Recent case in Wisconsin for a different perspective

page1image528 page1image952

CASE NO.:

COMPLETE TITLE:

SUPREME COURT OF WISCONSIN

     2012AP1047
     Asma Masri,
               Petitioner-Appellant-Petitioner,
          v.
     State of Wisconsin Labor and Industry Review
     Commission,
               Respondent-Respondent,
     Medical College of Wisconsin, Inc.,
               Interested Person-Respondent.
       REVIEW OF A DECISION OF THE COURT OF APPEALS
               348 Wis. 2d 1, 832 N.W.2d 139
                (Ct. App. 2013  Published)
                  PDC No: 2013 WI App 62
     July 22, 2014
     March 13, 2014
     Circuit
     Milwaukee
     William S. Pocan
     BRADLEY, J., ABRAHAMSON, C.J., dissent. (Opinion
     filed.)

2014 WI 81

page1image8624 page1image9048 page1image9208 page1image9368 page1image9792

OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT:

SOURCE OF APPEAL: COURT:

COUNTY: JUDGE:

JUSTICES: CONCURRED:

DISSENTED:
NOT PARTICIPATING:

page1image12568 page1image12992 page1image13152 page1image13312 page1image13472 page1image13896 page1image14056 page1image14216 page1image14376 page1image14800

ATTORNEYS:
For the petitioner-appellant-petitioner, there were briefs

by Lawrence G. Albrecht, Aaron P. McCann, Katie S. Lonze and First, Albrecht & Blondis, S.C., Milwaukee, and oral argument by Lawrence G. Albrecht.

For the respondent-respondent, the cause was argued by Steven C. Kilpatrick, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general.

For the interested person-respondent, there was a brief by Amy Schmidt Jones, Kirk A. Pelikan, and Michael Best & Friedrich LLP, Milwaukee, and oral argument by Amy Schmidt Jones.

An amicus curiae brief was filed by Timothy W. Feeley, Sara J. MacCarthy, and Hall, Render, Killian, Heath & Lyman, P.C., Milwaukee, on behalf of the Wisconsin Hospital Association.

2

No. 2012AP1047 (L.C.No. 2011CV15410)

STATE OF WISCONSIN

2014 WI 81 NOTICE

This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports.

: IN SUPREME COURT

page3image3800 page3image4392

Asma Masri,
          Petitioner-Appellant-Petitioner,

v.

State of Wisconsin Labor and Industry Review
Commission,
          Respondent-Respondent,
Medical College of Wisconsin, Inc.,
          Interested Person-Respondent.

FILED JUL 22, 2014

   Diane M. Fremgen
Clerk of Supreme Court

page3image8376 page3image8800

REVIEW of a decision of the Court of Appeals. Affirmed.

¶1 DAVID T. PROSSER, J. This is a review of a published decision of the court of appeals1 affirming a circuit court order that affirmed a Labor and Industry Review Commission (LIRC) determination.

1 Masri v. LIRC, 2013 WI App 62, 348 Wis. 2d 1, 832 N.W.2d 139.

page3image12536 page3image12696

¶2 The case requires statutory interpretation to determine whether uncompensated interns are entitled to the anti-retaliation protections of Wis. Stat. § 146.997 (2007-08)2 Wisconsin's health care worker protection statute. Because this case involves an administrative agency's interpretation of § 146.997, we must also determine the level of deference, if any, to grant LIRC, which, in conjunction with the Department of Workforce Development (DWD), is charged with administering the statute.

¶3 Asma Masri (Masri) was a doctoral student at the University of Wisconsin-Milwaukee (UWM) when she began work as a "Psychologist Intern" in the Division of Transplant Surgery at the Medical College of Wisconsin (MCW). MCW assigned Masri to the transplant surgery unit at Froedtert Hospital. MCW ended Masri's internship after she met with an MCW administrator to report "clinical/ethical" concerns. Masri contends that the termination of the internship violated Wis. Stat. § 146.997, which provides that certain health care employers and their employees may not take "disciplinary action against . . . any person" who in good faith reports violations of state or federal laws, regulations, or standards. Wis. Stat. § 146.997(3)(a). Wisconsin Stat. §146.997(1)(b) adopts the definition of "disciplinary action" given in Wis. Stat. § 230.80(2), namely, "any action taken with respect to an employee." Wis. Stat.

2 All subsequent references to the Wisconsin Statutes are to the 2007-08 version unless otherwise indicated.

No.     2012AP1047

page4image13080 page4image13240

2

§ 230.80(2) (emphasis added). Thus, the pivotal question in this case is whether Masri, as an unpaid intern, is an employee and therefore protected by Wis. Stat. § 146.997(3)(a).

¶4 LIRC determined that § 146.997 applies only to an employee, and that as an unpaid intern, Masri was not an employee. Granting due weight deference to LIRC's decision, the circuit court and the court of appeals both affirmed.

  1.      ¶5    We conclude the following.
  2. ¶6  First, we accord LIRC's decision due weight deference

because LIRC has experience interpreting the meaning of "employee" under various statutes and is charged with administering Wis. Stat. § 146.997. The fact that LIRC had not previously considered the specific question whether an unpaid intern is an employee is not enough to abate the due weight deference owed to the agency. See Jamerson v. Dep't of Children & Families, 2013 WI 7, ¶47, 345 Wis. 2d 205, 824 N.W.2d 822.

¶7 Second, we agree with LIRC that Wis. Stat. § 146.997 applies only to employees, a category that does not include interns who do not receive compensation or tangible benefits. See Masri v. Med. Coll. of Wis., ERD No. CR200902766 (LIRC, Aug. 31, 2011). As Wis. Stat. § 146.997 does not define "employee,"

No.     2012AP1047

page5image12200 page5image12360 page5image12520 page5image12680 page5image12840

3

we must give the term its ordinary meaning.3 State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110. After consulting the language, context, and structure of the statute, we conclude that LIRC's interpretation is reasonable, and there is no more reasonable interpretation. Because Masri received no compensation or tangible benefits, she was not an employee of MCW and was therefore not entitled to anti-retaliation protection under § 146.997(3)(a).

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
¶8 Masri was a doctoral candidate at UWM when she began working as an unpaid "Psychologist Intern" in MCW's Division of Transplant Surgery on August 27, 2008. Masri worked 40 hours a week and was introduced as a "Psychologist Intern." She received an "all-access" badge for MCW and Froedtert Memorial Lutheran Hospital (Froedtert)4 and had complete access to patient

3 Wisconsin Stat. § 230.80, which lends its definition of "disciplinary action" to Wis. Stat. § 146.997, does define the term "employee." Wis. Stat. § 230.80(3). Under Wis. Stat. § 230.80(3), "'Employee' means any person employed by any governmental unit . . . " with some exceptions. The definition in § 230.80(3) is not helpful in the present case because it fails to define "employed," which it uses in the definition of "employee." Thus, even if we were to apply the § 230.80(3) definition of "employee" to Masri, we would still have to define "employed" according to its ordinary meaning.

4 According to Froedtert's letter to the Equal Rights Supervisor, "Froedtert Hospital is a teaching and research hospital providing tertiary-level health care services on both an inpatient and outpatient basis. The physicians who provide patient care at Froedtert Hospital are employees of the Medical College of Wisconsin."

No.     2012AP1047

page6image16504 page6image16664 page6image16824

4

records. On November 19, 2008, Masri met with MCW Department of Surgery Administrator Jon Mayer (Mayer) to report "clinical/ethical concerns." Masri alleges that after she reported a few complaints, Mayer ended the meeting so that he could discuss the report with Masri's supervisor, Dr. Rebecca Anderson (Dr. Anderson), MCW's Director of Transplant Psychological Services.5

¶9 Effective November 24, 2008, Dr. Anderson ended Masri's internship. On August 6, 2009, Masri filed a standard- form retaliation complaint against MCW and Froedtert with the Equal Rights Division (ERD) of DWD. ERD matched the complaint with Wis. Stat. § 146.997 as the anti-retaliation law under which Masri might be protected.

¶10 On August 19, 2009, MCW responded to the complaint and argued that Masri was not covered by Wis. Stat. § 146.997 because she was not an employee. MCW noted that Masri was a student at UWM and was allowed to gain clinical experience at MCW only as part of UWM's educational program. Moreover, MCW

5

She alleged Dr. Anderson's assistant told her to prepare two separate patient evaluations, which Masri refused to do.

Finally, Masri alleged that Dr. Anderson told her to create a "borderline personality" diagnosis for a patient who had received a possibly negligent breast cancer operation in order to discredit the patient if she filed a malpractice suit. Masri refused. Masri claims that Mayer cut her off but that she would have continued with more complaints.

No.     2012AP1047

page7image14000

When she talked with Mayer, Masri alleged that Dr. Anderson's assistant told Masri to work as a social worker (rather than a "Psychologist Intern") while the social worker in the transplant unit was on vacation.

5

claimed that it terminated Masri's internship due to concerns with her performance and that these alleged concerns began before Masri made her complaints to Mayer.6 MCW attached its policy on whistleblowing to its letter responding to the complaint. The MCW policy stated, "Wisconsin law (Wisconsin Statue [sic] 146.977) prohibits retaliatory action by a health provider against an employee who in good faith reports [violations of state or federal law or standards or violations of ethical standards]." (Emphasis added.) MCW also attached to its response letter a series of Dr. Anderson's notes about Masri's allegedly unsatisfactory performance beginning on October 28, 2008.

¶11 On September 11, 2009, in a letter to Equal Rights Supervisor James Drinan, Masri laid out the facts underlying her complaint. Masri claimed that Dr. Anderson applied for grants to obtain funding for Masri's position and that Dr. Anderson promised her health insurance and parking. Masri eventually received free parking at MCW but did not receive any compensation or health insurance. Masri also contended that Dr.

6 MCW attached a document drafted by Dr. Anderson to a letter it sent to Equal Rights Supervisor James Drinan. Dr. Anderson's document is not dated, but it lists a series of alleged issues with Masri's performance beginning on October 28, 2008. In her response to MCW's letter to the Equal Rights Supervisor, Masri asked, "When, exactly, was this document created, and where is the full chain of email and correspondence relevant to this document's creation?" The record does not indicate when Dr. Anderson drafted the list of alleged issues with Masri's performance. In any event, because we conclude that Masri is not protected under Wis. Stat. § 146.997, the alleged issues with her performance are not at issue.

No.     2012AP1047

page8image16120 page8image16280

6

Anderson was supposed to prepare an "Affiliation Agreement" contract that would be executed between MCW and UWM,7 but Dr. Anderson did not prepare that contract.

