Wisconsin Business and Commercial Litigation

A new bill in the Wisconsin Legislature would make employers liable for “workplace bullying.”  Jack Zemlicka of the Wisconsin Law Journal describes the legislation:

Currently, workers’ compensation is typically the exclusive remedy for an employee with a claim against an employer. But Assembly Bill 894 provides that an employee can sue over an abusive work environment and potentially recover medical expenses, back pay, front pay, compensation for emotional distress, punitive damages and attorney fees.

This bill even has its own website, which describes the bill as part of a “movement.”  Thankfully, none of the states to which the “movement” has spread have gone so far as to accept the proposal.

Since 2003, 17 states have introduced similar proposals, but none have passed, according to the office of Rep. Kelda Roys, a sponsor of the Wisconsin legislation.

If you’re an employer, keep your eyes on this one.  This could be full-time employment for plaintiff and defense lawyers alike.

Argument image courtesy Francis Carnauba’s flickr gallery through this creative commons license.

In what is one of the least surprising revelations of this relatively new year,

Rep. Marlin Schneider, D-Wisconsin Rapids, admitted to The Associated Press that he overstated his case when he said in a public hearing and a memo to lawmakers that he’s received hundreds of letters of complaint about an online court database.

Instead, as Scott Bauer points out in his article found on the Wisconsin Law Journal,

Turns out, he was only able to produce letters from 22 people who contacted his office since 2006 to complain that records on the database have hurt them even though their charges have been dismissed.

He had letters from 17 others who actually were convicted, but complained about the records being viewable to the public. Another 20 were commenting in general on his attempts to limit access.

Note that those are only people who thought that the sole basis of their mistreatment was the CCAP record of their own trail through our judicial system.  You wonder how many would be able to muster any kind of proof supporting their claim.  And even if all 22 could, does that mean that we need a blanket rule impacting all the people who use CCAP for legitimate, reasonable purposes?  Or does it make more sense to deal with the outlyers as just that — aberrations in an otherwise decently functioning system?

This initiative, like many others that are based on relieving just about everyone from just about everything that in any way relates to personal responsibility, is based on rhetoric, born of anecdote, and supported by the unrealistic position that just because someone didn’t pay for the last five things they bought or apartments they rented doesn’t mean they won’t pay for this one.  And, because the proponents are doing what they believe to be “right,” the ends often justify the means, and it doesn’t matter that the facts demonstrate that access to public court information (in this case, but insert whatever the issue may be — income requirements to show you can afford a loan you want, background check to determine if you’ve been convicted of a violent or sex-related crime before becoming employed by a school, etc) works for nearly everyone nearly all the time. 

Sometimes, in our rush to right each and every one of life’s unjust bumps, we forget that not every seemingly good idea needs to become a law.  All this reminds me of a line from one of my favorite movies:  “Doin’ good ain’t got no end.”  Too often, it’s also short on common sense.

The free and unfettered access enjoyed to the public records available on Wisconsin Circuit Court Access may soon be limited, thanks to Wisconsin Assembly Bill 340.  Jack Zemlicka discusses the bill in an article from the Wisconsin Law Journal.  Apparently, the bill would require an access fee for most users, and would limit information available online.  There’s not an argument that the information isn’t public or that it shouldn’t be accessible, just, apparently, that it shouldn’t be so easily accessible.  The price tag for making the information more difficult to obtain:  $500,000.

When the whole world is heading the other direction, I wish it were more surprising that some in government want citizens to have less, rather than more, access to public records.

S.B.20, passed by the Wisconsin legislature in Madison and sent to Governor Doyle for his signature, ratchets up the cost of discrimination on employers.  Under current statutes, an employer can be required to reinstate a discriminated-against employee, pay back pay, and cover the successful claimant’s attorney’s fees. 

The new bill would, in addition, permit the employee or the Department of Workforce to sue in circuit court to recover compensatory and punitive damages caused by the discrimination.  And as the cherry on top, an employer found liable would pay an additional 10% surcharge, based on the total amount of compensatory and punitive damages, into the circuit court.  According to the bill, this additional penalty would be used to further enforce the so-called Fair Employment Law.

As of this writing, Doyle hadn’t signed the bill yet, nor had his office indicated his intent.  Honestly, though, does anyone really think that Doyle won’t sign this?

As most everyone reading this will know, Wisconsin’s comparative negligence statute is Wis. Stat. §895.045.  The language of the statute is complicated on a first reading, and only gets worse when it’s applied to any specific situation.  Governor Doyle’s proposed budget (AB75) contains a number of provisions that would significantly alter the effect of a party’s portion of negligence, and how comparative negligence is handled at trial.

All major changes (in law and in everything else) create divided camps, and this is no exception.  Plaintiff’s attorneys call the provision a “restoration of consumer rights,” while some defense lawyers and business groups opine that the change will expose businesses to unfair portions of liability awards.  The Wisconsin State Bar supports Doyle’s proposed change.  

The current statute became law in 1995, and, not surprisingly, accounts of just how that statute came to be vary widely.  You can draw your own conclusions about whether the proposed change is good or bad – there certainly are widely diverse opinions out there.

The major changes proposed by Doyle:

·        While existing law requires that a person be at least 51% at fault before the party can be held responsible for 100% of the damages, Doyle’s proposal would allow anyone with equal or greater fault than the plaintiff to be held 100% responsible.

·        Currently, a plaintiff must be less at fault than each individual defendant.  Doyle’s proposal would permit suit as long as the combined fault of all defendants is greater than that of the plaintiff.

·        Now, courts do not inform juries of the effects of the percentages of fault assigned to each party.  The new law would require a court to instruct the jury how findings of fault affect responsibility for damages. 

And finally, for your continued edification, the text of the contributory negligence statute, with proposed amendments:

895.045 Contributory negligence.  Contributory negligence does not bar recovery in an action by any person or the person’s legal representative to recover damages for negligence resulting in death or in injury to the person or property, if that negligence was not greater than the combined negligence of all of the person persons against whom recovery is sought, but any damages allowed shall be diminished in the proportion to the amount of negligence attributed to the person recovering.  The negligence of the plaintiff shall be measured separately against the negligence of each person found to be causally negligent.  The liability of each person found to be causally negligent whose percentage of causal negligence is less than 51% is limited to the percentage of the total causal negligence attributed to that person.  A person found to be causally negligent whose percentage of causal negligence is 51% or more  Any person found to be causally negligent whose percentage of causal negligence is equal to or greater than the negligence of the person recovering shall be jointly and severally liable for the damages allowed.