Wisconsin Court Expands Employers’ Duty to Rehire Injured Workers

Takeaways

• The Wisconsin Court of Appeals’ recent Bartelt decision clarified that claimants’ bringing an “unreasonable failure to rehire” claim under the Worker’s Compensation Act, Wis. Stat. § 102.35(3), need only show employment, a work-related injury and a subsequent denial to rehire.
• Former employees do not need to prove they were denied rehire because of their work injury or that they formally applied for rehire.
• To reduce liability risk, employers should inform injured employees cleared to work of suitable open positions, regardless of whether they previously declined the position or applied for rehire.

Related links

• Bartelt Custom Automotive, Inc. v. LIRC

Article

The Wisconsin Court of Appeals has clarified employees’ burden to demonstrate their employer unreasonably failed to rehire them after a compensable workplace injury in violation of Wisconsin’s Worker’s Compensation Act, Wis. Stat. § 102.35(3). Bartelt Custom Automotive, Inc. v. LIRC, No. 2024AP133 (Wis. Ct. App. Oct. 6, 2026).

Now, to establish a prima facie case, employees must only show:

1. They were an employee; 
2. They sustained an injury in the course of their employment; and 
3. The employer subsequently refused to rehire them.

To avoid liability and show they acted “reasonably,” employers likely will be required to offer injured employees any position they are qualified for upon their release to work.

This decision is important to Wisconsin employers for two reasons:

• It eliminates the prior requirement that employees show their employer’s decision not to rehire them was due to their work injury. 
• It requires employers to be proactive in offering employees who are injured in the workplace open positions when the employee is ready to return to work.

Background

The employer is a metal fabrication and machine shop located in Milwaukee, Wisconsin. Before hiring Kevin Warlow, it originally offered him a press brake operator position due to his prior experience, but Warlow turned down the role because he wanted to use other skills. The employer hired him as a welder.

Warlow suffered a compensable workplace injury on Jan. 9, 2017, and was released to work without restrictions on Feb. 28, 2017. At that time, the employer had filled Warlow’s welding position and told him work had slowed down and he was being laid off. Evidence showed the employer did not offer Warlow an open press brake operator position, which he had declined before becoming a welder because he preferred other work. Warlow testified he would have accepted any job, including the open press brake operator role, for financial reasons.

Warlow later took a job with another employer at slightly lower pay but left after a week because he learned the job was not temporary-to-permanent, as advertised. He then found press brake work at an even lower wage for still another employer.

After administrative and judicial proceedings found the employer violated the Act by unreasonably failing to rehire the employee based on not proactively offering him the press brake operator position, the employer appealed to the Wisconsin Court of Appeals.

Wisconsin Appellate Court Decision

The employer argued that employees have a significant burden to show an employer’s actions violated the Act. The employer argued it is the employee’s burden to ask about open positions, and that an employee’s legal burden to prove their claims requires showing a causal link between his workplace injury and the employer’s decision. The court disagreed.

The court held that an employee’s initial burden to show an unreasonable-failure-to-rehire claim is minimal. Agreeing with LIRC, the court said the Act “does not require an employee to prove that they were denied rehire because of the workplace injury, nor are they required to demonstrate that they applied for rehire.”

Instead, to carry their initial burden to show a prima facie case, the court explained, individuals claiming their employer unreasonably failed to rehire them in violation of the Act must only show they were an employee, they sustained an injury at work, and the employer subsequently denied rehiring them.

Although the employer agreed the employee met his minimal burden in this instance, the employer argued it had reasonable cause not to rehire the employee because he previously turned down the press brake operator role and, because he did not proactively state he was interested in the position, it had no duty to offer him the role.

The court again disagreed. Because the employer knew the employee had previous experience operating press brakes and was capable of doing so, the court said the employer had a duty to offer him the position even if he had declined the role previously. Additionally, the court held that, because the employee had informed the employer about his ability and willingness to return to work, he did not have a duty to further inquire about open positions that he did not know about.

Finally, the court affirmed the administrative award of the maximum of one year of wage loss. Although the court affirmed that employees have a duty to mitigate lost wages in Wis. Stat. § 102.35(3) claims, it provided a loose standard that employees must only “demonstrate[] good faith” in looking for other work.

Implications for Wisconsin Employers

Bartelt makes an already worker-friendly law even friendlier. If an employer fills the position of an employee who is out of work with a compensable injury under the Wisconsin Worker’s Compensation Act, upon the employee’s return to work the employer should notify the returning employee of any open positions they may be able to perform, even if the role is different from their prior role. Employers should also document this process to preserve records.

If you have any questions about your obligations involving an injured employee returning to work, contact a Jackson Lewis Wisconsin attorney, who will be happy to provide guidance.