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.

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.

In DSG Evergreen Family Limited Partnership v. Town of Perry (2020 WI 23), a unanimous Wisconsin Supreme Court held that claim preclusion did not apply, but the plaintiff had no private right of action against the town, barring this eminent domain case.

The Town of Perry took property from DSG in an eminent domain action. The land taken included a road, and the condemnation petition required the town to replace the road with the same standards as the former road – the statutory standards for construction of town roads in Wis. Stat. § 82.50(1). DSG argued that the new road did not meet the statutory standards, so the town violated the petition.

At issue before the Supreme Court was whether claim preclusion barred DSG’s lawsuit and whether DSG had a private right of action to hold the town accountable for failing to meet the statutory standards.

The court found that claim preclusion did not bar DSG’s claims against the town. The previous two cases litigated between DSG and the town were limited by statute to only certain issues regarding eminent domain procedure. DSG in the previous cases would not have been able to bring its instant claims about the town’s failure to construct the road to appropriate standards. Because there was no identity of the causes of action between the previous cases and the instant case, claim preclusion did not apply.

However, the court did bar DSG’s claims on the grounds that DSG had no private right of action either to 1) request a declaration that the town must improve the road to the statutory standards or 2) seek damages from the town via a private cause of action so DSG could improve the road itself. The court could not award DSG a declaration of rights because § 82.50 gives the town discretion as to if and how it meets the construction standards. The town can petition to the Department of Administration for exceptions to some of the statutory standards. Thus, the request for declaration of rights was not ripe for judicial review. The court further found that § 82.50 does not create a private cause of action against a municipality, so DSG could not seek damages.