In a recent decision, Harvot v. Solo Cup Company, 2009 WI 85, the Wisconsin Supreme Court determined there is no right to a jury trial under Wisconsin’s Family and Medical Leave Act.
The Court rejected the argument that a jury trial should be provided in Wisconsin because it is available under the Federal Act, noting that the Wisconsin Act is different in several respects from the Federal version. It noted that the Wisconsin Act does not expressly provide for jury trials, and held that such a right cannot be implied. Finally, it determined where no jury trial is provided for by statute, a constitutional right to a jury trial exists in Wisconsin only as to causes of action recognized in the common law prior to adoption of the Wisconsin Constitution in 1848.
Employers faced with a civil action for damages based on Wisconsin’s Family and Medical Leave Act therefore will not have to face a jury, which may be more influenced by emotion and sympathy for a plaintiff than a trial judge.