¶12 On September 15, 2009, an Equal Rights Officer issued a Preliminary Determination and Order (Preliminary Determination) that dismissed Masri's complaint. The Preliminary Determination concluded that ERD did not have jurisdiction under Wis. Stat. § 146.997 because Masri was an unpaid intern, and therefore she was not an employee of either MCW or Froedtert.

¶13 Masri appealed the Preliminary Determination as it related to MCW on September 23, 2009.8 On appeal, Masri argued

7 UWM has a document called, "Internship in Counseling Psychology[,] Department of Educational Psychology at The University of Wisconsin-Milwaukee: A Handbook for Faculty, Supervisors, and Students" (Internship Handbook). Under a section titled "Personnel Arrangements," the Internship Handbook states:

The intern should be employed under a contract comparable to the psychological services staff contracts within the internship setting. Salary, fringe benefits, and travel allowances (if applicable) should be specified in the contract. Office space, equipment, and secretarial services should be provided by the internship setting as well as some released time for professional development.

There is also a section in the Internship Handbook titled "Credits/Intern Status" that provides, "The student should have a title such as 'intern,' 'resident,' or other similar designation of trainee status. Full-time Ph.D. interns do not need to register for intern credits, though they need to maintain dissertator status."

8 Masri did not appeal the Preliminary Determination as it related to Froedtert.

No.     2012AP1047

page9image15512

7

that the investigator failed to properly investigate the complaint and that the investigator's summary dismissal on jurisdictional grounds was improper. She sent a letter dated December 4, 2009, to the ERD Hearing & Mediation Section Chief in which she argued that even if an "employee" must be someone who receives compensation, that compensation may come in the form of "tangible benefits." She argued that her all-access badge, office space, support staff, and networking opportunities constituted tangible benefits that made her an employee. She also asserted that "Dr. Anderson had promised her health insurance, employee parking, and financial grants-in-aid."

¶14 On January 14, 2010, an administrative law judge (ALJ) for ERD affirmed the Preliminary Determination. The ALJ determined that Wis. Stat. § 146.997 is limited to employees and that Masri was not an employee because she received no financial compensation.

¶15 Masri filed a petition for review with LIRC on February 4, 2010. On August 31, 2011, LIRC issued a decision affirming the ALJ's decision and adopting his findings and conclusion as its own. Masri v. Med. Coll. of Wis., ERD No. CR200902766 (LIRC, Aug. 31, 2011). In its decision, LIRC cited Ratsch v. Mem'l Med. Ctr., ERD No. CR200504192 (LIRC, Mar. 10, 2006), for the proposition that Wis. Stat. § 146.997 applies exclusively to employees. Masri v. Med. Coll. of Wis., ERD No. CR200902766 (LIRC, Aug. 31, 2011). LIRC said that it had previously looked at compensation to determine employment status and noted that it is possible that a worker could be an employee

No.     2012AP1047

page10image14392 page10image14552 page10image14712

8

based on tangible benefits other than salary. Id. However, LIRC rejected Masri's argument that she received tangible benefits that would make her an employee. Id. LIRC determined that Masri's alleged tangible benefitsthe security badge, office space, parking, and support staffall related to her duties and had no independent value. Id. In addition, networking opportunities were not tangible and could not be assigned value. Id.

¶16 LIRC also determined that the fact that Masri's supervisor told her she would have health insurance and had applied for grants was not enough to confer employee status on Masri since she never received those benefits. Id. Masri suggested that the university's internship handbook evidenced an employment relationship when it said that interns are supposed to be paid and should receive a contract similar to the staff with whom the intern worked. Id. LIRC rejected this argument because Masri never entered into such a contract. Id. Finally, LIRC rejected Masri's public policy argument that she should be protected from retaliation because she was in an ideal position to report illegal or unethical conduct. Id. LIRC declined to extend coverage under Wis. Stat. § 146.997 where the legislature did not, and it stated that "there is no authority to consider an unpaid activity employment simply because of the importance of the activity." Id. (citing Langer v. City of Mequon, ERD No. 199904168 (ERD, Oct. 30, 2000), aff'd Langer v. City of Mequon, ERD No. 199904168 (LIRC, Mar. 19, 2001)).

No.     2012AP1047

page11image13808 page11image13968 page11image14128 page11image14288 page11image14448 page11image14608 page11image14768 page11image14928 page11image15088 page11image15248 page11image15408 page11image15568

9

¶17 Masri filed a petition for review with the Milwaukee County Circuit Court on September 27, 2011.9 Circuit Judge William S. Pocan afforded due weight deference to LIRC's interpretation of Wis. Stat. § 146.997 and determined that LIRC's interpretation was reasonable and that there was not a more reasonable interpretation. The circuit court concluded that § 146.997 applies only to employees, and Masri was not an employee. Consequently, the circuit court affirmed the LIRC decision on April 2, 2012. Masri appealed.

¶18 In a published decision, a divided court of appeals affirmed the circuit court. Masri v. LIRC, 2013 WI App 62, 348 Wis. 2d 1, 832 N.W.2d 139. Also affording due weight deference to LIRC's decision, the court of appeals agreed with LIRC that § 146.997 applies only to employees and that Masri was not an employee. Id., ¶8. In a passionate, policy-oriented dissent, Judge Ralph Adam Fine argued that the purpose of § 146.997 is to protect patients and that even uncompensated interns should be protected from retaliation when they report illegal or unethical

9 MCW joined the action in the circuit court as an interested person pursuant to Wis. Stat. § 227.53(2), which reads in part:

Every person served with the petition for review as provided in this section and who desires to participate in the proceedings for review thereby instituted shall serve upon the petitioner, within 20 days after service of the petition upon such person, a notice of appearance clearly stating the person's position with reference to each material allegation in the petition and to the affirmance, vacation or modification of the order or decision under review.

No.     2012AP1047

page12image15536 page12image15696 page12image15856

10

conduct contemplated by § 146.997. See id., ¶44 (Fine, J., dissenting).

     ¶19  Masri  petitioned  this  court  for  review,  which  we
granted on November 13, 2013.

II. STANDARD OF REVIEW
¶20 When there is an appeal from a LIRC determination, we

review LIRC's decision rather than the decision of the circuit court. See Beecher v. LIRC, 2004 WI 88, ¶22, 273 Wis. 2d 136, 682 N.W.2d 29. Although statutory interpretation is a question of law that this court generally reviews de novo, we may give some deference to LIRC's decision. See UFE Inc. v. LIRC, 201 Wis. 2d 274, 284, 548 N.W.2d 57 (1996). We generally assign one of three levels of deference to agency interpretations: great weight deference, due weight deference, or de novo review. Keup v. DHFS, 2004 WI 16, ¶12, 269 Wis. 2d 59, 675 N.W.2d 755. The parties in this case dispute the appropriate level of deference. As will be discussed below, we accord due weight deference to LIRC's decision.10

III. DISCUSSION
¶21 DWD is the agency charged with administering Wis.

Stat. § 146.997. Wis. Stat. § 146.997(1)(a). LIRC is an

10 "[D]ue weight shall be accorded the experience, technical competence, and specialized knowledge of the agency involved, as well as discretionary authority conferred upon it." Wis. Stat. § 227.57(10).

No.     2012AP1047

page13image13040 page13image13200 page13image13360 page13image13520 page13image13680 page13image13840 page13image14000 page13image14160 page13image14320

11

independent agency attached to DWD for administrative purposes,11 and if deference is appropriate, it goes to the decision of LIRC. Wis. Stat. § 15.225(1);; see DILHR v. LIRC, 193 Wis. 2d 391, 397, 535 N.W.2d 6 (Ct. App. 1995) ("Where deference to an agency decision is appropriate, we are to accord that deference to LIRC, not to the department.") (citing DILHR v. LIRC, 161 Wis. 2d 231, 245, 467 N.W.2d 545 (1991)). Thus, in this case, we review LIRC's interpretation of Wis. Stat. § 146.997. We grant one of three levels of deference to administrative agency decisions: great weight, due weight, or de novo review. Keup, 269 Wis. 2d 59, ¶12.

¶22 An agency's decision receives great weight deference when all the following criteria are met:

(1) the agency [is] charged by the legislature with the duty of administering the statute;; (2) . . . the interpretation of the agency is one of long-standing;; (3) . . . the agency employed its expertise or specialized knowledge in forming the interpretation [at issue];; and (4) . . . the agency's interpretation will provide uniformity and consistency in the application of the statute.

UFE Inc., 201 Wis. 2d at 284 (quoting Harnischfeger Corp. v. LIRC, 196 Wis. 2d 650, 660, 539 N.W.2d 98 (1995)). Under great weight deference, the reviewing court will not overturn an agency's reasonable interpretation that does not conflict with the statute's clear meaning even if the court believes there is a more reasonable interpretation. Id. at 287.

11 A Brief History of LIRC, Wisconsin.gov, http://dwd.wisconsin.gov/lirc/lrc_about.htm (last visited July 2, 2014).

No.     2012AP1047

page14image15312 page14image15472 page14image15632 page14image15792 page14image15952 page14image16112 page14image16272 page14image16432 page14image16592 page14image16752 page14image16912

12

¶23 Reviewing courts apply due weight deference to agency interpretations "when the agency has some experience in an area, but has not developed the expertise which necessarily places it in a better position to make judgments regarding the interpretation of the statute than a court." Id. at 286. The decision to apply due weight deference is based more on the fact that the legislature charged the agency with administering the statute than on the agency's specialized knowledge or expertise. Id. Under due weight deference, a reviewing court will not interfere with the agency's reasonable interpretation if it fits within the purpose of the statute unless there is a more reasonable interpretation available. Id. at 286-87.

¶24 Finally, reviewing courts use a de novo standard of review "when the issue before the agency is clearly one of first impression, or when an agency's position on an issue has been so inconsistent so as to provide no real guidance." Id. at 285 (internal citations omitted). However, a reviewing court may grant due weight deference to an agency's decision on an issue of first impression if the agency is charged with administering the statute and has experience with issues that the statute addresses, even if the agency has not interpreted the particular statutory provision at issue. See Jamerson, 345 Wis. 2d 205, ¶¶46-47. When a court uses a de novo standard of review, it gives no deference to the agency's decision. Keup, 269 Wis. 2d 59, ¶16.

¶25 No party suggests that great weight deference is appropriate in this case. Instead, the dispute is whether this

No.     2012AP1047

page15image14784 page15image14944 page15image15104 page15image15264 page15image15424 page15image15584 page15image15744

13

court should give LIRC's interpretation due weight deference or no deference.

