Author: Hamilton

States, Federal Government Seek to Curb Coronavirus Lawsuits

Posted on by Hamilton

As COVID-19 strains the health care system and economy, lawsuits related to the coronavirus are already beginning. Some states and the federal government are taking action to limit liability for businesses and health care workers acting in good faith to help address the pandemic. WCJC is working with Wisconsin legislators to do the same. President of the U.S. Chamber Institute for Legal Reform (ILR) Harold Kim has stated that “limiting litigation abuse is essential to ensuring the stability and economic recovery from COVID-19.”

Already, lawsuits related to COVID-19 have been filed across the country. Legal Newsline recently reported on plaintiff attorneys looking to cash in on the pandemic. Litigation targets range from false advertising claims to medical malpractice lawsuits to securities lawsuits.

  • A lawsuit has been filed against the maker of Purell hand sanitizer, alleging the claim that Purell sanitizer kills 99.9 percent of germs is misleading. Similar false advertising claims have been filed against drug manufacturers, and manufacturers of protective equipment could also be at risk.
  • USA Today recently reported on lawsuits against cruise lines, colleges, and insurers.
  • Employees, including some government employees and workers at essential businesses, are suing their employers arguing they were exposed to coronavirus.
  • Businesses are seeing price gouging complaints from private parties and state attorneys general.
  • Health care providers are suing their hospitals and clinics for failing to provide personal protective equipment. Patients are in turn suing their health care providers for medical malpractice.
  • At least two securities lawsuits have already been filed by shareholders about stocks decreasing in value due to COVID-19.
  • Legal Newsline has reported that grocery stores and pharmacies could be the next target of litigation.
  • Consumers are filing lawsuits when they are unable to obtain refunds for services no longer offered due to the pandemic, such as gym memberships, tuition payments, and events.
  • Thousands of banks have stated hesitations about participating in the federal government’s small business loan programs due to concerns about taking on legal responsibility for preventing fraudulent claims.
  • The National Law Journal predicts False Claims Act litigation will likely follow the passage of the federal CARES Act stimulus package. (WCJC successfully advocated for the repeal of Wisconsin’s False Claims Act in 2015 and successfully helped remove provisions in Gov. Evers’ 2019-21 state budget that would have revived false claims lawsuits.)

ILR President Kim said this early litigation is just “the tip of the iceberg.”

States including New York, Kentucky and Michigan have already taken bipartisan action to protect health care workers fighting COVID-19 on the frontlines from frivolous lawsuits. Protecting providers from liability will allow those treating COVID-19 patients to act quickly and effectively without fear of facing expensive lawsuits when they are acting in good faith. Liability protections will give providers flexibility to treat more patients and treat them in innovative ways during this crisis.

WCJC is looking at enacting similar provisions in Wisconsin, as well as working with Wisconsin Manufacturers & Commerce on provisions to protect manufacturers of personal protective equipment and employers who are working to keep their essential employees safe.

Some liability reforms to protect businesses during COVID-19 have already passed at the federal level. The Families First Coronavirus Response Act (FFCRA) included liability protection for N95 face mask manufacturers. After passage of the bill 3M said it will almost double production of the masks to make 2 billion this year.

Wisconsin Courts Respond to COVID-19

Posted on by Hamilton

As Wisconsin government and the public struggle with the COVID-19 pandemic, Wisconsin courts remain operational but with reduced calendaring.

  • Subject to certain exceptions, all proceedings in Wisconsin courts are to be conducted via remote audio-video technology if practicable. (Supreme Court order)
  • Wisconsin Supreme Court March 18, March 30, and April 1 oral arguments cancelled. (More on oral arguments)
  • State courts administrative offices closed until at least April 3. (March 17 press release)
  • Some appellate filing deadlines extended and other filing procedures amended.  (Supreme Court order, extended order)
  • Nonemergency motions to the Court of Appeals and Supreme Court are discouraged through April 3. (Supreme Court order)
  • Many individual circuit courts have issued emergency orders related to COVID-19. (See COVID-19 tab at https://www.wicourts.gov/.)
  • The Supreme Court has also temporarily increased the number of credits from on-demand programs that lawyers may use to satisfy CLE requirements.
  • Civil and criminal jury trials are suspended until May 22.
  • The Supreme Court has postponed bar admissions ceremonies through May and instituted temporary procedures for admission to the bar.
  • The Supreme Court has established a temporary rule for the remote administration of oaths at depositions via remote audio-visual equipment.
  • The Supreme Court will hold a public hearing on May 1 (with written comments open until April 24) and its interim rule to temporarily suspend statutory deadlines for civil jury trials due to the pandemic.

