                                                                    2014 WI 81

                  SUPREME COURT            OF   WISCONSIN
CASE NO.:               2012AP1047
COMPLETE TITLE:         Asma Masri,
                                   Petitioner-Appellant-Petitioner,
                             v.
                        State of Wisconsin Labor and Industry Review
                        Commission,
                                   Respondent-Respondent,
                        Medical College of Wisconsin, Inc.,
                                   Interested Person-Respondent.




                          REVIEW OF A DECISION OF THE COURT OF APPEALS
                                  348 Wis. 2d 1, 832 N.W.2d 139
                                   (Ct. App. 2013 – Published)
                                      PDC No: 2013 WI App 62

OPINION FILED:          July 22, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          March 13, 2014

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Milwaukee
   JUDGE:               William S. Pocan

JUSTICES:
   CONCURRED:
   DISSENTED:           BRADLEY, J., ABRAHAMSON, C.J., dissent. (Opinion
                        filed.)
  NOT PARTICIPATING:

ATTORNEYS:
       For the petitioner-appellant-petitioner, there were briefs
by Lawrence G. Albrecht, Aaron P. McCann, Katie S. Lonze and
First, Albrecht & Blondis, S.C., Milwaukee, and oral argument by
Lawrence G. Albrecht.


       For      the    respondent-respondent,   the   cause   was   argued   by
Steven C. Kilpatrick, assistant attorney general, with whom on
the brief was J.B. Van Hollen, attorney general.
    For the interested person-respondent, there was a brief by
Amy Schmidt Jones, Kirk A. Pelikan, and Michael Best & Friedrich
LLP, Milwaukee, and oral argument by Amy Schmidt Jones.


    An amicus curiae brief was filed by Timothy W. Feeley, Sara
J. MacCarthy, and Hall, Render, Killian, Heath & Lyman, P.C.,
Milwaukee, on behalf of the Wisconsin Hospital Association.




                                2
                                                                           2014 WI 81
                                                                      NOTICE
                                                     This opinion is subject to further
                                                     editing and modification.   The final
                                                     version will appear in the bound
                                                     volume of the official reports.
No.   2012AP1047
(L.C. No.   2011CV15410)

STATE OF WISCONSIN                               :              IN SUPREME COURT

Asma Masri,

            Petitioner-Appellant-Petitioner,

      v.

State of Wisconsin Labor and Industry Review
                                                                         FILED
Commission,
                                                                      JUL 22, 2014
            Respondent-Respondent,
                                                                      Diane M. Fremgen
                                                                   Clerk of Supreme Court
Medical College of Wisconsin, Inc.,

            Interested Person-Respondent.




      REVIEW of a decision of the Court of Appeals.                     Affirmed.



      ¶1    DAVID     T.   PROSSER,   J.         This      is     a    review     of    a

published decision of the court of appeals1 affirming a circuit

court order that affirmed a Labor and Industry Review Commission

(LIRC) determination.



      1
       Masri     v.   LIRC,   2013    WI   App       62,    348       Wis. 2d 1,       832
N.W.2d 139.
                                                                      No.       2012AP1047



       ¶2     The     case      requires        statutory      interpretation           to

determine      whether       uncompensated      interns      are     entitled    to    the

anti-retaliation protections of Wis. Stat. § 146.997 (2007-08)2——

Wisconsin's health care worker protection statute.                          Because this

case       involves   an     administrative       agency's         interpretation       of

§ 146.997, we must also determine the level of deference, if

any, to grant LIRC, which, in conjunction with the Department of

Workforce Development (DWD), is charged with administering the

statute.

       ¶3     Asma    Masri     (Masri)     was   a   doctoral       student     at    the

University of Wisconsin-Milwaukee (UWM) when she began work as a

"Psychologist Intern" in the Division of Transplant Surgery at

the Medical College of Wisconsin (MCW).                      MCW assigned Masri to

the transplant surgery unit at Froedtert Hospital.                            MCW ended

Masri's internship after she met with an MCW administrator to

report      "clinical/ethical"       concerns.         Masri       contends     that   the

termination      of    the     internship    violated      Wis.      Stat.    § 146.997,

which      provides     that    certain   health      care    employers       and   their
employees may         not take "disciplinary action against . . . any

person" who in good faith reports violations of state or federal

laws, regulations, or standards.                  Wis. Stat. § 146.997(3)(a).

Wisconsin       Stat.      § 146.997(1)(b)        adopts       the     definition       of

"disciplinary action" given in Wis. Stat. § 230.80(2), namely,

"any action taken with respect to an employee."                              Wis. Stat.


       2
       All subsequent references to the Wisconsin Statutes are to
the 2007-08 version unless otherwise indicated.

                                            2
                                                                    No.         2012AP1047



§ 230.80(2) (emphasis added).                   Thus, the pivotal question in

this case is whether Masri, as an unpaid intern, is an employee

and therefore protected by Wis. Stat. § 146.997(3)(a).

    ¶4      LIRC   determined        that       § 146.997    applies      only    to   an

employee,    and   that    as   an    unpaid       intern,     Masri      was    not   an

employee.    Granting due weight deference to LIRC's decision, the

circuit court and the court of appeals both affirmed.

    ¶5      We conclude the following.

    ¶6      First, we accord LIRC's decision due weight deference

because     LIRC   has    experience            interpreting    the       meaning      of

"employee"     under      various      statutes        and     is      charged       with

administering Wis. Stat. § 146.997.                 The fact that LIRC had not

previously considered the specific question whether an unpaid

intern is an employee is not enough to abate the due weight

deference owed to the agency.           See Jamerson v. Dep't of Children

& Families, 2013 WI 7, ¶47, 345 Wis. 2d 205, 824 N.W.2d 822.

    ¶7      Second, we agree with LIRC that Wis. Stat. § 146.997

applies only to employees, a category that does not include
interns who do not receive compensation or tangible benefits.

See Masri v. Med. Coll. of Wis., ERD No. CR200902766 (LIRC, Aug.

31, 2011).     As Wis. Stat. § 146.997 does not define "employee,"




                                            3
                                                                        No.        2012AP1047



we must give the term its ordinary meaning.3                     State ex rel. Kalal

v.     Circuit      Court     for   Dane       Cnty.,     2004    WI        58,    ¶45,     271

Wis. 2d 633,        681     N.W.2d 110.         After    consulting         the    language,

context, and structure of the statute, we conclude that LIRC's

interpretation is reasonable, and there is no more reasonable

interpretation.              Because   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).

                 I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

       ¶8        Masri was a doctoral candidate at UWM when she began

working as an unpaid "Psychologist Intern" in MCW's Division of

Transplant Surgery on August 27, 2008.                     Masri worked 40 hours a

week       and    was   introduced       as    a    "Psychologist       Intern."            She

received an "all-access" badge for MCW and Froedtert Memorial

Lutheran Hospital (Froedtert)4 and had complete access to patient

       3
       Wisconsin Stat. § 230.80, which lends its definition of
"disciplinary action" to Wis. Stat. § 146.997, does define the
term "employee."    Wis. Stat. § 230.80(3).    Under Wis. Stat.
§ 230.80(3), "'Employee' means any person employed by any
governmental unit . . . " with some exceptions.   The definition
in § 230.80(3) is not helpful in the present case because it
fails to define "employed," which it uses in the definition of
"employee."    Thus, even if we were to apply the § 230.80(3)
definition of "employee" to Masri, we would still have to define
"employed" according to its ordinary meaning.
       4
       According to Froedtert's letter to the Equal Rights
Supervisor, "Froedtert Hospital is a teaching and research
hospital providing tertiary-level health care services on both
an inpatient and outpatient basis.   The physicians who provide
patient care at Froedtert Hospital are employees of the Medical
College of Wisconsin."

                                               4
                                                                          No.        2012AP1047



records.          On November 19, 2008, Masri met with MCW Department of

Surgery           Administrator        Jon         Mayer        (Mayer)         to     report

"clinical/ethical            concerns."         Masri      alleges     that      after     she

reported a few complaints, Mayer ended the meeting so that he

could discuss the report with Masri's supervisor, Dr. Rebecca

Anderson          (Dr.     Anderson),        MCW's      Director          of     Transplant

Psychological Services.5

       ¶9         Effective    November        24,    2008,      Dr.   Anderson         ended

Masri's internship.            On August 6, 2009, Masri filed a standard-

form retaliation complaint against MCW and Froedtert with the

Equal Rights Division (ERD) of DWD.                        ERD matched the complaint

with       Wis.    Stat.   § 146.997      as    the    anti-retaliation          law     under

which Masri might be protected.

       ¶10        On August 19, 2009, MCW responded to the complaint and

argued       that    Masri    was   not      covered       by   Wis.   Stat.         § 146.997

because she was not an employee.                      MCW noted that Masri was a

student at UWM and was allowed to gain clinical experience at

MCW only as part of UWM's educational program.                             Moreover, MCW

       5
        When she talked with Mayer, Masri alleged that Dr.
Anderson's assistant told Masri to work as a social worker
(rather than a "Psychologist Intern") while the social worker in
the transplant unit was on vacation.

     She alleged Dr. Anderson's assistant told her to prepare
two separate patient evaluations, which Masri refused to do.

     Finally, Masri alleged that Dr. Anderson told her to create
a "borderline personality" diagnosis for a patient who had
received a possibly negligent breast cancer operation in order
to discredit the patient if she filed a malpractice suit. Masri
refused. Masri claims that Mayer cut her off but that she would
have continued with more complaints.

                                               5
                                                                                No.       2012AP1047



claimed that it terminated Masri's internship due to concerns

with       her    performance          and    that       these     alleged      concerns        began

before Masri made her complaints to Mayer.6                                 MCW attached its

policy       on    whistleblowing             to     its       letter     responding       to    the

complaint.          The MCW policy stated, "Wisconsin law (Wisconsin

Statue [sic] 146.977) prohibits retaliatory action by a health

provider          against     an       employee          who      in    good     faith     reports

[violations of state or federal law or standards or violations

of ethical standards]."                 (Emphasis added.)                MCW also attached to

its    response          letter    a    series       of     Dr.    Anderson's         notes     about

Masri's          allegedly        unsatisfactory               performance       beginning         on

October 28, 2008.

       ¶11       On September 11, 2009, in a letter to Equal Rights

Supervisor James Drinan, Masri laid out the facts underlying her

complaint.          Masri claimed that Dr. Anderson applied for grants

to obtain funding for Masri's position and that Dr. Anderson

promised her health insurance and parking.                                     Masri eventually

received          free     parking       at        MCW     but     did     not        receive     any
compensation or health insurance.                          Masri also contended that Dr.

       6
       MCW attached a document drafted by Dr. Anderson to a
letter it sent to Equal Rights Supervisor James Drinan.      Dr.
Anderson's document is not dated, but it lists a series of
alleged issues with Masri's performance beginning on October 28,
2008.    In her response to MCW's letter to the Equal Rights
Supervisor, Masri asked, "When, exactly, was this document
created, and where is the full chain of email and correspondence
relevant to this document's creation?"      The record does not
indicate when Dr. Anderson drafted the list of alleged issues
with Masri's performance.    In any event, because we conclude
that Masri is not protected under Wis. Stat. § 146.997, the
alleged issues with her performance are not at issue.