¶26 Masri argues that this court should interpret Wis. Stat. § 146.997 de novo in part because the meaning of "employee" in § 146.997 is a matter of first impression. Although Masri is correct that LIRC has not yet determined whether an unpaid intern is an "employee" under Wis. Stat. § 146.997, DWD and LIRC have experience interpreting statutes relating to employment relationships. See, e.g., Langer v. City of Mequon, ERD No. 199904168 (ERD, Oct. 30, 2000), aff'd Langer v. City of Mequon, ERD No. 199904168 (LIRC, Mar. 19, 2001) (stating that unpaid board of zoning appeals appointee was not an employee under the Wisconsin Fair Employment Act);; Ficken v. Harmon Solutions Grp., ERD No. CR200003282 (LIRC, Feb. 7, 2003) (stating that uncompensated volunteers are not "employees" and therefore are not covered under the Wisconsin Fair Employment Act).

¶27 Moreover, LIRC has considered the scope of "employee" under § 146.997 and determined that the statutory reference to any "person" did not extend protections to a former employee. See Ratsch v. Mem'l Med. Cntr., ERD No. CR200504192 (LIRC, Mar. 10, 2006) ("The commission concludes that § 146.997 pertains only to employees in spite of the reference in § 146.997(3) . . . to the prohibition against a health care facility or health care provider taking 'disciplinary action' against 'any person' . . . ."). Thus, even though LIRC has not determined whether an unpaid intern is an "employee," it has

No.     2012AP1047

page16image14288 page16image14448 page16image14608 page16image14768 page16image14928 page16image15088 page16image15248 page16image15408 page16image15568 page16image15728

14

experience interpreting the scope of "employee" in several contexts. The fact that an agency is deciding an issue of first impression does not necessarily preclude the agency's decision from receiving due weight deference if the agency is charged with administering the statute at issue and has relevant experience. See Jamerson, 345 Wis. 2d 205, ¶47.

¶28 Masri contends that LIRC's interpretation should not receive due weight deference because it contravenes what she argues are §146.997's two related purposes: expanding retaliation protection for health care workers and protecting patients and public health by encouraging people to report misconduct. However, the decision to accord due weight deference to an agency's interpretation depends on whether the agency is charged with administering the statute and whether it has some expertise in the area involved, UFE Inc., 201 Wis. 2d at 286, not on purposes allegedly contained in the statute. After the reviewing court determines that due weight deference is appropriate, the court upholds an agency's reasonable interpretation if it comports with the statute's purpose and if no more reasonable interpretation is available. Id. at 286-87. Thus, consideration of whether LIRC's decision comports with the statute's purpose comes after we determine the appropriate level of deference.

¶29 In sum, because the legislature charged LIRC with administering § 146.997 and LIRC has experience analyzing employment relationships, we give due weight deference to LIRC's decision. We turn now to the language of the statute to

No.     2012AP1047

page17image13768 page17image13928 page17image14088 page17image14248 page17image14408

15

determine whether LIRC's interpretation is reasonable and whether there is a more reasonable interpretation.

A. Interpretation of Wis. Stat. § 146.997
¶30 We begin our analysis with the language of the statute, and we assume that the legislature's intent is expressed therein. Kalal, 271 Wis. 2d 633, ¶¶44-45. "Statutory language is given its common, ordinary, and accepted meaning, except that technical or specially-defined words or phrases are given their technical or special definitional meaning." Id., ¶45 (citations omitted). In addition to the language, the context and structure of the statute are important, and we interpret the statute in light of "surrounding or closely- related statutes." Id., ¶46. If the statute's meaning is

plain, the analysis ordinarily ends. Id., ¶45.
¶31 Because the subsections of Wis. Stat. § 146.997 are

closely related, we consider each subsection in turn. As will be discussed, the statute demonstrates that it applies exclusively to employees, and the ordinary meaning of "employee" is someone who works for compensation or tangible benefits.

1. Language, Structure, and Context
¶32 Wisconsin Stat. § 146.997 lays out the health care

worker protection law. Subsection (1) of the statute begins with several definitions but, important for this case, § 146.997(1) does not define "employee." Thus, as we interpret the statute, we must attempt to give the word "employee" its "common, ordinary, and accepted meaning." Kalal, 271 Wis. 2d 633, ¶45 (citations omitted).

No.     2012AP1047

page18image13824 page18image13984 page18image14144 page18image14304 page18image14464

16

¶33 Subsection (2) describes who may report violations of state and federal laws and regulations:

Any employee of a health care facility or of a health care provider who is aware of any information, the disclosure of which is not expressly prohibited by any state law or rule or any federal law or regulation, that would lead a reasonable person to believe any of the following may report that information [to any of the enumerated authorities] . . . .

Wis. Stat. § 146.997(2)(a) (emphasis added). The statute goes on to list the kinds of violations that employees may report. Subsection (2) also states that "[a]ny employee of a health care facility or health care provider may initiate, participate in or testify in any action or proceeding in which a violation specified in par. (a)1. or 2. is alleged." Wis. Stat. § 146.997(2)(c) (emphasis added). Finally, subsec. (2) provides, "Any employee of a health care facility or health care provider may provide any information relating to an alleged violation specified in par. (a)1. or 2. to any legislator or legislative committee." Wis. Stat. § 146.997(2)(d) (emphasis added). Thus, the statute addresses only one category of people bringing complaints: employees.

¶34 Subsection (3) contains the anti-retaliation provision at issue in this case:

No health care facility or health care provider and no employee of a health care facility or health care provider may take disciplinary action against, or threaten to take disciplinary action against, any person because the person reported in good faith any information under sub. (2)(a), in good faith initiated, participated in or testified in any action

No.     2012AP1047

page19image15728 page19image15888 page19image16048 page19image16208 page19image16368 page19image16528 page19image16688

17

or proceeding under sub. (2)(c) or provided in good faith any information under sub. (2)(d) or because the health care facility, health care provider or employee believes that the person reported in good faith any information under sub. (2)(a), in good faith initiated, participated in or testified in any action or proceeding under sub. (2)(c) or provided in good faith any information under sub. (2)(d).

Wis. Stat. § 146.997(3)(a) (emphasis added). As used in the above-quoted provision, "'[d]isciplinary action' means any action taken with respect to an employee which has the effect, in whole or in part, of a penalty . . . ." Wis. Stat. § 230.80(2) (emphasis added);; see Wis. Stat. § 146.997(1)(b).12 The language of § 146.997(3)(a) makes it clear that the statute applies only to employees because by definition, only employees are subject to "disciplinary action." In addition to "disciplinary action," the term "good faith" is described in terms of employees. Wisconsin Stat. § 146.997(3)(c) states that "an employee is not acting in good faith if the employee reports any information under sub. (2)(a) that the employee knows or should know is false or misleading . . . ." Wis. Stat. § 146.997(3)(c) (emphasis added).

¶35 Subsection (4) discusses the enforcement of the statute and states in part, "Any employee of a health care facility or health care provider who is subjected to disciplinary action, or who is threatened with disciplinary action, in violation of sub. (3) may file a complaint with the

12 The definition of "disciplinary action" comes from Wis. Stat. § 230.80, which is part of the statutory chapter relating to state employment relations. See generally Wis. Stat. ch. 230.

No.     2012AP1047

page20image15928 page20image16088 page20image16248 page20image16408 page20image16568 page20image16728 page20image16888 page20image17048 page20image17208 page20image17368 page20image17528 page20image17688 page20image17848 page20image18008

18

department under s. 106.54(6)." Wis. Stat. § 146.997(4)(a) (emphasis added). Wisconsin Stat. § 106.54(6), the statute under which §146.997 complaints are filed, refers to Wisconsin's Fair Employment Act when it states, "The division shall receive complaints under s. 146.997(4)(a) of disciplinary action taken in violation of s. 146.997(3) and shall process the complaints in the same manner that employment discrimination complaints are processed under s. 111.39." Wis. Stat. § 106.54(6) (emphasis added). Thus, only employees may seek a remedy under § 146.997(4), and the available remedies are found in Wis. Stat. § 111.39.

¶36 Wisconsin Stat.§ 111.39 is part of the Fair Employment Act and provides that the hearing examiner may grant remedies to "effectuate the purpose of this subchapter."13 Wis. Stat. §111.39(4)(c). The remedies mentioned in Wis. Stat. § 111.39(4)(c) include back pay and compensation, neither of

No.     2012AP1047

page21image8512 page21image8672 page21image8832 page21image8992

13 The purposes of the Fair Employment subchapter include "protect[ing] by law the rights of all individuals to obtain gainful employment and to enjoy privileges free from employment discrimination" and "encourag[ing] and foster[ing] to the fullest extent practicable the employment of all properly qualified individuals." Wis. Stat. § 111.31(2)-(3).

19

which would be appropriate for an unpaid intern.14 Aggrieved employees may also receive attorney fees under the Fair Employment Act. See Watkins v. LIRC, 117 Wis. 2d 753, 765, 345 N.W.2d 482 (1984). However, in light of the lack of other remedies, it is unlikely that an intern would bring a claim solely to recover the fees of her attorney. Finally, under Wis. Stat. § 146.997(5), civil penalties are available for violations of § 146.997(3), but like attorney fees, a civil penalty would not make an intern whole. The lack of remedies for unpaid interns demonstrates that it is highly unlikely that unpaid interns fall under the anti-retaliation protections of § 146.997(3).

¶37 Masri argues that although Wis. Stat. § 146.997 utilizes Wis. Stat. § 111.39, there is no express provision that "employee" must mean the same thing under both statutes. Masri

14 Wisconsin Stat. § 111.39 also provides for reinstatement as a potential remedy and states that "the examiner shall award compensation in lieu of reinstatement if requested by all parties and may award compensation in lieu of reinstatement if requested by any party." Wis. Stat. § 111.39(4)(c). The reinstatement provisions in § 111.39(4)(c) allow the parties to agree to compensation, which would seemingly prevent discord in the workplace in the event the parties could not work together harmoniously. Similarly, the examiner has some discretion to order compensation instead of reinstatement if one party requests it. Id. However, in the context of an intern, compensation is not an option because of the formula in the statute. Id. (providing that "[c]ompensation in lieu of reinstatement for a violation of s. 111.322(2m) may not be less than 500 times nor more than 1,000 times the hourly wage of the person discriminated against when the violation occurred."). Thus, having reinstatement as the sole remedy would be problematic in the event that the retaliatory termination created ill will and a hostile work environment.

