Working Hard For Working People

Judge Refuses to Stay Earlier Act 10 Decision, Except for Decertified Bargaining Units



On Friday April 27^th, United States District Judge William Conley denied a request to stay pending appeal his earlier decision in Wisconsin Education Association Council v. Walker. On March 30^th, the Judge ruled unconstitutional key portions of Wisconsin’s anti-collective bargaining statute (2011 Wis. Act. 10).  The new ruling holds that such provisions remain unenforceable, except for those public sector unions that had already been decertified.  A copy of the decision is available here.

In the new decision, Judge Conley reaffirmed that Act 10 was unconstitutional where it required general employees’ public unions to annually recertify and prohibit dues checkoff for such unions.  He found that the Defendants’ “utterly failed to articulate” how they are harmed by enforcement of the earlier decision. In contrast, he found that unions affected by the Act would suffer irreparable harm if his decision was stayed since “the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” 

Unfortunately, the Judge stayed the decision as it would impact bargaining units decertified pursuant to Act 10 before March 30, 2012.  This means that unions who chose not to undertake the initial recertification vote or lost the initial recertification vote will remain decertified until the decision is addressed by the Seventh Circuit Court of Appeals. 

Can “Staying Fit” Result in a Compensable Work Injury?

The Wisconsin Court of Appeals recently addressed this question.  There are some jobs that require employees to be in good physical condition.  For example, being a police officer or fire fighter requires being physically fit.  The Court of Appeals recently took up the issue in the City of Appleton v. LIRC and Nofzinger.   Normally, an employer is not liable for an employee exercising to remain in shape for his or her job.  An employer will win a case where someone claims a work related injury while exercising to stay in shape if the employer can show that the employee was:

            1.         Engaged in an activity designed to improve physical well being;

            2.         The employee’s participation is voluntary, and

            3.         The employee received no compensation for participation. 

            In the past, for example, pickup basketball games over a lunch hour might result in a compensable work injury.  The statute was changed several years ago to make it more difficult to claim such injuries under those circumstances. 

            In the Nofzinger case, this police detective was required to take a physical test every six months on which he was scored.  The score translated into either receiving or not receiving lump sum cash premiums and also retirement bonus incentives.  Those who scored well received these items, and those who didn’t did not, and also were potentially subject to disciplinary action.

            One of the tests involved doing pushups.  The detective was doing these pushups in his home in anticipation an “imminent” test by his employer.  He injured his shoulder.  The Labor Industry Review Commission (LIRC) found that “while the employer exerted no direct control over his off premises, employment-required exercise program, there was a direct link between the type of exercise he was performing when injured and the type of exercise required by the employer to pass a physical fitness test.  The test was also ‘imminent’ because it was only eleven days away.  The exercise program was initiated by the employer through the collective bargaining agreement, the employer required him to engage on it on a recurring basis, and the employer benefited from the applicant being physically fit.  Finally, the cash and retirement incentives offered by the employer for better scores on the physical fitness test support the inference that not only the test itself, but the concomitant and mandatory exercise program, were work-related.”

            LIRC stated that the finding in this particular case applied to the particular facts and circumstances of the case.  The Commissioner did point out that the facts in an off-premises exercise case involving only “tangentially” related activities to preparation for an employer- mandated physical test might not be compensable.

 

Judge Enjoins Wisconsin Act 10 Provisions Regarding Annual Recertification and Dues Deductions

Earlier today, United States District Judge William Conley issued a written decision enjoining portions of 2011 Wisconsin Act 10.  A copy of the decision in Wisconsin Education Association Council, et al. v. Walker is available here.  The decision enjoins the State from enforcing the annual recertification requirements of Act 10 or from enforcing the prohibition on dues checkoff for unions representing “general” employees.  No later than May 31, 2012 the State is required to return to automatic dues deductions for all members of public unions.

