Wis.LIRC WC Decision: Daun, Douglas - March 24, 2005 - ND � 7.32 - Refusal to Rehire Must Have Been Without Reasonable Cause - case law and analysis surrounding the Americans with Disabilities Act and the Wis. Fair Employment Act have not been adopted into analysis of whether there has been a violation under Wis. Stat. � 102.35(3); decision that employer had reasonable cause for not rehiring applicant during certain time period does not foreclose possibility of claim for unreasonable refusal to rehire during subsequent period, subject to the time limitation of Wis. Stat. � 102.17(4)

STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

DOUGLAS E DAUN, Applicant

BRIESS INDUSTRIES INC, Employer

WORKER'S COMPENSATION DECISION
Claim No. 1998-013480

The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on May 27, 2004. The employer submitted an answer to the petition and briefs were submitted by the parties. At issue is whether the employer unreasonably refused to rehire the applicant during the period in question, within the meaning of Wis. Stat. § 102.35(3).

The commission has carefully reviewed the entire record in this matter and hereby affirms the Findings of Order of the administrative law judge, except as herewith modified:

MODIFIED FINDINGS OF FACT AND CONCLUSIONS OF LAW

Delete the final paragraph of the administrative law judge's FINDINGS OF FACT AND CONCLUSIONS OF LAW, and substitute the following paragraph therefor:

"It is therefore found that the employer had reasonable cause for not rehiring the applicant during any period up to and including January 12, 2004. The application is dismissed with respect to that period of time."

Delete the administrative law judge's ORDER, and substitute therefor the commission's ORDER set forth below.

NOW, THEREFORE, this

ORDER

The Findings and Order of the administrative law judge are modified to confirm with the foregoing, and as modified are affirmed. The application for unreasonable refusal to rehire is dismissed for any period up to and including January 12, 2004.

Dated and mailed March 24, 2005
Daundou . wrr : 185 : 1 ND § 7.32

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The standard for determining whether an employer violated Wis. Stat. § 102.35(3), continues to be whether that employer "without reasonable cause" refused to rehire the injured employee "where suitable employment is available within the employee's physical and mental limitations." The case law and analysis surrounding the Americans with Disabilities Act and the Wisconsin Fair Employment Act have not been adopted in analysis of whether there has been a violation under Wis. Stat. § 102.35(3).

In the applicant's case, the employer demonstrated that it had reasonable cause for not rehiring the applicant for any of the jobs that it had available during the period in question, which was the period ending on the date the last hearing was held in this matter (January 12, 2004). The commission modified the administrative law judge's order to make it clear that the applicant continues to have the statutory right to bring a claim under Wis. Stat. § 102.35(3), for an alleged unreasonable refusal to rehire for any period subsequent to January 12, 2004, subject to the time limitation of Wis. Stat. § 102.17(4).

cc:
Attorney John B. Edmondson
Attorney Paul R. Riegel

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