A Wisconsin court of appeals was not swayed by a recent argument that an employer did not violate the Wisconsin FMLA when the employer terminated an employee returning from medical leave for lacking work authorization.  In Burlington Graphic Systems, Inc. v. Department of Workforce Development, Appeal No. 2014AP762, an undocumented employee, Karen Alvarez, of Burlington Graphic Systems took one week of leave after surgery.  When Alvarez returned to work, the company terminated her employment for unexcused absences.  The employee then filed a complaint against the company with the Wisconsin Department of Workforce Development. The Department found probable cause that the Wisconsin FMLA had been violated and set a hearing before an administrative law judge (ALJ).  The company rehired the employee prior to the hearing, and required her to complete a Form I-9 as a new hire.  Alvarez could not produce documents proving she was authorized to work so Burlington, as a result the company terminated her employment.

At the hearing, the ALJ ruled in favor of the employee, and awarded her $8,868.96 in attorney’s fees for the company’s violations of the Wisconsin FMLA.  The ALJ, however, did not award backpay to the employee because she was not authorized to work.  The company appealed this decision, arguing that “it could not violate the Wisconsin FMLA by discharging [the employee] as [she] had no right to employment in the United States at the time of her discharge.”¹ The company relied on a provision in the Wisconsin FMLA to make this argument, which states that an employee returning from medical leave is not “entitle[d]…to a right, employment benefit or employment position to which the employee would not have been entitled had he or she not taken family leave or medical leave.”² Since the employee had no right to employment, the company argued, she was not entitled to employment when returning from leave. 

The Wisconsin appeals court was not convinced.  Undocumented employees, the court reasoned, are like at-will employees: the fact they do not have a right to continued employment does not excuse employers from following the employment laws.  There is also an important policy consideration.  If employers could skirt liability by hiring undocumented workers, then the Immigration and Nationality Act, which places restrictions on hiring undocumented workers, and the Wisconsin FMLA, which safeguards employees’ rights to take medical leave, would be frustrated.

The Wisconsin decision follows a long line of cases holding that undocumented workers are entitled to all of the protections under the law, even though they have no right to work.  While undocumented employees generally may not receive back pay, employers will still be held liable for other costs should there be a violation of the law.  In this case, the employer had to pay the employee’s attorney’s costs, while the employee gained nothing. The court noted she was ineligible to work and could not receive damages.  The only party that benefited in the end was the employee’s attorney.  It is worth noting that employers may run afoul of other laws when terminating employees who are unauthorized to work.  Implementing strong I-9 procedures and conducting regular audits helps to avoid difficult situations where following the Immigration and Nationality Act may lead to violations of other laws.  It is important to proceed carefully in these difficult situations.