Wisconsin’s Family and Medical Leave Act is a unique piece of legislation in many respects. Of course, the Wisconsin FMLA is this state’s counterpart to the federal Family and Medical Leave Act. Both the federal and state FML Acts provide employees (who are employed by a covered employer) with a certain amount of unpaid leave time for a variety of health-related circumstances, e.g., affording an employee medical leave for the birth of a baby. For employers who are covered by both the state and federal FML Acts, conforming their policies can become difficult, because the statutes differ in how they allow leave time to be accumulated, whether paid leave time may be substituted, and a score of other technical differences.
Additionally, the time periods in which an employee must allege a violation of their FMLA rights differs between the state and federal FML Acts. For the federal FML Act, an employee has two years from the date of the alleged violation to file a complaint. For the state FML Act, an employee must file an administrative claim with the Wisconsin Equal Rights Division within thirty (30) days of the alleged violation. This is a uniquely-short time period, because most other employee claims (most typically, discrimination claims) must be filed within three hundred (300) days of the alleged violation.
Finally, the Wisconsin FML Act permits employees, if specific conditions are met (discussed below) to file a claim against their employer for damages arising from a violation of the FML Act in circuit court. This, too, is unique, because discrimination and many other employment-based claims may only be pursued by an employee in an administrative context through the Equal Rights Division. An employee cannot, for example, ever file a discrimination claim against his or her employer in circuit court. It is the conditions under which an employee may file a FMLA claim against his or her employer in circuit court that was the subject of a recent Court of Appeals’ decision from the Fourth District.
In Hoague v. Kraft Foods Global, Inc., District Four of the Court of Appeals, decided whether a Dane County Circuit Court judge correctly dismissed Robert Hoague’s Wisconsin FMLA claim against Kraft Foods Global, Inc. Mr. Hoague was seeking recovery of over $30,000 in back pay and benefits and attorney fees and costs. He had properly filed an initial administrative claim with the Equal Rights Division, which ultimately ordered that Kraft pay Hoague $18,893.51 for back pay and benefits and $12,143.49 in attorney fees and costs.
Wisconsin Statutes Section 103.10(13), which defines the circumstances under which an employee may file a FMLA claim against his or her employer in circuit court, provides that:
(13) Civil action.
(a) An employee or the department may bring an action in circuit court against an employer to recover damages caused by a violation of sub. (11) after the completion of an administrative proceeding, including judicial review, concerning the same violation.
(b) An action under par. (a) shall be commenced within the later of the following periods, or be barred:
- Within 60 days from the completion of an administrative proceeding, including judicial review, concerning the same violation.
- Twelve months after the violation occurred, or the department or employee should reasonably have known that the violation occurred.
When the Equal Rights Division mailed its order on Hoague and Kraft, it outlined that the parties had twenty days to petition the Division for a rehearing or thirty days to petition for judicial review (an appeal) by the circuit court. Kraft did neither.
Hoague filed a civil action against Kraft in the Dane County Circuit Court on the 88th day following the Equal Rights Division’s issuance of the order. Kraft filed a motion to dismiss Hoague’s civil action, arguing that Hoague’s sixty day period to file an action, under Wisconsin Statutes Section 103.10(13)(b)(1), expired sixty days after the Division had issued its order.
The Court of Appeals concluded that the statute – Section 103.10(13) – was ambiguous, so it looked to the “context, scope, and purpose” of the language of the statute. The Court of Appeals described that the administrative phase through the Equal Rights Division has the purpose of allowing the employee to establish a violation of the Wisconsin FMLA. If the employee prevails, the employee may thereafter file an entirely new civil action in circuit court seeking monetary damages like consequential and punitive damages. The Court of Appeals concluded that the sixty day time period was intended to given an employee an adequate opportunity to retain an attorney, investigate his or her claim, and make an informed decision about whether to pursue a civil action in circuit court. Consequently, it concluded that the sixty day period does not begin to run until after the window for seeking judicial review is closed, or, thirty days after the issuance of the order from the Equal Rights Division.
The Court of Appeals’ decision in Hoague v. Kraft Foods Global, Inc. highlights how technical and complicated the Wisconsin Family and Medical Leave Act can be for employees and employers. For employees who believe their rights have been violated, it is important they act quickly, because the Wisconsin Family and Medical Leave Act provides very short time periods for challenging alleged violations. The Court of Appeals’ recent decision makes an impact, albeit small, in expanding the time period for an employee to pursue a civil action against his or her employer for a violation of the Wisconsin Family and Medical Leave Act.