                                                    6
                                                                  No.      2012AP1047



Anderson   was    supposed   to    prepare    an    "Affiliation         Agreement"

contract that would be executed between MCW and UWM,7 but Dr.

Anderson did not prepare that contract.

    ¶12    On September 15, 2009, an Equal Rights Officer issued

a   Preliminary        Determination         and          Order         (Preliminary

Determination)      that     dismissed       Masri's        complaint.               The

Preliminary      Determination     concluded       that    ERD    did     not    have

jurisdiction under Wis. Stat. § 146.997 because Masri was an

unpaid intern, and therefore she was not an employee of either

MCW or Froedtert.

    ¶13    Masri    appealed      the   Preliminary       Determination         as   it

related to MCW on September 23, 2009.8              On appeal, Masri argued
    7
       UWM has a document called, "Internship in Counseling
Psychology[,] Department of Educational Psychology at The
University of Wisconsin-Milwaukee: A Handbook for Faculty,
Supervisors, and Students" (Internship Handbook).       Under a
section titled "Personnel Arrangements," the Internship Handbook
states:

    The intern should be employed under a contract
    comparable   to   the  psychological   services   staff
    contracts within the internship setting.        Salary,
    fringe benefits, and travel allowances (if applicable)
    should be specified in the contract.     Office space,
    equipment, and secretarial services should be provided
    by the internship setting as well as some released
    time for professional development.

     There is also a section in the Internship Handbook titled
"Credits/Intern Status" that provides, "The student should have
a title such as 'intern,' 'resident,' or other similar
designation of trainee status.   Full-time Ph.D. interns do not
need to register for intern credits, though they need to
maintain dissertator status."
    8
       Masri did not appeal the Preliminary Determination as it
related to Froedtert.

                                        7
                                                                           No.       2012AP1047



that    the    investigator            failed       to    properly       investigate          the

complaint     and     that    the       investigator's           summary      dismissal        on

jurisdictional grounds was improper.                       She sent a letter dated

December 4, 2009, to the ERD Hearing & Mediation Section Chief

in which she argued that even if an "employee" must be someone

who receives compensation, that compensation may come in the

form of "tangible benefits."                    She argued that her all-access

badge, office space, support staff, and networking opportunities

constituted tangible benefits that made her an employee.                                      She

also    asserted      that     "Dr.      Anderson         had    promised        her     health

insurance, employee parking, and financial grants-in-aid."

       ¶14    On January 14, 2010, an administrative law judge (ALJ)

for    ERD    affirmed       the       Preliminary        Determination.               The    ALJ

determined that Wis. Stat. § 146.997 is limited to employees and

that Masri was not an employee because she received no financial

compensation.

       ¶15    Masri    filed       a    petition         for    review       with      LIRC    on

February 4, 2010.            On August 31, 2011, LIRC issued a decision
affirming     the     ALJ's    decision         and      adopting     his     findings        and

conclusion as its own.                 Masri v. Med. Coll. of Wis., ERD No.

CR200902766 (LIRC, Aug. 31, 2011).                       In its decision, LIRC cited

Ratsch v. Mem'l Med. Ctr., ERD No. CR200504192 (LIRC, Mar. 10,

2006), for the proposition that Wis. Stat. § 146.997 applies

exclusively to employees.                Masri v. Med. Coll. of Wis., ERD No.

CR200902766     (LIRC,       Aug.      31,   2011).            LIRC   said    that      it    had

previously looked at compensation to determine employment status
and noted that it is possible that a worker could be an employee
                                                8
                                                                        No.         2012AP1047



based on tangible benefits other than salary.                            Id.        However,

LIRC     rejected       Masri's    argument        that    she    received          tangible

benefits that would make her an employee.                       Id.     LIRC determined

that    Masri's     alleged       tangible       benefits——the         security       badge,

office space, parking, and support staff——all related to her

duties    and     had    no    independent       value.          Id.      In     addition,

networking       opportunities      were     not    tangible      and    could       not   be

assigned value.         Id.

       ¶16   LIRC       also   determined        that     the    fact     that       Masri's

supervisor told her she would have health insurance and had

applied for grants was not enough to confer employee status on

Masri    since    she    never    received       those    benefits.           Id.       Masri

suggested that the university's internship handbook evidenced an

employment relationship when it said that interns are supposed

to be paid and should receive a contract similar to the staff

with whom the intern worked.               Id.      LIRC rejected this argument

because Masri never entered into such a contract.                         Id.       Finally,

LIRC rejected Masri's public policy argument that she should be
protected from retaliation because she was in an ideal position

to report illegal or unethical conduct.                     Id.        LIRC declined to

extend coverage under Wis. Stat. § 146.997 where the legislature

did not, and it stated that "there is no authority to consider

an unpaid activity employment simply because of the importance

of the activity."          Id. (citing Langer v. City of Mequon, ERD No.

199904168 (ERD, Oct. 30, 2000), aff'd Langer v. City of Mequon,

ERD No. 199904168 (LIRC, Mar. 19, 2001)).


                                             9
                                                                     No.     2012AP1047



       ¶17     Masri filed a petition for review with the Milwaukee

County      Circuit     Court   on   September     27,     2011.9     Circuit     Judge

William       S.    Pocan     afforded    due     weight    deference       to   LIRC's

interpretation          of   Wis.    Stat.    § 146.997     and     determined     that

LIRC's interpretation was reasonable and that there was not a

more       reasonable    interpretation.          The    circuit    court    concluded

that § 146.997 applies only to employees, and Masri was not an

employee.          Consequently, the circuit court affirmed the LIRC

decision on April 2, 2012.             Masri appealed.

       ¶18     In a published decision, a divided court of appeals

affirmed the circuit court.              Masri v. LIRC, 2013 WI App 62, 348

Wis. 2d 1, 832 N.W.2d 139.               Also affording due weight deference

to LIRC's decision, the court of appeals agreed with LIRC that

§ 146.997 applies only to employees and that Masri was not an

employee.          Id., ¶8.     In a passionate, policy-oriented dissent,

Judge Ralph Adam Fine argued that the purpose of § 146.997 is to

protect patients and that even uncompensated interns should be

protected from retaliation when they report illegal or unethical


       9
       MCW joined            the action       in the circuit court as an
interested person            pursuant to      Wis. Stat. § 227.53(2), which
reads in part:

            Every person served with the petition for review
       as provided in this section and who desires to
       participate in the proceedings for review thereby
       instituted shall serve upon the petitioner, within 20
       days after service of the petition upon such person, a
       notice of appearance clearly stating the person's
       position with reference to each material allegation in
       the petition and to the affirmance, vacation or
       modification of the order or decision under review.

                                             10
                                                               No.      2012AP1047



conduct contemplated by            § 146.997.     See   id., ¶44 (Fine, J.,

dissenting).

     ¶19     Masri      petitioned   this    court    for   review,    which     we

granted on November 13, 2013.

                            II. STANDARD OF REVIEW

     ¶20     When there is an appeal from a LIRC determination, we

review LIRC's decision rather than the decision of the circuit

court.     See Beecher v. LIRC, 2004 WI 88, ¶22, 273 Wis. 2d 136,

682 N.W.2d 29.       Although statutory interpretation is a question

of law that this court generally reviews de novo, we may give

some deference to LIRC's decision.              See UFE Inc. v. LIRC, 201

Wis. 2d 274, 284, 548 N.W.2d 57 (1996).               We generally assign one

of three levels of deference to agency interpretations: great

weight deference, due weight deference, or de novo review.                     Keup

v. DHFS, 2004 WI 16, ¶12, 269 Wis. 2d 59, 675 N.W.2d 755.                        The

parties in this case dispute the appropriate level of deference.

As will be discussed below, we accord due weight deference to

LIRC's decision.10
                                  III. DISCUSSION

     ¶21     DWD   is    the   agency   charged      with   administering    Wis.

Stat.     § 146.997.       Wis.    Stat.    § 146.997(1)(a).         LIRC   is    an




     10
       "[D]ue weight shall be accorded the experience, technical
competence, and specialized knowledge of the agency involved, as
well as discretionary authority conferred upon it." Wis. Stat.
§ 227.57(10).

                                        11
                                                                      No.         2012AP1047



independent agency attached to DWD for administrative purposes,11

and if deference is appropriate, it goes to the decision of

LIRC.        Wis.        Stat.    § 15.225(1);         see   DILHR        v.    LIRC,     193

Wis. 2d 391, 397, 535 N.W.2d 6 (Ct. App. 1995) ("Where deference

to an agency decision is appropriate, we are to accord that

deference to LIRC, not to the department.") (citing DILHR v.

LIRC, 161 Wis. 2d 231, 245, 467 N.W.2d 545 (1991)).                               Thus, in

this     case,   we       review    LIRC's         interpretation     of       Wis.     Stat.

§ 146.997.          We    grant    one   of    three     levels      of    deference      to

administrative agency decisions: great weight, due weight, or de

novo review.        Keup, 269 Wis. 2d 59, ¶12.

       ¶22    An agency's decision receives great weight deference

when all the following criteria are met:

       (1) the agency [is] charged by the legislature with
       the duty of administering the statute; (2) . . . the
       interpretation of the agency is one of long-standing;
       (3) . . . the   agency   employed its  expertise   or
       specialized knowledge in forming the interpretation
       [at issue]; and (4) . . . the agency's interpretation
       will provide uniformity and consistency in the
       application of the statute.
UFE Inc., 201 Wis. 2d at 284 (quoting Harnischfeger Corp. v.

LIRC, 196 Wis. 2d 650, 660, 539 N.W.2d 98 (1995)).                             Under great

weight      deference,      the    reviewing        court    will    not       overturn   an

agency's reasonable interpretation that does not conflict with

the statute's clear meaning even if the court believes there is

a more reasonable interpretation.                   Id. at 287.

       11
       A     Brief     History     of    LIRC,   Wisconsin.gov,
http://dwd.wisconsin.gov/lirc/lrc_about.htm (last visited July
2, 2014).

                                              12
                                                                   No.        2012AP1047



      ¶23      Reviewing courts apply due weight deference to agency

interpretations "when the agency has some experience in an area,

but has not developed the expertise which necessarily places it

in    a     better      position     to    make     judgments      regarding        the

interpretation of the statute than a court."                    Id. at 286.         The

decision to apply due weight deference is based more on the fact

that the legislature charged the agency with administering the

statute than on the agency's specialized knowledge or expertise.

Id.       Under due weight deference, a reviewing court will not

interfere with the agency's reasonable interpretation if it fits

within     the      purpose   of    the   statute    unless   there      is    a   more

reasonable interpretation available.                Id. at 286-87.

      ¶24      Finally, reviewing courts use a de novo standard of

review "when the issue before the agency is clearly one of first

impression, or when an agency's position on an issue has been so

inconsistent so as to provide no real guidance."                         Id. at 285

(internal citations omitted).               However, a reviewing court may

grant due weight deference to an agency's decision on an issue
of first impression if the agency is charged with administering

the statute and has experience with issues that the                            statute

addresses, even if the agency has not interpreted the particular

statutory provision at issue.                See Jamerson, 345 Wis. 2d 205,

¶¶46-47.       When a court uses a de novo standard of review, it

gives     no     deference     to   the    agency's    decision.         Keup,      269

Wis. 2d 59, ¶16.

