Archive for the ‘Editorials’ Category

AG Schimel Files Complaint Against New DOL Overtime Rule

Monday, September 26th, 2016

On Sept. 20, Wisconsin Attorney General Brad Schimel joined a bipartisan coalition of states in filing a federal complaint against the U.S. Department of Labor’s new overtime rule. The complaint cites federal overreach by DOL and asks the court to prevent implementation of the rule before it is scheduled to take effect on Dec. 1.

The rule, released in late May, would double the salary threshold for “white collar” workers who are exempt from overtime pay from $23,660 to $47,476. According to the rule, the new threshold will automatically increase every three years. DOL estimates the threshold will be $51,168 in 2020. Once implemented, the changes would impact 4.2 million salaried workers.

Business groups say the new rule will force millions of salaried professionals to be reclassified as hourly wage workers. They argue that small businesses, nonprofits, and public sector employers will be especially hurt. The U.S Department of Labor estimates businesses will end up paying workers an additional $1.3 billion a year.

In its fact sheet explaining the rule, DOL provides businesses a “choice” under the new rule:

  1. Increase their employees’ salaries to the $47,476 threshold.
  2. Pay workers the time-and-a-half overtime premium for every hour beyond 40 per week.
  3. Limit workers to a 40-hour work week.

Some groups assert that market considerations over time will prove the paycheck benefits an illusion. To curb costs, some businesses will simply forbid employees from working over 40 hours. They may also have to cut back other expenses such as non-cash benefits or suppress the base pay itself.

Wisconsin joins 20 other states in this complaint, which was filed in Texas on Tuesday, including Alabama, Arizona, Arkansas, Georgia, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Michigan, Mississippi, Nebraska, Nevada, New Mexico, Ohio, Oklahoma, South Carolina, Texas and Utah.

Department of Justice Submits Budget Request

Monday, September 26th, 2016

Attorney General Brad Schimel submitted the Department of Justice (DOJ) 2017-19 budget request to Governor Walker on September 15, 2016. Including all funding sources, DOJ’s request is a 6.2 percent increase over the base fiscal year (2016-17) doubled. This increase amounts to $6.6 million in new general purpose revenue (GPR) over the biennium.

The largest cost drivers for the additional funding request are due to legislation that passed in the 2015-2016 session. 2015 Wisconsin Act 388 provided a funding increase to county grants for the Treatment Alternative and Diversion (TAD) program. The TAD program provides options for offenders for voluntary substance abuse treatment, case management, and other services, instead of incarceration. DOJ’s budget request includes $2 million in each year of the biennium to expand the TAD program.

DOJ’s budget request includes $1.5 million over the biennium for the cost-to-continue of overtime and training for local and state Internet Crimes Against Children (ICAC) taskforces. The additional investment for ICAC taskforces and staff is a result of 2015 Wisconsin Act 369, otherwise known as Alicia’s Law.

In addition to additional funding, DOJ’s request establishes an appropriation for new officer training and officer recertification training reimbursement to local law enforcement agencies. DOJ states that this change will ensure the training reimbursements are fully funded going forward.

Outside of his agency’s budget, Attorney General Brad Schimel asks in his budget letter that the governor address the staffing levels and compensation for District Attorneys. The District Attorneys submitted a separate budget request that included funding for a pay progression for assistant attorney generals and adds 96.3 positions across the state.

Dane County Circuit Court Judge Strikes Down Wisconsin’s Right-to-Work Law, Appeal Anticipated

Friday, April 15th, 2016

Friday, April 8, Dane County Circuit Court Judge C. William Foust struck down 2015 Wisconsin Act 1, Wisconsin’s Right-to-Work law. Under 2015 Wisconsin Act 1,

“No person may require, as a condition of obtaining or continuing employment, an individual to do any of the following:

  1. Refrain or resign from membership in, voluntary affiliation with, or voluntary financial support of a labor organization.
  2. Become or remain a member of a labor organization.
  3. Pay any dues, fees, assessments, or other charges or expenses of any kind or amount, or provide anything of value, to a labor organization.
  4. Pay to any 3rd party an amount that is in place of, equivalent to, or any portion of dues, fees, assessments, or other charges or expenses required of members of, or employees represented by, a labor organization.”

Wis. Stat. s. 111.04 (3).

