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Wednesday, June 17, 2009

Milwaukee’s Paid Sick Days Ordinance Struck Down

But the judge says most of MMAC’s claims are bunk

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The headlines say that a circuit court judge has struck down Milwaukee’s paid sick days ordinance because it was unconstitutional.

But the actual decision written by Judge Thomas Cooper tells a much different, more nuanced story.

Judge Cooper found that a small portion of the ordinance—the portion that grants paid sick days to victims of domestic abuse, sexual assault and stalking who must take time off to take legal action against their abusers—was unconstitutional.

But, contrary to the arguments of Metropolitan Milwaukee Association of Commerce (MMAC), which brought the suit against the city, Cooper found that city voters had the right to vote on the subject of paid sick days for Milwaukee workers; that the ordinance didn’t conflict with federal or state labor laws; and that the referendum was written clearly enough for voters to know what, exactly, they were voting for.

Steve Baas, director of governmental affairs for MMAC, claimed that Cooper’s decision was a complete victory, and didn’t seem to be bothered by Cooper’s failure to agree with the business group’s main arguments in opposition to the ordinance. “On some of [our arguments] he agreed with us,” Baas said. “The critical thing is that the ordinance was declared unconstitutional and was invalidly enacted. There were some arguments that we made that clearly did not persuade the judge, but there were others on which the judge agreed.”

Supporters of the ordinance, though, were more focused on the narrowness of Cooper’s ruling. “MMAC lost on almost all of their big points,” said Sangita Nayak, spokeswoman for the working women’s organization 9to5, which initiated the Nov. 4, 2008, paid sick days referendum.

Roughly 69% of Milwaukee voters— more than 157,000 people—approved that referendum. But MMAC asked for a temporary injunction, so the ordinance was never enforced, and sued the city in state court, arguing that the ordinance was unconstitutional.

The sticking point for Cooper was the inclusion of domestic abuse, sexual assault and stalking in the ordinance. He wrote that the commonly understood definition of “sick leave” doesn’t cover domestic violence. He wrote that he couldn’t just strike that portion from the ordinance because it was made into law via direct legislation, not through Common Council action. Therefore, Cooper wrote, he couldn’t tinker with the wording of the ordinance after it had been approved by the voters. He noted that the ordinance cannot be repealed or amended during its first two years on the books.

“A court’s role in determining the validity of an ordinance enacted via direct legislation is limited to upholding or striking down the ordinance in its entirety,” Cooper wrote.

9to5 promises to appeal this decision and to support paid sick days legislation at the state and federal levels. The Paid Sick Days Coalition plans to deliver letters to Milwaukee Mayor Tom Barrett, City Attorney Grant Langley and Common Council members urging the city to appeal the decision.

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