      ¶25      No    party    suggests    that    great   weight     deference       is
appropriate in this case.             Instead, the dispute is whether this
                                           13
                                                                                No.      2012AP1047



court should give LIRC's interpretation due weight deference or

no deference.

       ¶26     Masri        argues    that        this    court     should      interpret        Wis.

Stat.     § 146.997          de    novo       in       part     because        the     meaning    of

"employee"          in   § 146.997           is    a     matter     of    first        impression.

Although       Masri        is   correct      that       LIRC     has    not    yet     determined

whether      an      unpaid      intern      is     an    "employee"          under    Wis.    Stat.

§ 146.997, DWD and LIRC have experience interpreting statutes

relating to employment relationships.                           See, e.g., Langer v. City

of Mequon, ERD No. 199904168 (ERD, Oct. 30, 2000), aff'd Langer

v.    City     of    Mequon,      ERD      No.     199904168       (LIRC,       Mar.    19,    2001)

(stating that unpaid board of zoning appeals appointee was not

an employee under the Wisconsin Fair Employment Act); Ficken v.

Harmon Solutions Grp., ERD No. CR200003282 (LIRC, Feb. 7, 2003)

(stating that uncompensated volunteers are not "employees" and

therefore are not covered under the Wisconsin Fair Employment

Act).

       ¶27     Moreover, LIRC has considered the scope of "employee"
under § 146.997 and determined that the statutory reference to

any "person" did not extend protections to a former employee.

See Ratsch v. Mem'l Med. Cntr., ERD No. CR200504192 (LIRC, Mar.

10,    2006)        ("The    commission           concludes      that     § 146.997       pertains

only      to         employees          in        spite       of        the      reference        in

§ 146.997(3) . . . to                the     prohibition           against      a     health     care

facility or health care provider taking 'disciplinary action'

against 'any person' . . . .").                          Thus, even though LIRC has not
determined whether an unpaid intern is an "employee," it has
                                                   14
                                                                               No.         2012AP1047



experience         interpreting         the    scope        of    "employee"          in       several

contexts.      The fact that an agency is deciding an issue of first

impression does not necessarily preclude the agency's decision

from receiving due weight deference if the agency is charged

with     administering           the    statute        at    issue       and     has        relevant

experience.         See Jamerson, 345 Wis. 2d 205, ¶47.

       ¶28    Masri contends that LIRC's interpretation should not

receive due weight deference because it contravenes what she

argues       are        § 146.997's       two        related          purposes:            expanding

retaliation protection for health care workers and protecting

patients      and       public    health       by    encouraging         people           to   report

misconduct.             However,        the    decision          to    accord         due      weight

deference to an agency's interpretation depends on whether the

agency is charged with administering the statute and whether it

has    some    expertise          in     the    area        involved,         UFE         Inc.,      201

Wis. 2d at         286,    not    on    purposes       allegedly         contained             in   the

statute.      After the reviewing court determines that due weight

deference      is        appropriate,          the     court       upholds           an     agency's
reasonable         interpretation        if     it     comports        with     the        statute's

purpose and if no more reasonable interpretation is available.

Id. at 286-87.            Thus, consideration of whether LIRC's decision

comports with the statute's purpose comes after we determine the

appropriate level of deference.

       ¶29    In    sum,     because      the        legislature        charged           LIRC      with

administering           § 146.997       and     LIRC        has       experience           analyzing

employment relationships, we give due weight deference to LIRC's
decision.          We     turn    now    to    the     language        of     the     statute        to
                                                15
                                                                              No.        2012AP1047



determine      whether        LIRC's       interpretation              is     reasonable          and

whether there is a more reasonable interpretation.

                   A. Interpretation of Wis. Stat. § 146.997

       ¶30    We     begin    our        analysis      with       the       language       of    the

statute,      and     we     assume       that       the    legislature's            intent       is

expressed therein.            Kalal, 271 Wis. 2d 633, ¶¶44-45.                       "Statutory

language is given its common, ordinary, and accepted meaning,

except that technical or specially-defined words or phrases are

given their technical or special definitional meaning."                                          Id.,

¶45    (citations      omitted).           In    addition         to    the       language,      the

context      and    structure       of    the    statute      are       important,         and    we

interpret      the    statute       in     light      of    "surrounding            or   closely-

related      statutes."        Id.,       ¶46.       If    the    statute's          meaning       is

plain, the analysis ordinarily ends.                       Id., ¶45.

       ¶31    Because the subsections of Wis. Stat. § 146.997 are

closely related, we consider each subsection in turn.                                      As will

be     discussed,       the     statute          demonstrates           that        it     applies

exclusively to employees, and the ordinary meaning of "employee"
is someone who works for compensation or tangible benefits.

                     1. Language, Structure, and Context

       ¶32    Wisconsin       Stat.       § 146.997        lays    out      the     health       care

worker protection law.                Subsection (1) of the statute begins

with     several       definitions          but,       important            for     this        case,

§ 146.997(1) does not define "employee."                          Thus, as we interpret

the statute, we must attempt to give the word "employee" its

"common,       ordinary,        and       accepted         meaning."                Kalal,        271
Wis. 2d 633, ¶45 (citations omitted).
                                                16
                                                                   No.            2012AP1047



    ¶33     Subsection (2) describes who may report violations of

state and federal laws and regulations:

         Any employee of a health care facility or of a
    health care provider who is aware of any information,
    the disclosure of which is not expressly prohibited by
    any state law or rule or any federal law or
    regulation, that would lead a reasonable person to
    believe   any  of   the   following may   report   that
    information     [to     any     of   the     enumerated
    authorities] . . . .
Wis. Stat. § 146.997(2)(a) (emphasis added).                   The statute goes

on to list the kinds of violations that employees may report.

Subsection (2) also states that "[a]ny employee of a health care

facility or health care provider may initiate, participate in or

testify    in     any   action   or    proceeding       in   which       a    violation

specified       in   par.   (a)1.     or   2.    is    alleged."         Wis.        Stat.

§ 146.997(2)(c)         (emphasis      added).          Finally,     subsec.            (2)

provides, "Any employee of a health care facility or health care

provider    may      provide   any    information      relating    to        an    alleged

violation specified in par. (a)1. or 2. to any legislator or

legislative committee."              Wis. Stat.       § 146.997(2)(d) (emphasis

added).     Thus, the statute addresses only one category of people

bringing complaints: employees.

    ¶34     Subsection (3) contains the anti-retaliation provision

at issue in this case:

         No health care facility or health care provider
    and no employee of a health care facility or health
    care provider may take disciplinary action against, or
    threaten to take disciplinary action against, any
    person because the person reported in good faith any
    information   under  sub.   (2)(a),   in  good   faith
    initiated, participated in or testified in any action

                                           17
                                                                        No.      2012AP1047


      or proceeding under sub. (2)(c) or provided in good
      faith any information under sub. (2)(d) or because the
      health care facility, health care provider or employee
      believes that the person reported in good faith any
      information   under   sub.  (2)(a),   in  good   faith
      initiated, participated in or testified in any action
      or proceeding under sub. (2)(c) or provided in good
      faith any information under sub. (2)(d).
Wis. Stat. § 146.997(3)(a) (emphasis added).                           As used in the

above-quoted         provision,        "'[d]isciplinary         action'        means    any

action taken with respect to an employee which has the effect,

in    whole    or    in   part,       of     a     penalty . . . ."           Wis.     Stat.

§ 230.80(2) (emphasis added); see Wis. Stat. § 146.997(1)(b).12

The language of § 146.997(3)(a) makes it clear that the statute

applies only to employees because by definition, only employees

are    subject       to      "disciplinary          action."       In       addition     to

"disciplinary action," the term "good faith" is described in

terms of employees.           Wisconsin Stat. § 146.997(3)(c) states that

"an employee is not acting in good faith if the employee reports

any information under sub. (2)(a) that the employee knows or

should      know     is   false       or     misleading . . . ."              Wis.     Stat.

§ 146.997(3)(c) (emphasis added).

      ¶35     Subsection       (4)     discusses        the     enforcement       of    the

statute     and     states    in     part,    "Any    employee    of    a     health    care

facility      or     health        care      provider     who     is     subjected       to

disciplinary        action,     or    who     is    threatened    with        disciplinary

action, in violation of sub. (3) may file a complaint with the

      12
       The definition of "disciplinary action" comes from Wis.
Stat. § 230.80, which is part of the statutory chapter relating
to state employment relations.   See generally Wis. Stat. ch.
230.

                                              18
                                                                       No.         2012AP1047



department    under       s.    106.54(6)."         Wis.      Stat.    § 146.997(4)(a)

(emphasis    added).           Wisconsin    Stat.       § 106.54(6),         the    statute

under    which      § 146.997       complaints          are     filed,        refers      to

Wisconsin's Fair Employment Act when it states, "The division

shall receive complaints under s. 146.997(4)(a) of disciplinary

action taken in violation of s. 146.997(3) and shall process the

complaints    in    the    same    manner       that    employment         discrimination

complaints    are      processed         under     s.    111.39."            Wis.     Stat.

§ 106.54(6) (emphasis added).               Thus, only employees may seek a

remedy under § 146.997(4), and the available remedies are found

in Wis. Stat. § 111.39.

    ¶36     Wisconsin Stat.§ 111.39 is part of the Fair Employment

Act and provides that the hearing examiner may grant remedies to

"effectuate      the   purpose      of     this    subchapter."13             Wis.    Stat.

§ 111.39(4)(c).            The     remedies         mentioned         in     Wis.     Stat.

§ 111.39(4)(c)      include       back    pay     and   compensation,         neither     of




    13
       The purposes of the Fair Employment subchapter include
"protect[ing] by law the rights of all individuals to obtain
gainful employment and to enjoy privileges free from employment
discrimination" and "encourag[ing] and foster[ing] to the
fullest extent practicable the employment of all properly
qualified individuals." Wis. Stat. § 111.31(2)-(3).

                                           19
                                                                    No.      2012AP1047



which would be appropriate for an unpaid intern.14                          Aggrieved

employees     may    also    receive       attorney      fees   under       the    Fair

Employment Act.       See Watkins v. LIRC, 117 Wis. 2d 753, 765, 345

N.W.2d 482    (1984).        However,      in   light    of   the    lack    of   other

remedies, it is unlikely that an intern would bring a claim

solely to recover the fees of her attorney.                   Finally, under Wis.

Stat. § 146.997(5), civil penalties are available for violations

of § 146.997(3), but like attorney fees, a civil penalty would

not make an intern whole.                 The lack of remedies for unpaid

interns   demonstrates       that    it    is   highly    unlikely        that    unpaid

interns     fall     under     the        anti-retaliation          protections      of

§ 146.997(3).

