Can You Be Fired While on Workers’ Comp in Wisconsin?
Quick Answer
In Wisconsin, it is illegal for your employer to fire you solely because you filed a workers’ compensation claim. This protection is codified under Wisconsin Statute § 102.35(3), which prohibits employers from retaliating against any employee for exercising their rights under the workers’ comp system. If your employer fires you without “reasonable cause” after a work injury, the burden of proof actually shifts to them to justify the termination. Violations can result in wage reinstatement for up to one year. However, Wisconsin is still an at-will employment state, which means the legal line between lawful termination and illegal retaliation is aggressively contested by employers and their insurers.
⚠️ Disclaimer: This content is for informational purposes only and does not constitute legal advice. I am not a lawyer. Consult a licensed workers’ comp attorney in your state.
💬 From Shane
When I got my termination letter, I was sitting in my living room with my arm in a sling, three weeks after my injury. I remember thinking: Can they actually do this? The answer is complicated — and that complexity is exactly what employers count on. Wisconsin gives you more protection than most workers realize, but the law only works if you know how to use it. The insurance adjuster and HR department are coordinating. They have attorneys. You need to understand your rights before you make a single phone call or sign a single document. This guide is what I wish I had that day.
What Wisconsin Law Actually Says
Wisconsin Statute § 102.35(3) is the core protection. The key language:
“Any employer who without reasonable cause refuses to rehire an employee who is injured in the course of employment… shall be liable for reasonable lost wages.”
Three critical points from this statute:
- “Without reasonable cause” — The employer must demonstrate a legitimate, independent business reason for the termination.
- Burden shift — Once you establish that you filed a workers’ comp claim and were subsequently fired, the burden shifts to the employer to prove the firing was not retaliatory.
- Remedy is limited — The statute caps damages at lost wages for a maximum of one year. This is not a tort claim. It is a statutory remedy processed through the Wisconsin Labor and Industry Review Commission (LIRC).
| Statute | Protection Provided | Remedy Cap | Filing Body |
|---|---|---|---|
| Wis. Stat. § 102.35(3) | Anti-retaliation / wrongful termination | 1 year lost wages | DWD / LIRC |
| Wis. Stat. § 102.16(3) | Protection from interference with claim | Varies | DWD |
Step-by-Step: What To Do If You’re Fired While on Workers’ Comp in Wisconsin
Step 1: Document Everything Immediately
Before you respond to your employer or sign anything, document the timeline. Write down every date: injury date, claim filing date, date HR called you, date you received the termination letter. Screenshot any text messages or emails. This contemporaneous record is your foundation.
Step 2: Do Not Sign Any Severance Agreement Without Legal Review
Employers routinely offer severance packages that include a release of all claims — including your retaliation claim under § 102.35(3). Once you sign, those rights are gone. Do not sign anything under time pressure.
Step 3: File a Complaint with the Wisconsin DWD
Your retaliation claim is filed through the Wisconsin Department of Workforce Development (DWD), specifically the Workers’ Compensation Division. You can request a hearing before an Administrative Law Judge (ALJ) by contacting:
Wisconsin DWD Workers’ Compensation Division
Phone: (608) 266-1340
Website: dwd.wisconsin.gov/wc
Step 4: Know Your Statute of Limitations
Wisconsin imposes a 2-year statute of limitations on workers’ comp retaliation claims. The clock typically starts from the date of the adverse employment action (i.e., the termination date). Do not wait. Two years sounds long; the evidence gathering and legal preparation take significant time.
Step 5: Attend the ALJ Hearing
Your case will be scheduled before a DWD Administrative Law Judge. Both sides present evidence. If the ALJ rules in your favor, the employer is ordered to pay lost wages. Either party can appeal to the Labor and Industry Review Commission (LIRC), and further appeals go to circuit court.
Step 6: Pursue Parallel Claims If Applicable
If you have a disability under the ADA or the Wisconsin Fair Employment Act (WFEA), your termination may also trigger a separate discrimination claim filed with the Equal Rights Division (ERD) of the DWD. These are distinct proceedings with different remedies and different deadlines. An attorney can help you identify which claims apply.
