Wisconsin Statutes

Wis. Stat. § 102.35 (2026)

Penalties

✓ current as of July 2026

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102.35102.35 Penalties.

102.35(1)(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.

102.35(2)(2) Any employer, or duly authorized agent thereof, who, without reasonable cause, refuses to rehire an employee injured in the course of employment, or who, because of a claim or attempt to claim compensation benefits from such employer, discriminates or threatens to discriminate against an employee as to the employee’s employment, shall forfeit to the state not less than $50 nor more than $500 for each offense. No action under this subsection may be commenced except upon request of the department.

102.35(3)(3) Any employer who without reasonable cause refuses to rehire an employee who is injured in the course of employment, when suitable employment is available within the employee’s physical and mental limitations, upon order of the department, has exclusive liability to pay to the employee, in addition to other benefits, the wages lost during the period of such refusal, not exceeding one year’s wages. In determining the availability of suitable employment the continuance in business of the employer shall be considered and any written rules promulgated by the employer with respect to seniority or the provisions of any collective bargaining agreement with respect to seniority shall govern.

102.35 HistoryHistory: 1975 c. 147; 1977 c. 29, 195; 2003 a. 144; 2005 a. 172; 2011 a. 183; 2015 a. 55; 2025 a. 33.

102.35 AnnotationAn employer cannot satisfy sub. (3) by rehiring with an intent to fire at a later date. Dielectric Corp. v. LIRC, 111 Wis. 2d 270, 330 N.W.2d 606 (Ct. App. 1983).

102.35 AnnotationAn employer’s termination of an employee, during the healing period, because of the work-related injury constitutes a refusal to rehire without reasonable cause in violation of sub. (3). To require a terminated employee to report to work in order to recover under sub. (3) as a prerequisite to recovery under sub. (3) is an unreasonable construction of the statute and would impose an unreasonable burden on any employee. L&H Wrecking Co. v. LIRC, 114 Wis. 2d 504, 339 N.W.2d 344 (Ct. App. 1983). But see Anderson v. LIRC, 2021 WI App 44, 398 Wis. 2d 668, 963 N.W.2d 89, 20-0027.

102.35 AnnotationAn employer has the burden to prove that rehiring was in good faith. West Allis School District v. DILHR, 116 Wis. 2d 410, 342 N.W.2d 415 (1984).

102.35 AnnotationA 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).

102.35 AnnotationFor liability under sub. (3), the employee must show that the employee: 1) was an employee; 2) sustained a compensable injury; 3) applied for rehire; and 4) had the application for rehire refused due to the injury. Universal Foods Corp. v. LIRC, 161 Wis. 2d 1, 467 N.W.2d 793 (Ct. App. 1991).

102.35 AnnotationSub. (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 La Crosse v. WERC, 182 Wis. 2d 15, 513 N.W.2d 579 (1994).

102.35 AnnotationA Labor and Industry Review Commission 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 101, 516 N.W.2d 441 (Ct. App. 1994). See also Anderson v. LIRC, 2021 WI App 44, 398 Wis. 2d 668, 963 N.W.2d 89, 20-0027.

102.35 AnnotationIf 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 713 (Ct. App. 1994).

102.35 AnnotationAn 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).

102.35 AnnotationSub. (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.

102.35 AnnotationWhen an employee’s sub. (3) claim is predicated upon an employer’s allegedly unreasonable refusal to rehire the employee to fill a different position than the one the employee previously occupied, the employee must demonstrate that he or she made the employer aware, in some fashion, of the employee’s willingness to accept other work. Anderson v. LIRC, 2021 WI App 44, 398 Wis. 2d 668, 963 N.W.2d 89, 20-0027.

102.35 AnnotationNeither 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).

Notes of Decisions

Cited in 52 cases (3 in the last 5 years), 1928–2025 · leading case: DeBoer Transp., Inc. v. Swenson, 2011 WI 64 (Wis. 2011).

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DeBoer Transp., Inc. v. Swenson, 2011 WI 64 (Wis. 2011). · cites it 81× “The issue presented to this court is whether, under Wisconsin's worker's compensation statute, Wis. Stat. § 102.35 (3) (2009-10), 3 deBoer refused to rehire Swenson without *605 reasonable cause.”

Hill v. Labor & Indus. Review Comm'n, 516 N.W.2d 441 (Wis. Ct. App. 1994). · cites it 69× “We have also held that "to require a terminated employee to report to work in order to recover under sec. 102.35(3), Stats., is an unreasonable construction of the statute.”

Cnty. of La Crosse v. Wisconsin Emp. Relations Comm'n, 513 N.W.2d 579 (Wis. 1994). · cites it 54× “Section 102.35(2), Stats. 1943. In 1951 the Legislature added that employers who discriminated in rehiring employes with work-related injuries could also be fined.”