    ¶37      Masri   argues     that       although      Wis.   Stat.       § 146.997

utilizes Wis. Stat. § 111.39, there is no express provision that

"employee" must mean the same thing under both statutes.                          Masri

    14
       Wisconsin Stat. § 111.39 also provides for reinstatement
as a potential remedy and states that "the examiner shall award
compensation in lieu of reinstatement if requested by all
parties and may award compensation in lieu of reinstatement if
requested by any party."      Wis. Stat. § 111.39(4)(c).    The
reinstatement provisions in § 111.39(4)(c) allow the parties to
agree to compensation, which would seemingly prevent discord in
the workplace in the event the parties could not work together
harmoniously.   Similarly, the examiner has some discretion to
order compensation instead of reinstatement if one party
requests it.    Id.    However, in the context of an intern,
compensation is not an option because of the formula in the
statute.    Id. (providing that "[c]ompensation in lieu of
reinstatement for a violation of s. 111.322(2m) may not be less
than 500 times nor more than 1,000 times the hourly wage of the
person discriminated against when the violation occurred.").
Thus, having reinstatement as the sole remedy would be
problematic in the event that the retaliatory termination
created ill will and a hostile work environment.

                                           20
                                                               No.       2012AP1047



may be correct that the definition of "employee" under the two

statutes is not required to be identical, but her argument is

unpersuasive       because   there    also    is     no   provision     expressly

requiring     different      treatment      for    interns.          Rather,   the

references to the Fair Employment Act and the pervasive use of

the term "employee" more strongly suggest that only employees

who receive compensation or tangible benefits fall under the

statutory protection against retaliation.15

       ¶38   Subsection (5) of Wis. Stat. § 146.997 provides for

civil penalties for "[a]ny health care facility or health care

provider and any employee of a health care facility or health

care    provider    who   takes   disciplinary       action   against,    or   who

threatens to take disciplinary action against, any person in

violation    of    sub.   (3)."      Wis.    Stat.    § 146.997(5)      (emphasis

added).      Again, the statute references "disciplinary action,"

which can be taken only against an employee.


       15
       Masri highlights the fact that Wis. Stat. § 146.997 does
not incorporate the Fair Employment Act's definition of
"employee." The Fair Employment Act's definition of "employee"
provides, "'Employee' does not include any individual employed
by his or her parents, spouse or child."             Wis. Stat.
§ 111.32(5). Thus, the definition in the Fair Employment Act is
unhelpful because it describes only situations in which there is
no employment relationship.   It does not define the parameters
of "employee."    Instead, LIRC has considered the scope of
"employee" under the Fair Employment Act and has determined that
only workers who receive compensation or tangible benefits are
employees.   See Langer v. City of Mequon, ERD No. 199904168
(LIRC, Mar. 19, 2001). Therefore, the fact that the legislature
did not reference the Fair Employment Act's definition of
"employee" in Wis. Stat. § 146.997 does not support Masri's
argument.

                                       21
                                                                            No.       2012AP1047



       ¶39   Subsection          (6),    the     final       subsection      of     § 146.997,

states in relevant part: "Each health care facility and health

care provider shall post, in one or more conspicuous places

where notices to employees are customarily posted, a notice in a

form approved by the department setting forth employees' rights

under this section."              Wis. Stat. § 146.997(6) (emphasis added).

Consistent     with       an    interpretation             that    § 146.997(3)       protects

only    employees,        employers          need    put     only    their      employees      on

notice of their rights.

       ¶40   Turning       from       Wis.    Stat.    § 146.997,         Masri     points     to

Wis. Stat. § 146.89——the volunteer health care program statute——

to argue that the legislature knew that some health care workers

are    not   paid    and       that    excluding       the    health      care     workers     in

§ 146.89 from retaliation protection contravenes the purposes of

both    § 146.89     and       § 146.997.            Section       146.89    provides        that

volunteers under that section are considered "state agents of

the department of health service" for the purposes of Wis. Stat.

§ 165.25(6) (representation by the attorney general), Wis. Stat.
§ 893.82(3)     (notice          of     claim       requirements),        and      Wis.     Stat.

§ 895.46      (indemnification               from     the      state).            Wis.      Stat.

§ 146.89(4).          Masri           suggests       that     volunteer           health     care

providers might decide not to volunteer or report illegal or

unethical conduct if they are not considered "employees" under

§ 146.997.          The        statutory       text     does        not   support        Masri's

argument,      and     § 146.89          does        not     classify        volunteers        as

employees.      Rather than supporting Masri's position, § 146.89
undermines     her        argument       because        it        demonstrates       that     the
                                                22
                                                                             No.           2012AP1047



legislature has made special provisions for volunteers in other

portions of Wis. Stat. ch. 146 but has not done so in § 146.997.

Thus,       § 146.89      suggests      that        the    legislature           distinguishes

between employees and volunteers.

          ¶41   Considering      Wis.     Stat.      § 146.997          as   a   whole,           every

subsection        of     the    statute      either        expressly         uses          the    term

"employee" or refers to "disciplinary action," which can apply

only       to   employees.         Moreover,           the       enforcement           subsection

requires the complaints to be processed in the same manner as

employment discrimination complaints.                           Taken together, the many

references        to     "employee"       and       the     references           to        the     Fair

Employment Act and its remedies strongly suggest that § 146.997

applies only to employees who receive compensation or tangible

benefits.              This    interpretation             is     further         supported           by

dictionary definitions of "employee."

                          2. The Definition of Employee

          ¶42   In the absence of a statutory definition, we may look

to    a    dictionary,        keeping   in     mind       that    our    goal         is    to     give
statutory language its common and ordinary meaning.                                        See Cnty.

of     Dane     v.     LIRC,    2009    WI      9,     ¶23,       315    Wis. 2d 293,               759

N.W.2d 571.          Indeed, in its decision in Langer, ERD noted that

unless it is specially defined, "employee" should be given its

ordinary        definition.          Langer       v.      City     of    Mequon,            ERD     No.

199904168 (ERD, Oct. 30, 2000) (using Random House Dictionary of

the       English      Language——Unabridged               (2d    ed.     1987)         to        define

"employee" as "a person working for another person or a business
firm for pay").
                                               23
                                                                      No.        2012AP1047



     ¶43    Masri       cites    to    an    online      dictionary       that    defines

employee as "one employed by another usually for wages or salary

and in a position below the executive level."                       Merriam-Webster,

http://www.merriam-webster.com/dictionary/employee (last visited

July 2, 2014) (emphasis added).                    She argues that because the

definition says an employee usually works for wages or salary,

unpaid interns fall within the definition.                          However, Masri's

definition could also mean that employees usually work for wages

or   salary       but     sometimes         work   for     some     other        type    of

compensation.            Thus,       her     definition     is      not     necessarily

inconsistent      with     LIRC's     decision,     which    acknowledged         that    a

worker could be an employee based on compensation or tangible

benefits other than wages or salary.                      Masri v. Med. Coll. of

Wis., ERD No. CR200902766 (LIRC, Aug. 31, 2011).

     ¶44    MCW         answered      Masri's       definition        with        several

definitions of its own, one of which defines an employee as "[a]

person who works for another in return for financial or other

compensation."          The American Heritage Dictionary of the English
Language,         http://ahdictionary.com/word/search.html?q=employee

(last    visited        July    2,    2014).        LIRC    also     offers       several

definitions, including one for "employ," which means "to provide

with a job that pays wages or a salary or with a means of

earning a living."             Webster's New World Dictionary 743 (3d ed.

1986).      All    the     definitions        mentioned     would     support      LIRC's

reading of "employee," which would require a worker to receive

at least some kind of tangible benefit if she is to be deemed an
employee.
                                             24
                                                                                    No.      2012AP1047



          ¶45   In addition to offering a dictionary definition, Masri

argued in her brief that "[t]he statute's interchangeable use of

the terms 'person' and 'employee' creates contextual openness

regarding         the       full    class       of        persons    whom       the       legislature

authorized           to    file     retaliation            complaints         as     employees       and

requires a more expansive understanding than LIRC's reflexive

and regressive financial compensation test."                                   Masri appears to

concede that a literal interpretation of "any person" does not

fit within the statute's context and suggests instead that "any

person"         refers       to    an     employee,          although         she     contends      the

definition of "employee" includes unpaid interns.                                     While context

is important for our statutory analysis, Kalal, 271 Wis. 2d 633,

¶46,       we   disagree          that    the      use      of   "any      person"          creates    a

contextual           openness      regarding          the    class       of    people        that   the

statute covers.

          ¶46   Given that only employees are subject to "disciplinary

action," it seems more likely that the legislature used the term

"person" to avoid confusion.                       If Wis. Stat. § 146.997(3)(a) used
only the term "employee," the statute would read, "[N]o employee

of    a    health         care    facility      or    health        care      provider       may    take

disciplinary           action       against . . . any               [employee]            because    the

[employee]           reported        in       good        faith . . . ."                  Wis.     Stat.

§ 146.997(3)(a) (emphasis added).                            Substituting "employee" for

"person" causes confusion because the first reference is to an

employee who retaliates whereas the second and third references

are       to    an    employee          who   is      subject       to     retaliation.              The
legislature wisely chose to refer to retaliating employees and
                                                     25
                                                                     No.       2012AP1047



employees subject to retaliation differently in order to allay

confusion.        Thus,   the     use    of    "person"     does    not    affect    the

definition of "employee."

       ¶47    Moreover, if the statute's reference to "any person"

meant that literally "any person" could avail himself, herself,

or itself16 of the protections in Wis. Stat. § 146.997, there

would be no justifiable stopping point.                    For example, patients,

who have no medical training to recognize ethical violations,

would arguably be protected by § 146.997 if indeed that statute

protected      "any   person"      from       retaliation.         Interpreting      the

statute to protect "any person" also is problematic insofar as

only employees may seek remedies under § 146.997(4)(a), and only

employees may bring a complaint under § 146.997(2)(a).                             Thus,

even if § 146.997(3) protected "any person" from retaliation,

only    "employees"       could       avail     themselves    of     the       statute's

remedies.      We refuse to interpret a statute to provide illusory

protections.      Instead, we consider the "any person" language in

the     context    of     the     statutory       scheme     and     conclude       that
§ 146.997(3) protects only employees.

       ¶48    If, for the sake of argument, we were to disregard

tenets of statutory interpretation and interpret "employee" to

include "any person" for the purposes of who may file complaints

under       § 146.997(2)(a)       and     who     may      seek     remedies       under

§ 146.997(4)(a),        DWD     and     LIRC     might    experience       a    drastic


       16
       "'Person' includes all partnerships, associations                             and
bodies politic or corporate." Wis. Stat. § 990.01(26).

                                          26
                                                                      No.         2012AP1047



increase in filings that would be handled more efficiently by

other entities.           For example, patients (and others) may file

complaints        with     the   Wisconsin         Department        of     Safety       and

Professional Services,17 an agency designed in part to ensure

that licensed professionals provide safe and competent care.                              In

addition, any person may file a complaint with the Wisconsin

Department of Health Services,18 if the person believes a health

care provider violated state or federal law.                          Thus, to allow

absolutely anybody to file complaints under Wis. Stat. § 146.997

would     not    only     contradict   the      statutory      language          but   also

jeopardize        the     structure    and      efficiency      of        administrative

agencies and regulatory boards in this State.

