BRENNAN, J.
¶ 1 Asma Masri appeals from a circuit court order affirming the Labor and Industry Review Commission's ("LIRC") determination that she was not an employee protected by Wisconsin's health care worker protection statute, WIS. STAT. § 146.997 (2011-12),
¶ 2 In August 2008, Masri, a doctoral candidate at the University of Wisconsin-Milwaukee, began an unpaid internship with the Medical College of Wisconsin ("MCW"). Masri's official title was "Psychologist Intern," and she was assigned to the transplant surgery unit at Froedtert Hospital. Masri worked forty hours a week and was provided with office space, support staff, free parking, full access to facilities and patient records, and professional networking opportunities. Masri's supervisor promised to provide her with health insurance coverage and the ability to pursue grants, but Masri received neither before her termination.
¶ 3 In November 2008, Masri met with an MCW official to report alleged medical ethics violations she asserts that she observed during her internship. Masri's internship with MCW was terminated soon thereafter.
¶ 4 Following her termination, Masri filed a retaliation complaint with the ERD, alleging that her termination violated WIS. STAT. § 146.997. An ERD officer issued a Preliminary Determination and Order, dismissing Masri's complaint on the grounds that the ERD did not have jurisdiction under § 146.997 because Masri was not an employee protected under the statute. An ALJ affirmed the Preliminary Determination and Order in January 2010.
¶ 5 Masri then filed a timely petition for review with LIRC. After considering the parties' positions and the evidence submitted by the ALJ, LIRC affirmed the ALJ's decision in August 2011.
¶ 7 Masri now appeals from the circuit court's order and again seeks a reversal and remand to ERD for a full investigation.
¶ 8 Masri argues that WIS. STAT. § 146.997 — entitled "Health care worker protection" — protects her from retaliation from MCW for reporting her medical ethics concerns. (Bolding omitted.) She argues that the statute's use of the word "person" indicates that the legislature intended the statute to protect both employees and non-employees from retaliation, and that even if the statute only covers employees, she was an employee at MCW at the time she reported her ethical concerns. We disagree, concluding that: (1) LIRC's decision should be afforded at least due weight deference; (2) LIRC's conclusion that § 146.997 only applies to employees is consistent with the clear meaning of the statute and is reasonable; and (3) LIRC's decision that Masri is not an employee is also consistent with the clear meaning of the statute and is reasonable. As such, we affirm.
¶ 9 We review LIRC's decision rather than that of the circuit court. Oshkosh Corp. v. LIRC, 2011 WI App 42, ¶ 6, 332 Wis.2d 261, 796 N.W.2d 217. "We defer to LIRC's factual findings unless they are not supported by credible and substantial evidence." Id. Though questions of law are normally answered by the courts rather than administrative agencies, we "may accord deference to an agency's ruling on a question of law, such as statutory interpretation." Aldrich v. LIRC, 2012 WI 53, ¶ 92, 341 Wis.2d 36, 814 N.W.2d 433.
¶ 10 In reviewing LIRC's statutory interpretations, Wisconsin courts traditionally apply one of three discrete levels of deference to LIRC's decisions: great weight, due weight, or no weight (de novo review). Racine Harley-Davidson, Inc. v. State of Wis. Div. of Hearings and Appeals, 2006 WI 86, ¶ 12, 292 Wis.2d 549, 717 N.W.2d 184.
¶ 11 The greatest level of deference — great weight — requires that we defer to LIRC's interpretation unless its interpretation is irrational, even when we find another interpretation to be equally reasonable or more reasonable. Milwaukee Symphony Orchestra, Inc. v. Wisconsin DOR, 2010 WI 33, ¶ 35, 324 Wis.2d 68, 781 N.W.2d 674. The Wisconsin Supreme Court has outlined the circumstances under which great weight deference is appropriate:
Volvo Trucks N. Am. v. State of Wis. DOT, 2010 WI 15, ¶ 14, 323 Wis.2d 294, 779 N.W.2d 423.
