An unpaid intern is not a protected “employee” for purposes of the Wisconsin healthcare worker whistleblower statute, the Wisconsin Supreme Court has ruled.

In a five-to-two decision issued on July 22, the court rejected a claim by Asma Masri, a psychology doctoral student at the University of Wisconsin-Milwaukee. Masri worked as an intern at the Medical College of Wisconsin (MCW), assigned to the transplant unit.

Masri asserted that she met with an MCW administrator to report “clinical/ethical concerns”. She alleged that after she reported a few complaints, the administrator ended the meeting so that he could discuss the complaints with Masri’s supervisor. Shortly thereafter, the supervisor ended Masri’s internship—Masri contended because of her complaints, but MCW said because of performance concerns.

After termination of her internship, Masri filed a retaliation complaint with the Wisconsin Equal Rights Division (ERD) against MCW and the hospital. The ERD “matched” the complaint with section 146.997 of the Wisconsin Statutes. Entitled “Health care worker protection”, this section of the statutes prohibits retaliatory actions against health care workers who assert violations of laws or clinical standards.

Section 146.997 protects “[a]ny employee of a health care facility or of a health care provider…” However, the statute does not define “employee”. The Wisconsin Labor and Industrial Review Commission (LIRC) (the agency responsible for review of Masri’s complaint), ruled that as an unpaid intern, she was not an “employee” within the meaning of the statute. The Wisconsin Court of Appeals agreed. Masri asked the Supreme Court to review the case.

In its ruling, the Supreme Court gave “due weight deference” to the LIRC decision. The court stated that the LIRC interpretation of “employee” is reasonable, and there is no more reasonable determination. The court said that “[b]ecause Masri received no compensation or tangible benefits, she was not an employee of MCW and was therefore not entitled to anti-retaliation protection under § 146.997(3)(a).” The court agreed with LIRC that a security badge, office space, parking, support staff, and networking opportunities (all of which Masri asserted were tangible benefits entitling her to employee status) were not enough to qualify her as an employee under the statute. The court did say that certain tangible benefits (other than or in addition to compensation) not present in this case might qualify a person as an employee under the whistleblower statute.

The dissenting judges concluded that the legislative purpose of the statute would be better served by protecting unpaid interns like Masri.

The possibility of encountering a whistleblower is, of course, a fact of life in health care. Even with this decision, it is crucial that all whistleblower complaints are appropriately investigated and satisfactorily resolved, regardless of the “employee” status of the whistleblower.