     ¶49        In addition to her statutory arguments, Masri attempts

to   analogize       to    the   "borrowed       employee"      test        in    workers'

compensation       cases    to   support     her    argument     that       she    was    an

employee.        See Seaman Body Corp. v. Indus. Comm'n of Wis., 204

     17
       See Forms for Complaints against Professionals, Wis.
Dep't       of       Safety        and       Prof'l       Servs.,
http://dsps.wi.gov/Complaints-and-Inspections/Professions-
Complaints/Forms-for-Complaints-Against-Professionals/      (last
visited July 2, 2014).         The Department of Safety and
Professional Services accepts complaints against psychologists,
physicians, nurses, and many other professionals.
     18
        See     Wis.       Dep't      of      Health       Servs.,
http://www.dhs.wisconsin.gov/bqaconsumer/healthcarecomplaints.ht
m (last visited July 2, 2014).      The Wisconsin Department of
Health Services Division of Quality Assurance (DQA) "is
responsible for assuring the health, safety, and welfare of the
citizens of Wisconsin.      If any individual believes that a
caregiver, agency, or DQA regulated facility has violated State
or   Federal  laws   pertaining  to   regulated   entities,   that
individual has the right to file a complaint with DQA." Id.

                                           27
                                                                          No.        2012AP1047



Wis. 157, 235 N.W. 433 (1931).                  The borrowed employee test aids

courts     in    determining            whether        there       is     an        employment

relationship between a borrowed employee and an employer so that

the correct entity is responsible for paying for the worker's

injury.    See id. at 158.              The borrowed employee test asks the

following questions:

          (1) Did the employee actually or impliedly
     consent to work for a special employer? (2) Whose was
     the work he was performing at the time of injury? (3)
     Whose was the right to control the details of the work
     being performed?   (4) For whose benefit primarily was
     the work being done?
Id. at 163.       Masri contends that this is the proper test to

assess whether she was an employee and points out that it makes

no reference to compensation.                   However, the borrowed employee

test is inapplicable because it does not ask whether a worker is

an   "employee";       it     asks      which        employer      must       pay     for    the

employee's injuries.              Thus, there is no need for the test to

address    compensation,          nor   is   there         a    need    for    the    test    to

consider     whether        the    worker       in     question         falls       under     the

"employee"      category      generally.              We       decline    to    extend       the

borrowed employee test to the facts of this case, as the test

was designed for a different purpose and is not relevant for

determining whether an intern is an employee under § 146.997.

     ¶50    The statute and the dictionary definitions demonstrate

that an "employee" under Wis. Stat. § 146.997 is someone who

works for some type of compensation or tangible benefits.                                   Thus,

uncompensated interns who receive no tangible benefits do not



                                             28
                                                   No.   2012AP1047



fall under the definition of "employee" and are not protected by

§ 146.997.19

                          B. Public Policy

     ¶51   In addition to her statutory interpretation arguments,

Masri makes a variety of policy arguments.      She suggests that

the statute's remedial purpose warrants an expansive definition

of "employee."     She argues that interns must have retaliation

protection to avoid destroying the statute's purpose to protect

patients.20    Masri advances legitimate policy interests, but the




     19
       We need not consider what quantity of tangible benefits
or compensation would cause an intern to be considered an
"employee." It is sufficient to note that in this case, Masri's
alleged tangible benefits did not make her an "employee."
     20
       Masri argues that Wis. Stat. § 146.997 has two related
purposes: expanding retaliation protection for health care
workers and protecting patients and public health by encouraging
people to report misconduct.     She points to two pieces of
legislative history as evidence of the statute's purposes. The
first piece of legislative history is a fact sheet from the
Wisconsin Federation of Nurses and Health Professionals that is
written in terms of employees.     Drafting File, 1999 Wis. Act
176, Legislative Reference Bureau, Madison, Wis.     The second
piece of legislative history is a drafter's note that mentions
that state and private health care workers receive the same
protection under the act.    Id.    Neither piece of legislative
history demonstrates that the legislature intended to protect
unpaid interns.

                                 29
                                                          No.     2012AP1047



effect of her argument is to engraft purposes onto the statute

that are not embedded in its text.            Public policy is not a

panacea     for     perceived     shortcomings       in         legislative

determinations.    Nothing in the statute evinces a purpose to

protect   unpaid   interns.     Implicitly,    the   statute       protects

patients by protecting employees who report violations of health

related state and federal statutes, regulations, and standards.

LIRC's interpretation advances the statute's purpose to protect

patients; it simply is not as broad as Masri would like.

    ¶52   Masri attempts to support her argument by noting that

this court has recognized public policy interests to protect

patients in the context of nursing home residents.              See Hausman

v. St. Croix Care Ctr., 214 Wis. 2d 655, 665, 571 N.W.2d 393




     Masri's reliance on legislative history is inapposite
because analysis of a statute's purpose must begin with the
language and context of the statute.     State ex rel. Kalal v.
Circuit Court for Dane Cnty., 2004 WI 58, ¶¶45-49, 271
Wis. 2d 633, 681 N.W.2d 110.      The language of the statute
suggests that the legislative purpose is to protect employees
from retaliation, which implicitly encourages the reporting of
improper conduct, safeguards the livelihood of paid employees,
and protects patients.    Thus, LIRC's interpretation that the
statute applies only to employees advances the statute's
purpose, and excluding interns from the protected group does not
contravene the statutory purpose.     Moreover, even if Masri's
interpretation is reasonable, it is not more reasonable than the
interpretation of LIRC.

                                 30
                                                                        No.      2012AP1047



(1997).21     In Hausman, a licensed nurse and a licensed social

worker, both employed by St. Croix Care Center, alleged that

they were terminated for reporting abuse at the nursing home.

Id. at 659-63.            The plaintiffs alleged that the public policy

exception    to     the    employment-at-will        doctrine       allowed      them     to

bring a private right of action.                 Id. at 661-63.                This court

declined     to    adopt     a     broad    whistleblower       exception         to    the

employment-at-will          doctrine       despite     the   fact       that    it     might

advance the public interest.                Id. at 666.      Instead, we tied the

exception     to    the     fact     that    plaintiffs      had     an       affirmative

obligation    to     prevent       any     suspected    abuse      of     nursing      home

residents.        Id. at 667-69 (citing Wis. Stat. § 940.295(3) (1993-

94) as one law that creates an obligation to report concerns).

We went on to conclude:

     The public policy of protecting nursing home residents
     from abuse is fundamental and well-defined. Where the
     law imposes an affirmative obligation upon an employee
     to prevent abuse or neglect of nursing home residents
     and the employee fulfills that obligation by reporting
     the abuse, an employer's termination of employment for
     fulfillment of the legal obligation exposes the
     employer to a wrongful termination action.     In such
     instances,   the  employee   may  pursue   a  wrongful
     termination suit under the public policy exception
     regardless of whether the employer has made an initial


     21
        Hausman v. St. Croix Care Center, 214 Wis. 2d 655, 571
N.W.2d 393 (1997), was decided before the legislature created
Wis. Stat. § 146.997. It appears that § 146.997 was created in
response to the Hausman decision to protect health care
employees who might not otherwise be protected by the public
policy exception to the employment-at-will doctrine. See Daryll
J.   Neuser,   Wisconsin  Health   Care  Workers:  Whistleblower
Protection, 77 Wis. Law. 16, 18 (Mar. 2004).

                                            31
                                                       No.       2012AP1047


      request, command, or instruction that the         reporting
      obligation be violated.
Id. at 669 (emphasis added) (footnote omitted).

      ¶53    Influencing the Hausman decision was the fact that the

plaintiffs could have been criminally prosecuted if they did not

report the abuse.22        Id. at 665.   It is noteworthy that both

plaintiffs in Hausman were employed, and the exception related

to the employment-at-will doctrine.         Id. at 666.        Nothing in

that decision suggests that the public policy to promote patient

safety      warrants   a   broad   protection   for   unpaid     interns,

especially when that broad protection finds little support in

the text.      Indeed, Hausman's aversion to creating an expansive

public policy exception suggests that we should avoid broadening

the definition of "employee."

      ¶54    Declining to broaden the definition of "employee" to

include interns does not contradict the statutory purposes, and

in fact, it might actually protect internships.         Amicus Curiae,

the Wisconsin Hospital Association (WHA), points out that health


      22
       Cf. Bammert v. Don's SuperValu, Inc., 2002 WI 85, ¶39,
254 Wis. 2d 347, 646 N.W.2d 365 (Bablitch, J., dissenting).
Justice Bablitch discussed the apparent rationale for the
Hausman decision:

      In Hausman, we gave employees that fulfilled their
      legal duty protection from retaliatory firing.    The
      idea behind the exception is simply that we want
      people to fulfill their legal duties. . . . We do not
      want people to be afraid to report nursing home abuse
      because they are afraid to be fired; therefore, we
      protect them.

Id.

                                    32
                                                                        No.       2012AP1047



care    employees      have     had    training         to     recognize       reportable

conduct,     whereas       interns     may    not       know    what       incidents       are

reportable.         WHA expresses concern that health care providers

might reduce internship opportunities if interns, who might not

have   as    much    training    as    employees         to    recognize      and    report

unethical or illegal conduct, are protected under Wis. Stat.

§ 146.997.

       ¶55   MCW asserts that if interns fall under the definition

of "employee" in Wis. Stat. § 146.997, there would be no logical

stopping point for people who fall under the protected class.

Ultimately, the law is clear that this court should avoid using

public policy to contradict a statute's plain text, and "[i]f

the result in this case seems harsh, redress should come from

the legislature, not from this court.                        'If a statute fails to

cover a particular situation, and the omission should be cured,

the remedy lies with the legislature, not the courts.'"                              Meriter

Hosp., Inc. v. Dane Cnty., 2004 WI 145, ¶35, 277 Wis. 2d 1, 689

N.W.2d 627 (quoting La Crosse Lutheran Hosp. v. La Crosse Cnty.,
133 Wis. 2d 335, 338, 395 N.W.2d 612 (Ct. App. 1986)).                               LIRC's

interpretation        that    § 146.997           applies      only     to    compensated

employees     is    reasonable,       and     we    conclude        that     there    is    no

interpretation that is more reasonable.

                             C. Application to Masri

       ¶56   Having determined that Wis. Stat.                        § 146.997 applies

only to compensated employees, we must consider whether LIRC

properly     determined      that     Masri       was   not    an     employee.        Masri
suggests     that    her     all-access       security         badge,      office    space,
                                             33
                                                                No.       2012AP1047



parking, and support staff were tangible benefits that made her

an employee.        Yet, as LIRC properly determined, these alleged

tangible benefits all related to Masri's work as a "Psychologist

Intern" and had no independent value.               If these benefits were

enough to confer employee status on Masri, it seems that almost

any unpaid worker would be considered an employee.                      Similarly,

Masri's     networking     opportunities    were    not    tangible       benefits

because such opportunities are not tangible, nor do they have

any   ascertainable        value.     Finally,       absent       a    contractual

guarantee, promises of health insurance or grant money do not

constitute tangible benefits if those promises never come to

fruition.     Thus, we agree with LIRC's determination that Masri

was not an employee because she received no compensation and no

tangible benefits.

      ¶57    We are not oblivious to the importance of internships

and the often mutually beneficial relationship between interns

and their supervising entity.            The purpose of this opinion is

not   to     impair    that    relationship        but    to    implement         the
legislature's statutory scheme.            Interns often provide valuable

services     to    their   supervising     entities       and     receive    vital

training in return.         An internship might provide students with

their first opportunity to apply their hard-earned knowledge in

a   real    and    practical   setting.      Although      we     recognize       the

importance    of    internships,    this   court    will    not       interlope    to

advance a policy not advanced by the legislature.                       Should the

legislature disagree with our decision and the five decisions
below in the administrative and judicial proceedings, it may
                                      34
                                                                      No.      2012AP1047



clarify the breadth of "employee" as it is used in § 146.997.