What the Law Says vs. What Actually Happens
| What the Law Says | What Actually Happens |
|---|---|
| Employer must have “reasonable cause” | Employers preemptively build paper trails — sudden performance reviews appear after injury reports |
| Burden shifts to employer | Insurers coach HR on documentation strategies the moment a serious claim is filed |
| Reinstatement is available | Most workers never get their job back; employers prefer paying limited lost wages over reinstatement |
| 2-year window to file | Many workers don’t learn about § 102.35(3) until the deadline has passed |
| DWD process is administrative | Backlogs can push hearings 12–18 months out, during which you may have no income |
The most common insurance adjuster tactic: After a costly claim is filed, the employer’s insurer flags the file. HR suddenly “discovers” pre-existing performance issues. A written warning appears in your file. Then, weeks later, a termination for “documented performance issues” is issued. It looks clean on paper. This is why contemporaneous documentation from you — starting on day one — is so critical.
Real Case Example: Maria’s Story
Maria, a packaging line worker at a food distribution facility in Racine, tore her rotator cuff lifting a 60-pound container in March 2022. She reported the injury immediately and filed a workers’ comp claim. Her employer’s insurer accepted the claim.
Six weeks into her recovery, Maria received a call from HR informing her that her position was being “eliminated due to restructuring.” She was offered a severance package with a full release of claims. She almost signed it.
Instead, Maria contacted a workers’ comp attorney in Milwaukee. The attorney identified two problems with the employer’s narrative: (1) no other positions were eliminated in the “restructuring,” and (2) Maria had received a positive performance review just four months earlier.
Maria’s attorney filed a § 102.35(3) complaint with the DWD. At the ALJ hearing, the employer struggled to produce any documentation of the restructuring decision predating the workers’ comp claim. The ALJ found in Maria’s favor and awarded eight months of lost wages — approximately $31,200. The employer appealed to LIRC, which affirmed the ALJ’s decision.
Maria never returned to that employer, but she received meaningful financial recovery and, critically, did not waive her ongoing workers’ comp medical benefits by signing the initial severance.
Common Mistakes to Avoid
Mistake 1: Signing a Severance Agreement Under Pressure
Employers give you 21 days to “consider” an agreement but count on you signing in 48 hours out of financial desperation. A release of claims is permanent. Have an attorney review any severance document before you sign.
Mistake 2: Failing to Document the Timeline in Real Time
Memory is unreliable. Courts and ALJs live in the world of documents and dates. Keep a written log — dated entries — from the day you’re injured forward.
Mistake 3: Assuming At-Will Employment Means They Can Do Whatever They Want
Wisconsin is at-will, but § 102.35(3) is a statutory exception. At-will employment does not override anti-retaliation protections. Many workers give up a valid claim because they assume termination is automatically legal.
Mistake 4: Missing the 2-Year Statute of Limitations
This deadline is firm. If you miss it, your retaliation claim is extinguished regardless of its merit. Consult an attorney well before the deadline — ideally within weeks of termination.
Mistake 5: Conflating Your Retaliation Claim with Your Workers’ Comp Claim
These are two separate legal tracks. Settling your workers’ comp claim does not automatically resolve a retaliation claim, and vice versa. However, a broad severance release could extinguish both if you’re not careful.
Frequently Asked Questions
Can my employer fire me while I’m on workers’ comp leave in Wisconsin?
Direct Answer: Yes, an employer can legally terminate you while you are on workers’ comp leave — but only if they have a legitimate, independent reason unrelated to your claim.
Wisconsin is an at-will state, which means employment can be ended at any time for almost any reason. The critical exception is Wisconsin Statute § 102.35(3), which makes it unlawful to terminate an employee because they filed a workers’ comp claim. The law does not grant absolute job protection during medical leave the way FMLA does (which applies to employers with 50+ employees and eligible workers). What Wisconsin law does do is create a rebuttable presumption: if you can show you filed a claim and were subsequently fired, the employer must produce legitimate evidence that the termination was for a separate, valid reason. Employers who cannot meet that burden face an award of up to one year of lost wages. The practical takeaway: your job is not automatically protected, but retaliation is illegal and enforceable.
What evidence do I need to prove retaliation?
Direct Answer: You need to establish a causal connection between your workers’ comp claim and your termination, typically through timing, inconsistency in employer explanations, and documentation.
Courts and ALJs look at several factors: (1) Temporal proximity — was the termination suspiciously close in time to the claim filing? (2) Inconsistent justifications — did the employer change their stated reason for firing you? (3) Disparate treatment — were other employees with similar performance issues not terminated? (4) Pre-termination behavior changes — did your supervisor’s treatment of you change immediately after the claim? Collect performance reviews, emails, text messages, HR communications, and your own written timeline. Witness statements from coworkers who observed the shift in how you were treated can also be powerful. Wisconsin’s burden-shifting framework means you don’t need to prove intent beyond all doubt — you need enough evidence to require the employer to justify themselves.
