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Attorneys watch sick leave suit in Milwaukee

By: dmc-admin//December 29, 2008//

Attorneys watch sick leave suit in Milwaukee

By: dmc-admin//December 29, 2008//

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Unconstitutional and vague are two of the reasons why a local business group is asking a judge to dismiss the pending paid sick leave ordinance in the city of Milwaukee.

The Metropolitan Milwaukee Association of Commerce Inc. (MMAC) filed suit against the city on Dec. 22 and also asked for a temporary injunction. The ordinance was passed into law by Wisconsin voters on Nov. 4 in a binding referendum and businesses have to be in compliance by Feb. 10.

Key elements expected to surface in court, according to attorneys outside the case, are whether the city has the authority to enact and enforce the law and how the ordinance conflicts with state statute.

The ordinance requires employers to provide a minimum of one hour of paid sick leave for every 30 hours worked by an employee in Milwaukee, regardless of where their employer is located. Businesses with fewer than 10 employees have to provide up to five paid sick days, while employees at larger companies can accrue up to nine days annually.

John F. Fuchs, who serves as counsel for several municipalities and also works in private practice at Fuchs & Boyle, S.C., said the primary issue to be decided is to what extent the Milwaukee ordinance will conflict with state and federal laws, which do not require business to provide paid sick leave.

“Certainly, employee benefits and restrictions are regulated by federal and state governments,” Fuchs said. “So the suit is going to be a very simple case of business groups challenging the ordinance saying, ‘You are a local government and you don’t have the authority to do this.’”

Trumped By State Law?

In the suit filed by attorney Scott C. Beightol on behalf of MMAC, the organization alleges the ordinance attempts to supersede aspects of the Wisconsin Family and Medical Leave Act (WFMLA).

Specifically, the ordinance conflicts with the WFMLA in that paid sick leave must become available after 90 days of employment and can be used for non-health related reasons, according to language in the suit.

The WFMLA offers unpaid leave after an employee works at least 1,000 hours during a 52-week period for one employer.

The suit states that the ordinance is “logically inconsistent” and “violates the spirit and general policy of the FMLA.”

Fuchs said the city will have to show the court why state and federal laws do not preempt the Milwaukee ordinance.

Even though San Francisco successfully instituted a similar ordinance in 2007, Fuchs said he expects the court will focus on Wisconsin and federal law to decide the case.

“As a municipal attorney, one of the questions I would have to ask is ‘Do we have home rule authority to do this?’” said Fuchs, who declined to speculate how the court will rule.

Employment law attorney Daniel J. Finerty also noted that the business community will argue that the ordinance violates the 2005 Wisconsin Act 12, known as the “Living Wage Act,” which established a statewide minimum wage requirement.

The suit claims that because the ordinance requires an hourly wage payment of one hour of pay plus one-thirtieth of an hour of accrued paid time off, it violates the state law.

“That will likely provide MMAC with a good opportunity to highlight their prominent arguments that the ordinance violates the Living Wage Act,” said Finerty of Godfrey & Kahn, S.C., in Milwaukee.

Possible Injunction

In addition to the suit, the MMAC is also seeking a temporary injunction to prevent sick leave accrual from starting on Feb. 10.

While the suit does not specify the length of the injunction, Finerty said if one is granted it may provide businesses with additional time to comply with the ordinance, especially if MMAC loses the case.

“The questions I get are primarily about drafting compliance policies and when those will be put into place,” Finerty said. “MMAC’s request for an injunction may affect the latter, but if they win the lawsuit, companies will not need the policies.”

But Finerty said he is still preparing clients for implementation of the ordinance.

“It’s a little dicey to tell clients to hold off on their compliance and wait for the litigation,” Finerty said.

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