Absent       a     legislative    clarification,         we    are    bound     by    the

statute's text.

                                     IV. CONCLUSION

       ¶58       We conclude the following.

       ¶59       First, we accord LIRC's decision due weight deference

because          LIRC   has    experience         interpreting    the       meaning    of

"employee"          under     various       statutes     and     is     charged       with

administering Wis. Stat. § 146.997.                   The fact that LIRC had not

previously considered the specific question whether an unpaid

intern is an employee is not enough to abate the due weight

deference owed to the agency.                     See Jamerson, 345 Wis. 2d 205,

¶47.

       ¶60       Second, we agree with LIRC that Wis. Stat. § 146.997

applies only to employees, a category that does not include

interns who do not receive compensation or tangible benefits.

See Masri v. Med. Coll. of Wis., ERD No. CR200902766 (LIRC, Aug.

31, 2011).          As Wis. Stat. § 146.997 does not define "employee,"
we   must        give   the   term    its    ordinary     meaning.          Kalal,     271

Wis. 2d 633, ¶45.             After consulting the language, context, and

structure of the statute, we conclude that LIRC's interpretation

is reasonable, and there is no more reasonable interpretation.

Because 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).

       ¶By the Court.—The decision of the court of appeals is
affirmed.
                                             35
     No.   2012AP1047




36
                                                                  No.    2012AP1047.awb




       ¶61   ANN WALSH BRADLEY, J.             (dissenting).       The          Health

Care   Worker      Protection   Act   protects          whistleblowers       who   are

health care workers and who report unethical or illegal behavior

that threatens the health and safety of patients.                           Masri, a

full-time health care worker at the Medical College of Wisconsin

(MCW), did everything she was supposed to do under the Act.                        She

reported what she observed as unethical and potentially illegal

behavior.      There is nothing to suggest that her reporting was

anything other than good faith reporting.

       ¶62   She    asserts   that    as       a    result   of   her    good    faith

reporting, her internship was terminated, her educational career

has been disrupted, and she has been stigmatized with a black

mark on her professional career.                   She asks for vindication that

what she did was right, and payment of her attorney fees in

seeking that vindication.

       ¶63   Even though she did what was asked under the Act, the

majority denies her any vindication.                  It leaves Masri and other
health care workers like her without protection and without a

remedy.      The result is that these health care workers who are in

a position to witness and report problems with patient care may

now be silent, resulting in lower quality patient care.

       ¶64   This case is about statutory construction.                         I part

ways with the majority because in reaching its conclusion it

discards our time-tested canons of statutory construction.                          In

doing so, the majority rewrites the statute, limits application
of the Health Care Worker Protection Act beyond what is required

                                           1
                                                                  No.    2012AP1047.awb


by its terms, and undermines the Act's purpose of protecting

patients.

      ¶65    Contrary to the majority, I conclude that the Health

Care Worker Protection Act means what it expressly provides: its

coverage extends to "any person."                 Further, even if the Act's

coverage were limited to employees only, the canons of statutory

construction mandate that "employee" be interpreted broadly in

order to fulfill the remedial purpose of the Act.                        Under either

approach, Masri should be afforded coverage.                          Accordingly, I

respectfully dissent.

                                           I

      ¶66    The majority downplays certain facts relevant to this

case.       Because there is more to the story, I begin with an

overview of the events preceding this action.

      ¶67     Masri was a doctoral candidate in the University of

Wisconsin-Milwaukee        School    of    Education         (UWM),   Department     of

Education Psychology.        UWM placed Masri as a full-time intern at

MCW as part of her educational program.                  Prior to the start of
her   internship,     Masri's      future      supervisor,      Dr.     Anderson,    e-

mailed her stating: "I have found some funding for you for a

research     project.       And    actually       have   a    commitment.        Still

working on the amount but think at least 500 per month."

      ¶68    In    August     2008        Masri     started       working       as    a

"Psychologist      Intern"    in     MCW's      transplant       surgery     unit    at

Froedtert Hospital.         She worked 40 regularly scheduled hours per

week.       Her   duties   included       interviewing        patients    and   staff,
reviewing and assessing medical records, signing psychological

                                           2
                                                                            No.   2012AP1047.awb


reports, preparing patient progress notes, and attending staff

meetings.          As part of her internship, Masri received full access

to         patient         records             otherwise         protected        by      HIPAA1

and the hospital's facilities.

       ¶69     Some ethical concerns arose during Masri's internship

and she was directed by MCW staff to report them to John Mayer,

the official designated to receive employee complaints.                                   Masri

met   with     Mayer         on    November      19,   2008,      and    reported      that    Dr.

Anderson       ordered            her     to     create     a     borderline        personality

diagnosis to discredit a patient who may have been contemplating

a medical malpractice suit.                        She also reported that she was

directed to perform professional duties outside the authorized

parameters         of    her       intern       position.         Specifically,         she    was

ordered       to    work      as     a    professional          social   worker——not          as   a

Psychologist Intern——while the transplant unit social worker was

away on vacation.                 She was also directed to complete evaluations

in    the     role      of    an        authorized     social      worker     for      patients.

Although Masri had more incidents to report,2 Mayer cut her off,

       1
      The Health Insurance Portability and Accountability Act of
1996, Pub. L. No. 104-191, 110 U.S. Stat. 1936 (codified as
amended in scattered sections of Titles 18, 26, 29 and 42 of the
U.S. Code).

       Masri asserts that had Mayer not cut her off, she would
       2

have reported the following additional incidents:

       1) Dr. Anderson ordering her not to speak to anyone about an
          "off-list” organ transplant recipient who paid $25,000.00
          for a kidney harvested from Pakistan;

       2) A social worker on the transplant unit making an
          unethical recommendation to eliminate a transplant
          candidate based on a subjective moral judgment of the
          candidate's personal life and educational background; and
                                   3
                                                                        No.    2012AP1047.awb


stating     that     he    needed     to   discuss       her    allegations          with   Dr.

Anderson.           Two    days      later,      Dr.    Anderson      called        UWM     from

Washington, D.C. to terminate Masri's internship.

      ¶70     Masri filed a complaint with the Equal Rights Division

of   the    Department          of   Workforce        Development      (DWD)        about   the

termination of her internship.                       In response to inquiries from

the Equal Rights Division, MCW stated that Masri was not an

employee and that her internship was discontinued due to her

unsatisfactory performance.                 In support, MCW attached a letter

from Dr. Anderson explaining her decision to terminate Masri's

internship.          Dr. Anderson's undated letter, which was drafted

after      Masri's    internship          was    terminated,         made     reference       to

incidents in October 2008 and referred to them as being the

grounds for the termination.                     Other than this undated, post-

termination letter, there are no other notes in the record about

the incidents or any other documentation that would substantiate

a concern that Masri's performance was unsatisfactory.

                                                II
      ¶71     The    majority        determines        that    the    Act's        protections

apply only to individuals who work in exchange for compensation

or   tangible        benefits.       In    reaching       this       determination,         the

majority      fails        to    follow     time-tested         canons        of    statutory

construction.             Those canons provide that when interpreting a

statute, we look first to the language of the statute.                               State ex



      3)   Dr. Anderson's order that Masri interview and assess a
           mentally incompetent and semi-conscious ICU patient to
           disqualify that patient from the priority transplant
           list.
                                  4
                                                             No.   2012AP1047.awb


rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶45, 271

Wis. 2d 633, 681 N.W.2d 110.

       ¶72    Unlike   what   the     majority     suggests,       the   statute

expressly states who is covered——"any person." Specifically, it

provides:

       No health care facility or health care provider and no
       employee of a health care facility or health care
       provider may take disciplinary action against, or
       threaten to take disciplinary action against, any
       person because the person reported in good faith any
       information   under   sub.  (2)(a),   in  good   faith
       initiated, participated in or testified in any action
       or proceeding under sub. (2)(c) or provided in good
       faith any information under sub. (2)(d) or because the
       health care facility, health care provider or employee
       believes that the person reported in good faith any
       information   under   sub.  (2)(a),   in  good   faith
       initiated, participated in or testified in any action
       or proceeding under sub. (2)(c) or provided in good
       faith any information under sub. (2)(d).
Wis. Stat. § 146.997(3)(a) (emphasis supplied).

       ¶73    The majority, however, inserts its own word "employee"

for the legislature's chosen words "any person."                   In doing so,

it violates a cardinal canon of statutory construction.                   Rather
than adhering to the express language chosen by the legislature,

it discards it.

       ¶74    The majority attempts to justify its rewriting of the

express language of the Health Care Worker Protection Act by

implying that it was inartfully drafted.                 It offers the excuse

that    the     legislature    used     the      words     "any    person"    to

differentiate between the employee retaliating and the employee

being retaliated against in order to allay confusion.                    Majority
op., ¶45.

                                       5
                                                                      No.   2012AP1047.awb


      ¶75    This excuse is without merit.                   If the legislature had

intended for the statute to apply only to employees, it could

have easily cured the suggested confusion.                     It takes this writer

mere seconds to provide an example: "No health care facility or

health care provider and no employee of a health care facility

or health care provider may take disciplinary action against, or

threaten to take disciplinary action against, an employee who

reported in good faith. . . ."

       ¶76    "We   have      stated   time      and    again     that      courts   must

presume that a legislature says in a statute what it means and

means in a statute what it says there."                      Kalal, 271 Wis. 2d 633,

¶39 (quoting Connecticut Nat'l Bank v. Germain, 503 U.S. 249,

253-54 (1992)).        As this court has previously explained, "[i]t

is   not    reasonable     to   presume     that       the    legislature      preferred

elegance over precision in its wording of the statute. The more

reasonable presumption is that the legislature chose its terms

carefully and precisely to express its meaning."                         Ball v. Dist.

No. 4, Area Bd. of Vocational, Technical & Adult Educ., 117 Wis.
2d 529, 539, 345 N.W.2d 389 (1984).

      ¶77    Further, it is a well-established canon of statutory

construction that each word in a statute should have independent

meaning so that no word is redundant or superfluous.                           Pawlowski

v. Am. Family Mut. Ins. Co., 2009 WI 105, ¶22, 322 Wis. 2d 21,

777 N.W.2d 67.      Thus, "[w]hen the legislature chooses to use two

different     words,     we     generally       consider       each   separately      and

presume that different words have different meanings."                         Id.



                                            6
                                                               No.    2012AP1047.awb


      ¶78    The    legislature       used   both    "employee"      and    "person"

throughout the Health Care Worker Protection Act.3                    When it came

to defining the coverage of the Act, the legislature chose to

use the words "any person."             Wis. Stat. § 146.997(3)(a).            Under

the   canons       of    statutory     construction,      which      the    majority

ignores, the express language of the statute referring to "any

person" should not be interpreted as "employee."

      ¶79    In     reading    the     words     "any     person"     as     meaning

"employees,"       the     majority     limits      the   Health     Care     Worker


      3
          For example, Wis. Stat. § 146.997 states:

      (2) Reporting protected.

      (a) Any employee . . . who is aware of any information, . .
      . that would lead a reasonable person to believe any of the
      following may report that information to . . . any employee
      of the health care facility . . ..

