Burlington Graphic Systems, Inc. v. Department of Workforce Development

2015 WI App 11, 859 N.W.2d 446, 359 Wis. 2d 647, 24 Wage & Hour Cas.2d (BNA) 305, 2014 Wisc. App. LEXIS 1035
CourtCourt of Appeals of Wisconsin
DecidedDecember 23, 2014
DocketNo. 2014AP762
StatusPublished

This text of 2015 WI App 11 (Burlington Graphic Systems, Inc. v. Department of Workforce Development) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Burlington Graphic Systems, Inc. v. Department of Workforce Development, 2015 WI App 11, 859 N.W.2d 446, 359 Wis. 2d 647, 24 Wage & Hour Cas.2d (BNA) 305, 2014 Wisc. App. LEXIS 1035 (Wis. Ct. App. 2014).

Opinion

REILLY, J.

¶ 1. This appeal raises a question of first impression that implicates two laws affecting em[650]*650ployment in Wisconsin, the Wisconsin Family and Medical Leave Act (Wisconsin FMLA) and the Immigration Reform and Control Act of 1986. Burlington Graphic Systems, Inc., fired Karen Alvarez after she took medical leave from work. Alvarez was an undocumented worker at the time. The Department of Workforce Development found that Burlington violated the Wisconsin FMLA and ordered Burlington to take certain actions to avoid future violations of its employees' rights and to pay Alvarez's attorney fees. As an undocumented worker, Alvarez's request for back pay was denied.

¶ 2. Burlington argues that an employer cannot violate the Wisconsin FMLA by discharging an undocumented worker as that worker has no right to employment in the first instance and federal immigration law mandates the discharge. We disagree. Federal immigration law is not an absolute defense to an employer's violation of the Wisconsin FMLA. Employers must abide by the Wisconsin FMLA regardless of an employee's immigration status. The Department properly found that Burlington violated the Wisconsin FMLA and properly exercised its discretion in fashioning the remedy that it did. We affirm.

BACKGROUND

¶ 3. Alvarez worked for Burlington for nearly ten years as a printing press operator. The record in this case establishes the following timeline of events:

Early October 2011: Alvarez's left cheek begins to swell and cause her discomfort, headaches, and blurry vision.
October 27, 2011: Alvarez visits a walk-in clinic, where an x-ray detects a glass fragment embedded in her face. Alvarez tells her supervisor at Burlington about her upcoming surgery to remove the glass fragment.
[651]*651October 31, 2011: Alvarez's doctor schedules a surgical procedure to remove the glass fragment.
November 8, 2011: Alvarez has the surgical procedure.
November 15, 2011: Alvarez returns to work.
November 16, 2011: Alvarez is terminated by Burlington at the end of her shift for being late or absent too many times. Burlington counts at least one of her recovery days as an unexcused absence.
December 16, 2011: Alvarez files a Wisconsin FMLA complaint against Burlington.
January 12, 2012: The Department finds probable cause that Burlington violated the Wisconsin FMLA and certifies the matter for a hearing.
March 19, 2012: Burlington rehires Alvarez and requires her to provide documentation of her legal status as a "new employee."
March 21, 2012: Burlington terminates Alvarez when she is unable to produce documentation showing she can legally work.

¶ 4. Alvarez's Wisconsin FMLA claim proceeded to a hearing before an administrative law judge (ALJ) on April 19, 2012. At the hearing, the parties stipulated that from November 1, 2011, to the date of the hearing, "Alvarez was not legally able to accept employment in the United States."1 Alvarez sought back pay for the [652]*652period between November 16, 2011, and March 19, 2012. Alvarez did not seek reinstatement.

¶ 5. The ALJ found that Alvarez had established she had a serious health condition that qualified her for medical leave and that Burlington violated the Wisconsin FMLA when it terminated her for taking time off for her serious health condition. The ALJ ordered Burlington to cease and desist from interfering with its employees' Wisconsin FMLA rights, to implement policies to teach its employees about the Wisconsin FMLA, and to pay $8868.96 in attorney fees to Alvarez's counsel. The ALJ rejected Alvarez's request for back pay on the ground that she was unauthorized to work during the period in question.

¶ 6. Burlington petitioned for judicial review of the ALJ's decision pursuant to Wis. Stat. § 227.52 (2011-12).2 Relevant to this appeal, Burlington argued that the award of attorney fees was not reasonable as Alvarez was unsuccessful in her request for back pay due to her undocumented status. The circuit court denied Burlington's petition except as it related to the amount awarded in attorney fees, which it remanded to the Department for application of the lodestar methodology pursuant to Wis. Stat. § 814.045. Burlington appeals.

[653]*653DISCUSSION

¶ 7. Burlington's principal argument is that the ALJ erred as a matter of law in determining that Burlington violated the Wisconsin FMLA and that it erroneously exercised its discretion in awarding attorney fees to Alvarez based on this mistake of law. On appeal, we review the decision of the ALJ and not that of the circuit court. Baker v. DHS, 2012 WI App 71, ¶ 6, 342 Wis. 2d 174, 816 N.W.2d 337. Burlington's appeal raises a question of law, and we accord one of three levels of deference to the ALJ's statutory interpretation. Id. Our cases are in conflict over which level of deference applies here. Compare Richland Sch. Dist. v. DILHR, 174 Wis. 2d 878, 891-92, 498 N.W.2d 826 (1993), with Haas v. DILHR, 166 Wis. 2d 288, 292-93, 479 N.W.2d 229 (Ct. App. 1991). We need not decide the level of deference to apply as even with de novo review, we conclude that the ALJ did not err.

¶ 8. When interpreting a statute such as the Wisconsin FMLA, we give effect to legislative intent by first looking to the language of the statute. Butzlaff v. Wisconsin Pers. Comm'n, 166 Wis. 2d 1028, 1033, 480 N.W.2d 559 (Ct. App. 1992). "[W]e liberally construe the FMLA because it is remedial in nature." Id. at 1035. Where the language yields a clear meaning, we apply the statute in accordance with this meaning and the statute's scope, context, and purpose. State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶¶ 46, 48, 271 Wis. 2d 633, 681 N.W.2d 110. "A cardinal rule in interpreting statutes is to favor a construction that will fulfill the purpose of the statute over a construction [654]*654that defeats the manifest object of the act." Watkins v. LIRC, 117 Wis. 2d 753, 761, 345 N.W.2d 482 (1984).

¶ 9. The language of the Wisconsin FMLA is clear. The statute prohibits an employer from interfering with, restraining, or denying an employee's right to take medical leave during the period where a serious health condition renders the employee unable to perform his or her employment duties. Wis. Stat. § 103.10(4)(a), (ll)(a).

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2015 WI App 11, 859 N.W.2d 446, 359 Wis. 2d 647, 24 Wage & Hour Cas.2d (BNA) 305, 2014 Wisc. App. LEXIS 1035, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burlington-graphic-systems-inc-v-department-of-workforce-development-wisctapp-2014.