Wisconsin’s deer hunting season is upon us

Arnstein & Lehr attorney Jesse R. Dill

Jesse R. Dill

Citizens of Wisconsin and many surrounding areas are very familiar with our state’s long tradition of deer hunting in November. Here, it is often a rite of passage for parents to take their kids out for a few days off in the woods. In the weeks leading up to hunting season, many also spend their every waking moment away from work preparing stands and land for the week of gun season. This year, Wisconsin’s gun season is from November 17, 2012 through November 25, 2012.

Employers with a workforce population that participates in deer hunting season know this can be a complicated time of year. Below are a few thoughts to keep in mind as you deal with the various issues that might come up this time of year.

Guns at work. Last year, Wisconsin passed its concealed carry law that took effect November 1, 2011. The law’s provisions raised many questions for employers who wanted to keep guns and other weapons away from work. These employers often knew many of their employees wanted to be able to bring their rifle in their vehicle to head off to the hunting stand at the end of week. The important thing to keep in mind is that the concealed carry law applies to a “weapon,” which is defined as a handgun, an electric weapon, a knife other than a switchblade knife, or a billy club. Most hunters are probably not relying on those for hunting purposes. As the Wisconsin DNR explains, recent legislation also relaxed transportation restrictions on long guns, including rifles. However, the employer restrictions that prevent attempts to limit an employee’s ability to store “weapons” are only found in the concealed carry law and do not apply to long guns. Therefore, employers are in a better position to regulate traditional hunting firearms on their property. Many employers with a sizable portion of the workforce that participates in hunting may want to consider a compromise position to appease those employees. If you have any questions about the restrictions you can and cannot put into place, you should contact a lawyer for a better understanding of the law.

FMLA abuse. Most employers are generally aware that under the Family and Medical Leave Act and the Wisconsin Family and Medical Leave Act, employees of qualifying employers are granted rights to certain amounts of unpaid leave time. This often includes the right to use that leave time intermittently rather than in one large block. These rights can be susceptible to abuse when an employee may want to use his or her own alleged serious health condition as an excuse to receive extra time off for recreational activities, such as hunting. If an employer suspects such abuse, they can investigate to determine if the request for leave is legitimate. However, before taking an action based on an investigation, an employer should consider whether hunting fits within the work restrictions.

This concern was recently highlighted by a Western District of Michigan decision involving an employer who terminated an employee who took FMLA leave and the employer’s investigator found the employee went hunting while on leave. Turner v. Parker-Hannifin Corporation, 11CV300 (W.D. Mich. April 12, 2012). In denying the defendant’s motion for summary judgment, the court explained, “The determination of whether it was reasonable for the Company to simply equate hunting with the ability to work without considering what was involved in either activity is a question of fact that must be left for a jury.” Employers in Wisconsin, Illinois, and Indiana should note that this decision followed the Sixth Circuit’s “modified honest belief” rule for employee investigations. That standard requires that where an employer relies on an investigation into employee conduct as the basis for an adverse employment decision, the conclusions from the investigation must be reasonable. This differs from the Seventh Circuit standard which allows an employer to rely on its honest belief following an employee investigation, without questioning whether any conclusion was reasonable.

State concerns. As a final point, employers should consider any state-specific concerns that may exist. An example in Wisconsin falls under the Wisconsin Fair Employment Act. Among its provisions, the WFEA protects employees from discrimination based on their use or nonuse of lawful products off the employer’s premises during nonworking hours. Thus, an employer could not terminate an employee solely because the employee lawfully participated in deer hunting season and the employer does not believe shooting a gun at animals is the right thing to do. That is not to say there may not be other reasons for the employer to take an adverse employment action. However, the employer is prohibited by law from acting on the basis of the employee lawfully using a hunting rifle.

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