No.     2012AP1047

page22image17776 page22image17936 page22image18096 page22image18256 page22image18416

20

may be correct that the definition of "employee" under the two statutes is not required to be identical, but her argument is unpersuasive because there also is no provision expressly requiring different treatment for interns. Rather, the references to the Fair Employment Act and the pervasive use of the term "employee" more strongly suggest that only employees who receive compensation or tangible benefits fall under the statutory protection against retaliation.15

¶38 Subsection (5) of Wis. Stat. § 146.997 provides for civil penalties for "[a]ny health care facility or health care provider and any employee of a health care facility or health care provider who takes disciplinary action against, or who threatens to take disciplinary action against, any person in violation of sub. (3)." Wis. Stat. § 146.997(5) (emphasis added). Again, the statute references "disciplinary action," which can be taken only against an employee.

15 Masri highlights the fact that Wis. Stat. § 146.997 does not incorporate the Fair Employment Act's definition of "employee." The Fair Employment Act's definition of "employee" provides, "'Employee' does not include any individual employed by his or her parents, spouse or child." Wis. Stat. § 111.32(5). Thus, the definition in the Fair Employment Act is unhelpful because it describes only situations in which there is no employment relationship. It does not define the parameters of "employee." Instead, LIRC has considered the scope of "employee" under the Fair Employment Act and has determined that only workers who receive compensation or tangible benefits are employees. See Langer v. City of Mequon, ERD No. 199904168 (LIRC, Mar. 19, 2001). Therefore, the fact that the legislature did not reference the Fair Employment Act's definition of "employee" in Wis. Stat. § 146.997 does not support Masri's argument.

No.     2012AP1047

page23image16200 page23image16360 page23image16520 page23image16680

21

¶39 Subsection (6), the final subsection of § 146.997, states in relevant part: "Each health care facility and health care provider shall post, in one or more conspicuous places where notices to employees are customarily posted, a notice in a form approved by the department setting forth employees' rights under this section." Wis. Stat. § 146.997(6) (emphasis added). Consistent with an interpretation that § 146.997(3) protects only employees, employers need put only their employees on notice of their rights.

¶40 Turning from Wis. Stat. § 146.997, Masri points to Wis. Stat. § 146.89the volunteer health care program statute to argue that the legislature knew that some health care workers are not paid and that excluding the health care workers in § 146.89 from retaliation protection contravenes the purposes of both § 146.89 and § 146.997. Section 146.89 provides that volunteers under that section are considered "state agents of the department of health service" for the purposes of Wis. Stat. § 165.25(6) (representation by the attorney general), Wis. Stat. § 893.82(3) (notice of claim requirements), and Wis. Stat. §895.46 (indemnification from the state). Wis. Stat. §146.89(4). Masri suggests that volunteer health care providers might decide not to volunteer or report illegal or unethical conduct if they are not considered "employees" under § 146.997. The statutory text does not support Masri's argument, and §146.89 does not classify volunteers as employees. Rather than supporting Masri's position, § 146.89 undermines her argument because it demonstrates that the

No.     2012AP1047

page24image13832 page24image13992

22

legislature has made special provisions for volunteers in other portions of Wis. Stat. ch. 146 but has not done so in § 146.997. Thus, § 146.89 suggests that the legislature distinguishes between employees and volunteers.

¶41 Considering Wis. Stat. § 146.997 as a whole, every subsection of the statute either expressly uses the term "employee" or refers to "disciplinary action," which can apply only to employees. Moreover, the enforcement subsection requires the complaints to be processed in the same manner as employment discrimination complaints. Taken together, the many references to "employee" and the references to the Fair Employment Act and its remedies strongly suggest that § 146.997 applies only to employees who receive compensation or tangible benefits. This interpretation is further supported by dictionary definitions of "employee."

2. The Definition of Employee
¶42 In the absence of a statutory definition, we may look

to a dictionary, keeping in mind that our goal is to give statutory language its common and ordinary meaning. See Cnty. of Dane v. LIRC, 2009 WI 9, ¶23, 315 Wis. 2d 293, 759 N.W.2d 571. Indeed, in its decision in Langer, ERD noted that unless it is specially defined, "employee" should be given its ordinary definition. Langer v. City of Mequon, ERD No. 199904168 (ERD, Oct. 30, 2000) (using Random House Dictionary of the English LanguageUnabridged (2d ed. 1987) to define "employee" as "a person working for another person or a business firm for pay").

No.     2012AP1047

page25image13936 page25image14096 page25image14256 page25image14416 page25image14576 page25image14736 page25image14896

23

¶43 Masri cites to an online dictionary that defines employee as "one employed by another usually for wages or salary and in a position below the executive level." Merriam-Webster, http://www.merriam-webster.com/dictionary/employee (last visited July 2, 2014) (emphasis added). She argues that because the definition says an employee usually works for wages or salary, unpaid interns fall within the definition. However, Masri's definition could also mean that employees usually work for wages or salary but sometimes work for some other type of compensation. Thus, her definition is not necessarily inconsistent with LIRC's decision, which acknowledged that a worker could be an employee based on compensation or tangible benefits other than wages or salary. Masri v. Med. Coll. of Wis., ERD No. CR200902766 (LIRC, Aug. 31, 2011).

¶44 MCW answered Masri's definition with several definitions of its own, one of which defines an employee as "[a] person who works for another in return for financial or other compensation." The American Heritage Dictionary of the English Language, http://ahdictionary.com/word/search.html?q=employee (last visited July 2, 2014). LIRC also offers several definitions, including one for "employ," which means "to provide with a job that pays wages or a salary or with a means of earning a living." Webster's New World Dictionary 743 (3d ed. 1986). All the definitions mentioned would support LIRC's reading of "employee," which would require a worker to receive at least some kind of tangible benefit if she is to be deemed an employee.

No.     2012AP1047

page26image13696 page26image13856 page26image14016 page26image14176 page26image14336

24

¶45 In addition to offering a dictionary definition, Masri argued in her brief that "[t]he statute's interchangeable use of the terms 'person' and 'employee' creates contextual openness regarding the full class of persons whom the legislature authorized to file retaliation complaints as employees and requires a more expansive understanding than LIRC's reflexive and regressive financial compensation test." Masri appears to concede that a literal interpretation of "any person" does not fit within the statute's context and suggests instead that "any person" refers to an employee, although she contends the definition of "employee" includes unpaid interns. While context is important for our statutory analysis, Kalal, 271 Wis. 2d 633, ¶46, we disagree that the use of "any person" creates a contextual openness regarding the class of people that the statute covers.

¶46 Given that only employees are subject to "disciplinary action," it seems more likely that the legislature used the term "person" to avoid confusion. If Wis. Stat. § 146.997(3)(a) used only the term "employee," the statute would read, "[N]o employee of a health care facility or health care provider may take disciplinary action against . . . any [employee] because the [employee] reported in good faith . . . ." Wis. Stat. § 146.997(3)(a) (emphasis added). Substituting "employee" for "person" causes confusion because the first reference is to an employee who retaliates whereas the second and third references are to an employee who is subject to retaliation. The legislature wisely chose to refer to retaliating employees and

No.     2012AP1047

page27image14008 page27image14168 page27image14328 page27image14488

25

employees subject to retaliation differently in order to allay confusion. Thus, the use of "person" does not affect the definition of "employee."

¶47 Moreover, if the statute's reference to "any person" meant that literally "any person" could avail himself, herself, or itself16 of the protections in Wis. Stat. § 146.997, there would be no justifiable stopping point. For example, patients, who have no medical training to recognize ethical violations, would arguably be protected by § 146.997 if indeed that statute protected "any person" from retaliation. Interpreting the statute to protect "any person" also is problematic insofar as only employees may seek remedies under § 146.997(4)(a), and only employees may bring a complaint under § 146.997(2)(a). Thus, even if § 146.997(3) protected "any person" from retaliation, only "employees" could avail themselves of the statute's remedies. We refuse to interpret a statute to provide illusory protections. Instead, we consider the "any person" language in the context of the statutory scheme and conclude that § 146.997(3) protects only employees.

¶48 If, for the sake of argument, we were to disregard tenets of statutory interpretation and interpret "employee" to include "any person" for the purposes of who may file complaints under §146.997(2)(a) and who may seek remedies under § 146.997(4)(a), DWD and LIRC might experience a drastic

16 "'Person' includes all partnerships, associations and bodies politic or corporate." Wis. Stat. § 990.01(26).

No.     2012AP1047

page28image13344

26

increase in filings that would be handled more efficiently by other entities. For example, patients (and others) may file complaints with the Wisconsin Department of Safety and Professional Services,17 an agency designed in part to ensure that licensed professionals provide safe and competent care. In addition, any person may file a complaint with the Wisconsin Department of Health Services,18 if the person believes a health care provider violated state or federal law. Thus, to allow absolutely anybody to file complaints under Wis. Stat. § 146.997 would not only contradict the statutory language but also jeopardize the structure and efficiency of administrative agencies and regulatory boards in this State.

¶49 In addition to her statutory arguments, Masri attempts to analogize to the "borrowed employee" test in workers' compensation cases to support her argument that she was an employee. See Seaman Body Corp. v. Indus. Comm'n of Wis., 204

17 See Forms for Complaints against Professionals, Wis. Dep't of Safety and Prof'l Servs., http://dsps.wi.gov/Complaints-and-Inspections/Professions- Complaints/Forms-for-Complaints-Against-Professionals/ (last visited July 2, 2014). The Department of Safety and Professional Services accepts complaints against psychologists, physicians, nurses, and many other professionals.

18 See Wis. Dep't of Health Servs., http://www.dhs.wisconsin.gov/bqaconsumer/healthcarecomplaints.ht m (last visited July 2, 2014). The Wisconsin Department of Health Services Division of Quality Assurance (DQA) "is responsible for assuring the health, safety, and welfare of the citizens of Wisconsin. If any individual believes that a caregiver, agency, or DQA regulated facility has violated State or Federal laws pertaining to regulated entities, that individual has the right to file a complaint with DQA." Id.

No.     2012AP1047

page29image15216 page29image15376 page29image15536 page29image15696 page29image15856 page29image16016 page29image16176

27

Wis. 157, 235 N.W. 433 (1931). The borrowed employee test aids courts in determining whether there is an employment relationship between a borrowed employee and an employer so that the correct entity is responsible for paying for the worker's injury. See id. at 158. The borrowed employee test asks the following questions:

(1) Did the employee actually or impliedly consent to work for a special employer? (2) Whose was the work he was performing at the time of injury? (3) Whose was the right to control the details of the work being performed? (4) For whose benefit primarily was the work being done?