¶ 12 The middle level of deference — due weight — requires reviewing courts to sustain LIRC's interpretation as long as "it is not contrary to the clear meaning of the statute and no more reasonable interpretation exists." Milwaukee Symphony Orchestra, 324 Wis.2d 68, ¶ 36, 781 N.W.2d 674. Due weight deference is
¶ 13 The lowest level of deference — no weight — allows reviewing courts to interpret the statute independently of LIRC and adopt the interpretation that they deem most reasonable. Id., ¶ 37. "Reviewing courts give no deference to an agency's statutory interpretation when any of the following conditions are met: (1) the issue presents a matter of first impression; (2) the agency has no experience or expertise relevant to the legal issue presented; or (3) the agency's position on the issue has been so inconsistent as to provide no real guidance." Id.
¶ 14 Masri argues that we should award LIRC's decision here no deference because the issue raised is one of first impression. We disagree and conclude that, at the very least, due weight deference is appropriate.
¶ 15 LIRC addressed whether WIS. STAT. § 146.997 pertains solely to employees on at least one other occasion in Ratsch v. Memorial Medical Center, ERD Case No. CR200504192 (Mar. 10, 2006). Furthermore, LIRC has extensive experience and expertise in deciding who is an employee under similar statutory schemes. See, e.g., Ficken v. Harmon Solutions Grp., ERD Case No. CR200003282 at *3 (Feb. 7, 2003); Langer v. City of Mequon, ERD Case No. 199904168 at *1-2 (Mar. 19, 2001); Hall v. School Dist. St. Croix Falls, WC Claim No. 2005-003827 (June 25, 2007).
¶ 16 In sum, we conclude that both prongs of the due weight deference test are satisfied here: (1) the parties do not dispute that the legislature has charged LIRC with administering the statute; and (2) we conclude that LIRC has addressed the issues on at least one other occasion. Having decided that LIRC's decision should be accorded due weight deference, and noting that we must uphold its decision unless that decision is contrary to the clear meaning of the statute and no more reasonable interpretation exists, we turn to the issues raised by Masri. See Milwaukee Symphony Orchestra, 324 Wis.2d 68, ¶ 36, 781 N.W.2d 674.
¶ 17 Masri argues that WIS. STAT. § 146.997 protects all "individual[s] who suffered retaliatory treatment for reporting health care misconduct," rather than only protecting employees, as LIRC and the circuit court concluded. In support of her claim, Masri points to the legislature's use of the word "person" rather than "employee" in § 146.997(3). However, Masri's definition of "person," as explained in more detail below, requires us to ignore the language in the rest of § 146.997 directed solely at employees. Because Masri's interpretation of the statute is contrary to the statute's plain language and is therefore not more reasonable than LIRC's, we affirm.
¶ 18 Masri's argument presents an issue of statutory interpretation. The purpose
¶ 19 Masri's complaint arises from her disagreement with LIRC over the scope of WIS. STAT. § 146.997(3). The disputed text reads as follows:
See § 146.997(3)(a) (emphasis added).
¶ 20 In order to determine the legislature's intent, we must look at the text of WIS. STAT. § 146.997 as a whole. Subsection (1) sets forth numerous definitions used in the statute, but does not define person. Subsection (2) sets forth the types of reports that are protected, recognizing the right to report certain legal, ethical, and clinical standard violations committed by a health care facility, health care provider, or an employee of either. Subsection (3) prohibits "disciplinary action" against those who make the types of reports protected under subsection (2). Subsections (4) and (5) set forth an enforcement mechanism and penalty for violating the prohibition against disciplinary action for making reports under subsection (2). Finally, subsection (6) lays out the statute's notification requirements.
¶ 21 While Masri correctly points out that the legislature uses the word "person" several times in WIS. STAT. § 146.997(3), she ignores the fact that the other subsections of the statute, which interplay with subsection (3), are limited to employees.
