Employer policy backs “reasonable cause” for refusal to rehire injured employee

By Joe Forward, Legal Writer, State Bar of Wisconsin

Aug. 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 situation.

In deBoer 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.”

Check-ride policy

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 first.

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 off work.”

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 decision

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 reversed.

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 section 111.34(1)(b).

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.”

Dissent

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 multi-day trip.”

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.

Attorneys

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.