Milwaukee Sick Pay Ordinance Preempted by Wisconsin Legislature

On April 12, 2011, the Wisconsin Assembly passed a bill to eliminate Milwaukee’s paid sick leave ordinance (the “Ordinance”) and prohibit local governments from approving similar paid leave mandates on employers. The Wisconsin Senate passed the companion bill in March.

The bill was signed into law by Governor Scott Walker on May 5, 2011.

 The recent legislative action is similar to the state action taken several years ago to clarify that a living wage mandate could only be implemented on a state-wide level, not locally. The Ordinance, passed by initiative by City of Milwaukee voters in November of 2008 (direct legislation, not by the Common Council), would have required employers in the City to provide up to nine days of sick pay each year to their workers.

Michael Best was retained by the Milwaukee Metropolitan Association of Commerce (“MMAC”) to challenge the Ordinance in the Courts. MMAC argued that the ballot question was inadequate and misleading, that the Ordinance was preempted by existing state and federal law, and suffered other legal defects.

 The Ordinance never took effect since MMAC won a permanent injunction and dismissal of the Ordinance by the Milwaukee County Circuit Court. From there, appeals proceeded to the Court of Appeals, to the Wisconsin Supreme Court (which deadlocked on a 3-to-3 vote, with one Justice recusing herself), and back to the Court of Appeals. The MMAC argued all along that the Ordinance was preempted. Now, with clear and express preemption by the state Legislature the Ordinance, is null and void.

 Scott Beightol, Chairman of Michael Best and Partner in the Employment Relations Group, represented MMAC throughout this process. "By this law, the Legislature and Governor have affirmed what Milwaukee businesses have argued since the start: regulation of employment standards where necessary should be at the state or federal level. As workers and their work becomes increasingly mobile, a patchwork of regulations that differ from one locale to another will only lead to businesses picking and choosing where to locate their workforces and the resulting jobs, population growth, and tax revenues," said Mr. Beightol.

Mr. Beightol added, "The MMAC's position has never been 'anti-sick pay' or 'anti worker.' Instead, MMAC's business members challenged the efficacy and wisdom of an Ordinance that would set Milwaukee apart from the rest of the State. We believed that the Ordinance was preempted by the Wisconsin Family and Medical Leave Act which, for almost 20 years, has provided a uniform, statewide mandate of time off from work for family and personal situations. Thanks to the injunction from the court, and now the clear preemption statement from the Legislature, Milwaukee businesses know they compete on the same terms as any other business in the state."