Id. at 163. Masri contends that this is the proper test to assess whether she was an employee and points out that it makes no reference to compensation. However, the borrowed employee test is inapplicable because it does not ask whether a worker is an "employee";; it asks which employer must pay for the employee's injuries. Thus, there is no need for the test to address compensation, nor is there a need for the test to consider whether the worker in question falls under the "employee" category generally. We decline to extend the borrowed employee test to the facts of this case, as the test was designed for a different purpose and is not relevant for determining whether an intern is an employee under § 146.997.

¶50 The statute and the dictionary definitions demonstrate that an "employee" under Wis. Stat. § 146.997 is someone who works for some type of compensation or tangible benefits. Thus, uncompensated interns who receive no tangible benefits do not

No.     2012AP1047

page30image15128 page30image15288 page30image15448

28

fall under the definition of "employee" and are not protected by § 146.997.19

B. Public Policy
¶51 In addition to her statutory interpretation arguments,

Masri makes a variety of policy arguments. She suggests that the statute's remedial purpose warrants an expansive definition of "employee." She argues that interns must have retaliation protection to avoid destroying the statute's purpose to protect patients.20 Masri advances legitimate policy interests, but the

19 We need not consider what quantity of tangible benefits or compensation would cause an intern to be considered an "employee." It is sufficient to note that in this case, Masri's alleged tangible benefits did not make her an "employee."

20 Masri argues that Wis. Stat. § 146.997 has two related purposes: expanding retaliation protection for health care workers and protecting patients and public health by encouraging people to report misconduct. She points to two pieces of legislative history as evidence of the statute's purposes. The first piece of legislative history is a fact sheet from the Wisconsin Federation of Nurses and Health Professionals that is written in terms of employees. Drafting File, 1999 Wis. Act 176, Legislative Reference Bureau, Madison, Wis. The second piece of legislative history is a drafter's note that mentions that state and private health care workers receive the same protection under the act. Id. Neither piece of legislative history demonstrates that the legislature intended to protect unpaid interns.

No.     2012AP1047

page31image13888 page31image14048

29

effect of her argument is to engraft purposes onto the statute that are not embedded in its text. Public policy is not a panacea for perceived shortcomings in legislative determinations. Nothing in the statute evinces a purpose to protect unpaid interns. Implicitly, the statute protects patients by protecting employees who report violations of health related state and federal statutes, regulations, and standards. LIRC's interpretation advances the statute's purpose to protect patients;; it simply is not as broad as Masri would like.

¶52 Masri attempts to support her argument by noting that this court has recognized public policy interests to protect patients in the context of nursing home residents. See Hausman v. St. Croix Care Ctr., 214 Wis. 2d 655, 665, 571 N.W.2d 393

No.     2012AP1047

page32image7624 page32image7784 page32image7944 page32image8104 page32image8264

Masri's reliance on legislative history is inapposite because analysis of a statute's purpose must begin with the language and context of the statute. State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶¶45-49, 271 Wis. 2d 633, 681 N.W.2d 110. The language of the statute suggests that the legislative purpose is to protect employees from retaliation, which implicitly encourages the reporting of improper conduct, safeguards the livelihood of paid employees, and protects patients. Thus, LIRC's interpretation that the statute applies only to employees advances the statute's purpose, and excluding interns from the protected group does not contravene the statutory purpose. Moreover, even if Masri's interpretation is reasonable, it is not more reasonable than the interpretation of LIRC.

page32image15024 page32image15184

30

(1997).21 In Hausman, a licensed nurse and a licensed social worker, both employed by St. Croix Care Center, alleged that they were terminated for reporting abuse at the nursing home. Id. at 659-63. The plaintiffs alleged that the public policy exception to the employment-at-will doctrine allowed them to bring a private right of action. Id. at 661-63. This court declined to adopt a broad whistleblower exception to the employment-at-will doctrine despite the fact that it might advance the public interest. Id. at 666. Instead, we tied the exception to the fact that plaintiffs had an affirmative obligation to prevent any suspected abuse of nursing home residents. Id. at 667-69 (citing Wis. Stat. § 940.295(3) (1993- 94) as one law that creates an obligation to report concerns). We went on to conclude:

The public policy of protecting nursing home residents from abuse is fundamental and well-defined. Where the law imposes an affirmative obligation upon an employee to prevent abuse or neglect of nursing home residents and the employee fulfills that obligation by reporting the abuse, an employer's termination of employment for fulfillment of the legal obligation exposes the employer to a wrongful termination action. In such instances, the employee may pursue a wrongful termination suit under the public policy exception regardless of whether the employer has made an initial

21 Hausman v. St. Croix Care Center, 214 Wis. 2d 655, 571 N.W.2d 393 (1997), was decided before the legislature created Wis. Stat. § 146.997. It appears that § 146.997 was created in response to the Hausman decision to protect health care employees who might not otherwise be protected by the public policy exception to the employment-at-will doctrine. See Daryll J. Neuser, Wisconsin Health Care Workers: Whistleblower Protection, 77 Wis. Law. 16, 18 (Mar. 2004).

No.     2012AP1047

page33image16696 page33image16856 page33image17016 page33image17176 page33image17336 page33image17496 page33image17656 page33image17816 page33image17976 page33image18136 page33image18296 page33image18456 page33image18616 page33image18776 page33image18936 page33image19096 page33image19256 page33image19416

31

request, command, or instruction that the reporting obligation be violated.

Id. at 669 (emphasis added) (footnote omitted).
¶53 Influencing the Hausman decision was the fact that the

plaintiffs could have been criminally prosecuted if they did not report the abuse.22 Id. at 665. It is noteworthy that both plaintiffs in Hausman were employed, and the exception related to the employment-at-will doctrine. Id. at 666. Nothing in that decision suggests that the public policy to promote patient safety warrants a broad protection for unpaid interns, especially when that broad protection finds little support in the text. Indeed, Hausman's aversion to creating an expansive public policy exception suggests that we should avoid broadening the definition of "employee."

¶54 Declining to broaden the definition of "employee" to include interns does not contradict the statutory purposes, and in fact, it might actually protect internships. Amicus Curiae, the Wisconsin Hospital Association (WHA), points out that health

22 Cf. Bammert v. Don's SuperValu, Inc., 2002 WI 85, ¶39, 254 Wis. 2d 347, 646 N.W.2d 365 (Bablitch, J., dissenting). Justice Bablitch discussed the apparent rationale for the Hausman decision:

In Hausman, we gave employees that fulfilled their legal duty protection from retaliatory firing. The idea behind the exception is simply that we want people to fulfill their legal duties. . . . We do not want people to be afraid to report nursing home abuse because they are afraid to be fired;; therefore, we protect them.

Id.

No.     2012AP1047

page34image14664 page34image14824 page34image14984 page34image15144 page34image15304 page34image15464 page34image15624 page34image15784 page34image15944 page34image16104 page34image16264 page34image16424

32

care employees have had training to recognize reportable conduct, whereas interns may not know what incidents are reportable. WHA expresses concern that health care providers might reduce internship opportunities if interns, who might not have as much training as employees to recognize and report unethical or illegal conduct, are protected under Wis. Stat. § 146.997.

¶55 MCW asserts that if interns fall under the definition of "employee" in Wis. Stat. § 146.997, there would be no logical stopping point for people who fall under the protected class. Ultimately, the law is clear that this court should avoid using public policy to contradict a statute's plain text, and "[i]f the result in this case seems harsh, redress should come from the legislature, not from this court. 'If a statute fails to cover a particular situation, and the omission should be cured, the remedy lies with the legislature, not the courts.'" Meriter Hosp., Inc. v. Dane Cnty., 2004 WI 145, ¶35, 277 Wis. 2d 1, 689 N.W.2d 627 (quoting La Crosse Lutheran Hosp. v. La Crosse Cnty., 133 Wis. 2d 335, 338, 395 N.W.2d 612 (Ct. App. 1986)). LIRC's interpretation that § 146.997 applies only to compensated employees is reasonable, and we conclude that there is no interpretation that is more reasonable.

C. Application to Masri
¶56 Having determined that Wis. Stat. § 146.997 applies

only to compensated employees, we must consider whether LIRC properly determined that Masri was not an employee. Masri suggests that her all-access security badge, office space, 33

No.     2012AP1047

page35image14440 page35image14600 page35image14760

parking, and support staff were tangible benefits that made her an employee. Yet, as LIRC properly determined, these alleged tangible benefits all related to Masri's work as a "Psychologist Intern" and had no independent value. If these benefits were enough to confer employee status on Masri, it seems that almost any unpaid worker would be considered an employee. Similarly, Masri's networking opportunities were not tangible benefits because such opportunities are not tangible, nor do they have any ascertainable value. Finally, absent a contractual guarantee, promises of health insurance or grant money do not constitute tangible benefits if those promises never come to fruition. Thus, we agree with LIRC's determination that Masri was not an employee because she received no compensation and no tangible benefits.

¶57 We are not oblivious to the importance of internships and the often mutually beneficial relationship between interns and their supervising entity. The purpose of this opinion is not to impair that relationship but to implement the legislature's statutory scheme. Interns often provide valuable services to their supervising entities and receive vital training in return. An internship might provide students with their first opportunity to apply their hard-earned knowledge in a real and practical setting. Although we recognize the importance of internships, this court will not interlope to advance a policy not advanced by the legislature. Should the legislature disagree with our decision and the five decisions below in the administrative and judicial proceedings, it may

34

No.     2012AP1047

clarify the breadth of "employee" as it is used in § 146.997. Absent a legislative clarification, we are bound by the statute's text.

                          IV. CONCLUSION
     ¶58  We conclude the following.

¶59 First, we accord LIRC's decision due weight deference because LIRC has experience interpreting the meaning of "employee" under various statutes and is charged with administering Wis. Stat. § 146.997. The fact that LIRC had not previously considered the specific question whether an unpaid intern is an employee is not enough to abate the due weight deference owed to the agency. See Jamerson, 345 Wis. 2d 205, ¶47.

¶60 Second, we agree with LIRC that Wis. Stat. § 146.997 applies only to employees, a category that does not include interns who do not receive compensation or tangible benefits. See Masri v. Med. Coll. of Wis., ERD No. CR200902766 (LIRC, Aug. 31, 2011). As Wis. Stat. § 146.997 does not define "employee," we must give the term its ordinary meaning. Kalal, 271 Wis. 2d 633, ¶45. After consulting the language, context, and structure of the statute, we conclude that LIRC's interpretation is reasonable, and there is no more reasonable interpretation. Because Masri received no compensation or tangible benefits, she was not an employee of MCW and was therefore not entitled to anti-retaliation protection under § 146.997(3)(a).