In his ruling, Judge Foust agreed with the plaintiffs, the International Association of Machinists Local Lodge 1061, the United Steelworkers District 2, and the Wisconsin State AFL-CIO, that Act 1 resulted in an unconstitutional taking of the unions’ property. Judge Foust held that under Act 1, unions are still required to provide a service, that is, bargaining on behalf of employees, including non-union employees, and because the non-union employees need not pay for these services, the act took from the unions a legally-protectable property interest without providing just compensation to the unions. In short, Judge Foust agreed with the unions that they have a legal right to a portion of employee wages, regardless of whether the employee is a union member.

Wisconsin Attorney General Brad Schimel notified Judge Foust that the Attorney General will seek a stay of any final ruling, when issued, pending appeal. A stay, if granted, would allow Act 1 to remain in effect during any appeal. Wisconsin Manufacturers & Commerce, a Right-to-Work proponent, characterized Judge Foust’s decision as “an act of blatant judicial activism that will not withstand appellate review” and that “Judge Foust came to the absurd and legally untenable conclusion that labor unions have a property right to the wages of workers.” Similarly, Associated Builders and Contractors of Wisconsin, which also supported Act 1, stated “Judge Foust’s argument for his ruling has been repeatedly rejected by state and federal courts throughout the nation, and I expect our state’s law to be similarly upheld upon appeal.”

Stephanie Bloomingdale, secretary-treasurer of the Wisconsin AFL-CIO, Monday advised Wisconsin unions that thanks to Judge Foust’s ruling, unions can negotiate agreements with employers requiring non-union employee to help pay for a union’s costs to represent workers. The Wisconsin Institute for Law & Liberty, disagreed, stating “[t]hat’s not how the law works. Not until an appellate court declares a law unconstitutional is it invalidated statewide.”

WCJC Hails Civil Litigation Reform Successes — Some Offense, Some Defense

Wednesday, March 30th, 2016

The Wisconsin Civil Justice Council continued to advance civil litigation reforms this past session, albeit without the sweeping reforms seen in the prior two sessions. WCJC recently released their end of session report noting the following enacted reforms:

  • Repeal of “False Claims for Medical Assistance Act” – Signed into Law (Act 55)
  • Adult Sponsor of Minor Driver Liability Reform – Signed into Law (Act 202)
  • Liability Limitations under Wisconsin’s Dog Bite Law – Signed into Law (Act 112)
  • Liability Limits for Ski Area Operators – Signed into Law (Act 168)
  • Immunity for Private Campgrounds – Awaiting Governor’s Signature

A top priority for WCJC was repealing Wisconsin’s false claims act, which was done in the budget. The act allowed individuals unaffiliated with the government to sue private businesses alleging fraud against the state’s medical assistance program. The person/lawyer who files the false claim, also known as a qui tamlawsuit, may be awarded up to 30 percent of the proceeds, in addition to costs and attorney fees. This bounty hunter aspect encourages litigation, needless, according to WCJC, given the active Medical Assistance Fraud Unit within the Department of Justice.

Wisconsin’s “dog bite” statute was a real liability bite for homeowners. Dog bites and other dog-related injuries accounted for more than one-third of all liability claim dollars paid out by homeowner’s insurance companies in 2014. Under prior law, a dog could cause minor property damage, which would count as the first bite, and then cause physical damage to an individual on the second bite. The owner would be liable for double damages for the second incident despite the innocuous nature of the “first bite.” Under 2015 Wisconsin Act 112, both bites must break the skin and cause permanent scarring or disfigurement and the owner must have known of the first bite.

Another sensible enactment was 2015 Wisconsin Act 202 which limits the liability of a parent or other adult sponsoring a minor obtaining a driver’s license. Wisconsin law requires a minor have an adult sponsor as a condition to obtaining a driver’s license. Well enough. But a separate law provided that the parents or adult sponsors have unlimited liability for that minor’s driving. Act 202 protects otherwise innocent sponsors by limiting the liability imputed to a parent or other adult sponsor to the greater of $300,000 or the limits of any insurance coverage.

Other enactments protect ski area and private campground owners and operators. Both laws, 2015 Wisconsin Act 168, relating to ski hills, and enrolled AB 174 (awaiting the Governor’s signature), relating to campgrounds, limit liability in light of the inherent risks associated with ski hill and campground activities.

