar Joe Forward, Legal Writer,
State Bar of Wisconsin
4, 2011 – Charles Swenson, a truck driver, wanted his job back at
deBoer Transportation Inc. after recovering from a work-related injury.
But deBoer refused after Swenson objected to completing a training that
would require him to hire a day nurse for his terminally ill father.
Wis. Stat. section 102.35(3) requires an employer to pay lost wages if
the employer refuses to rehire an employee, injured in the course of
employment, without reasonable cause.
The Labor and Industry Review Commission (LIRC) upheld a $36,193
back-pay award in favor of Swenson for deBoer’s unreasonable
refusal to rehire Swenson, concluding that deBoer failed to explain why
it could not modify its policy to accommodate Swenson’s
Transportation Inc. v. Swenson, 2011 WI 64 (July 12,
2011), a Wisconsin Supreme Court majority (5-2) ruled in favor of
deBoer, reasoning that Wis. Stat. section 102.35(3) “does not
contain a requirement that employers change their legitimate and
universally applied business policies to meet the personal obligations
of their employees.”
Swenson drove a “local” route for deBoer, driving from
midnight to 10 a.m. This allowed him to care for his terminally ill
father during the day without having to hire a day nurse.
In August 2005, Swenson sustained a work-related knee injury, and
received worker’s compensation benefits while not able to drive.
About six months later, Swenson was cleared to work again, but
deBoer’s policy required him to complete a reorientation process
He completed the required drug and recertification driving tests, but
deBoer’s policy also required drivers out of work more than two
months to complete a check-ride, a “minimum of one trip with
another driver to regain the necessary skills that were not used while
DeBoer’s safety director informed Swenson that he was required to
do an overnight check-ride with a certified driver that could last days
or weeks. But Swenson requested a “local” check-ride, which
would allow him to care for his father by day. In the alternative,
Swenson asked that deBoer pay for a day-nurse if he was required to do
an extended check-ride.
The safety director informed Swenson that none of their local-route or
day drivers were certified to do a check-ride, and deBoer acquired an
out-of-state driver to perform Swenson’s check-ride. He also
refused Swenson’s request that deBoer pay for a day nurse.
When Swenson again refused, deBoer terminated his employment. Swenson
requested an administrative hearing with the Department of Workforce
Development, seeking benefits under section 102.35(3) for deBoer’s
refusal to rehire him.
At the administrative hearing, a deBoer representative acknowledged
that state and federal regulations do not require a check-ride for
trucker certification, but deBoer’s policy required it in order to
protect the public from unsafe drivers.
The representative stated that deBoer had never granted an exception to
the check-ride requirement. However, the administrative judge ruled that
deBoer unreasonably refused to rehire Swenson, and was therefore liable
for a year of lost wages. LIRC agreed.
LIRC concluded that deBoer’s “unyielding insistence that
there be an extended overnight trip was unexplained and
unreasonable.” That is, deBoer’s failure to consider an
alternative that might accommodate Swenson’s personal situation
required a reasonable explanation.
LIRC reasoned that deBoer could have allowed Swenson to do a check-ride
with a night driver, returning home in the morning, “precisely the
type of route [Swenson] had driven in his pre-injury employment.”
The circuit court upheld LIRC’s decision, but the appeals court
Supreme court majority
The majority – in an opinion written by Justice Patience
Roggensack – explained that Swenson met the prima facie elements
under section 102.35(3). That is, he was previously employed by deBoer,
he was injured on the job, and the employer failed to rehire him. But
deBoer met its burden to show a reasonable cause for a refusal to
rehire, the majority explained.
Noting Ray Hutson Chevorolet, Inc. v. LIRC, 186 Wis. 2d 118,
519 N.W.2d 713 (Ct. App. 1984) – a case in which the appeals court
concluded the employer’s refusal to rehire was reasonable since
based on a business decision to reduce costs – the majority held
that section 102.35(3) “does not contain a requirement that
employers change their legitimate and universally applied business
policies to meet the personal obligations of their employees.”
In other words, deBoer did not have to show that modifying its
check-ride policy to accommodate Swenson’s situation would have
been an unreasonable burden.
“[R]equiring deBoer to show the unreasonableness of
Swenson’s requested modifications to the check-ride policy
‘amounts to an incorrect interpretation of the statute because it
requires something more than reasonable cause’ for refusing
rehire,” wrote Justice Roggensack, citing the appeals court
decision on this point.
The majority noted that LIRC seemed to mistakenly incorporate the
accommodation requirements for employees with disabilities pursuant to
It also rejected LIRC’s conclusion that deBoer’s check-ride
policy was a pretext for not rehiring Swenson, because deBoer failed to
explain how an alternative would be unreasonable.
The majority agreed with a dissenting LIRC commissioner who found that
there was “no credible evidence that [Swenson’s] work injury
was a motive entering into [deBoer’s] actions, or that deBoer
acted in anything other than good faith.”
Justice Ann Walsh Bradley filed a dissent (joined by Chief Justice
Shirley Abrahamson), asserting that there is “substantial and
credible evidence” to support LIRC’s finding that deBoer
used its check-ride policy as a pretext to not rehire Swenson.
“Deboer asserted that it terminated Swenson because he refused to
go on a multi-day check-ride, as was mandated by deBoer’s
policy,” Justice Bradley wrote. “It is notable, however,
that deBoer has no written policy governing the duration of check-rides
or setting forth any requirement that the check-ride constitute a
Justice Bradley argued that LIRC’s decisions are based on the
administrative law judge’s findings of fact, and the
administrative law judge is in the best position to assess witness
credibility. She also highlighted other facts in the record to suggest
deBoer used its check-ride policy as a pretext to refuse rehire.
John R. Jokela of John Jokela Law Firm LLC, Wausau, represented Charles
Swenson. Michael J. Lauterbach of Nash Law Group Attorneys at Law S.C.,
Wisconsin Rapids, represented deBoer Transportation, Inc.