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Retaliation / Refusal to Rehire in Worker's Compensation

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If an employer terminates an employee because of a work injury, or unreasonably refuses to rehire the employee after a compensable work injury, a penalty of up to one year's lost wages applies. The purpose of Wisconsin's statute is to prevent discrimination against employees who previously sustained injuries and if there are positions available within the injured employee's restrictions, to assure the injured person goes back to work with his former employer.

This statutory protection is an exception to the general rule of "at will" employment in Wisconsin - where an employer can hire, fire, and make employment decisions for any reason or no reason at all, except for a discriminatory reason defined by law such as race, gender or religion. Under the Wisconsin Worker's Compensation Law §102.35(3) a work injury is essentially an additional protected category. In a Refusal to Rehire case, the worker need not prove the reason for discharge in order to make a claim. In fact, the worker satisfies his burden of proof by showing he was an employee with a compensable injury who was subsequently denied rehire. Once established, the burden shifts to the employer to show reasonable cause for not rehiring the applicant. (Other States have similar provisions. See, for example, Ohio Code 4123.90with similar anti-retaliation provisions.) The burden-shifting model recognizes the realities of the employment relationship and disparate access to information. The employee generally has limited means to prove the "real reason" for his discharge, so the burden is on the employer to establish good cause when the burden shifts.

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