Friday, June 12, 2009

A Win for Employers, Not Employees

By Lisa Kaiser
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The Metropolitan Milwaukee Association of Commerce succeeded—for now—in thwarting the will of 69% of Milwaukee’s voters today, when a Milwaukee County circuit court judge ruled that the voter-approved paid sick days ordinance is unconstitutional.

Although MMAC admitted that the majority of its members provide paid sick days to their employees, the conservative business group was able to get a temporary injunction against the ordinance. Today, Judge Thomas Cooper ruled that the ordinance was unconstitutional.

In a statement to the press, Mayor Barrett supported Cooper’s ruling, saying that “Milwaukee shouldn’t be an island.” He claimed he supported paid sick days legislation at the federal level. (Too bad he won’t support the will of more than 157,000 of his own constituents.) There was no mention of the voters or workers in his brief statement.

I don’t have a copy of the decision yet, so I can’t explain why Cooper made this ruling. The good folks of at the city attorney’s office had reviewed the referendum before it went to the voters. Here’s what I reported last November:

Sherry Leiwant, of A Better Balance: The Work and Family Legal Center, helped to draft the ordinance based on language in a similar ordinance that was adopted in San Francisco in late 2006. She said that version has not been challenged in court. 

Leiwant said that Milwaukee has the authority to mandate paid sick leave for employees in the private sector because federal and state laws do not cover paid sick leave. “There’s no conflict,” Leiwant said.

She said that the Milwaukee city attorney’s office reviewed the ordinance prior to it being on the Nov. 4 ballot as direct legislation—meaning that voters could ratify it directly, without a veto from the mayor or a vote by the Milwaukee Common Council. 



She said that a few technical changes were requested by the city during that review process. “I think there were some ways that things had to be phrased to make it consistent with the statutes and other ordinances, just to conform with other laws on the books,” Leiwant said. “But nothing substantive was requested.” 



Assistant City Attorney Tom Miller said that his office reviewed the ordinance to determine whether it fell into the scope of what was appropriate for a piece of direct legislation. He said the city attorney’s office did not work with 9to5 to help craft the language of the ordinance itself. The office routinely offers its opinion on proposed legislation developed by members of the Milwaukee Common Council. “I don’t believe that our office was asked to have any role in that,” Miller said.

9to5 is going to make a statement later this afternoon, so I'll update the story then.

 

UPDATE:

 

9to5 has released a statement, which sheds some light on Judge Cooper's reasoning:

 

“The Judge found the ordinance is not preempted by any state or federal law, is not unconstitutional as vague, does not impair any contract, does not regulate outside the city’s boundaries,” said Barbara Zack Quindel, attorney for 9to5. “Nor did he find that the ordinance exceeded the City’s police powers except with regard to one discrete provision: namely, providing use of sick time for relocation and legal action for victims of domestic violence. He found this same provision created a problem in the enactment of the ordinance, as it was not separately stated as part of the ballot question. We strongly disagree with this analysis. However, we are very concerned that even under his interpretation, the Judge failed to provide the logical and legal remedy: to severe this one point and uphold the ordinance. It clearly stands on its own even without this provision, and such severance would have been the way to uphold the will of the people.”

 

Sad that an attempt to protect women and children from domestic violence has made this ordinance--for the time being--unworkable.

9to5's Amy Stear reminded us why this ordinance is vital to our city's public health:

 

“Judge Thomas Cooper’s verdict today will not stop paid sick days from becoming the law of the land,” said Amy Stear, Wisconsin Director of 9to5. “While we are disappointed that Judge Cooper did not uphold the ordinance, we think higher courts will strike down the narrow grounds on which he based his ruling. But we are deeply concerned about the 122,000 Milwaukeeans without paid sick days and their children. For them, justice delayed could have serious economic and health consequences. This delay is especially harmful given the current H1N1 pandemic, the potential that the flu will be even worse in the fall, and the continuing increase in instances of domestic violence.”


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