 

 

Wisconsin DOJ Actions on COVID-19

Posted on by Hamilton

Since the outbreak of the COVID-19 pandemic, Wisconsin Attorney General Josh Kaul has taken several actions to address the crisis. Below is a timeline of the Department of Justice’s (DOJ) response:

 March 31, 2020. DOJ, representing Gov. Evers, submitted a brief asking a federal court extend the deadline for requesting an absentee ballot and relax witness signature requirements, among other recommendations, while still keeping in person voting on April 7. Read about the outcome of the case and more election lawsuits here.

AG Kaul also warned Wisconsinites to be alert to COVID-19 marketing scams.

 March 27, 2020. AG Kaul and the Wisconsin Department of Financial Institutions warned consumers about charity scams related to COVID-19.

 March 26, 2020. AG Kaul joined 27 attorneys general in a letter to U.S. Secretary of Education Betsy Devos, seeking emergency measures to protect student loan borrowers during the COVID-19 economic downturn.

Another multistate coalition sent a letter to President Donald Trump, requesting the federal government end the ban on scientists working with fetal tissue. The coalition argued that rescinding the ban would help accelerate COVID-19 vaccine development.

 March 24, 2020. AG Kaul led a multistate coalition in sending a letter to President Donald Trump, asking the President to utilize the Defense Production Act to prioritize production of personal protective equipment and other critical items to fight the pandemic. DOJ also issued guidance about consumer rights under Wisconsin’s price gouging statutes.

 March 16, 2020. AG Kaul warned Wisconsin residents of COVID-19 scams and price gouging. DOJ also issued an advisory on Wisconsin’s open meeting laws in light of COVID-19.

 

For more information on COVID-19 in Wisconsin, please visit https://www.hamilton-consulting.com/covid-19-in-wisconsin/.

 

Read about other multistate actions by AG Josh Kaul.

 

Other Multistate Actions by AG Kaul

Posted on by Hamilton

In addition to actions related to COVID-19, Wisconsin Attorney General Josh Kaul has recently joined several multistate actions on various topics.

  • Federal border wall funding. AG Kaul, with seven other states, filed a lawsuit challenging the Trump administration’s diversion of funds from the National Guard and other sources to the construction of a border wall. The filing argues the diversion violates the federal Administrative Procedure Act.
  • T-Mobile/Sprint merger. AG Kaul, on behalf of a 12-state coalition, announced an agreement with T-Mobile to end the states’ litigation fighting the T-Mobile/Sprint merger.
  • Opioid manufacturer settlement. AG Kaul announced a $1.6 billion global settlement with generic opioid manufacturer Mallinckrodt. The funds will go to a national trust that covers opioid addiction treatment and related efforts.
  • Investigation of JUUL. AG Kaul joined 39 states in investigating e-cigarette manufacturer JUUL’s marketing and sales practices.
  • EPA lead in drinking water standards. The comments from 10 states, including Wisconsin, oppose some provisions in EPA’s proposed revised standards for lead in drinking water. Provisions opposed include a reduction in the lead service line replacement rate.
  • EPA Chemical Disaster Rule. The filing from AG Kaul and 15 attorneys general seeks judicial review of the EPA’s rule rolling back of elements in the Chemical Disaster Rule.

PFAS Update: Current Status of Legislation, Rulemaking Continues

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When the state Assembly’s legislative session wrapped up in February, WCJC closely monitored legislation to address PFAS in Wisconsin. With the Legislature’s attention on COVID-19 for now, PFAS bills have moved out of focus but could be revived when the state Senate reconvenes to take up the remaining bills from the regular legislative session. Meanwhile, the Wisconsin Department of Natural Resources (DNR) is continuing to work on rulemaking to set standards for PFAS in surface water, groundwater, and drinking water. 

PFAS (per- and polyfluoroalkyl substances) are man-made chemicals found in many everyday products, including nonstick pans, cleaning products, paints, and firefighting foam. The most extensively studied PFAS compounds are PFOA and PFOS, which have been phased out of domestic manufacturing over the past decade. Competing studies debate whether or not these chemicals have negative health effects and, if they do, at what level they are harmful.

