On Sept. 20, Wisconsin Attorney General Brad Schimel joined a bipartisan coalition of states in filing a federal complaint against the U.S. Department of Labor’s new overtime rule. The complaint cites federal overreach by DOL and asks the court to prevent implementation of the rule before it is scheduled to take effect on Dec. 1.

The rule, released in late May, would double the salary threshold for “white collar” workers who are exempt from overtime pay from $23,660 to $47,476. According to the rule, the new threshold will automatically increase every three years. DOL estimates the threshold will be $51,168 in 2020. Once implemented, the changes would impact 4.2 million salaried workers.

Business groups say the new rule will force millions of salaried professionals to be reclassified as hourly wage workers. They argue that small businesses, nonprofits, and public sector employers will be especially hurt. The U.S Department of Labor estimates businesses will end up paying workers an additional $1.3 billion a year.

In its fact sheet explaining the rule, DOL provides businesses a “choice” under the new rule:

1. Increase their employees’ salaries to the $47,476 threshold.
2. Pay workers the time-and-a-half overtime premium for every hour beyond 40 per week.
3. Limit workers to a 40-hour work week.

Some groups assert that market considerations over time will prove the paycheck benefits an illusion. To curb costs, some businesses will simply forbid employees from working over 40 hours. They may also have to cut back other expenses such as non-cash benefits or suppress the base pay itself.

Wisconsin joins 20 other states in this complaint, which was filed in Texas on Tuesday, including Alabama, Arizona, Arkansas, Georgia, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Michigan, Mississippi, Nebraska, Nevada, New Mexico, Ohio, Oklahoma, South Carolina, Texas and Utah.

Friday, April 8, Dane County Circuit Court Judge C. William Foust struck down 2015 Wisconsin Act 1, Wisconsin’s Right-to-Work law. Under 2015 Wisconsin Act 1,

“No person may require, as a condition of obtaining or continuing employment, an individual to do any of the following:

1. Refrain or resign from membership in, voluntary affiliation with, or voluntary financial support of a labor organization.
2. Become or remain a member of a labor organization.
3. Pay any dues, fees, assessments, or other charges or expenses of any kind or amount, or provide anything of value, to a labor organization.
4. Pay to any 3rd party an amount that is in place of, equivalent to, or any portion of dues, fees, assessments, or other charges or expenses required of members of, or employees represented by, a labor organization.”

Wis. Stat. s. 111.04 (3).

In his ruling, Judge Foust agreed with the plaintiffs, the International Association of Machinists Local Lodge 1061, the United Steelworkers District 2, and the Wisconsin State AFL-CIO, that Act 1 resulted in an unconstitutional taking of the unions’ property. Judge Foust held that under Act 1, unions are still required to provide a service, that is, bargaining on behalf of employees, including non-union employees, and because the non-union employees need not pay for these services, the act took from the unions a legally-protectable property interest without providing just compensation to the unions. In short, Judge Foust agreed with the unions that they have a legal right to a portion of employee wages, regardless of whether the employee is a union member.

Wisconsin Attorney General Brad Schimel notified Judge Foust that the Attorney General will seek a stay of any final ruling, when issued, pending appeal. A stay, if granted, would allow Act 1 to remain in effect during any appeal. Wisconsin Manufacturers & Commerce, a Right-to-Work proponent, characterized Judge Foust’s decision as “an act of blatant judicial activism that will not withstand appellate review” and that “Judge Foust came to the absurd and legally untenable conclusion that labor unions have a property right to the wages of workers.” Similarly, Associated Builders and Contractors of Wisconsin, which also supported Act 1, stated “Judge Foust’s argument for his ruling has been repeatedly rejected by state and federal courts throughout the nation, and I expect our state’s law to be similarly upheld upon appeal.”

Stephanie Bloomingdale, secretary-treasurer of the Wisconsin AFL-CIO, Monday advised Wisconsin unions that thanks to Judge Foust’s ruling, unions can negotiate agreements with employers requiring non-union employee to help pay for a union’s costs to represent workers. The Wisconsin Institute for Law & Liberty, disagreed, stating “[t]hat’s not how the law works. Not until an appellate court declares a law unconstitutional is it invalidated statewide.”