The injunction is a direct result of the Legislature and Governor’s decision to favor unions that supported Republican candidates and harm unions that support Democratic candidates.  As the decision points out, Act 10 makes stark distinctions between “public safety” and “general” employees.  Act 10 only had a limited impact on the bargaining rights of public safety employees, and did not require that they undergo annual recertification elections nor prohibit dues deductions for such unions.  However, all unions which endorsed Governor Walker in his 2010 election were classified as “public safety” employees.  For example, the decision points out that the Act exempted state vehicle inspectors while including Capital Police. The union representing the vehicle inspectors endorsed Walker while the union representing the Capital Police did not.  Thus, political endorsements greatly shaped who was exempted from Act 10’s onerous restrictions and who was not.

Despite the political overtones of the law, the Court did not determine that the restrictions on bargaining rights were unconstitutional.  Given the status of the law in this area, the Court found that the fact that only unions representing public safety employees endorsed Governor Walker did not undermine the rational basis for treating such employees differently.  Since the State could totally eliminate bargaining rights for all unions, if it chose to do so, it could make the “public safety” exception.

In contrast, the Judge found “no obvious relationship to the government’s supported concern with disruptions by public safety employees” and the Act’s recertification requirements and prohibition on dues checkoff for general unions.  With respect to annual recertification, the Judge pointed out that that the State was unable to point out a single example of similar recertification requirements, and found that there was no precedent for annual recertification by an absolute majority.  He found that no rational basis could be served by the Act’s “unprecedented burden on a voluntary union’s right to continue to exist from year to year.”

Judge Enjoins Enforcement of Wisconsin Voter ID Law

On Tuesday, March 6, 2012, a Dane County judge issued an order temporarily enjoining the enforcement of the state Voter ID law during the spring elections on April 3. The NAACP and Voces de la Frontera argued that the Voter ID requirements unfairly infringe on individuals’ right to vote, especially low-income, senior or minority voters who may not have a driver’s license, passport, or other valid form of identification under the law. In his ruling, the judge noted that the lawsuit had a reasonable chance of success on the merits and further noted that the Voter ID law requirements constitute “a clearly improper impairment of a most vital element of our society.” A trial on the overall validity and enforceability of the Voter ID requirements is scheduled for April 16, two weeks after the spring election.

Wisconsin’s New Voter ID Law Starts With February 21st Primary



 

In 2011, a new law was enacted that makes significant changes to voting and related residency requirements. The law requires almost all voters to provide proof of identification in order to cast a ballot in any election, even if the voter is already registered. The new law also changes the residency requirements so that a person must reside within their voting district for 28 days prior to the election (rather than 10 days under the old law). The changes are in effect beginning with the February 2012 primary election and apply to all primary and general elections after that date.  Below is a summary of some of the major changes.

1.    Proof of Residency

Proof of residency is required for:

• First-time voters in Wisconsin who register by mail
• Voters who register within 20 days of the election
• Voters who register at the polls on Election Day

The purpose of the proof of residency document is to establish the voter’s current address.  The voter’s sworn statement on the registration form certifies that the voter has resided at that address for at least 28 consecutive days preceding the election.

The address on a voter’s photo ID does not need to match the address on the poll list. However, a voter is still required to prove his or her residency within the voting district with appropriate documentation, such as a utility bill or bank statement that includes the voter's current and complete name, current and complete residential address and the name of the municipality.  Voters are no longer able to "vouch" for one another.2.    Proof of Identification

 

A ballot—in person or an absentee—will not be issued to a voter until the voter proves his or her identity.  Acceptable forms of identification are as follows:

• Wisconsin DoT-issued driver license
• Wisconsin DoT-issued identification card
• U.S. uniformed service identification card
• U.S. passport

These forms of identification must be unexpired, or if expired, have expired after the date of the most recent general election. For the February 2012 primary, the identification must not have expired prior to November 2011. Additional forms of identification that a voter may use are:

• A certificate of naturalization that was issued not earlier than two years before the date of an election at which it is presented
• An unexpired driving receipt issued by Wisconsin DoT.
• An unexpired identification card receipt issued by Wisconsin DoT.
• An identification card issued by a federally recognized Indian tribe in Wisconsin
• An unexpired identification card issued by a Wisconsin-accredited university or college that meets all of the following criteria:
  • Shows date of issuance,
  • Contains student signature,
  • Expires no more than two years after its issuance, AND
  • is accompanied by documentation from the university or college proving that the student is currently enrolled.

