Wisconsin’s court of appeals, in a published opinion written by Judge Reilly, recently decided that undocumented workers are protected by Wisconsin’s Family and Medical Leave Act (FMLA). Burlington Graphic Systems v. DWD, 14AP762. The decision has no practical effect on employers who comply with Wisconsin’s FMLA (and federal immigration law), but the lesson from the decision is that, if an undocumented worker alleges a violation of Wisconsin’s FMLA, federal immigration law is not a defense to employer liability.

The case arose when Burlington Graphic Systems terminated Karen Alvarez’s employment after she took medical leave. Alvarez missed work in November 2011 due to a surgical procedure.  She had informed her supervisor about the upcoming procedure, but one day after Alvarez returned to work, she was fired by Burlington because she missed too many days. In calculating her absences, Burlington counted at least one of the days when Alvarez was on medical leave.

Alvarez filed an FMLA complaint, and Wisconsin’s Department of Workforce Development (DWD) found probable cause that an FMLA violation had occurred. Burlington rehired Alvarez the next March, but quickly fired her again when she was not able to demonstrate that she could legally work in the United States. (The court of appeals was troubled by, but reluctantly accepted, the parties’ stipulation that Alvarez was unaware until March 2012 that she could not legally work in the United States.)

Alvarez’s complaint proceeded to a hearing before an administrative law judge (ALJ). The ALJ ruled in favor of Alvarez and the DWD. The ALJ ordered that Burlington: (1) cease and desist from violating Wisconsin’s FMLA; (2) implement policies to teach its employees about Wisconsin’s FMLA; and (3) pay Alvarez’s attorney fees. Alvarez was not awarded back pay because she was not authorized to work during the period for which she sought back pay. The circuit court affirmed the ALJ, modifying the award only for the calculation of attorneys’ fees.

The court of appeals affirmed. It rejected Burlington’s arguments that applying Wisconsin’s FMLA to undocumented workers would confer upon them the benefit of employment that they were not entitled to. Even though Alvarez could not collect back pay for a period when she could not legally work, her employer was liable for violating Wisconsin’s FMLA. The fact that undocumented workers have no right to continued employment (just as at-will employees have no right to continued employment) does not change employers’ obligations under the Wisconsin FMLA. Even undocumented workers have the right to take leave for serious medical conditions.

The court was concerned that a contrary decision would incentivize employers to hire undocumented workers whose rights would not be protected.