      (b) An agency [shall], . . . notify the health care
      facility or health provider . . .. The notification
      and summary may not disclose the identity of the
      person who made the report.

      (c) Any employee of a health care facility or health
      care provider may initiate, . . . any action or
      proceeding . . ..

      (d) Any employee . . . may provide any                   information
      relating to an alleged violation . . ..

      (3) Disciplinary action prohibited.

      . . ..

      (b) . . . no    employee . . . may   take    disciplinary
      action   against . . . any    person  on   whose   behalf
      another person reported in good faith any information
      . . . or   because the . . . employee     believes that
      another person reported in good faith any information
      . . . on that person's behalf. . . .
                                  7
                                                                    No.   2012AP1047.awb


Protection Act beyond its terms.                 In its analysis, the majority

cites to other provisions in the Act and reasons that the words

"any person" must mean employees working for compensation or

tangible benefit.        It asserts that the disciplinary actions the

Act prohibits and the remedies the Act provides could not apply

to unpaid workers.           Majority op., ¶¶36, 38, 45.                  Not only is

this suggestion not supported by the language of the Act, but it

also reads its terms more narrowly than they are written.

      ¶80    The    Health    Care      Worker    Protection        Act   adopts    the

definition of "discipline" provided by Wis. Stat. § 230.80(2),

which includes such actions of the employer that result in a

dismissal, transfer, removal of assigned duty, reprimand, verbal

or physical harassment, denial of education or training, and

reassignment.        It is unclear why these employer actions would

not be applicable to unpaid workers.

      ¶81    Similarly,      it    is    unclear       why    the    whistleblower's

remedies permitted by the statute could not apply to unpaid

workers.4           As   explained       by      the    majority,         Wis.   Stat.
§ 146.997(4)(a) details how employees may report violations to

the DWD.5     If the DWD determines that there have been violations,

it   may    award    remedies     as    described      in    Wis.   Stat.    § 111.39.

      4
       The majority's analysis in this respect appears circular——
unpaid workers are not covered by the Act because they cannot
seek its remedies, yet they cannot seek the Act's remedies
because they are unpaid workers.
      5
       Although   Wis.  Stat.  § 146.997(4)(a)  uses   the  term
"employee" in describing how to report violations, as more fully
discussed below, nothing in the Heath Care Worker Protection Act
limits the term "employee" to an individual working in exchange
for compensation.

                                           8
                                                                                  No.    2012AP1047.awb


Majority op., ¶¶35-36.                     Among the remedies suggested by Wis.

Stat.    §       111.39(4)(c)        is     reinstatement.                 The    court        has    also

determined that aggrieved workers are entitled to attorney fees.

Watkins v. Labor & Indus. Review Comm'n., 117 Wis. 2d 753, 765,

345 N.W.2d 482 (1984).                     An unpaid intern whose internship had

been terminated for reporting a violation of the law may find

reinstatement to be a desired remedy.                                 The intern is also likely

to want attorney fees in seeking that reinstatement.                                          Nothing in

the Act limits these remedies to only paid employees.                                            Nothing

in the express language of the Health Care Worker Protection Act

limits       its       protections             only        to     individuals           working        for

compensation as the majority suggests.

      ¶82        In   paragraphs          47-48,          the    majority        sets    up     its    own

straw man only to quickly knock it down.                                  In essence, it warns

that the sky is falling if there is a literal translation of the

statutory         words       "any     person."                 For     example,        the     majority

suggests that a literal translation would mean that anybody in

the     world         could     file       a     complaint,              "absolutely           anybody."
Majority op., ¶48.               And, if that does not frighten the reader

enough, in a footnote, the majority expounds further to observe

that "person includes all partnerships, associations and bodies

politic or corporate."                 Id., ¶47 n.17.                  Having set up the straw

man that "any person" could include a body politic in Timbuktu

filing       a    complaint,         the    majority             warns    "there        would     be    no

stopping point" and that a literal translation would "jeopardize

the   structure         and     efficiency            of        administrative          agencies       and
regulatory bodies in the State."                          Id.

                                                      9
                                                                     No.   2012AP1047.awb


       ¶83    The problem with the majority's straw man argument,

like all straw men arguments, is that it sets up an argument

that   no    one   is     advancing.        Instead,    I   determine        that   "any

person" includes any person who faces disciplinary action from a

health care facility for reporting possible violations that pose

a risk to public health or safety.

       ¶84    I acknowledge that ambiguity arises because the Health

Care    Worker     Protection       Act    incorporates        the     definition     of

"disciplinary action" found in Wis. Stat. § 230.80. Wis. Stat.

§ 146.997(1)(b).          Wisconsin Stat. § 230.80 defines "disciplinary

action" as "any action taken with respect to an employee which

has the effect, in whole or in part, of a penalty, including but

not limited to any of the following. . . ." (emphasis supplied).

Where this definition conflicts with the language in the Health

Care Worker Protection Act, it creates ambiguity.

       ¶85    However,         "[w]hen     a     statute       is      ambiguous, the

legislature is presumed to have intended an interpretation that

advances the purposes of the statute."                 Belleville State Bank v.
Steele,      117   Wis.   2d    563,     570,   345   N.W.2d    405    (1984).       The

purpose of the Health Care Worker Protection Act is evident from

its language.        It protects workers who report that "the quality

of any health care service provided by the health care facility

or health care provider . . . violates any standard . . . and

poses a potential risk to public health or safety."                         Wis. Stat.

§ 146.997(2)(a).          If the law protects workers who report patient

quality of care problems, necessarily it is meant to encourage



                                           10
                                                                            No.    2012AP1047.awb


those workers to do so.                  Thus, on its face, the statute is aimed

at protecting patients.

       ¶86     The        majority's       approach        undermines           this     purpose.

Although       the       majority       acknowledges         that   the     purpose          of   the

statute       is    to     protect       patients,      it    simultaneously            chastises

Masri for "engraft[ing] purposes onto the statute that are not

embedded       in    its       text."      Majority       op.,      ¶51.         Then,       without

explanation, the majority states that "[d]eclining to broaden

the definition of 'employee' to include unpaid interns does not

contradict the statutory purposes."                          Majority op., ¶54. It is

hard to conceive how a limited reading of the Health Care Worker

Protection Act would not run counter to its goal of patient

protection.          If fewer health care workers report problems with

patient       care,       there     will    be     fewer      opportunities            for    those

problems to be fixed and patients will be left at risk.

       ¶87     Due to the remedial purpose of the Health Care Worker

Protection         Act,     our   canons     of       statutory     construction             dictate

that    its        provisions       be    liberally       construed.              Watkins,         117
Wis. 2d at          762    (statutes       containing         broad      remedial        language

shall     be       liberally       construed).            Courts      generally          construe

whistleblower             protection        laws       broadly        to        achieve       their

protective goals. See, e.g., Passaic Valley Sewerage Comm'rs v.

U.S. Dep't of Labor, 992 F.2d 474, 478-79 (3d Cir. 1993) (terms

used     in    whistleblower             protection       law,      which       was    aimed       at

encouraging workers to aid in enforcement of Clean Water Act and

nuclear       safety       statutes,       broadly       construed         to     achieve         that
goal);    Rayner          v.    Smirl,     873     F.2d      60,    64     (4th       Cir.    1989)

                                                 11
                                                                  No.   2012AP1047.awb


(determining that a more inclusive interpretation of "employee"

is warranted for the whistleblower provisions in the Federal

Railway Safety Act, aimed at promoting rail safety); Phillips v.

Interior Bd. of Mine Operations Appeals, 500 F.2d 772, 781 (D.C.

Cir. 1974) (narrow construction of the whistleblower provision

in    Mining    Safety     Act   would    be   contrary      to   its    purpose   of

increasing safety in mines).              A similar liberal construction of

the Act's scope would support the Health Care Worker Protection

Act's purpose of protecting patients.

       ¶88     When    liberally    construed,    the    conflict       between    the

Act's scope as dictated by the "any person" language and the

definition of "disciplinary action" should be cured by deferring

to the language defining the scope of the Act.                    The Health Care

Worker       Protection      Act      incorporates        the      definition       of

"disciplinary          action"     from   a    statute       on   state     employee

protection.           Wis. Stat. §§ 146.997(1)(b), 230.80(2).                 In the

context of defining state employee protection, the language in

the   definition        referring    to   employees     is   appropriate.         Wis.
Stat. § 230.80(2) ("Disciplinary action" means any action taken

with respect to an employee . . .").                  However, the use of the

term "employee" in Wis. Stat. § 230.80(2) was not intended to

delineate the scope of the Health Care Worker Protection Act.

That function is served by the specific language in Wis. Stat.

§ 146.997(3)(a).

       ¶89     Wisconsin    Stat.     §   146.997(3)(a)         more    specifically

addresses the scope of the Health Care Worker Protection Act,
therefore its provisions should govern.                 This is consistent with

                                          12
                                                                    No.    2012AP1047.awb


the   canon    of    statutory      construction        that     "[w]here       a    general

statute and a specific statute relate to the same subject matter

the   specific      statute     controls."         Wauwatosa       v.    Grunewald,         18

Wis. 2d 83, 87, 118 N.W.2d 128 (1962).

      ¶90     The language of the Health Care Worker Protection Act

indicates its remedial purpose of protecting patients.                              This is

best achieved by interpreting the words "any person" to mean

what they say.        See Kalal, 271 Wis. 2d 633, ¶39.                   Accordingly, I

conclude      that     the    Act       protects     any       person     from        facing

disciplinary action for reporting quality of care issues.                              This

includes Masri.

                                           III

      ¶91     Even if the majority were correct that "any person,"

as used in the Health Care Worker Protection Act, refers only to

"employees,"        that   does     not    mean    that       "employee"     should         be

accorded a narrow definition centered on compensation.                                It is

worth noting again that statutes should be construed liberally

to effectuate their purpose.                State v. Zielke, 137 Wis. 2d 39,
47, 403 N.W.2d 427 (1987).                 Accordingly, "employee" should be

read broadly to meet the purpose of protecting patients.

      ¶92     The    majority      suggests      that    the    Labor     and       Industry

Review Commission (LIRC) has always construed "employee" as an

individual     working       for   an     employer      in    exchange    for       wage    or

compensation.        Majority op., ¶¶26, 37 n.14.               That is incorrect.

      ¶93     LIRC decides appeals in three administrative areas:

workers     compensation       law,     unemployment          compensation      law,       and
equal     rights     law     (which     includes        the     Health    Care        Worker

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Protection Act).          In the context of both worker compensation and

unemployment compensation, LIRC has concluded that an individual

can    be     considered       a    statutory       employee       to       effectuate   the

purposes      of   the    statute         even    when     the    individual       has   not

received a dime from the employer and has never set foot on the

employer's premise.

       ¶94    The appeals that LIRC review arise from the decisions

of the Department of Workforce Development (DWD).                             Here, the DWD

dismissed       Masri's     complaint            without     further         investigation,

concluding that because she was not compensated by MCW for her

work, Masri was not a covered employee under the Act.

       ¶95    Yet,    the      DWD    has        previously       explained      that    the

definitions of "employee" in the different statutes that LIRC

administers will vary depending on the purpose of the statute.