Universal Foods Corp. v. Labor & Indus. Review Comm'n, 467 N.W.2d 793 (Wis. Ct. App. 1991). · cites it 34× “The circuit court affirmed an order of the co-defendant, Labor and Industry Review Commission (LIRC), which reversed the administrative law judge's findings and dismissal order. LIRC found, and the circuit court agreed, that Universal Foods Corporation was unreasonable in…”

DeBoer Transp., Inc. v. Swenson, 2010 WI App 54 (Wis. Ct. App. 2010). · cites it 53× “The employer violated both the spirit and the letter of the law set forth in Wis. Stat. § 102.35 (3). While I have concluded that paragraph two of LIRC's decision is unnecessary, I do not agree with the majority's decision even if I consider paragraph two.”

Brown v. Pick 'N Save Food Stores, 138 F. Supp. 2d 1133 (E.D. Wis. 2001). · cites it 41× “2 Such conduct, if true, would violate Wis. Stat. § 102.35 (2). Section 102.35(2) prohibits an employer from “without reasonable cause, refus[ing] to rehire an employe injured in the course of employment, or .”

West Bend Co. v. Labor & Indus. Review Comm'n, 438 N.W.2d 823 (Wis. 1989). · cites it 13× “Muckerheide (hereinafter Muckerheide) in violation of its obligation to do so under the provisions of sec. 102.35(3), Stats., 2 and awarded wages lost during the period of refusal to rehire.”

West Allis Sch. Dist. v. Dep't of Indus., Labor & Human Relations, 342 N.W.2d 415 (Wis. 1984). · cites it 9× “(1) and (2), were thought to be penal and, hence, were intended to be strictly construed.”

Beverly Enter., Inc. v. Wisconsin Labor & Indus. Review Comm'n, 2002 WI App 23 (Wis. Ct. App. 2001). · cites it 30× “30, a portion of a sum that LIRC had previously ordered Beverly Enterprises to pay her under Wis. Stat. § 102.35 (3) (1997-98) for wrongful refusal to rehire.”

Byers v. Labor & Indus. Review Comm'n, 561 N.W.2d 678 (Wis. 1997). · cites it 7× “LIRC argues in the present case that absent reconsideration of Schachtner and Norris , the petitioner states a claim for refusal to rehire based on an injury in the course of employment, Wis. Stat. § 102.35 (3), and that the WCA provides the exclusive remedy for such a claim.”

Brockmeyer v. Dun & Bradstreet, 335 N.W.2d 834 (Wis. 1983). · cites it 4× “(6) The employee testified at a minimum wage law enforcement proceeding.”

Dielectric Corp. v. Labor & Indus. Review Co., 330 N.W.2d 606 (Wis. Ct. App. 1983). · cites it 12× “, is relatively new and has little, if any, helpful legislative history or case law, this is a situation contemplated by the courts in Boynton and Whitefish Bay where a reviewing court, that is equally as competent as the agency, need not give deference to the agency’s decision.”

Show all 52 citing cases →

— Wis. Stat. § 102.35(2) — 4 cases

Brown v. Pick 'N Save Food Stores, 138 F. Supp. 2d 1133 (E.D. Wis. 2001). “2 Such conduct, if true, would violate Wis. Stat. § 102.35 (2). Section 102.35(2) prohibits an employer from “without reasonable cause, refus[ing] to rehire an employe injured in the course of employment, or .”

Cnty. of La Crosse v. Wisconsin Emp. Relations Comm'n, 513 N.W.2d 579 (Wis. 1994). “Section 102.35(2), Stats. 1943. In 1951 the Legislature added that employers who discriminated in rehiring employes with work-related injuries could also be fined.”

Cnty. of La Crosse v. Wisconsin Emp. Relations Comm'n, 497 N.W.2d 455 (Wis. Ct. App. 1993).

Jadin v. Ward MFG (E.D. Wis. 2020).

— Wis. Stat. § 102.35(3) — 37 cases

Hill v. Labor & Indus. Review Comm'n, 516 N.W.2d 441 (Wis. Ct. App. 1994). “We have also held that "to require a terminated employee to report to work in order to recover under sec. 102.35(3), Stats., is an unreasonable construction of the statute.”

DeBoer Transp., Inc. v. Swenson, 2011 WI 64 (Wis. 2011). “The issue presented to this court is whether, under Wisconsin's worker's compensation statute, Wis. Stat. § 102.35 (3) (2009-10), 3 deBoer refused to rehire Swenson without *605 reasonable cause.”

Universal Foods Corp. v. Labor & Indus. Review Comm'n, 467 N.W.2d 793 (Wis. Ct. App. 1991). “The circuit court affirmed an order of the co-defendant, Labor and Industry Review Commission (LIRC), which reversed the administrative law judge's findings and dismissal order. LIRC found, and the circuit court agreed, that Universal Foods Corporation was unreasonable in…”

West Bend Co. v. Labor & Indus. Review Comm'n, 438 N.W.2d 823 (Wis. 1989). “Muckerheide (hereinafter Muckerheide) in violation of its obligation to do so under the provisions of sec. 102.35(3), Stats., 2 and awarded wages lost during the period of refusal to rehire.”

— Wis. Stat. § 102.35(8) — 1 case

West Allis Sch. Dist. v. Dep't of Indus., Labor & Human Relations, 342 N.W.2d 415 (Wis. 1984). “(1) and (2), were thought to be penal and, hence, were intended to be strictly construed.”

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