Background
Kevin Warlow worked as a welder for Bartelt Custom Automotive, Inc., a Milwaukee metal-fabrication and machine shop. After sustaining a compensable injury to his left hand, Warlow was released to return to work without restrictions. Bartelt told him that work had slowed and laid him off, although it had filled his welding position with another employee. An available press-brake-operator position was not offered to Warlow, despite his prior experience operating similar equipment.
Warlow briefly worked for Resource Management at slightly lower pay but left after learning that the job was not temporary-to-permanent as advertised. He later obtained lower-paying work operating a press brake. The Labor and Industry Review Commission concluded that Bartelt had unreasonably refused to rehire Warlow under Wis. Stat. § 102.35(3) and awarded wage-loss benefits. The Milwaukee County Circuit Court, Judge Kristy Kashoua Yang, affirmed, and Bartelt appealed.
The Court’s Holding
The Court of Appeals affirmed. Applying the first-in-time rule to conflicting published appellate decisions, the court held that an employee establishes a prima facie unreasonable-refusal-to-rehire claim by showing that the claimant was an employee, suffered an injury in the course of employment, and was subsequently denied rehire. The employee need not additionally prove that the employer denied rehire because of the injury or that the employee formally applied for rehire. Because the parties agreed that Warlow satisfied the three required elements, the burden shifted to Bartelt to show reasonable cause for not rehiring him.
Substantial and credible evidence supported LIRC’s findings that the press-brake position was suitable for Warlow and that Bartelt lacked reasonable cause for failing to offer it to him. Warlow’s earlier decision to decline that position did not make a later offer futile, particularly because he returned without restrictions seeking reinstatement and testified that he would have accepted any available job. The court also upheld the full wage-loss award, concluding that Warlow acted reasonably and in good faith to mitigate his losses when he left a job that had been inaccurately advertised and continued searching for permanent employment.
Key Takeaways
- A prima facie claim under Wis. Stat. § 102.35(3) requires proof of employment, a workplace injury, and a subsequent denial of rehire.
- The claimant need not prove at the prima facie stage that the refusal was caused by the injury or that the claimant formally applied for rehire.
- An employee may satisfy the duty to mitigate despite leaving later employment when the departure is reasonable and the employee continues seeking other work in good faith.
Why It Matters
The decision resolves conflicting Wisconsin Court of Appeals formulations by applying the earliest published precedent and adopting a comparatively low prima facie threshold for refusal-to-rehire claims. Once that threshold is met, the employer bears the burden of establishing reasonable cause for not rehiring the injured employee.
The opinion also underscores that employers should consider suitable available positions when an injured employee returns seeking work and cannot assume that an employee remains uninterested in a position previously declined under different circumstances.