  

Wisconsin Legislation

In the last Assembly regular floor period of the 2019-20 legislative session in February, the Assembly passed PFAS provisions as an amendment tacked on to SB 559 (an unrelated bill). The Assembly passed on a party-line vote language that:

  • Directs the University of Wisconsin System to perform a study and report to the Legislature on PFAS effects in the human body, drinking water and groundwater.
  • Directs DNR to test private wells and municipal water systems for PFOA and PFOS in places around the state that have detected PFAS, investigate PFAS in those areas, and provide clean drinking water to residents affected.
  • Directs DNR to recoup payments for testing, investigation, and clean water from responsible parties who have used firefighting foam containing PFAS.
  • Directs DNR to set lab certification standards.

The legislation now must be approved by the Senate, which was scheduled to meet in March but has postponed its final regular session date due to COVID-19.

The Assembly did not take up alternative legislation (AB 843 & AB 842) that would have given DNR extremely broad authority to establish and enforce various PFAS standards. A coalition of industry groups opposed those bills.

Other legislation on PFAS introduced this session included:

AB 323/SB 310 would prohibit the use of firefighting foams that contain intentionally added PFAS in training, unless the testing facility has appropriate containment and treatment measures. – Signed into law on Feb. 5 as Act 101

SB 774 & SB 775/AB 922 & AB 921, authored by Sen. Rob Cowles (R-Green Bay) and Rep. Joel Kitchens (R-Sturgeon Bay), would allow DNR to regulate PFAS and provide funding for residents and municipalities in targeted “PFAS management zones” that have water testing above 70 ppt. This bill would not set statewide standards for PFAS chemicals. – Senate Committee on Natural Resources & Energy held a public hearing on the bill on Feb. 7 but did not vote on the bill. With the Assembly adjourned for the regular session, the bill is likely dead.

SB 717/AB 792 provides $250,000 for the Department of Trade, Agriculture & Consumer Protection (DATCP) to administer, with DNR, a voluntary program to collect and store or dispose of firefighting foam containing PFAS. This bill was introduced by the Speaker’s Task Force on Water Quality. – Passed the Assembly unanimously on Feb. 18. Senate Committee on Natural Resources & Energy voted unanimously to recommend passage on Feb. 5, but it is unclear if the Senate will take up the bill in its final floor session.

SB 302/AB 321, also known as the “CLEAR Act,” would circumvent current rulemaking processes and give DNR broad, unprecedented authority to regulate PFAS chemicals. – No action.

AB 952 would require DNR to determine whether a safer alternative exists for PFAS in food packaging. If DNR determines there is a safer alternative, no person can manufacture, sell or distribute food packaging containing PFAS. – No action.

 

DNR Rulemaking

The DNR Board voted on Jan. 22 to approve three scope statements under which DNR can regulate PFAS chemicals. (Read about the scope statements here.) Industry groups including WCJC had asked DNR to narrow the scope statements to regulate just PFOA and PFOS chemicals, but the Board-approved scope statements will still give DNR the ability to promulgate regulations on any chemicals in the broad “PFAS” class. Approval of the scope statements allows DNR to move forward with the rulemaking process.

DNR held its first Stakeholder Group meeting on all three proposed rules on Feb. 6. At the meeting, DNR gave an overview of the three scope statements and took public comments. At the next stakeholder meeting, held remotely via Zoom on March 23, DNR gave an update on the federal Environmental Protection Agency (EPA) process for setting standards for PFAS and DNR’s own timeline for setting state standards. DNR estimates that the formal comment period on the rules will take place in 2021 and rules will be finalized in 2022. DNR, along with the state Department of Health Services, also discussed their rationale for recommending a 20 ppt enforcement standard and 2 ppt preventive action limit for PFOA and PFOS combined. The recommended limits would be some of the lowest in the world.

DNR will continue to hold stakeholder meetings for each rule (surface water, groundwater, and drinking water) while drafting economic impact analyses. Under Wisconsin’s rulemaking statutes, DNR cannot continue rulemaking on a proposed rule with an economic impact analysis over $10 million without legislative approval. When economic impacts and rule text are finalized, DNR must hold a public hearing before sending the rules to the governor and legislature for approval.

WCJC is monitoring the rulemaking process to ensure the standards set are not overly burdensome as to cause unnecessary compliance costs and liability for Wisconsin businesses.

 

WisPAC State Agency Task Force

In accordance with Executive Order 40, issued by Gov. Tony Evers in August 2019, Wisconsin state agencies have convened the Wisconsin PFAS Action Council (WisPAC). The executive order directs the council to develop an action plan to address PFAS, due to the governor and legislature by July 1.

