West Allis School District v. Department of Industry, Labor & Human Relations

342 N.W.2d 415, 116 Wis. 2d 410, 1984 Wisc. LEXIS 2293
CourtWisconsin Supreme Court
DecidedJanuary 31, 1984
Docket82-729
StatusPublished
Cited by45 cases

This text of 342 N.W.2d 415 (West Allis School District v. Department of Industry, Labor & Human Relations) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
West Allis School District v. Department of Industry, Labor & Human Relations, 342 N.W.2d 415, 116 Wis. 2d 410, 1984 Wisc. LEXIS 2293 (Wis. 1984).

Opinions

HEFFERNAN, C. J.

This is a review of a court of appeals decision1 which affirmed a judgment of the circuit court for Milwaukee county, John E. McCormick, Circuit Judge, entered on March 30, 1982, which sustained the prior order of the Labor and Industry Review Commission. The commission determined that the plain[412]*412tiff, West Allis School District, in violation of sec. 102.35(3), Stats.,2 had not shown reasonable cause for its failure to rehire the defendant, Victor P. Buff. By its order the commission directed the school district to pay Buff the wages lost during the period of the unlawful refusal. We affirm the decision of the court of appeals.

Because of the shifting grounds upon which the school district has at various times chosen to rely, it is difficult to state with precision the issue or issues upon which the school district ultimately relies to justify its conduct.

We hold that the requirement of sec. 102.35 (3), Stats., that an “employer who without reasonable cause refuses to rehire an employe who is injured in the course of employment” is subject to pay “wages lost during the period of such refusal,” carries with it the requirement that the rehiring be in “good faith,” i.e., that the intention of the rehiring employer is to give employment to [413]*413the previously injured employee for an indeterminate time and there not be an intent merely to “rehire” in order to comply with the letter of the statute and then to terminate employment. To be in good faith, the employer must rehire the injured employee with the intention of keeping the employee on the job, as it would intend to keep its other employees on the job.

On the basis of evidence believed by the commission and found to be credible and sufficient by both the circuit court and the court of appeals, we conclude that: (1) Under the workers compensation act, including sec. 102.85(3), Stats., Buff was an employee injured in the course of his employment; (2) there was employment available that was suited to Buff’s physical and mental qualifications (“limitations”); (3) there was no “reasonable cause” demonstrated by the school district to justify the refusal to rehire; and (4) there was evidence, indeed an admission, that the pro forma rehiring was not intended to be for an indeterminate time and, therefore, was not in good faith.

We recapitulate the facts leading to this action.

Buff was hired as a general laborer under a CETA (Comprehensive Employment and Training Act) grant by the West Allis School District on March 15, 1975. While so working for the district, on January 29, 1976, he sustained a compensable back injury. He received benefits during his period of disability pursuant to the Wisconsin Workers Compensation Act, ch. 102, Stats.

He returned to work on May 29, 1976, and his employment was ended on June 30, 1976, when the CETA grant for laborers employed by the school district was terminated at the district’s request. On May 26, 1976, three days before Buff’s return to work, the school district requested the termination of the portion of their CETA grant under which Buff was employed. It has been conceded by the school district that Buff, during the course [414]*414of his CETA employment, was “unlawfully” employed by the district, because his duties were that of a “custodian” and not merely of a laborer. The reason the school district gave for requesting termination of the grant was “they [laborers] are no longer a necessary part of our work force.” Elsewhere in these proceedings the West Allis district acknowledged that at no time were they, as a school district, authorized to hire “laborers” — that work of that nature was to be performed by city employees and not employees of the school district.

When Buff had been reemployed for less than one month, he was notified that his employment was being terminated pursuant to the school district’s request for the termination of general laborer positions under CETA. The CETA laborer position was abolished July 1, 1976. The school district acknowledges that, during the summer, provisional student help was employed to do maintenance work and also a permanent custodian was hired. It is conceded, indeed urged, by the school district that Buff’s employment prior to his injury and prior to the termination on June 30, 1976, was that of a custodian and maintenance worker and not that of a general laborer. It is on the basis of the latter fact that the school district puts forth the argument that the rehiring of Buff was impossible because it would have continued him in the unlawful classification as a laborer. Alternatively, it appears that the school district asserts that its own mis-classification, or misuse, of Buff prior to the injury made the entire course of CETA employment unlawful and, therefore, for some reason, unexplained, because of the school district’s unlawful conduct, Buff should be deprived of benefits under sec. 102.35 (3), Stats., which would inure to any other injured employee who was not rehired.

Following Buff’s firing on June 30, 1976, he made application for hearing with the Workers Compensation [415]*415Division, alleging that his termination of employment was a refusal to rehire without reasonable cause under sec. 102.35 (3), Stats. On the occasion of the initial hearing, the school district successfully argued that there was no refusal to rehire — that Buff was rehired on May 29, 1976. The fact that he was released on June 30, 1976, the school district asserted, did not vitiate the rehiring, although the school district anticipated that the CETA funding for the position would be terminated pursuant to its own request, made just before Buff’s “rehiring.” It was the school district’s position that a pro forma rehiring was sufficient, and whether or not the injured employee was to be fired almost immediately was immaterial ; there had been a rehiring.

This ruling of the examiner was set aside by the commission, which concluded on July 12, 1978, that, to comply with the requirements of sec. 102.35 (3), Stats., the rehiring must be in “good faith” — that pro forma rehiring was not enough.

Thereafter, there ensued almost two years of procedural delays. The circuit court action to review the 1978 commission order directing payments to Buff under sec. 102.35 (3), Stats., was dismissed, and the matter was again remanded to the commission for determination. Once again the commission on February 14, 1980, found facts as set forth above and specifically found that the only reason given by the school district for terminating Buff’s employment was that his services were no longer needed, that no other reason for failure to rehire was asserted, that there was no showing by the school district that suitable employment was not available, that no reasonable cause was shown for the failure to rehire the applicant in good faith, and that the school district’s rehiring of Buff on May 29, 1976, was not in good faith.

[416]*416It was from this determination and the order to pay wages under sec. 102.35 (3), Stats., that the school district appealed by bringing an action in circuit court. The circuit court found that there was credible evidence to support the commission’s findings, including the finding that, during the summer of 1976, the school district hired two persons to perform substantially the same work that defendant, Buff, had done. The order of the commission was affirmed.

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Bluebook (online)
342 N.W.2d 415, 116 Wis. 2d 410, 1984 Wisc. LEXIS 2293, Counsel Stack Legal Research, https://law.counselstack.com/opinion/west-allis-school-district-v-department-of-industry-labor-human-wis-1984.