Court: Employer Liable for State FMLA Act Violation Against Undocumented Worker

Even if an employer violated federal immigration law by hiring an undocumented worker, it must still respect that worker’s rights under the state’s Family and Medical Leave Act, the Wisconsin Court of Appeals ruled on Dec. 23.

Undocumented immigrants are “employees” under the Wisconsin FMLA and an employer can’t escape liability under the state law by arguing federal law barred the worker’s employment in the first place, the court held, upholding a state administrative agency decision against Burlington Graphic Systems Inc.

The company had fired the worker for taking excessive leave, arguing that she wasn’t eligible for work in the first place because she lacked citizenship papers.

But accepting that argument would allow a company that employs an undocumented worker contrary to the federal Immigration Reform and Control Act to use that violation to escape liability under the Wisconsin FMLA–a result that neither federal nor state law would approve of, the court reasoned.

The case is Burlington Graphic Sys., Inc. v. Dep’t of Workforce Rev., Wis. Ct. App., No. 2014AP762, 12/23/14.

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