A student ID card is insufficient to establish proof of residency.  Out of state drivers licenses may not be used as proof of identification.

A voter may get a free Wisconsin DOT issued identification card under state law. The DOT will provide free ID cards to individuals who are at least 18 (or will be) as of the date of the next election and who specifically request a free ID for voting. Note that it may take a voter several weeks to obtain a free ID card if a voter does not already have a certified copy of his or her birth certificate. Instructions on how to obtain a free state ID may be found here.  If a voter does not request the free ID card for the purpose of voting, he or she may be charged the $28 fee ordinarily assessed to applicants for such an ID.

There are some exceptions to the proof of identification requirement related to military and/or overseas voters, certain voters who are hospitalized or reside in nursing homes or similar residential facilities, and crime victims who have a confidential voter listing.

3.    Signature Requirement

Voters are now required to sign the poll list. A person who refuses to sign the poll list will not be issued a ballot and, therefore, will not be able to vote.

4.    Absentee Voting Changes

The new law also reduces the period in which absentee voting may occur and requires that voters requesting an absentee ballot present or enclose proper proof of identification with their request for absentee ballot, unless the request is electronically made, in which case proof of identification must be enclosed with returned ballot. Once a mail-in absentee voter has provided photo ID, they are not required to provide photo ID again with subsequent absentee ballot requests, unless they need to register again due to a name change or change in address. The requirement that an absentee voter sign the voter roll is waived, instead, absentee voters only need to sign the Absentee Certificate Envelope.

Changes to “automatic” absentee voting. If a voter failed or fails to return any absentee ballot mailed or transmitted to him or her pursuant to an automatic absentee voting request, the clerk must discontinue sending that voter absentee ballots until the voter notifies the clerk that he or she wishes to continue receiving absentee ballots for subsequent elections.

5.    Failure or Refusal to “Prove” Identity

Elections officials may deny a person the right to vote if the voter does not present proof of ID, if the name on the ID does not conform to the name on the poll list or separate list, or if the photo on the ID does not “reasonably resemble” the voter. While the person may be permitted to cast a provisional ballot, the voter must correct the deficiencies related to the proof of identification no later than 4 p.m. on the Friday immediately following the election.

Note that this could be a problem for people who are recently married or divorced or otherwise changed their name but have not updated at least one of the necessary forms of identification.

Additional information is available at http://gab.wi.gov/taxonomy/term/135

 

 

 

 

Previant Legal Show: Falling on Ice

On October 23, 2011, on the Previant Legal Show, Attorneys Lyris Medrano and David McCormick discussed what to do when you are out shopping and slip and fall on ice:

Faling on Ice

Previant Legal Show: More on Concealed Carry

Most Saturday at Noons, attorneys from Previant Goldberg answer questions on the Previant Legal Show on 620 A.M. WTMJ (in Milwaukee).  On October 8th, Attorney Tom Flanagan discussed Wisconsin's new concealed carry law on the Show:

 PLS: Concealed Carry - Part I

Tom also discussed concealed carry on the September 3rd show.
 

WERC Emergency Rules for Initial Recertification Voting Approved by Governor

On Friday, September 8, 2011, Governor Scott Walker approved emergency administrative rules related to the initial annual certification of public sector bargaining units, as required by Act 10 and Act 32. The WERC expects the elections to be conducted telephonically, by the American Arbitration Association, pursuant to the following requirements and deadlines. The Rules approved by the governor are not significantly different than the version proposed by the WERC, although the deadline for filing an election petition with the WERC for an initial certification of a state unit has been pushed by one week from September 15, 2011, to September 22, 2011, to allow the rules to be published.