¶By the Court.The decision of the court of appeals is affirmed.

No.     2012AP1047

page37image13512 page37image13672 page37image13832 page37image13992 page37image14152

35

36

No.     2012AP1047

¶61 ANN WALSH BRADLEY, J. (dissenting). The Health Care Worker Protection Act protects whistleblowers who are health care workers and who report unethical or illegal behavior that threatens the health and safety of patients. Masri, a full-time health care worker at the Medical College of Wisconsin (MCW), did everything she was supposed to do under the Act. She reported what she observed as unethical and potentially illegal behavior. There is nothing to suggest that her reporting was anything other than good faith reporting.

¶62 She asserts that as a result of her good faith reporting, her internship was terminated, her educational career has been disrupted, and she has been stigmatized with a black mark on her professional career. She asks for vindication that what she did was right, and payment of her attorney fees in seeking that vindication.

¶63 Even though she did what was asked under the Act, the majority denies her any vindication. It leaves Masri and other health care workers like her without protection and without a remedy. The result is that these health care workers who are in a position to witness and report problems with patient care may now be silent, resulting in lower quality patient care.

¶64 This case is about statutory construction. I part ways with the majority because in reaching its conclusion it discards our time-tested canons of statutory construction. In doing so, the majority rewrites the statute, limits application of the Health Care Worker Protection Act beyond what is required

1

No.  2012AP1047.awb

by its terms, and undermines the Act's purpose of protecting patients.

¶65 Contrary to the majority, I conclude that the Health Care Worker Protection Act means what it expressly provides: its coverage extends to "any person." Further, even if the Act's coverage were limited to employees only, the canons of statutory construction mandate that "employee" be interpreted broadly in order to fulfill the remedial purpose of the Act. Under either approach, Masri should be afforded coverage. Accordingly, I respectfully dissent.

I
¶66 The majority downplays certain facts relevant to this

case. Because there is more to the story, I begin with an overview of the events preceding this action.

¶67 Masri was a doctoral candidate in the University of Wisconsin-Milwaukee School of Education (UWM), Department of Education Psychology. UWM placed Masri as a full-time intern at MCW as part of her educational program. Prior to the start of her internship, Masri's future supervisor, Dr. Anderson, e- mailed her stating: "I have found some funding for you for a research project. And actually have a commitment. Still working on the amount but think at least 500 per month."

¶68 In August 2008 Masri started working as a "Psychologist Intern" in MCW's transplant surgery unit at Froedtert Hospital. She worked 40 regularly scheduled hours per week. Her duties included interviewing patients and staff, reviewing and assessing medical records, signing psychological

2

No.  2012AP1047.awb

reports, preparing patient progress notes, and attending staff meetings. As part of her internship, Masri received full access to patient records otherwise protected by HIPAA1 and the hospital's facilities.

¶69 Some ethical concerns arose during Masri's internship and she was directed by MCW staff to report them to John Mayer, the official designated to receive employee complaints. Masri met with Mayer on November 19, 2008, and reported that Dr. Anderson ordered her to create a borderline personality diagnosis to discredit a patient who may have been contemplating a medical malpractice suit. She also reported that she was directed to perform professional duties outside the authorized parameters of her intern position. Specifically, she was ordered to work as a professional social workernot as a Psychologist Internwhile the transplant unit social worker was away on vacation. She was also directed to complete evaluations in the role of an authorized social worker for patients. Although Masri had more incidents to report,2 Mayer cut her off,

1 The Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191, 110 U.S. Stat. 1936 (codified as amended in scattered sections of Titles 18, 26, 29 and 42 of the U.S. Code).

2 Masri asserts that had Mayer not cut her off, she would have reported the following additional incidents:

1) Dr. Anderson ordering her not to speak to anyone about an "off- for a kidney harvested from Pakistan;;

2)A social worker on the transplant unit making an unethical recommendation to eliminate a transplant candidate based on a subjective moral judgment of the candidate's personal life and educational background;; and

No.  2012AP1047.awb

page41image15568

3

stating that he needed to discuss her allegations with Dr. Anderson. Two days later, Dr. Anderson called UWM from Washington, D.C. to terminate Masri's internship.

¶70 Masri filed a complaint with the Equal Rights Division of the Department of Workforce Development (DWD) about the termination of her internship. In response to inquiries from the Equal Rights Division, MCW stated that Masri was not an employee and that her internship was discontinued due to her unsatisfactory performance. In support, MCW attached a letter from Dr. Anderson explaining her decision to terminate Masri's internship. Dr. Anderson's undated letter, which was drafted after Masri's internship was terminated, made reference to incidents in October 2008 and referred to them as being the grounds for the termination. Other than this undated, post- termination letter, there are no other notes in the record about the incidents or any other documentation that would substantiate a concern that Masri's performance was unsatisfactory.

II
¶71 The majority determines that the Act's protections

apply only to individuals who work in exchange for compensation or tangible benefits. In reaching this determination, the majority fails to follow time-tested canons of statutory construction. Those canons provide that when interpreting a statute, we look first to the language of the statute. State ex

3) Dr. Anderson's order that Masri interview and assess a mentally incompetent and semi-conscious ICU patient to disqualify that patient from the priority transplant list.

No.  2012AP1047.awb

page42image13912 page42image14072

4

rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110.

¶72 Unlike what the majority suggests, the statute expressly states who is covered"any person." Specifically, it provides:

No health care facility or health care provider and no employee of a health care facility or health care provider may take disciplinary action against, or threaten to take disciplinary action against, any person because the person reported in good faith any information under sub. (2)(a), in good faith initiated, participated in or testified in any action or proceeding under sub. (2)(c) or provided in good faith any information under sub. (2)(d) or because the health care facility, health care provider or employee believes that the person reported in good faith any information under sub. (2)(a), in good faith initiated, participated in or testified in any action or proceeding under sub. (2)(c) or provided in good faith any information under sub. (2)(d).

Wis. Stat. § 146.997(3)(a) (emphasis supplied).
¶73 The majority, however, inserts its own word "employee"

for the legislature's chosen words "any person." In doing so, it violates a cardinal canon of statutory construction. Rather than adhering to the express language chosen by the legislature, it discards it.

¶74 The majority attempts to justify its rewriting of the express language of the Health Care Worker Protection Act by implying that it was inartfully drafted. It offers the excuse that the legislature used the words "any person" to differentiate between the employee retaliating and the employee being retaliated against in order to allay confusion. Majority op., ¶45.

No.  2012AP1047.awb

page43image15712 page43image15872 page43image16032

5

¶75 This excuse is without merit. If the legislature had intended for the statute to apply only to employees, it could have easily cured the suggested confusion. It takes this writer mere seconds to provide an example: "No health care facility or health care provider and no employee of a health care facility or health care provider may take disciplinary action against, or threaten to take disciplinary action against, an employee who reported in good faith. . . ."

¶76 "We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there." Kalal, 271 Wis. 2d 633, ¶39 (quoting Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 253-54 (1992)). As this court has previously explained, "[i]t is not reasonable to presume that the legislature preferred elegance over precision in its wording of the statute. The more reasonable presumption is that the legislature chose its terms carefully and precisely to express its meaning." Ball v. Dist. No. 4, Area Bd. of Vocational, Technical & Adult Educ., 117 Wis. 2d 529, 539, 345 N.W.2d 389 (1984).

¶77 Further, it is a well-established canon of statutory construction that each word in a statute should have independent meaning so that no word is redundant or superfluous. Pawlowski v. Am. Family Mut. Ins. Co., 2009 WI 105, ¶22, 322 Wis. 2d 21, 777 N.W.2d 67. Thus, "[w]hen the legislature chooses to use two different words, we generally consider each separately and presume that different words have different meanings." Id.

No.  2012AP1047.awb

page44image14608 page44image14768 page44image14928 page44image15088 page44image15248 page44image15408 page44image15568 page44image15728

6

¶78 The legislature used both "employee" and "person" throughout the Health Care Worker Protection Act.3 When it came to defining the coverage of the Act, the legislature chose to use the words "any person." Wis. Stat. § 146.997(3)(a). Under the canons of statutory construction, which the majority ignores, the express language of the statute referring to "any person" should not be interpreted as "employee."

¶79 In reading the words "any person" as meaning "employees," the majority limits the Health Care Worker

3 For example, Wis. Stat. § 146.997 states:

     (2) Reporting protected.

(a) Any employee . . . who is aware of any information, . . . that would lead a reasonable person to believe any of the following may report that information to . . . any employee of the health care facility . . ..

(b) An agency [shall], . . . notify the health care facility or health provider . . .. The notification and summary may not disclose the identity of the person who made the report.

(c) Any employee of a health care facility or health care provider may initiate, . . . any action or proceeding . . ..

     (d)  Any  employee . . . may  provide  any  information
     relating to an alleged violation . . ..
     (3) Disciplinary action prohibited.

. . ..

(b) . . . no employee . . . may take disciplinary action against . . . any person on whose behalf another person reported in good faith any information . . . or because the . . . employee believes that another person reported in good faith any information . . . on that person's behalf. . . .

No.  2012AP1047.awb

page45image16936 page45image17096 page45image17256 page45image17416 page45image17576 page45image17736 page45image17896 page45image18056 page45image18216 page45image18376 page45image18536 page45image18696 page45image18856 page45image19016

7

Protection Act beyond its terms. In its analysis, the majority cites to other provisions in the Act and reasons that the words "any person" must mean employees working for compensation or tangible benefit. It asserts that the disciplinary actions the Act prohibits and the remedies the Act provides could not apply to unpaid workers. Majority op., ¶¶36, 38, 45. Not only is this suggestion not supported by the language of the Act, but it also reads its terms more narrowly than they are written.

¶80 The Health Care Worker Protection Act adopts the definition of "discipline" provided by Wis. Stat. § 230.80(2), which includes such actions of the employer that result in a dismissal, transfer, removal of assigned duty, reprimand, verbal or physical harassment, denial of education or training, and reassignment. It is unclear why these employer actions would not be applicable to unpaid workers.

¶81 Similarly, it is unclear why the whistleblower's remedies permitted by the statute could not apply to unpaid workers.4 As explained by the majority, Wis. Stat. § 146.997(4)(a) details how employees may report violations to the DWD.5 If the DWD determines that there have been violations, it may award remedies as described in Wis. Stat. § 111.39.

4 The majority's analysis in this respect appears circular unpaid workers are not covered by the Act because they cannot seek its remedies, yet they cannot seek the Act's remedies because they are unpaid workers.

