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Kraft Foods2/22/2001
he determination does not directly contravene the words of § 103.10, or the legislature's intent when enacting the WFMLA, and if the department's interpretation has a rational basis, our inquiry is at an end and we must affirm the department's order. See id. at 662.
. We begin with the language of the statute and the department's rule interpreting it. The WFMLA does not require employers to pay employees for approved family leaves. Wis. Stat. § 103.10(5)(a). However, § 103.10(5)(b) provides that " n employee may substitute, for portions of family leave or medical leave, paid or unpaid leave of any type provided by the employer." The department has promulgated the following administrative rule interpreting the statutory provision: "At the option of the employe, an employe entitled to family or medical leave under the act may substitute, for any leave requested under the act, any other paid or unpaid leave which has accrued to the employe." Wis. Admin. Code § DWD 225.03(1) (emphasis added). To prove a violation of § 103.10(5)(b), the claimants must establish that: (1) at the time they requested leave, they were covered by the WFMLA; (2) they asked to substitute other leave for family leave; (3) Oscar Mayer provided other leave that could be substituted; (4) each claimant had accrued the leave to be substituted; and (5) Oscar Mayer denied the substitution request. Miller Brewing Co. v. DILHR, 210 Wis. 2d 26, 31, 563 N.W.2d 460 (1997) (citing Leher v. Consolidated Papers, Inc., 786 F. Supp. 1480, 1485 (W.D. Wis. 1992)). It is the third and fourth elements that are at issue in this case.
. Oscar Mayer first argues the department erred in concluding that the claimants had "accrued" sick leave as required under Wis. Admin. Code § DWD 225.03. Oscar Mayer asserts that an accrued leave benefit "must be vested, it must not be contingent, and its substitution under the WFMLA must not impose `unanticipated costs' on the employer." The claimants respond that an accrued leave benefit is simply one that is quantifiable and calculable in specified amounts. Both parties assert that support for their positions may be found in Richland School District, where the supreme court stated:
Only those types of leave which an employment contract allows an employe to accumulate over time are available for substitution. Leave which is indefinite or which cannot be quantified at the time of the FMLA leave request is not "leave ... provided by the employer" under FMLA. Such indefinite, incalculable leave is distinguishable from the leave in this case, which accrues into specified, calculable amounts of time. The parties agree that the collective bargaining agreement gave Ruder 18 days of accumulated paid leave. He requested authorization to substitute five of those days for the unpaid leave to which he was entitled under FMLA. He was not asking to substitute any form of non-accrued, discretionary or contingent leave time which the school district might give him upon request. Id. at 895-96.
. The department determined in this case that leave is accrued within the meaning of Wis. Admin. Code § DWD 225.03 if it arises from a contract, is specified and quantifiable, has a "draw-down" feature, and is the type of leave that an employee is allowed to accumulate over time. The department concluded that the Oscar Mayer sick leave benefit meets these criteria, and that the claimants thus had accrued sick leave available to them for substitution under Wis. Stat. § 103.10(5)(b). We conclude that the department reasonably interpreted and applied the term "accrued" in its rule to the facts of this case.
. The department's criteria for accrued leave are reasonably based on the meaning of the term, a
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