¶ 22 For instance, WIS. STAT. § 146.997(3) only prohibits disciplinary action taken against persons who make a protected report in good faith under §§ 146.997(2)(a), (2)(c), or (2)(d). But subsections (2)(a), (2)(c), and (2)(d) only permit employees to file reports, stating:
See §§ 146.997(2)(a), (c), (d) (emphasis added). Because subsections (2)(a), (2)(c), and (2)(d) only permit employees to file reports, and subsection (3), by its plain terms, can only protect persons who have made a(2)(a), (2)(c), or (2)(d) report, it would be absurd to broadly interpret protected persons to include non-employees. See Kalal, 271 Wis.2d 633, ¶ 46, 681 N.W.2d 110 (we read statutory language "to avoid absurd or unreasonable results").
¶ 23 Furthermore, WIS. STAT. § 146.997(1)(b) defines the "`[d]isciplinary action'" prohibited by § 146.997(3) as:
See § 146.997(1)(b) (defining "`[d]isciplinary action'" as defined in WIS. STAT. § 230.80(2)). In other words, while subsection (3) prohibits "disciplinary action against, or threaten[ed] ... disciplinary action against, any person," because "[d]isciplinary action," by the statute's own definition, is limited to "action taken with respect to an employee," it would be contrary to common sense and reason to conclude that subsection (3)'s reference to "any person" included non-employees. See §§ 146.997(1), (3), and 230.80(2).
¶ 24 WISCONSIN STAT. § 146.997(4)(a), the statute's enforcement provision, also requires us to conclude that § 146.997(3)'s reference to "person" is limited to employees. Section 146.997(4)(a) provides that "[a]ny employee of a health care facility or health care provider who is subjected to disciplinary action ... may file a complaint with the department." (Emphasis added.) In short, the statute does not permit non-employees to file a complaint for retaliation for filing a protected report.
¶ 25 Given the text of the entire statute, it is clear that the legislature only intended to protect employees from retaliatory behavior for filing a protected report. It defies common sense to interpret WIS. STAT. § 146.997(3) as broadly protecting all individuals who make a protected report from disciplinary action, when the statute only permits employees to file a protected report or a complaint, and defines disciplinary action in terms of employment. As such, we affirm LIRC's decision that the statute only protects employees because its conclusion is consistent with the statute's plain language and Masri has not shown that her interpretation of the statute is more reasonable than LIRC's.
¶ 26 Masri further argues, contrary to the conclusions of LIRC and the circuit
¶ 27 WISCONSIN STAT. § 146.997 does not explicitly define the term employee, and neither LIRC nor a court has ruled upon the statute's definition of the term. However, in other statutory schemes where the term employee has been left undefined or ambiguous by the legislature, courts have determined that some sort of compensation is essential to an employee/employer relationship. See e.g., C.R. Meyer and Sons Co. v. Grady, 194 Wis. 615, 623, 217 N.W. 408 (1928) ("One of the usual and ordinary tests, and, in many instances, the decisive test, which stamps one engaged in performing work an employee rather than an independent contractor, is the fact that wages are paid.") (worker's compensation); Klusendorf Chevrolet-Buick, Inc. v. LIRC, 110 Wis.2d 328, 335, 328 N.W.2d 890 (Ct. App. 1982) (holding that while "wages are a necessary part of an employer-employe[e] relationship, the wages need not be money") (workers compensation).
¶ 28 Relying on that case law, LIRC has consistently looked to how an individual is compensated for his or her work when determining whether an individual is an employee, requiring that there be some tangible benefit received apart from salary. See, e.g., Ficken, ERD Case No. CR200003282 at *3 (holding that "compensation is an essential condition in the employee/employer relationship, and a person who is not eligible for compensation does not qualify for Title VII" and Wisconsin Fair Employment Act ("WFEA") coverage); Langer, ERD Case No. 199904168 at *1-2 (holding that the parties were not in an employment relationship under the WFEA where "the complainant was not on the respondents' payroll and received no tangible benefit in exchange for her services for the respondents"); Hall, WC Claim No. 2005-003827 (holding that an unpaid high school basketball coach was not an employee under the workers compensation statute). When the legislature uses a term that has obtained a settled meaning, we must infer, unless the text of the statute says otherwise, that the legislature intended for that settled meaning to apply. See Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322-23, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992).