It notes that the definitions "are likely to be similar, but

rarely will they be identical.                    The Legislature has determined

that there are different policy considerations for each program,

that     in    turn      require      slightly       different          definitions      [of
'employee']."         Department of Workforce Development, "Independent

Contractors and Worker's Compensation in Wisconsin" at 6 (June

2003),      available     at       http://dwd.wisconsin.gov/dwd/publications/

wc/WKC_13324_P.pdf (emphasis supplied).

       ¶96    For example, in Green Bay Packaging, Inc. v. Dep't of

Indus., Labor & Human Relations, 72 Wis. 2d 26, 36, 240 N.W.2d

422    (1976),     the    court      determined       that       for    purposes    of   the

Worker's       Compensation         Act    an     employee        of    a     subcontractor
qualifies as a statutory employee of the general contractor when

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the subcontractor regularly furnishes to a principal employer

materials     or     services    which     are      integrally     related       to    the

finished product or service.             It explained that "the workmens'

compensation law of this state must be liberally construed to

reach the objectives of that law," and that "the purpose of this

legislation        was   to   protect    employees         of    irresponsible         and

uninsured subcontractors."           Id. at 37.

      ¶97     Similarly, as noted in Sears, Roebuck & Co. v. Dep't

of Indus., Labor, & Human Relations, 90 Wis. 2d 736, 280 N.W.2d

240 (1979), the definition of "employee" for purposes of the

unemployment compensation law "mean[t] any individual who is or

has   been    performing      services     for      an    employing      unit,    in   an

employment, whether or not he is paid directly by such employing

unit."      Id. at 742 (quoting Wis. Stat. § 108.02(3)(a) (1971)).

The   court    explained      that   although        an    individual      may    be   an

independent contractor, "this does not necessarily bar him from

being an employee under the act.                 His status under the act must

be determined from the act itself in view of the purpose of the
act as declared therein."            Id. at 743 (quoting Moorman Mfg. Co.

v. Indus. Comm'n, 241 Wis. 200, 203, 5 N.W.2d 743 (1942)).

      ¶98     In this case we are presented with an issue of first

impression.         The Health Care Worker Protection Act does not

define "employee."            We are asked to determine if it is more

reasonable     to    liberally    construe       the      term   "employee"      in    the

Health   Care       Worker    Protection      Act    to     effectuate     the    Act's

purpose, as the court has done with the Workers' Compensation
Law and Unemployment Compensation Law, or to use a limiting

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test,    narrowly     focusing       only       on    compensation       between    the

employer and employee.             Both LIRC and the majority have opted

for a narrow interpretation.

       ¶99   Contrary to the majority, I conclude that it is more

reasonable to construe "employee" liberally to effectuate the

remedial purpose of the Act.                In doing so, I would apply the

test for a master-servant relationship as found in our common

law.     The broad definition of employee from the master-servant

test is more consistent with the remedial purpose of the Health

Care Worker Protection Act because it enables more workers to

report quality of care issues and meets the statute's purpose of

protecting patients.

       ¶100 Use of the master-servant test is also consistent with

our caselaw.         Where a term in a statute is undefined or not

helpfully defined, the Wisconsin Supreme Court has referred to

the common law definition of the term to aid in interpretation.

For     example,     it     utilized       this       approach     in    interpreting

"employee"     as    used     in    the     Unemployment         Compensation       Act.
Wisconsin Bridge & Iron Co. v. Indus. Comm'n, 233 Wis. 467, 478,

290 N.W. 199 (1940).          At the time, the statutory definition of

"employee" was "any individual employed by an 'employer' and in

an 'employment.'"           Id. at 477.              The court stated that this

implies that the term "employee" and "employer" are to be given

their common-law meaning.            Id.    The court explained that "there

is nothing in the definition there given to indicate anything

different     from    the     common-law        concept,"        and    that   if    the
legislature "had intended to change the ordinary and commonly

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understood meaning of the words 'employer' and 'employee' they

would have used language expressly so declaring."                        Id. at 478.

       ¶101 Likewise,         the      United      States        Supreme       Court       has

explained        that     "[w]here          Congress     uses      terms       that       have

accumulated settled meaning under . . . the common law, a court

must infer, unless the statute otherwise dictates, that Congress

means to incorporate the established meaning of these terms."

Community for Creative Non-Violence v. Reid, 490 U.S. 730, 739

(1989)       (quoting     NLRB   v.    Amax     Coal     Co.,    453    U.S.    322,       329

(1981)).

       ¶102 Accordingly, when interpreting federal statutes that

use    the    term      "employee"     without        helpfully    defining         it,   the

Supreme       Court     construes      that     term     as     descriptive         of    "the

conventional          master-servant          relationship        as    understood         by

common-law agency doctrine."                  Id. at 740.         It has consistently

used this approach to interpret a number of federal statutes.

See, e.g., Clackamas Gastroenterology Assocs. v. Wells, 538 U.S.

440,   448      (2003)    (using      the    common-law       definition       of    master-
servant relationship when interpreting the meaning of employee

under the Americans with Disabilities Act); Nationwide Mut. Ins.

Co. v. Darden, 503 U.S. 318, 323 (1992) (construing "employee"

under Employee Retirement Income Security Act based on common

law principles of agency); Reid, 490 U.S. at 739 (construing

"employee" as used in the Copyright Act); Kelley v. Southern

Pac.     Co.,     419     U.S.   318,        323-24     (1974)     (using      common-law

principle of master-servant relationship to determine employment
statutes under the Federal Employers' Liability Act); NLRB v.

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United Ins. Co., 390 U.S. 254, 258 (1968) (construing "employee"

under     the   National   Labor     Relations      Act       based    on     common-law

agency principles).

      ¶103 In a similar vein, the Wisconsin Court of Appeals has

determined      that   "the   factors        relevant      to    a     master/servant

relationship are relevant to deciding whether [the defendant]

was   a   state   employee"    for    purposes      of    Wis.        Stat.      § 893.82.

Lamoreux v. Oreck, 2004 WI App 160, ¶22, 275 Wis. 2d 801, 686

N.W.2d 722.

      ¶104 The     common     law     definition          of     a     master-servant

relationship      is   much   broader       than   the        definition         that   the

majority applies here, which is limited to whether or not a

worker receives compensation or tangible benefits.                            At federal

common     law,    a   determination         of    whether       a     master-servant

relationship      exists   takes     into    account      a    number       of   factors,

including:

      the hiring party's right to control the manner and
      means by which the product is accomplished. . . . the
      skill required; the source of the instrumentalities
      and tools; the location of the work; the duration of
      the relationship between the parties; whether the
      hiring party has the right to assign additional
      projects to the hired party; the extent of the hired
      party's discretion over when and how long to work; the
      method of payment; the hired party's role in hiring
      and paying assistants; whether the work is part of the
      regular business of the hiring party; whether the
      hiring party is in business; the provision of employee
      benefits; and the tax treatment of the hired party.
Darden, 503 U.S. at 323-24 (quoting Reid, 490 U.S. at 751-52).

"[A]ll of the incidents of the relationship must be assessed and
weighed with no one factor being decisive."                    NLRB v. United Ins.


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Co.   of     America,    390    U.S.    at   258.      Consistent    therewith      the

Restatement (Third) of Agency, § 7.07(2)(b) states: "the fact

that work is performed gratuitously does not relieve a principal

of liability."

      ¶105 Wisconsin           courts    use      almost   identical      factors    in

determining whether a master-servant relationship exists in the

context of tort liability.              As explained in Pamperin v. Trinity

Mem'l Hosp., 144 Wis. 2d 188, 199, 423 N.W.2d 848 (1988), the

dominant test in determining whether an individual is a servant

is "[t]he right to control."

      ¶106 Other factors to consider include: "the place of work,

the time of the employment, the method of payment, the nature of

the    business         or     occupation,        which    party    furnishes       the

instrumentalities or tools, the intent of the parties to the

contract, and the right of summary discharge of employees."                         Id.

at    199.       As     with    the     federal     cases,   no     one    factor    is

determinative and "[a] servant need not be under formal contract

to perform work for a master, nor is it necessary for a person
to be paid in order to occupy the position of servant."                        Kerl v.

Rasmussen, Inc., 2004 WI 86, ¶22, 273 Wis. 2d 106, 682 N.W.2d

328; Petzel v. Valley Orthopedics Ltd., 2009 WI App 106, ¶16,

320 Wis. 2d 621, 770 N.W.2d 787 (same).

      ¶107 Contrary to the majority, I determine that it is more

reasonable to interpret the Health Care Worker Protection Act

with the broad master-servant test from our common law than a

dictionary definition of the term "employee."                      This broad test
is consistent with the statute's purpose.                     Further, Wisconsin

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and United States Supreme Court caselaw establishes that it is

the    appropriate        test    to   apply    when        a   statute    uses       the   term

"employee" without providing a helpful definition.

       ¶108 Applying        the    master-servant           factors      to     the    case    at

hand reveals that Masri qualifies as an employee.                                   Throughout

Masri's internship, MCW had the right to control her actions.

Masri was placed in MCW's transplant surgery unit at Froedtert

Hospital.      She worked 40 regularly scheduled hours per week as a

psychology intern.              Dr. Anderson had obtained a grant to fund

Masri's work.        Masri's duties included interviewing patients and

staff,    reviewing         and        assessing        medical        records,        signing

psychological        reports,      preparing         patient         progress    notes,       and

attending staff meetings.               In that role, MCW granted Masri full

access to HIPAA protected patient records and MCW's facilities.

This     suggests         the     intent       to     have       an     employee-employer

relationship.        Further, MCW had the right to summarily discharge

Masri at any time.              These factors outweigh the fact that Masri

was not paid for her services and suggest that she should be
considered an employee for purposes of the Health Care Worker

Protection      Act.       Accordingly,         I     would     reverse       the     court    of

appeals       and    remand       the      case       for       an     investigation          and

determination        of    whether       MCW        unlawfully        terminated       Masri's

internship      in   retaliation         for    the     complaints        she    made       about

clinical and ethical concerns.

                                               IV

       ¶109    The parties dispute whether due weight or no weight
should be accorded to LIRC's interpretation of the Health Care

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Worker    Protection      Act      limiting         coverage    to     paid       employees.

These levels of deference are analytically equivalent as both

require the court to independently interpret a statute. Racine

Harley-Davidson v. State Div. of Hearings & Appeals, 2006 WI 86,

¶20, 292 Wis. 2d 549, 717 N.W.2d 184.                         Even under due weight

deference, the agency's interpretation will not be adopted if

the     court    determines        an     alternate         interpretation         is   more

reasonable.      Id.

      ¶110 As discussed above, I conclude that there is a more

reasonable interpretation of the Health Care Worker Protection

Act than the limited one accorded by LIRC.                             The Health Care

Worker Protection Act should be interpreted as meaning what it

expressly       provides:      its      coverage      extends     to       "any     person."

Further, even if the Act's coverage was limited to employees

only,     the    canons       of     statutory        construction          mandate     that

"employee"      be     liberally        construed      in    order     to     fulfill    the

remedial    purpose      of    the      Act.        Under    either    approach,        Masri

should     be    afforded      coverage.             Accordingly,      I      respectfully
dissent.

      ¶111 I am authorized to state that Chief Justice SHIRLEY S.

ABRAHAMSON joins this dissent.




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