Category: Wisconsin Supreme Court

Supreme Court Decision: Wisconsin Bell v. Labor and Industry Review Commission (Employment Discrimination)

Posted on by Hamilton

In a 5-2 decision, the Supreme Court established that employers must know an employee’s disability caused misconduct in order for the Labor and Industry Review Commission (LIRC) to determine intentional employment discrimination.

Previously in employment discrimination cases, LIRC used the “inference method,” which finds intent to discriminate when employers take action against employees for any misconduct caused by a disability. The decision amended LIRC’s “inference method” by requiring employers’ have knowledge that an employee’s disability caused the misconduct.

In 2010, Wisconsin Bell suspended employee Charles Carlson for inappropriately hanging up and blocking customer calls. In a hearing related to Carlson’s suspension, Carlson’s treatment providers wrote letters to Wisconsin Bell describing Carlson’s diagnosis of bipolar disorder, but the letters did not detail specifically how the disorder affects Carlson’s workplace conduct. As a condition for returning to work after the suspension, Carlson signed a “last chance agreement” stating that he would be terminated for another infraction.

Almost a year later, Carlson broke the last chance agreement, and Wisconsin Bell terminated him. Carlson claimed Wisconsin Bell intentionally discriminated against him because his bipolar disorder caused his misconduct.

The court held that Wisconsin Bell did not violate Wisconsin’s employment discrimination statute (Wis. Stat. § 111.322(1)) because it was not aware Carlson’s bipolar disorder caused his misconduct.

This decision also further clarifies the court’s position on the agency deference doctrine, decided in Tetra Tech v. Department of Revenue. Here, the court did not defer to LIRC’s decision but gave “due weight” to the agency’s technical experience.

Supreme Court Decision: Department of Workforce Development v. Labor and Industry Review Commission (Unemployment Compensation)

Posted on by Hamilton

In a unanimous decision, the Supreme Court held in DWD v. LIRC that terminated employees are not eligible for unemployment compensation if they violate their employer’s absenteeism policy, even if the policy is stricter than the policy in statute.

In this case, terminated employee Valerie Beres violated the written attendance policy that she signed with her employer by missing a shift without notifying the employer. The employer’s single instance policy was stricter than the two occasions in a 120-day period policy laid out in the unemployment compensation absenteeism statute (Wis. Stat. § 108.04(5)(e)).

The unemployment compensation statutes state that employees terminated for “misconduct” – including absenteeism – are ineligible for benefits. Citing those statutes, the Department of Workforce Development (DWD) denied Beres benefits. Beres appealed to the Labor and Industry Review Commission.

The court’s ruling upheld DWD’s decision to deny Beres benefits. The court ruled that, according to the “unless clause” in Wis. Stat. § 108.04(5)(e), employers may adopt absenteeism policies stricter than the statute. If employees have violated their employer’s stricter policy, they are still ineligible for unemployment compensation.

Supreme Court Decision: Porter v. Wisconsin (Anti-Combination Statutes)

Posted on by Hamilton

A 5-2 Supreme Court held in Porter v. Wisconsin Funeral Directors Examining Board that the anti-combination laws prohibiting ownership of both a cemetery and funeral home are constitutional. In another interesting split decision for this term, liberal Justice Shirley Abrahamson wrote the opinion, and only two out of five conservative justices dissented.

The plaintiff in this case is E. Glen Porter, who owns Highland Memorial Park cemetery in New Berlin and wished to expand his business by opening a funeral home. Because owning both is illegal under the anti-combination laws (Wis. Stat. § § 157.067(2) and 445.12(6)), Porter sued the state, arguing a violation of the constitutional rights to due process and equal protection.

The court used the same rational basis test as in Mayo to determine that the anti-combination laws are rationally related to legitimate government interests in protecting consumers. Therefore, the anti-combination statutes survive the rational basis test and survive Porter’s constitutional challenge.

The dissent from Justices R. Bradley and Kelly disagrees with the state’s assessment that joint ownership of cemeteries and funeral homes would create an unfair market and harm consumers. Thus, the dissent argues the anti-combination laws lack rational relation to the legitimate government purpose of protecting consumers. The dissent also suggests that a potential violation of the fundamental right to economic liberty deserves strict scrutiny, rather than the broader rational basis test.

Supreme Court Decision: Kristi Koschkee v. Tony Evers (REINS Act & State Agency Counsel)

Posted on by Hamilton

The Supreme Court held that the Department of Public Instruction (DPI) and the state superintendent may retain separate counsel instead of representation by the Department of Justice (DOJ).