In addition, bills aimed at repealing past reforms failed to pass. For example, one of WCJC’s top priorities last session, asbestos trust reforms, would have been undone by AB  862 (Rep. Wachs-D) and SB 723(Sen. Vinehout-D). Both bills died in committee. While these and other bills opposed by WCJC never gained momentum given the current makeup of the legislature, they will return with more political strength if the majorities flip.

For more information on these and other civil justice initiatives, go to the Wisconsin Civil Justice Council’s end of session report.

Signed into Law: Statutes of Limitation on Claims Involving Property Damage or Motor Vehicle Accident

Monday, March 28th, 2016

Governor Walker signed AB 223 into law as 2015 Wisconsin Act 133 on February 4, 2016. Assembly Bill 223 introduced by Rep. Spiros (R-Marshfield) and Sen. Lasee (R-De Pere).

Under current law, the time limit for initiating a civil action on a contract or obligation, including an insurance policy, is generally six years after the cause of action accrues. In those cases in which the contract is a motor vehicle insurance policy, Act 133 changes the time limit to three yearsfrom the date that the cause of action accrues. For uninsured and underinsured motorist claims, this act specifically defines the date of accrual of the cause of action as the date that “there is final resolution of the underlying cause of action by the injured party against the tortfeasor.”

In addition, Act 133 changes from six years to the three years the statute of limitations for claims for damage to real or personal property arising from a motor vehicle accident. The act retains the six-year statute of limitations for claims for damage to real or personal property not arising from a motor vehicle accident.

Finally, Act 133 changes from three years to two years the statute of limitations for actions to recover damages for death caused by the wrongful act, neglect, or default of another arising from an accident involving a motor vehicle. The three-year statute of limitations is retained for such claims arising from circumstances not involving motor vehicle accidents.

The above changes apply prospectively, to accidents that occur on or after the legislation’s effective date, February 6, 2016[1].

See Wisconsin Legislative Council Act 133 memo for additional background on Act 133.

Dies in Committee: Loss-of-Use Liability for Rental Motor Vehicles

Monday, March 28th, 2016

Under Assembly Bill 672/Senate Bill 495, introduced by Rep. Nancy VanderMeer (R-Tomah) and Sen. Chris Kapenga (R-Delafield), a rental company may hold a renter or driver of a rental car liable for loss of use that results from an accident if the renter or driver is cited or charged with inattentive or reckless driving or other violations of law. Little action was taken on these bills this session. SB 495 only received a public hearing before dying in the Senate, and there was no hearing or committee action on AB 672.

Dies in Committee: Reviver Statute — Statute of Limitations for Sexual Contact with a Child

Monday, March 28th, 2016

Under current law, the time a person has to bring an action for an injury resulting from being sexually assaulted or subject to incest as a child, or from being subject to sexual contact by a member of the clergy as a child, is any time before the injured party reaches the age of 35. Sen. Julie Lassa (D-Stevens Point) and Rep. Evan Goyke (D-Milwaukee) introduced Senate Bill 262/Assembly Bill 348 which would provide a three-year reviver window for plaintiffs to file childhood sexual abuse claims, regardless of the previous expiration of the statute of limitations.

The legislation had bipartisan support, with Republican Reps. Horlacher, A. Ott, Neylon, Rohrkaste, and Sen. Olsen signing on as co-authors. But both bills died in committee.

For over 100 years, the Wisconsin Supreme Court has consistently rejected reviver statutes as unconstitutional. The court subscribes to the view that the expiration of a statute of limitations vests a property right in a defendant. The resurrection of a time-barred claim therefore amounts to a taking of property without due process of law.

For more on the constitutional issues arising from reviver statutes, see this legal memo provided in the context of prior Wisconsin reviver legislation.

Awaiting Governor’s Signature: Immunity for Private Campgrounds

Monday, March 28th, 2016

Assembly Bill 174/Senate Bill 131, introduced by Rep. Joel Kitchens (R-Sturgeon Bay) and Sen. Devin LeMahieu (R-Oostburg), as amended, would create immunity from civil liability for a private campground in certain circumstances. The legislation passed the Assembly on February 16, 2016, and the Senate on March 16. The enrolled legislation now awaits gubernatorial approval.