WisPAC has also convened two sub-advisory groups:

  1. Local Government group headed by
    -Lawrie Kobza, who represents Municipal Environmental Group (MEG) – Water Division.
    -Paul Kent, who represents MEG – Wastewater Division.
    -John Dickerson, Department of Revenue Division Administrator for State & Local Finance
  2. Citizens group, which includes industry and stakeholder groups, headed by
    -Lynn Morgan, who represents Waste Management
    -Ned Witte, an attorney from Milwaukee who has worked with DNR in their Brownfield Study Group and represents municipalities in environmental cleanup cases
    -A representative from the Department of Health Services

The sub-advisory groups have met twice so far to take recommendations from the public on what actions they will recommend for the WisPAC action plan. Ideas for the action plan will ultimately be categorized into four areas:

  1. Preventing future discharges
  2. Minimizing current exposure
  3. Addressing legacy exposure
  4. Education

Ideas discussed in the sub-groups so far have included PFAS bans, labeling requirements for products containing PFAS, risk communication and education to the public, developing best practices for water utilities, identifying responsible parties, and providing funding for cleanup by initiating investigations and settlements with industry using PFAS products.

The full WisPAC committee of state agency representatives met in January and February, where the leaders of the sub-advisory groups briefed WisPAC on ideas they heard in their listening sessions. Agency members of WisPAC then listed their own ideas for recommendations to potentially be included in the Action Plan due in July, such as finding funding mechanisms, increasing available testing and data, educating municipal water utilities and the public, prioritizing contamination areas of concern, incentivizing private businesses to clean up PFAS sites, setting strict PFAS standards, and evaluating a potential ban on PFAS products.

The remaining March and April meetings of the local government and citizens sub-advisory groups and the full WisPAC have been postponed due to COVID-19. It is not clear yet how the public health emergency will affect WisPAC’s July 1 deadline to get the action plan to the governor.

 

EPA Action

EPA announced at the end of February it will regulate PFAS. The decision to regulate is the beginning of a multiple-year period for EPA to determine and finalize a maximum contaminant level for PFAS in drinking water. EPA proposed regulatory determinations for both PFOA and PFOS.

EPA also recently issued a proposed rule that would exclude manufacturers of PFAS from providing proof of financial responsibility under the federal Superfund cleanup law.

Earlier this year, EPA added 160 PFAS chemicals to the Toxic Release Inventory (TRI). The TRI is a list of chemicals that EPA requires industry to gather data and report on. The new PFAS chemicals, including PFOA and PFOS, have been added to the list effective Jan. 1. The list was added to the TRI following the enactment of the 2020 National Defense Authorization Act (NDAA) in December.

While rulemaking is ongoing, EPA has issued a nonenforceable health advisory standard of 70 parts per trillion.

 

Read more about PFAS regulation in Wisconsin.

 

Gov. Evers Signs Bill to Create Certificates of Qualification for Employment for Ex-Offenders

Posted on by Hamilton

Gov. Tony Evers has signed into law legislation (Act 123) that creates a Council on Offender Employment to issue certificates of qualification for employment (CQEs) to ex-offenders. The bill seeks to reduce recidivism by helping ex-offenders re-enter the workforce.

Under the legislation (AB 30), the certificates issued by the Council would qualify ex-offenders for certain types of employment or licensing for which they would otherwise be ineligible based upon specific penalties associated with their criminal record. For example, a CQE would allow an ex-offender to get an occupational license for which he or she would, but for the CQE, be ineligible.

The bill additionally provides some immunity from liability for employers who hire employees with CQEs. Wisconsin Civil Justice Council and Wisconsin Manufacturers & Commerce worked closely with the bill’s authors, Sen. Alberta Darling (R-River Hills) and Rep. Rob Hutton (R-Brookfield), on the immunity provision to ensure that employers are protected from frivolous lawsuits when they hire ex-offenders possessing a CQE.

Gov. Evers signed the bill on March 3, after it passed unanimously in the Assembly and Senate in February.

U.S. Chamber Releases Research on Third Party Litigation Financing

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Recent research from the U.S. Chamber Institute for Legal Reform (ILR) looks at how the third party litigation financing industry has over the last decade grown exponentially, fueling abusive litigation. According to the ILR paper, third party litigation financing is now at least a $10 billion industry. These investors in lawsuits encourage filing of frivolous cases and often drive up the cost of litigation and settlements, as well as presenting a variety of ethics issues.