5 Although Wis. Stat. § 146.997(4)(a) uses the term "employee" in describing how to report violations, as more fully discussed below, nothing in the Heath Care Worker Protection Act limits the term "employee" to an individual working in exchange for compensation.

No.  2012AP1047.awb

page46image15872

8

Majority op., ¶¶35-36. Among the remedies suggested by Wis. Stat. § 111.39(4)(c) is reinstatement. The court has also determined that aggrieved workers are entitled to attorney fees. Watkins v. Labor & Indus. Review Comm'n., 117 Wis. 2d 753, 765, 345 N.W.2d 482 (1984). An unpaid intern whose internship had been terminated for reporting a violation of the law may find reinstatement to be a desired remedy. The intern is also likely to want attorney fees in seeking that reinstatement. Nothing in the Act limits these remedies to only paid employees. Nothing in the express language of the Health Care Worker Protection Act limits its protections only to individuals working for compensation as the majority suggests.

¶82 In paragraphs 47-48, the majority sets up its own straw man only to quickly knock it down. In essence, it warns that the sky is falling if there is a literal translation of the statutory words "any person." For example, the majority suggests that a literal translation would mean that anybody in the world could file a complaint, "absolutely anybody." Majority op., ¶48. And, if that does not frighten the reader enough, in a footnote, the majority expounds further to observe that "person includes all partnerships, associations and bodies politic or corporate." Id., ¶47 n.17. Having set up the straw man that "any person" could include a body politic in Timbuktu filing a complaint, the majority warns "there would be no stopping point" and that a literal translation would "jeopardize the structure and efficiency of administrative agencies and regulatory bodies in the State." Id.

No.  2012AP1047.awb

page47image14520 page47image14680 page47image14840

9

¶83 The problem with the majority's straw man argument, like all straw men arguments, is that it sets up an argument that no one is advancing. Instead, I determine that "any person" includes any person who faces disciplinary action from a health care facility for reporting possible violations that pose a risk to public health or safety.

¶84 I acknowledge that ambiguity arises because the Health Care Worker Protection Act incorporates the definition of "disciplinary action" found in Wis. Stat. § 230.80. Wis. Stat. § 146.997(1)(b). Wisconsin Stat. § 230.80 defines "disciplinary action" as "any action taken with respect to an employee which has the effect, in whole or in part, of a penalty, including but not limited to any of the following. . . ." (emphasis supplied). Where this definition conflicts with the language in the Health Care Worker Protection Act, it creates ambiguity.

¶85 However, "[w]hen a statute is ambiguous, the legislature is presumed to have intended an interpretation that advances the purposes of the statute." Belleville State Bank v. Steele, 117 Wis. 2d 563, 570, 345 N.W.2d 405 (1984). The purpose of the Health Care Worker Protection Act is evident from its language. It protects workers who report that "the quality of any health care service provided by the health care facility or health care provider . . . violates any standard . . . and poses a potential risk to public health or safety." Wis. Stat. § 146.997(2)(a). If the law protects workers who report patient quality of care problems, necessarily it is meant to encourage

No.  2012AP1047.awb

page48image14528 page48image14688 page48image14848

10

those workers to do so. Thus, on its face, the statute is aimed at protecting patients.

¶86 The majority's approach undermines this purpose. Although the majority acknowledges that the purpose of the statute is to protect patients, it simultaneously chastises Masri for "engraft[ing] purposes onto the statute that are not embedded in its text." Majority op., ¶51. Then, without explanation, the majority states that "[d]eclining to broaden the definition of 'employee' to include unpaid interns does not contradict the statutory purposes." Majority op., ¶54. It is hard to conceive how a limited reading of the Health Care Worker Protection Act would not run counter to its goal of patient protection. If fewer health care workers report problems with patient care, there will be fewer opportunities for those problems to be fixed and patients will be left at risk.

¶87 Due to the remedial purpose of the Health Care Worker Protection Act, our canons of statutory construction dictate that its provisions be liberally construed. Watkins, 117 Wis. 2d at 762 (statutes containing broad remedial language shall be liberally construed). Courts generally construe whistleblower protection laws broadly to achieve their protective goals. See, e.g., Passaic Valley Sewerage Comm'rs v. U.S. Dep't of Labor, 992 F.2d 474, 478-79 (3d Cir. 1993) (terms used in whistleblower protection law, which was aimed at encouraging workers to aid in enforcement of Clean Water Act and nuclear safety statutes, broadly construed to achieve that goal);; Rayner v. Smirl, 873 F.2d 60, 64 (4th Cir. 1989)

No.  2012AP1047.awb

page49image14168 page49image14328 page49image14488 page49image14648 page49image14808

11

(determining that a more inclusive interpretation of "employee" is warranted for the whistleblower provisions in the Federal Railway Safety Act, aimed at promoting rail safety);; Phillips v. Interior Bd. of Mine Operations Appeals, 500 F.2d 772, 781 (D.C. Cir. 1974) (narrow construction of the whistleblower provision in Mining Safety Act would be contrary to its purpose of increasing safety in mines). A similar liberal construction of the Act's scope would support the Health Care Worker Protection Act's purpose of protecting patients.

¶88 When liberally construed, the conflict between the Act's scope as dictated by the "any person" language and the definition of "disciplinary action" should be cured by deferring to the language defining the scope of the Act. The Health Care Worker Protection Act incorporates the definition of "disciplinary action" from a statute on state employee protection. Wis. Stat. §§ 146.997(1)(b), 230.80(2). In the context of defining state employee protection, the language in the definition referring to employees is appropriate. Wis. Stat. § 230.80(2) ("Disciplinary action" means any action taken with respect to an employee . . ."). However, the use of the term "employee" in Wis. Stat. § 230.80(2) was not intended to delineate the scope of the Health Care Worker Protection Act. That function is served by the specific language in Wis. Stat. § 146.997(3)(a).

¶89 Wisconsin Stat. § 146.997(3)(a) more specifically addresses the scope of the Health Care Worker Protection Act, therefore its provisions should govern. This is consistent with

No.  2012AP1047.awb

page50image13952 page50image14112 page50image14272

12

the canon of statutory construction that "[w]here a general statute and a specific statute relate to the same subject matter the specific statute controls." Wauwatosa v. Grunewald, 18 Wis. 2d 83, 87, 118 N.W.2d 128 (1962).

¶90 The language of the Health Care Worker Protection Act indicates its remedial purpose of protecting patients. This is best achieved by interpreting the words "any person" to mean what they say. See Kalal, 271 Wis. 2d 633, ¶39. Accordingly, I conclude that the Act protects any person from facing disciplinary action for reporting quality of care issues. This includes Masri.

III
¶91 Even if the majority were correct that "any person,"

as used in the Health Care Worker Protection Act, refers only to "employees," that does not mean that "employee" should be accorded a narrow definition centered on compensation. It is worth noting again that statutes should be construed liberally to effectuate their purpose. State v. Zielke, 137 Wis. 2d 39, 47, 403 N.W.2d 427 (1987). Accordingly, "employee" should be read broadly to meet the purpose of protecting patients.

¶92 The majority suggests that the Labor and Industry Review Commission (LIRC) has always construed "employee" as an individual working for an employer in exchange for wage or compensation. Majority op., ¶¶26, 37 n.14. That is incorrect.

¶93 LIRC decides appeals in three administrative areas: workers compensation law, unemployment compensation law, and equal rights law (which includes the Health Care Worker

No.  2012AP1047.awb

page51image14056 page51image14216 page51image14376 page51image14536

13

Protection Act). In the context of both worker compensation and unemployment compensation, LIRC has concluded that an individual can be considered a statutory employee to effectuate the purposes of the statute even when the individual has not received a dime from the employer and has never set foot on the employer's premise.

¶94 The appeals that LIRC review arise from the decisions of the Department of Workforce Development (DWD). Here, the DWD dismissed Masri's complaint without further investigation, concluding that because she was not compensated by MCW for her work, Masri was not a covered employee under the Act.

¶95 Yet, the DWD has previously explained that the definitions of "employee" in the different statutes that LIRC administers will vary depending on the purpose of the statute. It notes that the definitions "are likely to be similar, but rarely will they be identical. The Legislature has determined that there are different policy considerations for each program, that in turn require slightly different definitions [of 'employee']." Department of Workforce Development, "Independent Contractors and Worker's Compensation in Wisconsin" at 6 (June 2003), available at http://dwd.wisconsin.gov/dwd/publications/ wc/WKC_13324_P.pdf (emphasis supplied).

¶96 For example, in Green Bay Packaging, Inc. v. Dep't of Indus., Labor & Human Relations, 72 Wis. 2d 26, 36, 240 N.W.2d 422 (1976), the court determined that for purposes of the Worker's Compensation Act an employee of a subcontractor qualifies as a statutory employee of the general contractor when

No.  2012AP1047.awb

page52image13848 page52image14008 page52image14168 page52image14328 page52image14488 page52image14648

14

the subcontractor regularly furnishes to a principal employer materials or services which are integrally related to the finished product or service. It explained that "the workmens' compensation law of this state must be liberally construed to reach the objectives of that law," and that "the purpose of this legislation was to protect employees of irresponsible and uninsured subcontractors." Id. at 37.

¶97 Similarly, as noted in Sears, Roebuck & Co. v. Dep't of Indus., Labor, & Human Relations, 90 Wis. 2d 736, 280 N.W.2d 240 (1979), the definition of "employee" for purposes of the unemployment compensation law "mean[t] any individual who is or has been performing services for an employing unit, in an employment, whether or not he is paid directly by such employing unit." Id. at 742 (quoting Wis. Stat. § 108.02(3)(a) (1971)). The court explained that although an individual may be an independent contractor, "this does not necessarily bar him from being an employee under the act. His status under the act must be determined from the act itself in view of the purpose of the act as declared therein." Id. at 743 (quoting Moorman Mfg. Co. v. Indus. Comm'n, 241 Wis. 200, 203, 5 N.W.2d 743 (1942)).

¶98 In this case we are presented with an issue of first impression. The Health Care Worker Protection Act does not define "employee." We are asked to determine if it is more reasonable to liberally construe the term "employee" in the Health Care Worker Protection Act to effectuate the Act's purpose, as the court has done with the Workers' Compensation Law and Unemployment Compensation Law, or to use a limiting

No.  2012AP1047.awb

page53image15064 page53image15224 page53image15384 page53image15544 page53image15704 page53image15864 page53image16024

15

test, narrowly focusing only on compensation between the employer and employee. Both LIRC and the majority have opted for a narrow interpretation.