Governor Walker signed AB 223 into law as 2015 Wisconsin Act 133 on February 4, 2016. Assembly Bill 223 introduced by Rep. Spiros (R-Marshfield) and Sen. Lasee (R-De Pere).

Under current law, the time limit for initiating a civil action on a contract or obligation, including an insurance policy, is generally six years after the cause of action accrues. In those cases in which the contract is a motor vehicle insurance policy, Act 133 changes the time limit to three yearsfrom the date that the cause of action accrues. For uninsured and underinsured motorist claims, this act specifically defines the date of accrual of the cause of action as the date that “there is final resolution of the underlying cause of action by the injured party against the tortfeasor.”

In addition, Act 133 changes from six years to the three years the statute of limitations for claims for damage to real or personal property arising from a motor vehicle accident. The act retains the six-year statute of limitations for claims for damage to real or personal property not arising from a motor vehicle accident.

Finally, Act 133 changes from three years to two years the statute of limitations for actions to recover damages for death caused by the wrongful act, neglect, or default of another arising from an accident involving a motor vehicle. The three-year statute of limitations is retained for such claims arising from circumstances not involving motor vehicle accidents.

The above changes apply prospectively, to accidents that occur on or after the legislation’s effective date, February 6, 2016^[1].

See Wisconsin Legislative Council Act 133 memo for additional background on Act 133.

Under current law, the time a person has to bring an action for an injury resulting from being sexually assaulted or subject to incest as a child, or from being subject to sexual contact by a member of the clergy as a child, is any time before the injured party reaches the age of 35. Sen. Julie Lassa (D-Stevens Point) and Rep. Evan Goyke (D-Milwaukee) introduced Senate Bill 262/Assembly Bill 348 which would provide a three-year reviver window for plaintiffs to file childhood sexual abuse claims, regardless of the previous expiration of the statute of limitations.

The legislation had bipartisan support, with Republican Reps. Horlacher, A. Ott, Neylon, Rohrkaste, and Sen. Olsen signing on as co-authors. But both bills died in committee.

For over 100 years, the Wisconsin Supreme Court has consistently rejected reviver statutes as unconstitutional. The court subscribes to the view that the expiration of a statute of limitations vests a property right in a defendant. The resurrection of a time-barred claim therefore amounts to a taking of property without due process of law.

For more on the constitutional issues arising from reviver statutes, see this legal memo provided in the context of prior Wisconsin reviver legislation.

Governor Scott Walker signed Assembly Bill 596/Senate Bill 463 into law as 2015 Wisconsin Act 168 on March 1, 2016. The new statute, introduced by Rep. Adam Jarchow (R-Balsam Lake) and Sen. Duey Stroebel (R-Saukville), changes the term “snow sport” to “alpine sport” and adds “biking” to the list of activities included in the term.

An individual who participates in a recreational activity assumes the “risks inherent in the recreational activity of which the ordinary prudent person is or should be aware” and must satisfy certain behavioral duties. [s. 895.525, Stats.] If a participant is injured or killed, the owner of the premises may be liable, but the damages that may be collected from the owner are reduced in proportion to the amount of negligence attributable to the participant.

An individual who participates in a snow sport within a ski area assumes certain risks and must satisfy certain duties. Likewise, ski area operators must satisfy certain duties related to safety and to give notice of assumed risks. A ski area operator that satisfies all of the required duties owes no further duty of care to a participant and is immune from liability for an injury or death sustained by a participant that results from the assumed risks of participation in a snow sport.

The act removes biking from the definition of “recreational activity,” defines the risks assumed by individuals who participate in biking, and establishes the duties participants must satisfy. It also establishes the duties of ski area operators related to biking. Under the act, a ski area operator that satisfies all of the required duties owes no further duty of care to a participant who engages in biking and is immune from liability for an injury or death sustained by a participant that results from the assumed risks of participation in an alpine sport.