Labor organizations are required to file a petition for an initial certification election in accordance with the schedule described below, based upon type of bargaining unit and the expiration of the current bargaining agreement. Extension agreements entered into after June 28, 2011, are not a bar to the immediate, initial certification requirements set forth below.  The fee schedule varies, depending on the number of eligible voters in the bargaining unit and is set forth in the Rules as follows:  

• 1-100 eligible voters=$200
• 101-250 eligible voters=$350
• 251-500 eligible voters=$500
• 501-1000 eligible voters=$750
• 1001-3000 eligible voters=$1500
• 3001 or more eligible voters=$2000

Administrative Rule ERC 70.03(4)/71.03(4)/72.03(4)/73.03(4)/74.03(4)/80.03(4).

For state employee bargaining units, certification elections must take place in October 2011. For an October election to occur, the Union must file its petition for certification with the WERC on or before September 22, 2011. If a bargaining unit does not file the petition and certification, the unit will be decertified.

Municipal employee bargaining units if they are covered by an indefinite contract extension with no definite termination date which is subject to termination by either of the parties by notice or advance notice (except police, fire and transit employees, to whom the certification requirements do not apply,) will also have to file an application for an initial certification election by September 22, 2011 and have their initial certification elections during October 2011,. Municipal employee units (but not school district ones, or police, fire and transit employee units) with no contract in effect on January 30, 2012 (i.e. the agreement has expired or was never reached) or whose agreement was signed on or after June 29, 2011, will have to apply for an election by January 30 2012  and their initial certification elections in February, March and April 2012. For municipal units with contracts and extensions in place before June 29, 2011, that remain effective on January 30, 2012, their initial application will be filed on or before January 30^th following the earliest expriation date and  certification elections must occur on or before May 1 following the expiration of the contract. In each of these cases the failure to file a petition will result in decertification.

School district employee bargaining units with no contract in effect as of September 30, 2011, or with a contract signed after June 28, 2011, must file an election petition no later than September 30, 2011, if the current union intends to remain the collective bargaining representative. The failure to file a petition by September 30^th will result in decertification. Certification elections for these units will occur in October and November, 2011. School district employees with contracts agreed upon before June 29, 2011, and in effect on September 30, 2011, must file an application for election on or before the September 30^th  following the earliest termination or expiration of the agreement and the conduct of  their initial certification election will be on or before December 1 following the expiration of the contract.

Within 10 days after the petition is filed, the Employer is to provide the WERC with an electronic, alphabetical list of the names, addresses, and corresponding last four digits of a social security number for all employees who were employed in the collective bargaining unit, as of the pay period during which the first timely election petition was filed. The Union then has 10 days to provide the WERC with a list (in alphabetical order) of names to be added or deleted from the employer’s list.

Elections may be conducted in person, by mail or by another means provided by the WERC. The WERC may not extend the time in which to conduct an election. If less than 51% of the entire bargaining unit votes in favor or the Union, the Union is decertified as the bargaining representative for that unit.  The WERC recently updated the Petition for Election form.

These rules apply only to the initial certification, not the annual required certification. Rules for the annual recertification are forthcoming.

 

Previant Legal Show: Concealed Carry Explained

On September 3rd, Attorney Tom Flanagan discussed Wisconsin's new concealed carry law on the Previant Legal Show:

Conceal Carry Explained

The Importance of Properly Reporting Work Injuries

On August 27th, Attorney Lisa Bangert discussed how to report a work injury during the Previant Legal Show on the radio.  Lisa discussed the importance of reporting injuries at work correctly, and which injuries are covered by a workers' compensation claim.  She also discussed the rights of injured workers to receive medical treatment (in non-emergency situations) from their own doctors:

Reporting Work Injuries

 Right to Your Own Doctor