¶ 29 Relying on those cases here, LIRC concluded that Masri was not an employee, stating:
¶ 30 LIRC's decision is not contrary to the clear language in WIS. STAT. § 146.997, and is firmly rooted in case law and past LIRC decisions. LIRC accepted Masri's argument that she could be considered an employee even without receiving any salary provided she received a tangible benefit from her internship. But LIRC concluded Masri received no tangible benefit. As such, LIRC's conclusion is reasonable. Futhermore, we agree with LIRC's conclusion. Office support that simply enabled Masri to perform her duties cannot be considered an independent tangible benefit and the concept of "networking opportunities" is not tangible and is too vague to be compensation. The promise of health insurance, which was never delivered, cannot be viewed as a benefit, especially because Masri continued to perform her internship without it. And the promise to apply for research grant funding did not convey any tangible benefit to Masri because receipt of funding was totally out of MCW's control. Because Masri has not shown that her conclusion that she was an employee is more reasonable than LIRC's, we are compelled to affirm.
Order affirmed.
FINE, J. (dissenting).
¶ 31 George Orwell observed that "[i]n a time of universal deceit, telling the truth is a revolutionary act."
¶ 32 The legislature has declared that no person employed by a "health care facility or health care provider" may be disciplined for reporting that:
WIS. STAT. § 146.997(2)(a)1., 2. & (3). The "dominant purpose" of § 146.997 is thus to prevent health-care facilities and providers from using retaliation or the threat of retaliation in order to keep hidden their dirty linen.
¶ 33 Hiding health-care dirty linen is widespread. See Barry Meier, Doctors Who Don't Speak Out, N.Y. TIMES, Feb. 15, 2013, at SR5 ("`The standard in the medical community is not to report[.]'") (quoting, according to the article, "Dr. Robert Hauser, a cardiologist who, along with a colleague, warned other doctors in 2005 about a defective heart implant").
Daniel R. Levinson, Adverse Events In Hospitals: Methods For Identifying Events 15 (Department of Health and Human Services, March, 2010) (parenthetical in original).
¶ 34 The Health Care Quality Improvement Act of 1986, 42 U.S.C. §§ 11101-11152, established the National Practitioner Data Bank to receive reports on matters affecting public-health services. See 42 U.S.C. §§ 11131-11134; 42 U.S.C. § 1396r-2; 45 C.F.R. Part 60. A 2009 study concluded that reports to the Data Bank were woefully inadequate. Alan Levine, Sidney Wolfe, M.D., Hospitals Drop the Ball on Physician Oversight, PUBLIC CITIZEN (May 27, 2009).
Hospitals Drop the Ball on Physician Oversight 22 (emphasis added). Indeed, the Levine-Wolfe study reports that from September 1, 1990 through December 31, 2007, 55.2% of registered Wisconsin hospitals never reported adverse health-care events to the National Practitioner Data Bank. Id., at 38. Nationwide, 48.9% of hospitals never reported. Ibid. And the problem is endemic. See James Dao, A Pattern of Problems at Hospital for Veterans, N.Y. TIMES, March 19, 2013, at A12 (Whistleblowers reveal significant problems at Department of Veterans Affairs medical center.)
¶ 35 The consequences can be tragic when the public cannot see the dirty linen because potential whistleblowers are deterred by fears of possible retaliation. As representatives of thirty-three public interest organizations wrote to Congress in July of 2009 in support of tough whistleblower protection: "Protecting whistleblowers in the medical industry has more life and death consequences than in any other industry. It is not realistic to expect that doctors, nurses and other providers will defend medical consumers when needed, however, if they cannot defend themselves against retaliation."
¶ 36 Critically, the predominant purpose of WIS. STAT. § 146.997 is thus not to advance
¶ 37 WISCONSIN STAT. § 146.997 commands that health-care whistleblowers shall not be gagged by the fear of retaliation. The agency, the circuit court, and the Majority ignore this command by holding that the protections the legislature crafted in § 146.997 apply only if the person working for the health-care provider or facility is paid money or other "tangible benefit" for that work. Majority, ¶¶ 28 & 30. I respectfully disagree that the legislature could have so intended.