The ILR policy paper recommends several approaches lawmakers can take to address third party litigation financing, including some that have already been enacted in Wisconsin.

Wisconsin was the first state to enact third party litigation financing transparency requirements in 2017 Act 235, authored by Sens. Tom Tiffany (R-Minocqua) & David Craig (R-Big Bend) and Reps. Mark Born (R-Beaver Dam) & John Nygren (R-Marinette). Former Wisconsin Gov. Scott Walker signed the historic legislation into law just over two years ago. The law provides that, unless stipulated or otherwise ordered by the court, a party shall provide to the other parties any agreement under which any person, other than an attorney permitted to charge a contingent fee for representing a party, has a right to receive compensation that is contingent on and sourced from any proceeds of the civil action, by settlement, judgement, or otherwise.

Other policies recommended by ILR to address third party litigation financing include banning fee sharing arrangements between lawyers and non-lawyers and banning third party litigation financing in class actions.

Wisconsin Supreme Court Oral Arguments – March & April

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Due to COVID-19 concerns, the Wisconsin Supreme Court has canceled its oral arguments for most of March and April. New dates for oral arguments will be set at a later date, unless all parties stipulate to the court proceeding with a decision without oral arguments. As of right now, oral arguments are still on for April 20. Below are the cases of note that were scheduled to be heard.

 

April 20 – Veto Authority Cases

Still on the schedule as of right now are oral arguments on April 20 in two cases challenging the veto authority of the governor. Bartlett v. Evers challenges vetoes by Gov. Tony Evers in the 2019-21 state budget, and Wisconsin Small Business United, Inc. v. Brennan challenges vetoes by Gov. Scott Walker in the 2017-29 state budget.

 

April 1 (Canceled) – Federal Preemption of Weight Limits

On April 1, the court had been scheduled to hear Town of Delafield v. Central Transport Kriewaldt. The case will decide whether federal transportation law preempts the town’s seasonal weight restriction on certain roads. Federal law (U.S. Code Title 49 s. 31114(a) and Title 23 s. 658.19) requires towns provide “reasonable access” between the interstate and terminals. The court will determine whether Delafield’s seasonal weight limits provided reasonable access.

 

March 30 (Canceled) – Gambling Statutes

On March 30, the court had been scheduled to hear Quick Charge Kiosk, LLC v. Josh Kaul. The court will determine whether gaming and cell phone charging machines operated by Quick Charge violate certain Wisconsin gambling statutes.

The Quick Charge machines allow customers who insert a dollar in the machine to receive one minute of charging time and 100 credits to play the video chance game. After the charging time expires, customers can no longer play the game but can redeem their remaining credits for cash at the same rate for which they paid for the credits ($1 for 100 credits).

Some municipalities attempted to remove the Quick Charge machines because they believed the machines were illegal gambling devices. In this case, Quick Charge filed an action seeking a declaratory judgment that the machines are in compliance with Wisconsin’s gambling statutes. The state Department of Justice moved for summary judgment, asking the court to declare the machines unlawful.

The Supreme Court will examine whether or not the gambling statutes apply to this specific type of machine and to promotions run by Quick Charge.

 

March 18 (Canceled) – Administrative Rulemaking & Guidance Documents

On March 18, the court had been scheduled to hear Papa v. Department of Health Services. In this case, the court will determine whether a Wisconsin Department of Health Services (DHS) policy in DHS’s Medicaid Provider Handbook has the “force of law” (Wis. Stat. § 227.01(13)) and should be promulgated as an administrative rule and subject to judicial review.

Medicaid-certified nurse Kathleen Papa and Professional Homecare Providers, Inc. (PHP) filed this lawsuit against DHS regarding Topic #66 in DHS’s Medicaid Provider Handbook. Topic #66 states that Medicaid providers must “meet all applicable program requirements” for reimbursement. If providers fail to meet all requirements, DHS can recoup payments from the providers. Papa and PHP argued that Topic #66 was an illegal unpromulgated administrative rule and that the policy exceeded DHS’s explicit statutory authority under Wis. Stat. Ch. 227.

The Supreme Court will review the Court of Appeals finding that Topic #66 was not an administrative rule, and thus Papa and PHP could not obtain a declaratory judgement via Wis. Stat. Ch. 227 judicial review of administrative rule proceedings. Additionally, the Supreme Court will review whether Topic #66 – if not a rule – is a guidance document also subject to judicial review under Ch. 227.

