April 1, 2010 – In deBoer Transportation v. Swenson and LIRC (2009AP564 Mar. 25, 2010), the Wisconsin Court of Appeals reversed the circuit court for Wood County on whether deBoer Transportation (deBoer) illegally refused to rehire Charles Swenson after he recovered from a work-related injury.

The Labor and Industry Review Commission (LIRC) concluded that deBoer failed to show “reasonable cause” for its refusal to rehire Swenson, as required by Wis. Stat. § 102.35(3). The circuit court affirmed the LIRC’s decision. The court of appeals, however, found that the LIRC relied on an incorrect interpretation of the reasonable cause standard in its ruling against deBoer.

The check-ride requirement

Swenson was employed by deBoer as a truck driver when he injured his knee at work. When he was cleared by his doctor to return to work several months later, he began the reorientation program that deBoer uses for drivers who have been off work for more than 60 days.

Part of deBoer’s reorientation program is an overnight “check-ride,” which requires a returning driver to be away from home for several days so another deBoer driver can evaluate driving skills. Prior to his injury, Swenson drove a daily route for deBoer that allowed him to be home during part of the day to provide care for his terminally ill father. If Swenson participated in the overnight check-ride, he would have to locate and pay for a care provider for the time he was away.

Swenson asked deBoer if he could complete his check-ride locally, or alternatively, asked if the company would pay the additional cost of caring for his father during the overnight check-ride. deBoer refused both requests, and Swenson refused to cooperate with the check-ride so was not rehired.

deBoer employees testified to the LIRC that it had never before made an exception to the check-ride policy, and there was no evidence that Swenson was treated any differently than any other returning driver. In addition, deBoer asserted that the purpose of the check-ride was to ensure it employed safe drivers. The LRIC found that the policy was reasonable on its face.

However, the LIRC concluded that deBoer didn’t demonstrate that accommodating Swenson would have compromised safety or been a financial burden, and therefore deBoer failed to show reasonable cause for its refusal to rehire. The circuit court upheld the LIRC’s decision and deBoer appealed.

Reasonable cause for refusal to rehire

Wis. Stat. § 102.35(3) provides that, “any employer who without reasonable cause refuses to rehire an employee who is injured in the course of employment … has exclusive liability to pay the employee the wages lost …” (emphasis added). The dispute in this case is over whether deBoer’s refusal to rehire Swenson was based on “reasonable cause.” See deBoer, ¶ 8.

The burden of proof in this case is on deBoer to show “reasonable cause” for its refusal to rehire, which may be met with proof of a valid business reason for its action. See Id., ¶ 9.

The court noted that whether the facts as found by the LIRC give rise to reasonable cause is a question of law. In addition, it determined that the LIRC’s application of the reasonable cause standard has no reasonable basis in the law or facts, so the level of deference the court must apply to the LIRC’s finding does not matter. “An unreasonable application of a statutory standard will not be upheld under any level of deference.” See Id., ¶ 10.

The LIRC argued that it is not enough for deBoer to show it refused to rehire Swenson by uniformly applying its check-ride policy (which the LIRC acknowledged “may have some legitimate business purpose behind it”), but that deBoer also needed to present evidence that it was an unreasonable burden to accommodate Swenson’s request. DeBoer argued that this amounts to an incorrect interpretation of the statute because it requires something more than reasonable cause, and the court of appeals agreed.

“We conclude that the reasonable cause standard in Wis. Stat. § 102.35(3) does not contemplate requiring employers to either deviate from a facially reasonable and uniformly applied policy, or explain why it would be burdensome to do so, when a returning employee requests the deviation to accommodate a non-work and non-injury-related personal need,” the court found. See Id., ¶ 14.

The court continued, “What if Swenson’s accommodation request was…based on his desire not to miss classes that he had paid for to enrich his live, such as woodworking or dance classes? We do not think the legislature intended to require employers to assess which non-work, non-injury-related requests merit accommodations and which do not.” See Id., ¶ 15.

Accordingly, the court concluded that the LIRC erred in determining that deBoer failed to show reasonable cause. “Reasonable cause is shown here by deBoer’s uniform application of its longstanding safety testing procedure to Swenson,” the court added. “There is no basis for the conclusion that deBoer did not have reasonable cause to require Swenson to participate in the check-ride and, therefore, no basis for the conclusion that ‘reasonable cause’ was lacking.” See Id., ¶ 17.

In finding that the LIRC’s decision depended on an incorrect interpretation of the reasonable cause standard in Wis. Stat. § 102.35(3), the court of appeals reversed the circuit court’s order confirming the LIRC’s decision and remanded for dismissal of Swenson’s claim against deBoer.