Do undocumented workers have rights under the Wisconsin FMLA (“WFMLA”)? According to the Wisconsin Court of Appeals, the answer is “yes.” In Burlington Graphic Systems, Inc. v. Dep’t. of Workforce Development, 2015 WI App 11, an employer terminated an employee returning from medical leave. The employee alleged that her former employer interfered with her rights under the FMLA, and the Court agreed – even though, by her own admission, she “was not legally able to accept employment in the United States.”
The court upheld an administrative law judge’s order that the employer cease and desist from interfering with its employees’ WFMLA rights and to implement WFMLA training. More importantly, although it declined to award backpay to the employee, it still awarded her $8,868.96 in attorney fees. The Burlington Graphic Systems court’s message is clear: Wisconsin employers “must abide by the Wisconsin FMLA regardless of an employee’s immigration status.”
So, if you are a WFMLA-covered employer (meaning you employed 50 or more employees for at least 6 of the last 12 months), be sure to treat all WFMLA-eligible employees equally … even those you should not be employing at all! Questions? Please contact WS Attorney Peter E. Hansen at (262) 560-9696, or email firstname.lastname@example.org.