¶ 38 First, although the Record here is silent as to how many interns work for health-care providers or facilities in either Wisconsin or the country without being paid money or some other "tangible benefit," unpaid internships are a recognized part of contemporary employment. Thus, the estimate in late 2011 was that: "More than 1 million Americans a year work as interns. About half of them are unpaid."
¶ 39 Second, requiring paid work (either in money or some other "tangible benefit") as a prerequisite to the employment protections afforded the public by WIS. STAT. § 146.997 ignores that payment is not a sine qua non condition of the "employment" relationship. RESTATEMENT (THIRD) OF AGENCY, § 7.07 notes:
(Emphases added.) The latter point is emphasized by comment f to § 7.07: "The fact that an agent performs work gratuitously
¶ 40 No one disputes that the Medical College "control[ed] or ha[d] the right to control the manner and means" of the work Masri did for it. Further, no one disputes that although the Medical College did not pay Masri dollars or some other "tangible benefit," she nevertheless, received significant intangible benefits as a result of her work for it: education, experience, and opportunities for professional development. Hyland v. Wonder, 972 F.2d 1129, 1132 (9th Cir.1992), recognized, in the First-Amendment retaliation area, that the non-dollar benefits accruing to an unpaid volunteer may not be taken away because the unpaid volunteer blew the whistle on governmental malfeasance: "Retaliatory actions with less momentous consequences, such as loss of a volunteer position, are equally egregious in the eyes of the Constitution because a person is being punished for engaging in protected speech." Id. at 1135. The rule should not be different under WIS. STAT. § 146.997, which forbids retaliation against healthcare whistleblowers.
¶ 41 Significantly, as already noted, WIS. STAT. § 146.997 is designed to protect patients (the scheme is thus not, as in the administrative decisions upon which the agency relied, solely to protect workers — see Majority, ¶ 28). Thus, it makes little difference that the Medical College did not pay Masri tangible compensation so that she may not have been the College's "employee... in the strict sense," see Heims, 5 Wis.2d at 468, 93 N.W.2d at 458, because as someone working in the facility under the facility's directions and control, and as someone privy to information encompassed by § 146.997's non-retaliation provisions, the Medical College was barred from retaliating against her for having done what § 146.997 encourages.
¶ 42 The Majority relies on the deference it says we owe the agency. We must, however, obey the manifest purpose of the legislative enactment: "As always, a court should avoid adopting an interpretation that is contrary to a `textually or contextually manifest statutory purpose.' `[W]e will liberally construe remedial statutes to suppress the mischief and advance the remedy that the legislature intended to afford.'" MBS-Certified Public Accountants, LLC v. Wisconsin Bell, Inc., 2012 WI 15, ¶ 43, 338 Wis.2d 647, 666, 809 N.W.2d 857, 866 (quoted sources omitted). This rule also governs whether we must obey an agency's determination by giving it some degree of deference.
¶ 43 The Majority gives the agency's interpretation "due weight." But we do not accede to an agency's interpretation of a statute under the "due weight" standard if that interpretation defeats the legislative purpose, as it does here. See M.M. Schranz Roofing, Inc. v. First Choice Temporary, 2012 WI App 9, ¶ 7, 338 Wis.2d 420, 427, 809 N.W.2d 880, 883 (Ct. App.2011) ("In affording `due weight' deference to the agency's interpretation, we will not overturn a reasonable agency decision that comports with the purpose of the statute unless we determine that there is a more reasonable interpretation available.") (emphasis added) (one set of quotation marks and quoted source omitted). Further,
¶ 44 The legislature enacted WIS. STAT. § 146.997 to protect patients by immunizing health-care whistleblowers from retaliation. That those ensconced behind what the legislature recognized as the often all-too high wall of health-care silence may see whistleblowing as, to use Orwell's word, "revolutionary," or even treasonous, underscores why the statute is needed, whether the health-care workers who have knowledge of the things encompassed by § 146.997(a) receive tangible compensation or do not receive tangible compensation. Sadly, the agency's crabbed reading of the statute exiles health-care interns beyond the pale of the statute's protection even though they may have critical information to safeguard patients. This undercuts and thwarts § 146.997's manifest legislative purpose. Accordingly, I respectfully dissent from the Majority's decision to affirm.