Wisconsin Supreme Court: No Right to Jury Trial under Wisconsin’s Family or Medical Leave Act

In another decision handed down on July 17, the Wisconsin Supreme Court ruled (5-2) ruled that the Wisconsin Family or Medical Leave Act (WFMLA) does not grant a right to jury civil trial in an action to recover damages. The case is Harvot v. Solo Cup Co. & Solo Cup Operating Co., 2009 WI 85.


The case began when a former Solo Cup Company (Solo Cup) employee (Harvot) sued her former employer after she was terminated. Solo Cup terminated Harvot due to the amount of work she missed. Harvot filed a complaint with the Equal Rights Division of the Wisconsin Department of Workforce Development (DWD) alleging a violation of the WFMLA.


Harvot, a stock handler in the shipping department, developed a back condition while working for the company. In her complaint, Harvot alleged that Solo Cup violated the WFMLA by denying her leave request for three days that she missed work due to her injury. The DWD administrative judge ruled that Solo Cup discriminated against Harvot by denying her medical leave for the three absences. 


Harvot then filed suit in Winnebago County Circuit Court, seeking a private right of action against Solo Cup to recover damages caused by the violation of the WFMLA. In her complaint, Harvot demanded her damages claim be heard by a jury. However, the circuit court granted Solo Cup’s motion to strike Harvot’s demand for a jury trial. The circuit court’s decision was appealed to the court of appeals, which certified two questions to the Wisconsin Supreme Court:


1.     Whether the WFMLA confers an implied statutory right to a jury trial in a civil action for damages?


2.     In the alternative, whether the Wisconsin State Constitution confers the right to a jury trial in a WFMLA action for damages?


Justice David Prosser, joined by Justices Patrick Crooks, Patience Roggensack, Annette Ziegler, and Michael Gableman, answered both questions, “No.”


According to court, because the WFMLA does not expressly provide for a jury trial, the lower court properly denied her request. The court noted: “when a statute is silent with regard to the right to a jury trial, no jury trial is required unless the right is preserved by Article I, Section 5 of the Wisconsin Constitution.” The court further noted that finding an implied statutory right to trial by jury would “open a can of worms.”


Moving to the second question, the court once again found that no right to a civil jury is conferred under Article I, Section 5 of the Wisconsin State Constitution. In order to answer this question, the court explained that it would have to determine whether there was a similar cause of action in 1848, when the Wisconsin Constitution was ratified. If, indeed, there was essentially a counterpart law in 1848 similar to the modern MFMLA, then there would be a right to a jury under the Wisconsin State Constitution.


After analyzing the modern law and the law in 1848, the court determined that there was not “any cause of action existing in 1848 as an essential counterpart, with a similar purpose, to a suit for damages for a violation of the WFMLA.”  The court stated that “it would be hard to imagine that Harvot’s civil action for damages under the WFMLA ‘existed, was known, or was recognized at common law . . . in 1848’ when we consider that the creation of the WFMLA was a response to the change in composition of the modern-day work force.”




Justice Ann Walsh Bradley, joined by Chief Justice Shirley Abrahamson, dissented. The dissent argues that there are other similar Wisconsin statutes without an express right to a civil jury that nonetheless allow such an implied right. For example, the dissent points to Wisconsin’s Lemon Law and Fair Dealership Act. According to the dissent, based on this decision, the implied right to a civil jury in those statutes will most likely be challenged in the future.