Does Wisconsin’s law provide for reinstatement to my job?
Direct Answer: Yes, reinstatement is a possible remedy under § 102.35(3), but it is rarely ordered or practically achieved.
The statute allows the DWD/LIRC to order an employer to reinstate you to your former position or a comparable one. In practice, however, most retaliation cases settle with a monetary wage award rather than actual job reinstatement. By the time an ALJ hearing occurs — often 12 to 18 months after the complaint is filed — the employment relationship is so damaged that reinstatement is neither practical nor desired by the injured worker. The more common outcome is an award of lost wages capped at one year. If reinstatement is important to you, you need to raise it explicitly and early, and you should understand that courts have discretion in fashioning the remedy.
What if my employer says they fired me for performance reasons?
Direct Answer: A “performance” justification is the most common employer defense — and it is scrutinized heavily if it appears suddenly after a workers’ comp filing.
The question an ALJ will ask is whether the performance issue was documented before the claim was filed. If your employer produces a performance improvement plan (PIP) that was created after your injury, or if your personnel file was spotless before the claim, that timeline is powerful evidence of pretext. Request your complete personnel file as soon as you are terminated — Wisconsin law gives employees the right to inspect their personnel records. Compare what’s in that file to what the employer claims. If the documentation suddenly materializes post-injury, that inconsistency goes to the heart of your retaliation claim.
How long do I have to file a retaliation complaint in Wisconsin?
Direct Answer: You have 2 years from the date of the retaliatory act — typically your termination date — to file a complaint with the Wisconsin DWD.
This is a hard deadline established by Wisconsin’s workers’ comp statutes. Missing it almost certainly bars your claim permanently, regardless of its merit. Do not wait to consult an attorney. Even if you are unsure whether you have a case, a consultation early in the process costs far less than losing your right to file altogether. Note that if you are also pursuing a discrimination claim under the Wisconsin Fair Employment Act, that deadline is 300 days from the discriminatory act — a shorter and separate clock.
Can I collect unemployment while my retaliation claim is pending?
Direct Answer: Potentially yes, but receiving workers’ comp wage replacement benefits simultaneously can create complications that require careful coordination.
Wisconsin unemployment insurance (UI) and workers’ comp wage replacement (temporary total disability, or TTD) are generally not paid simultaneously — receiving one can offset or disqualify you from the other. However, if your TTD benefits have ended and you are medically cleared but unable to find work due to restrictions, you may qualify for UI during the pendency of your retaliation case. File for UI immediately after termination to preserve your eligibility window, and disclose all benefits honestly on your application. An attorney familiar with both systems can help you navigate the interaction between these benefits without creating an overpayment situation.
Should I hire an attorney for a retaliation claim?
Direct Answer: Yes — a Wisconsin workers’ comp retaliation attorney significantly improves your outcome, and most work on contingency so you pay nothing upfront.
The DWD administrative process is not a casual HR complaint. It involves formal hearings, rules of evidence, and employer-side attorneys who handle these cases routinely. Self-represented claimants frequently make procedural errors that damage their cases. Most workers’ comp attorneys in Wisconsin handle § 102.35(3) retaliation claims and are paid a percentage of any recovery — meaning you owe nothing if you don’t win. Given that the maximum statutory recovery is one year of wages, the contingency fee structure is reasonable and accessible. Look for attorneys with specific DWD/LIRC hearing experience, not just general employment lawyers.
This content is for informational purposes only and does not constitute legal advice. I am not a lawyer. Consult a licensed workers’ comp attorney in your state.
More Wisconsin Workers Comp Resources
See Also
- Wisconsin Workers’ Compensation: The Complete 2026 Reference Guide
- Wisconsin Workers’ Comp Guide for Plumbers: Benefits, Rights & How to Fight Back
- Wisconsin Workers’ Comp for Roofers: The Complete Guide (2026)
- Wisconsin Workers’ Comp for HVAC Technicians: The Complete Guide
- How Long Can You Receive Workers’ Comp Benefits in Wisconsin? (Complete Duration Guide)
Need help finding the right next step?
This article is general educational information, not personal advice. You can use our Contact and Feedback page to report a correction, suggest a topic, or—where available—optionally request a connection with an independent professional.