The future of Milwaukee’s sick leave law might hinge on the wording of a referendum question city voters approved in November 2008.
That wording was at the heart of oral arguments Wednesday before three Wisconsin District IV Court of Appeals judges in Madison. The ballot asked voters whether the Common Council should adopt an ordinance requiring employers provide paid sick leave to employees. The question did not define sick leave or how it can or cannot be used.
That’s too vague, said Joe Olson, an attorney with Milwaukee-based Michael Best & Friedrich LLP representing the Metropolitan Milwaukee Association of Commerce, which opposes the law.
“We’ve never taken the position that time off for injuries or treatment should not be considered an appropriate use of a sick day,” he said after the hearing. “But this ordinance allows someone to use a sick day, for instance, to go to court to get a restraining order against their spouse.
“Once you get outside the common understanding of what a sick day is, that’s when you have to make that information known.”
But going to court to file a restraining order can be seen as a way to maintain health, said Amy Stear, director of 9to5 Milwaukee, National Association of Working Women, which favors the law.
“If you take preventative measures, you’re less apt to end up in the hospital,” she said. “They understand using sick days to recover from abuse, but we’d just as soon want people not to get hit in the first place.”
The law requires workers get at least one hour of paid sick leave for every 30 hours worked in Milwaukee. Companies with fewer than 10 workers must offer at least five sick days, and larger companies must let employees accrue at least nine days.
Milwaukee County Circuit Court Judge Thomas Cooper last year struck down the law as unconstitutional, ruling it is invalid because the paid sick days can be used to give recovery days to victims of domestic or sexual violence. The ballot did not refer specifically to domestic or sexual abuse.
9to5 appealed the ruling, but Milwaukee City Attorney Grant Langley in September said the city would not join the appeal.
The question before the appeals court, which as of this posting had not scheduled the next step in the appeal, is how much information is too much when presenting voters with a referendum question. Appeals Judge Paul Higginbotham said, essentially, referendum ballots could go on and on if they must include every possible use of the law in question.
“The problem here is trying to determine: What are the essential elements?” he said. “What are the details, and what aren’t the details?”
Barbara Quindel, an attorney with Milwaukee-based Hawks Quindel SC representing 9to5, said MMAC in its opposition to the law is trying to unfairly hold voters to a higher standard in which they must see every possible use of the law.
The argument is far simpler than that, said Steve Baas, MMAC’s director of government affairs.
“The standard we’re trying to hold 9to5 to is the law,” he said. “Judge Cooper overturned the ordinance because he found it out of compliance with state law. Public opinion doesn’t circumvent the law or the constitution.”