Decision to terminate injured worker rather than trainee spells trouble

If a Wisconsin employer chose to terminate a worker who suffered a workplace injury, rather than a worker who was still in training, and the employer later sought to hire a new worker but did not rehire the injured worker, the evidence shows the employer wrongfully terminated the injured worker.

Case name: Superior Beverages, LLC v. Labor and Industry Review Commission, No. 2010AP608 (Wis. Ct. App. 03/22/11, unpublished).

Ruling: In an unpublished decision, the Wisconsin Court of Appeals held that a beer distributor wrongfully terminated a salesman because of his workplace injury.

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What it means: If a Wisconsin employer chose to terminate a worker who suffered a workplace injury, rather than a worker who was still in training, and the employer later sought to hire a new worker but did not rehire the injured worker, the evidence shows the employer wrongfully terminated the injured worker.

Summary: A route salesman for a beer distributor injured his back twice while working. On the afternoon he returned to work after his second injury, he was terminated. His supervisor told him he was being laid off due to a "lack of work" stemming from a drop in sales. The distributor had a seasonal fluctuation in sales, but the salesman said it never laid anyone off in the past. The supervisor said the distributor might contact the salesman about rehiring him. However, the distributor never contacted him. Seven months after he was terminated, the distributor ran an ad in a local paper seeking to hire a new salesperson. The Wisconsin Court of Appeals held that the distributor wrongfully terminated the salesman because of his workplace injury.

The supervisor said that the salesman was the first worker laid off because of a seasonal downturn, and he was the only one terminated. The supervisor said the salesman had good performance reviews and was not terminated for poor performance. The distributor's owner said the salesman was terminated because he no longer had a regular route when he returned to work because his routes had been given to other employees. The court pointed out that the supervisor conceded that the salesman was terminated instead of another worker who also lacked a regular route. The other worker had worked there five months and was still in training. The court said the distributor never articulated a reason for choosing to terminate the salesman rather than the other worker.

Read more at the WorkersComp Forum homepage.

May 9, 2011

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