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Dane County Judge Issues an Outlier Decision to Strike Down Wisconsin’s Right to Work Law

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On Friday, April 8, 2016, a Dane County Circuit Court judge struck down Wisconsin’s Right to Work law, thirteen months after the law first took effect in the state. In his opinion, Judge William Foust held that Wisconsin’s Right to Work law is an unlawful taking that violates the Wisconsin Constitution because the law obligates unions to provide services to all bargaining unit employees, including those who choose not to join the union and pay union dues.

Judge Foust’s ruling runs contrary to the persuasive precedent set in September 2014 by the Seventh Circuit Court of Appeals in Sweeney v. Pence, wherein the Court held that no unconstitutional takings existed in a similar Indiana Right to Work law. The Seventh Circuit maintained—and many other legal experts agree—that unions are justly compensated by the federal law’s grant of a union’s right to be the sole and exclusive representative at the bargaining table, which is a privilege that inherently “comes with a set of powers and benefits as well as responsibilities and duties.” Sweeney v. Pence, 767 F.3d 654, 666 (7th Cir. 2014). If a union is unwilling to accept these obligations as a bargaining unit’s exclusive agent without the ability to compel payment, it does not have to do so.

Critics are characterizing Judge Foust’s decision as “an act of blatant judicial activism that will not withstand appellate review,” and Wisconsin Attorney General Brad Schimel issued a statement expressing that he is “confident the law will be upheld on appeal.” Indeed, it is extremely likely that the 5-2 conservative majority on the Wisconsin Supreme Court will ultimately overrule Judge Foust’s decision; but, in the meantime, employers should consult with their attorneys about how their workplaces may be affected by this Circuit Court decision, which appears to have suspended Wisconsin’s Right to Work law, effective immediately. It has yet to be determined whether Judge Foust’s decision is applicable to parties other than the ones involved in this lawsuit and whether this ruling is enforceable outside of Dane County.

If you have any questions about how Judge Foust’s decision to suspend Wisconsin’s Right to Work legislation will affect your workplace, please contact Joel Aziere at jaziere@buelowvetter.com or (262) 364-0250, or your Buelow Vetter attorney.

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