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(1) Every employer and every insurance company that fails to keep the records or to make the reports required by this chapter or that knowingly falsifies such records or makes false reports shall pay a work injury supplemental benefit surcharge to the state of not less than $10 nor more than $100 for each offense. The department may waive or reduce a surcharge imposed under this subsection if the employer or insurance company that violated this subsection requests a waiver or reduction of the surcharge within 45 days after the date on which notice of the surcharge is mailed to the employer or insurance company and shows that the violation was due to mistake or an absence of information. A surcharge imposed under this subsection is due within 30 days after the date on which notice of the surcharge is mailed to the employer or insurance company. Interest shall accrue on amounts that are not paid when due at the rate of 1 percent per month. All surcharges and interest payments received under this subsection shall be deposited in the fund established under s. 102.65 .
History: 1975 c. 147 ; 1977 c. 29 , 195 ; 2003 a. 144 ; 2005 a. 172 ; 2011 a. 183 ; 2015
a. 55 . An employer cannot satisfy sub. (3) by rehiring with an intent to fire at a later date. Dielectric Corporation v. LIRC, 111 Wis. 2d 270 , 330 N.W.2d 606 (Ct. App. 1983). An employer has the burden to prove that rehiring was in good faith. West Allis School Dist. v. DILHR, 116 Wis. 2d 410 , 342 N.W.2d 415 (1984). A one-day absence from work due to an injury triggered the rehire provision under sub. (3). Link Industries, Inc. v. LIRC, 141 Wis. 2d 551 , 415 N.W.2d 574 (Ct. App. 1987).
For liability under sub. (3), the employee must show that he or she: 1) was an employee; 2) sustained a compensable injury;. 3) applied for rehire; 4) had the application for rehire refused due to the injury. Universal Foods Corporation v. LIRC, 161 Wis. 2d 1 , 467 N.W.2d 793 (Ct. App. 1991).
Sub. (3) does not bar an employee from seeking arbitration under a collective bargaining agreement to determine whether termination following an injury violated the agreement. Sub. (3) relates to harm other than worker injuries and is not subject to the exclusive remedy provision of s. 102.03 (2); the " exclusive liability" language in sub. (3) does not bar lawsuits but imposes a penalty on the employer for refusal to hire. County of LaCrosse v. WERC, 182 Wis. 2d 15 , 513 N.W.2d 708 (1994).
A LIRC interpretation of sub. (3), that a violation requires an employee who is unable to return to a prior employment to express an interest in reemployment in a different capacity, was reasonable. Hill v. LIRC, 184 Wis. 2d 110 , 516 N.W.2d 441 (Ct. App. 1994).
If an employer shows that it refused to rehire an injured employee because the employee's position was eliminated to reduce costs and increase efficiency, reasonable cause has been shown under sub. (3). Ray Hutson Chevrolet, Inc. v. LIRC, 186 Wis. 2d 118 , 519 N.W.2d 649 (Ct. App. 1994).
An attendance policy that includes absences due to work-related injuries as part of the total of absences allowed before termination violates sub. (3). Great Northern Corp. v. LIRC, 189 Wis. 2d 313 , 525 N.W.2d 361 (Ct. App. 1994).
Sub. (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. Sub. (3) does not contain " accommodation" requirements and does not require an employer to change its legitimate and long- standing safety policies in order to assist an employee in meeting personal obligations. DeBoer Transportation, Inc. v. Swenson, 2011 WI 64 , 335 Wis. 2d 599 , 804 N.W.2d 658 , 09-0564 .
Neither sub. (2) nor case law authorizes employees who are terminated for filing worker's compensation claims to bring wrongful discharge claims against their employers. Brown v. Pick 'n Save Food Stores, 138 F. Supp. 2d 1133 (2001).