A Middle-Aged Man Dressed In A Hoodie, With His Hands Clasped, Sits In A Chair Facing A Therapist In A Brightly Lit Office

Aug. 2, 2023 – An invasion of privacy claim brought by a union member against his employer in state court is pre-empted by federal law, the Wisconsin Court of Appeals has ruled.

In Toboyek v. Wisconsin Public Service Corporation, 2022AP1536 (July 18, 2023), the Court of Appeals District 1 also held that the union member’s claim for negligent hiring and training was subject to the Wisconsin Workers’ Compensation Act (WCA).

Mask Non-compliance

Wisconsin Public Service Corporation (WPS) hired Brian Toboyek in 2006. During his time at WPS, Toboyek was a member of the International Union of Operating Engineers, Local 420.

Jeff M. Brown
Jeff M. Brown , Willamette Univ. School of Law 1997, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by
email or by phone at (608) 250-6126.

During the pandemic, WPS required workers to wear a mask or another face covering while working inside the company’s facilities. But Toboyek said he often observed some of his co-workers working inside the Weston Power Plant without wearing face coverings.

Toboyek told his manager and the company’s vice-president that some of his co-workers weren’t complying with the mask policy. Toboyek claimed the company did nothing to enforce the mask policy at the power plant.

As a result, Toboyek claimed that he was in “constant fear” that he would contract COVID-19 and suffered both physical and mental harm.

Personal Info on Company Intranet

In December 2021, Toboyek’s doctor told him to take medical leave from work, due to his physical and mental ailments. Toboyek sought health counseling from Graves, the company’s designated medical professional. 

During the meeting with Graves, Toboyek divulged personal health information. Toboyek claims that he didn’t authorize Graves to share that information.

After the meeting with Graves, several co-workers told Toboyek that his health information had been circulated on paper and uploaded on the company’s intranet, where the company’s 8,000 employees could see it.

The intranet posting described Toboyek’s session with Graves in detail – in particular, his expressed concern about non-compliance with the mask policy and his mental health symptoms.

In February 2022, Toboyek went on medical leave, because of anxiety and high blood pressure.

Lawsuit Quickly Follows Medical Leave

That same month, Toboyek filed a lawsuit against WPS and Graves in Milwaukee County, alleging invasion of privacy and negligent hiring and supervision. He sought damages for emotional pain, suffering, humiliation, embarrassment, and mental anguish.

WPS and Graves moved to dismiss Toboyek’s lawsuit.

WPS and Graves argued that the negligent hiring and supervision claim was barred by the WCA’s exclusive remedy provision. They argued that the invasion of privacy claim was barred by the federal Labor Management Relations Act (LMRA).

The circuit court granted the defendants’ motion to dismiss. Toboyek appealed.

WCA Should Be Liberally Construed

Writing for a three-judge panel, Chief Judge William Brash began his opinion by pointing out that under the WCA, when an employer is liable to a worker, the compensation specified in the WCA is the worker’s only remedy.

The WCA’s exclusive remedy provision, Brash wrote, was the result of a legislative compromise under which workers gave up the right to sue employers in exchange for receiving compensation for workplace injuries regardless of fault.

As a result, Judge Brash explained, the Wisconsin Supreme Court has held that provisions of the WCA should be liberally construed.

WCA Bars Negligence Claim

Brash pointed out that the WCA defines “injury” as “mental or physical harm to an employee caused by accident or disease[.]”

And, he noted, the U.S. Court of Appeals for the Seventh Circuit, interpreting supreme court case law, held that a negligent supervision and retention claim by a worker against a co-worker was subject to the WCA’s exclusive remedy provision, section 102.03(2)

Toboyek argued that his negligent supervision and training claim should not be barred by the WCA’s exclusive remedy provision, because the harm on which that claim was based was the same harm on which the invasion of privacy claim was based. The invasion of privacy claim, he argued, was not subject to the exclusive remedy provision.

But Judge Brash disagreed.

“The facts alleged by Toboyek in his compliant demonstrate that the conditions for employer liability under section 102.03 have been met, and therefore the exclusive remedy provision precludes Toboyek from maintaining his negligent training and supervision claim,” Brash wrote.

Federal Law Preempts Privacy Claim

Regarding Toboyek’s invasion of privacy claim, Judge Brash explained that the LMRA mandates that a lawsuit related to a collective bargaining agreement between an employer and a union be brought in federal court.

He also noted that the U.S. Supreme Court has held that when resolving a state-law claim depends substantially on the analysis of a labor contract, the claim must be treated as a claim made under the LMRA or dismissed because of federal preemption.

Judge Brash reasoned that Matter of Amoco Petroleum Additives Co., 964 F.2d 706 (7th Cir. 1992), and Moder v. L.E. Meyers Co., 589 F. Supp. 2d. 1043 (W.D. Wis 2008), were on point.

In Amoco, Brash noted, the federal court held that a state court could not award damages on an invasion of privacy claim relating to placing surveillance cameras outside a locker room without interpreting a management-rights clause in a collective bargaining agreement, and therefore the claim was subject to the LMRA and must be heard in federal court.

In Moder, Judge Brash observed, the federal court applied Amoco’s reasoning to conclude that a worker’s state invasion of privacy claim related to alleged false statements made about his firing was preempted by the LMRA.

The same reasoning applied to Toboyek’s case, Judge Brash concluded.

He noted that the collective bargaining agreement between WPS and Toboyek’s union contained a clause that granted WPS “the right to exercise full control and discipline of its employees in the interest of good service and the proper conduct of its business, the management of its facilities, equipment and operations and the direction of the working force[.]”

A state could not award Toboyek damages for his invasion of privacy claim without interpreting that clause, Brash concluded, and consequently the LMRA pre-empted the claim.