Under the legislation, as amended by substitute amendments, a private campground owner, operator or employee is immune from civil liability if a person is injured or killed, or property is damaged, as a result of an inherent risk of camping. “Inherent risk of camping” means a danger or condition that is an integral part of camping, including dangers posed by any of the following:

  • Features of the natural world, such as trees, tree stumps, roots, brush, rocks, mud, sand, and soil
  • Uneven or unpredictable terrain
  • Natural bodies of water
  • Another camper or visitor at the private campground acting in a negligent manner
  • A lack of lighting, including lighting at campsites
  • Campfires in a fire pit or enclosure provided by the campground
  • Weather
  • Insects, birds, and other wildlife
The legislation would not provide immunity if the person seeking immunity does any of the following:
  • Intentionally causes the injury, death, or property damage.
  • Acts with a willful or wanton disregard for the safety of the party or the property damaged. “Willful or wanton disregard” means conduct committed with an intentional or reckless disregard for the safety of others.
  • Fails to conspicuously post warning signs of a dangerous inconspicuous condition known to him or her on the property that he or she owns, leases, rents, or is otherwise in lawful control of or possession.

Signed into Law: Liability Limits for Ski Area Operators

Monday, March 28th, 2016

Governor Scott Walker signed Assembly Bill 596/Senate Bill 463 into law as 2015 Wisconsin Act 168 on March 1, 2016. The new statute, introduced by Rep. Adam Jarchow (R-Balsam Lake) and Sen. Duey Stroebel (R-Saukville), changes the term “snow sport” to “alpine sport” and adds “biking” to the list of activities included in the term.

Previous law imposed proportional liability for an injury or death resulting from participation in a “recreational activity,” including riding a bicycle, on a premises that is open to the public for such purposes. However, under certain circumstances, ski area operators have immunity from liability for injury or death resulting from participation in a “snow sport” within a ski area. Among other changes, the new law reconciles these requirements for bicycling within ski areas.

An individual who participates in a recreational activity assumes the “risks inherent in the recreational activity of which the ordinary prudent person is or should be aware” and must satisfy certain behavioral duties. [s. 895.525, Stats.] If a participant is injured or killed, the owner of the premises may be liable, but the damages that may be collected from the owner are reduced in proportion to the amount of negligence attributable to the participant.

An individual who participates in a snow sport within a ski area assumes certain risks and must satisfy certain duties. Likewise, ski area operators must satisfy certain duties related to safety and to give notice of assumed risks. A ski area operator that satisfies all of the required duties owes no further duty of care to a participant and is immune from liability for an injury or death sustained by a participant that results from the assumed risks of participation in a snow sport.

The act removes biking from the definition of “recreational activity,” defines the risks assumed by individuals who participate in biking, and establishes the duties participants must satisfy. It also establishes the duties of ski area operators related to biking. Under the act, a ski area operator that satisfies all of the required duties owes no further duty of care to a participant who engages in biking and is immune from liability for an injury or death sustained by a participant that results from the assumed risks of participation in an alpine sport.

Attempts to Repeal Asbestos Trust Reforms Die in Committee

Monday, March 28th, 2016

Assembly Bill 862, authored by Rep. Dana Wachs (D-Eau Claire), and Senate Bill 723, authored by Sen. Kathleen Vinehout (D-Alma), would have reversed a major liability reform priority from last session relating to fraud in asbestos lawsuits involving personal injury trusts.

On March 27, 2014, Gov. Scott Walker signed 2013 AB 19 into law as 2013 Wisconsin Act 154. The act provides for greater transparency by:

  • Requiring asbestos plaintiffs to disclose any and all claims that they have filed or will file with asbestos trust funds, along with all of the documents and information that support the trust claims.
  • Requiring judges to admit trust claims and supporting materials into evidence at trial; prohibiting plaintiffs from spuriously alleging that trust claims and their supporting documents are privileged.
  • Providing defendants with a powerful tool to ensure that plaintiffs file and disclose all possible claims with asbestos trusts. Act 154 authorizes defendants to identify trust claims that the plaintiff could and should file. If a judge agrees, the case is stayed until that claim is filed and disclosed.

For more information on this issue go to the Wisconsin Civil Justice Council’s page on Limiting Double-Dipping in Personal Injury Cases.