The cases rises from a dispute about whether DPI must comply with the Regulations from the Executive In Need of Scrutiny (REINS) Act (2017 Act 57). Stemming from the REINS Act dispute, another dispute arose between DPI and DOJ regarding whether DOJ attorneys should represent DPI. DOJ said DPI is subject to the REINS Act, a position contrary to DPI and DPI Superintendent Tony Evers. DOJ filed a motion that they should be DPI’s attorneys. DPI filed a motion to deny substitution of DOJ for their in-house counsel.

The court used its “superintending and administrative authority over all courts” (Wisconsin Constitution Art. 7 § 3) to allow DPI the counsel of their choice. The court argued that allowing DOJ to represent Evers and DPI would have given the attorney general too much power and would be unethical because of their disagreeing positions on the case.

The court also ruled that Gov. Scott Walker is not a necessary party to the action because he did not fulfill the statutory criteria necessary for a party to be joined in a case (Wis. Stat. § 808.03(1)). The court said the governor’s obligation to review scope statements under the REINS Act is not affected by the outcome of the DPI case.

 In a concurring opinion/dissent, Justice R. Bradley (joined by Justices Gableman and Kelly) agreed that Gov. Walker should not be a party to the action but would have allowed DOJ to represent DPI and Evers. The dissent argued that Wis. Stat. § 165.25(1m) says the governor can request DOJ represent any state department/agency in any matter in which the state has interest. The dissent says the court inappropriately exercised its superintending authority to override the statutes, which give no independent litigation authority to DPI or the state superintendent.

Supreme Court Decision: Cintas Corp. v. Becker Property Services (Indemnity Contracts)

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In this case, Becker Property Services contracted with Cintas Corp. to inspect regularly a fire suppression system at a property Becker managed. The property owner, tenants, and insurers sued Cintas, and Cintas sought to tender the defense to Becker pursuant to an indemnity clause in their contract.

In a 5-2 decision, the Supreme Court disagreed with Becker’s argument that, despite a choice-of-law provision requiring Ohio as the controlling law, Wisconsin’s strict construction rule for indemnity clauses that cover damages for negligence is an important enough public policy to nullify the contract. Instead, the court held that Ohio law controlled, pursuant to the contract, and ruling otherwise would have created uncertainty and “unpredictability in contractual relations.”

 The court held that the contract’s language was clear that Becker must indemnify Cintas for any liabilities and damages, including those caused by Cintas’s own negligence. The court said that even under Ohio law the indemnity agreement is not “public policy” for the purpose of invalidating the contract.

Supreme Court Decision: John McAdams v. Marquette University (Academic Freedom in Contract)

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In a 4-2 decision, the Supreme Court did not defer to the recommendations of a Marquette University advisory committee and held that Marquette breached its contract with a professor, John McAdams, by implementing disciplinary action for activities protected under academic freedom.

 McAdams had written a blog post criticizing another instructor at the university, who then filed a complaint against McAdams. The complaint went through the disciplinary hearing process laid out in Marquette’s handbook. An advisory committee reviewed the incident and presented a report with disciplinary recommendations to the university president. The president then decided to suspend McAdams without pay but with benefits through the fall semester and required he write a letter acknowledging wrongdoing and expressing regret for his comments against the other instructor. McAdams refused to write the letter and filed a complaint in circuit court against Marquette for breach of his tenure contract with the university. McAdams argued that the contract protects him from disciplinary actions for activities considered as academic freedom.

The court held that McAdams’s contract with the university does guarantee freedom from disciplinary actions for activity protected as academic freedom or free speech, and McAdams’s blog post falls under the definition of academic freedom. The court ordered Marquette to reinstate McAdams.

The court chose not to defer to the Marquette advisory committee’s recommendations to suspend McAdams for three reasons:

  1. The contract did not prohibit litigation outside Marquette’s disciplinary process.
  2. The disciplinary process was biased and did not represent a true arbitration process.
  3. The court recently ended the practice of agency deference in Tetra Tech v. Department of Revenue.

In a concurring opinion, Justice R. Bradley engaged in a philosophical analysis of academic freedom and free speech on college campuses.

In dissent, Justice Walsh Bradley (joined by Justice Abrahamson), citing the “shared governance” procedures of allowing faculty to participate in decisions affecting the university, argued that the court should have deferred to Marquette’s advisory committee, which is better suited to solve its own disputes. The dissent said the court should have preserved the university’s institutional academic freedom to determine who may teach there.