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Refusal to Rehire

When Employers Refuse to Rehire Injured Workers, the Worker's Compensation Act May Provide Additional Relief

If you are injured at work and your employer fires you or fails to rehire you when you are able to return, you may have an additional claim under the Worker’s Compensation Act.

If an employer unreasonably refuses to rehire an injured worker, the employer alone (not the insurance company) must pay the worker as much as one year’s pay. The one year’s pay is a monetary limit, not a temporal one, meaning the damages will continue to accrue after the first year if you have earned wages in the meantime. Additionally, the applicant need not show the company had a motive related to the work injury. All an applicant must do is show he or she was an employee with a compensable injury who was refused rehire or discharged. The employer then has the burden to show reasonable cause for this refusal to rehire or discharge. “Reasonable cause” is a cause or reason that is fair, just, or fit under the circumstances, judged within the specific context of a given case.

One common situation in which a refusal to rehire claim arises is where an employer has experienced a business decline and does not have available work. Such a decline may be reasonable cause for not rehiring an injured worker, assuming the reason provided is not simply a reason to discriminate based on the fact the person was injured. However, if the employer’s business improves within a reasonable amount of time and suitable work becomes available, the employer must offer a position to the employee.

The Wisconsin Supreme Court and Wisconsin Court of Appeals have held that Wis. Stat.§102.35(3) must be liberally construed to further its purpose of preventing discrimination against employees who have sustained compensable work-related injuries. In addition to protecting an injured worker from discrimination, Wis. Stat. § 102.35(3) also serves to return the injured person to work with his former employer.

If You Are Fired or Refused Rehire After a Work Injury

  1. If refused rehire, make sure to notify your employer of your restrictions or lack thereof in writing and explicitly inform the employer that you want to return to work. Keep track of all communications.
  2. If your exact position is not available when you return to work, or if your position is eliminated resulting in discharge, inform your employer that you are interested in other positions.
  3. Apply for unemployment benefits. These benefits will not offset any damages you receive under Wis. Stat. § 102.35(3). Additionally, information you receive from the unemployment investigation process may assist you in determining the reasons behind the employment separation. (Note: There is of course the risk that you may say something harmful to your case).
  4. Keep track of the money that you make following the termination or refusal to rehire. The wages earned will offset your damages, and an Administrative Law Judge will want to see proof of these wages earned.
  5. There is no explicit requirement to “mitigate your damages” under Wis. Stat. § 102.35(3), meaning there is no explicit requirement that you apply for jobs with other employers or risk a reduction of your recovery. However, not applying for other jobs may paint a bad picture during settlement discussions or at a hearing, so we recommend applying for other jobs. Also, if another employer offers you a position and you reasonably refuse that offer, document the reasons why you refused the job offer. (Note: Failing to complete a job search and refusing a job offer will have very different consequences on your unemployment benefits eligibility).

If you have questions about your employment rights following a workers compensation injury, contact an experienced Hawks Quindel workers compensation attorney for a free evaluation.