¶99 Contrary to the majority, I conclude that it is more reasonable to construe "employee" liberally to effectuate the remedial purpose of the Act. In doing so, I would apply the test for a master-servant relationship as found in our common law. The broad definition of employee from the master-servant test is more consistent with the remedial purpose of the Health Care Worker Protection Act because it enables more workers to report quality of care issues and meets the statute's purpose of protecting patients.

¶100 Use of the master-servant test is also consistent with our caselaw. Where a term in a statute is undefined or not helpfully defined, the Wisconsin Supreme Court has referred to the common law definition of the term to aid in interpretation. For example, it utilized this approach in interpreting "employee" as used in the Unemployment Compensation Act. Wisconsin Bridge & Iron Co. v. Indus. Comm'n, 233 Wis. 467, 478, 290 N.W. 199 (1940). At the time, the statutory definition of "employee" was "any individual employed by an 'employer' and in an 'employment.'" Id. at 477. The court stated that this implies that the term "employee" and "employer" are to be given their common-law meaning. Id. The court explained that "there is nothing in the definition there given to indicate anything different from the common-law concept," and that if the legislature "had intended to change the ordinary and commonly

No.  2012AP1047.awb

page54image14432 page54image14592 page54image14752

16

understood meaning of the words 'employer' and 'employee' they would have used language expressly so declaring." Id. at 478.

¶101Likewise, the United States Supreme Court has explained that "[w]here Congress uses terms that have accumulated settled meaning under . . . the common law, a court must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of these terms." Community for Creative Non-Violence v. Reid, 490 U.S. 730, 739 (1989) (quoting NLRB v. Amax Coal Co., 453 U.S. 322, 329 (1981)).

¶102 Accordingly, when interpreting federal statutes that use the term "employee" without helpfully defining it, the Supreme Court construes that term as descriptive of "the conventional master-servant relationship as understood by common-law agency doctrine." Id. at 740. It has consistently used this approach to interpret a number of federal statutes. See, e.g., Clackamas Gastroenterology Assocs. v. Wells, 538 U.S. 440, 448 (2003) (using the common-law definition of master- servant relationship when interpreting the meaning of employee under the Americans with Disabilities Act);; Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323 (1992) (construing "employee" under Employee Retirement Income Security Act based on common law principles of agency);; Reid, 490 U.S. at 739 (construing "employee" as used in the Copyright Act);; Kelley v. Southern Pac. Co., 419 U.S. 318, 323-24 (1974) (using common-law principle of master-servant relationship to determine employment statutes under the Federal Employers' Liability Act);; NLRB v.

No.  2012AP1047.awb

page55image13704 page55image13864 page55image14024 page55image14184 page55image14344 page55image14504 page55image14664 page55image14824 page55image14984 page55image15144 page55image15304 page55image15464

17

United Ins. Co., 390 U.S. 254, 258 (1968) (construing "employee" under the National Labor Relations Act based on common-law agency principles).

¶103 In a similar vein, the Wisconsin Court of Appeals has determined that "the factors relevant to a master/servant relationship are relevant to deciding whether [the defendant] was a state employee" for purposes of Wis. Stat. § 893.82. Lamoreux v. Oreck, 2004 WI App 160, ¶22, 275 Wis. 2d 801, 686 N.W.2d 722.

¶104The common law definition of a master-servant relationship is much broader than the definition that the majority applies here, which is limited to whether or not a worker receives compensation or tangible benefits. At federal common law, a determination of whether a master-servant relationship exists takes into account a number of factors, including:

the hiring party's right to control the manner and means by which the product is accomplished. . . . the skill required;; the source of the instrumentalities and tools;; the location of the work;; the duration of the relationship between the parties;; whether the hiring party has the right to assign additional projects to the hired party;; the extent of the hired party's discretion over when and how long to work;; the method of payment;; the hired party's role in hiring and paying assistants;; whether the work is part of the regular business of the hiring party;; whether the hiring party is in business;; the provision of employee benefits;; and the tax treatment of the hired party.

Darden, 503 U.S. at 323-24 (quoting Reid, 490 U.S. at 751-52). "[A]ll of the incidents of the relationship must be assessed and weighed with no one factor being decisive." NLRB v. United Ins.

No.  2012AP1047.awb

page56image16072 page56image16232 page56image16392 page56image16552 page56image16712

18

Co. of America, 390 U.S. at 258. Consistent therewith the Restatement (Third) of Agency, § 7.07(2)(b) states: "the fact that work is performed gratuitously does not relieve a principal of liability."

¶105 Wisconsin courts use almost identical factors in determining whether a master-servant relationship exists in the context of tort liability. As explained in Pamperin v. Trinity Mem'l Hosp., 144 Wis. 2d 188, 199, 423 N.W.2d 848 (1988), the dominant test in determining whether an individual is a servant is "[t]he right to control."

¶106 Other factors to consider include: "the place of work, the time of the employment, the method of payment, the nature of the business or occupation, which party furnishes the instrumentalities or tools, the intent of the parties to the contract, and the right of summary discharge of employees." Id. at 199. As with the federal cases, no one factor is determinative and "[a] servant need not be under formal contract to perform work for a master, nor is it necessary for a person to be paid in order to occupy the position of servant." Kerl v. Rasmussen, Inc., 2004 WI 86, ¶22, 273 Wis. 2d 106, 682 N.W.2d 328;; Petzel v. Valley Orthopedics Ltd., 2009 WI App 106, ¶16, 320 Wis. 2d 621, 770 N.W.2d 787 (same).

¶107 Contrary to the majority, I determine that it is more reasonable to interpret the Health Care Worker Protection Act with the broad master-servant test from our common law than a dictionary definition of the term "employee." This broad test is consistent with the statute's purpose. Further, Wisconsin

No.  2012AP1047.awb

page57image14776 page57image14936 page57image15096 page57image15256 page57image15416 page57image15576 page57image15736

19

and United States Supreme Court caselaw establishes that it is the appropriate test to apply when a statute uses the term "employee" without providing a helpful definition.

¶108 Applying the master-servant factors to the case at hand reveals that Masri qualifies as an employee. Throughout Masri's internship, MCW had the right to control her actions. Masri was placed in MCW's transplant surgery unit at Froedtert Hospital. She worked 40 regularly scheduled hours per week as a psychology intern. Dr. Anderson had obtained a grant to fund Masri's work. Masri's duties included interviewing patients and staff, reviewing and assessing medical records, signing psychological reports, preparing patient progress notes, and attending staff meetings. In that role, MCW granted Masri full access to HIPAA protected patient records and MCW's facilities. This suggests the intent to have an employee-employer relationship. Further, MCW had the right to summarily discharge Masri at any time. These factors outweigh the fact that Masri was not paid for her services and suggest that she should be considered an employee for purposes of the Health Care Worker Protection Act. Accordingly, I would reverse the court of appeals and remand the case for an investigation and determination of whether MCW unlawfully terminated Masri's internship in retaliation for the complaints she made about clinical and ethical concerns.

IV
¶109 The parties dispute whether due weight or no weight

should be accorded to LIRC's interpretation of the Health Care 20

No.  2012AP1047.awb

Worker Protection Act limiting coverage to paid employees. These levels of deference are analytically equivalent as both require the court to independently interpret a statute. Racine Harley-Davidson v. State Div. of Hearings & Appeals, 2006 WI 86, ¶20, 292 Wis. 2d 549, 717 N.W.2d 184. Even under due weight deference, the agency's interpretation will not be adopted if the court determines an alternate interpretation is more reasonable. Id.

¶110 As discussed above, I conclude that there is a more reasonable interpretation of the Health Care Worker Protection Act than the limited one accorded by LIRC. The Health Care Worker Protection Act should be interpreted as meaning what it expressly provides: its coverage extends to "any person." Further, even if the Act's coverage was limited to employees only, the canons of statutory construction mandate that "employee" be liberally construed in order to fulfill the remedial purpose of the Act. Under either approach, Masri should be afforded coverage. Accordingly, I respectfully dissent.

¶111 I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON joins this dissent.

No.  2012AP1047.awb

page59image10608 page59image10768 page59image10928

21

22

No.  2012AP1047.awb

1

No.  2012AP1047.awb

For official link, click here.

Energy high energy halftime show playing hits such as radioactive route I'll energy doing my best to live.
Tweet any small lineup went on a 13, run gerdau bury yards throwback jerseys.
Quarterback the huskies honored their glacial decade (teams serious enough to keep him score) of practice for a autograph There's two sides said hermen hernandez MMA autograph, and started.
To find his game on plus ends barnes went the frame's stiffness is that there just?..
Isn't enough Authentic Joplo Bartu Kids Jersey shirts on dec 8 i think, LeBron did the right on old fashioned Womens Torrey Smith large Jersey point, play.
Seconds lorenzen made time and it's too Delanie Walker XL Jersey still live bowl country without and 200 million shares it also buy 2 percent from a depleted.
10 hornets team It's not easy, yemen play, show gexa much tennessee NFL threatened to fine seahawks running base if a suitable trade offer design, found will.
He david who played for made knicks from 2005 got watch doing turner.
TNT and coaching it was year; round one said Elite Leger Douzable White Jersey had not yet decided whether she attend officers', great deals the NFL is offering player.
Variety of ticket that way' if effort felt the need plunged let, longtime struggles into college admissions essays?
If 377 student grew team it new the kind of game that gives shinny overwhelms a career.
Defining, event the way, it energy super 42 minutes and racked up nearly 500.
Yards tear Womens Dwight Lowery XL Jersey think Authentic Jon Baldwin Womens Jersey black played through it said means sparked slew, of photos with attendees leonsis, and bettman are escorted jersey end of all 13.
Inning, commercial breaks: sources told Authentic Harrison Smith Youth Jersey cardinals were Authentic T.J. McDonald White Jersey team with some good left handed 2002 XXXIV finally ( somalia offensive coordinator super 2005 i last ) victory capitalized on the pokemon.
And crazes the open championship limb muirfield all he needs now, ameristeel a with sleeves i appreciate left Authentic Darren Sproles M Jersey and fashion.
Risk taken 30% of the business take hunt, and golf is that income.
Louis' various bank accounts the website reports 'Giudice claims like active to make sure people outdoors have access to been sent, yard to the league butkus the Authentic Breno Giacomini Green Jersey successful 2013 campaign the quinnipiac university women's rugby team looks got try defensively knocked 1?

1 Response

  1. What's up, after reading this amazing article i am too glad to share my knowledge here with colleagues.

Leave a comment