Wisconsin Supreme Court Accepts New Veto Authority Case

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The Wisconsin Supreme Court recently accepted a new case, Wisconsin Small Business United, Inc. v. Brennan (2019AP2054), which will decide whether the governor’s partial veto authority allows him to change dates in a piece of legislation.

Petitioners challenge the constitutional validity of two vetoes by Gov. Scott Walker in the 2017-19 budget bill. In that budget, the Governor used his partial veto authority to delay the effective date of a program by 60 years and extend another program by 1,000 years.

The court will decide whether Art. V § 10 of the Wisconsin Constitution allows governors to change dates in appropriations legislation. The constitution provides that governors may partially veto numbers in appropriations and may veto entire words but may not create a new word by vetoing individual letters. At issue is whether the governor can veto individual numbers in dates in appropriations legislation.

Also on the Supreme Court’s docket is a case challenging vetoes by Gov. Tony Evers in the 2019-21 state budget, Bartlett v. Evers. The cases are both scheduled for oral argument on April 20.

 

Piper v. Jones Dairy Farm (Donning & Doffing Compensation)

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In Piper v. Jones Dairy Farm (2020 WI 28), the Wisconsin Supreme Court determined that employees’ donning and doffing activities are compensable under state law and such compensation cannot be precluded by collective bargaining agreement.

 

Facts

Plaintiffs are employees of Jones Dairy Farm seeking compensation for time spent putting on and removing safety shoe covers, frocks, hairnets, etc. before and after their shifts. Compensation for donning and doffing was not included in multiple collective bargaining agreements between the employees’ union and Jones Dairy.

Jones Diary argued the employees had bargained away their rights to donning and doffing compensation in their collective bargaining agreements. According to Jones Dairy, the employees during multiple negotiations had withdrawn proposals for donning and doffing compensation in exchange for higher base wages.

Alternatively, Jones Dairy argued the time spent donning and doffing was de mininmis or that the equitable defenses of promissory estoppel, waiver, laches, and unjust enrichment bar the plaintiffs’ claims.

 

Decision

A 4-3 court held that compensation for donning and doffing cannot be bargained away in a collective bargaining agreement. The law does not exempt employers from compensating employees for all hours worked, and donning and doffing is included in “hours worked” under Wis. Admin. Code § DWD 272.12. Wisconsin statute does not specifically allow employers to modify donning and doffing through collective bargaining, whereas federal law does. The federal law does not preempt state law because there is no Wisconsin statutory equivalent to the federal provisions. Furthermore, § DWD 274.05, which allows exemptions from certain wage requirements if both management and labor seek a waiver from DWD, does not apply to § DWD 272.12 requirements.

On Jones Dairy’s alternative arguments, the court found that the aggregate time employees spent donning and doffing was not de minimis. The court also found that Wis. Stat. § 109.03(5), which provides a private right of action in state court for employee wage claims, does not bar Jones Dairy’s equitable defenses. The Supreme Court remanded the case to the circuit court to reconsider the equitable defenses argued by Jones Dairy.  

Justice Dallet wrote the decision, joined by Justices Walsh Bradley, Kelly and Hagedorn.

 

Dissents

In a dissent, Justice Ziegler (joined by Chief Justice Roggensack) argued that donning and doffing compensation is subject to collective bargaining. According to the dissent, donning and doffing compensation requirements can be waived under § DWD 274.05. Chapter 274 incorporates § 272.12, which governs the compensability of donning and doffing.

Although Jones Dairy and the employees did not apply for a waiver under § DWD 274.05, the statute and previous case law allow wage requirements to be waived without a formal request to DWD if it is agreed upon in collective bargaining and other factors are met (i.e. waiving requirements is not dangerous to the life, health, safety or welfare of the employees). In this case, the dissent found there was an issue of material fact as to whether donning and doffing compensation was bargained away, so the dissent would have remanded to circuit court to rule whether Jones Dairy and the employees’ agreement met the conditions to waive donning and doffing wage requirements.

The dissent further argued that the de minimis doctrine does apply in Wisconsin and criticized the court for failing to adopt a standard to determine what is de minimis. Additionally, the dissent would have provided guidance to the circuit court on Jones Dairy’s equitable defenses.

In a second dissent, Justice R. Bradley agreed with the court that donning and doffing compensation cannot be bargained away but would have found the time spent donning and doffing de minimis. The dissent would have adopted the de minimis doctrine for wage claims under Wisconsin law and used the federal standard for determining when wages owed are de minimis.