A Milwaukee judge struck down the city’s newly enacted ordinance requiring employers to provide paid sick leave, but employment lawyers say it may do little to slow down growing national support for legislation to make paid sick leave a basic employee right.

On June 12, Milwaukee County Circuit Court Judge Thomas Cooper granted summary judgment to the Metropolitan Milwaukee Association of Commerce (MMAC), which challenged the ordinance on the grounds that it placed an unconstitutional burden on employers. MMAC asserted that the ordinance was improperly enacted because it included language extending coverage for absences due to domestic abuse, sexual assault or stalking that was not included in a ballot question approved by voters in November 2008. Furthermore, MMAC contended that this posed an unconstitutional exercise of police power.

Cooper agreed, concluding that the ordinance is invalid. “While the effects of domestic abuse, sexual assault and stalking … may qualify for the treatment provisions of sick leave, the acts themselves are not conditions,” he wrote.

MMAC’s lawyer Scott Beightol calls the ruling a victory over an attempt to implement labor and employment lawmaking through a referendum process.

“Our argument was that if you or I go into that voting booth and we look at this ballot question, would we really understand what we were voting yes or no for?” says Beightol, a partner in the Milwaukee office of Michael Best & Friedrich. “The judge agreed.”

In November 2008, Milwaukee became the third U.S. city to mandate paid sick leave when voters approved the ordinance by a whopping 69 percent to 31 percent. San Francisco was the first city to do so, also by ballot question in 2006, and Washington, D.C., became the second last year when the city council did it on its own. Unlike Milwaukee, however, the ordinances in those two cities haven’t been challenged in court.

Attorney Sherry Leiwant, executive director of Better Balance: A Work & Family Legal Center, a national legal organization that helped draft the Milwaukee ordinance, says an appeal is planned. If the appeal fails, proponents may seek a second ballot question incorporating the judge’s conclusions about spelling out the rights of domestic abuse, sexual assault and stalking victims under the ordinance.

The business community is expected to continue fighting the idea. “I’ve been doing this work for 21 years, and I’ve never seen the business community more upset about an issue,” Beightol says. “There were employers who said they’d leave the city and [others] who said they’d think twice about expanding their operations in the city.”

Different Reactions

While Milwaukee’s ordinance stirred up controversy, employment lawyers in San Francisco and Washington, D.C., say that client reactions to paid sick leave laws have been mild–in large part because most of them already have polices at least as generous as the ordinances’ requirements.

“For the smaller employers that are scraping for every nickel, this is a bigger issue,” says Jeffrey Bosley, a partner in the San Francisco office of Winston & Strawn. “Some of my smaller clients don’t even have a dedicated human-resources function. They’ve got an office manager who’s struggling with ‘What can I ask?’”

In Washington, D.C., Evelyn Becker, a partner at O’Melveny & Myers, says after the ordinance there went into effect last fall, she counseled clients on careful ly examining their sick-leave policies to ensure compliance because the qualifying conditions are so broad.

“One thing my clients have had to look at is whether what constitutes a qualifying event is defined as broadly in their policies as in the law,” she says. “For example, an employer might provide 10 days of sick leave, but only for the employee’s own illness, as opposed to a family member’s illness or an incident of domestic violence.”

Beightol believes that the quieter reaction in San Francisco and Washington was the result of greater inclusion of business interests in hashing out the details.

“My own analysis is that in Milwaukee [business owners] felt that they were shut out of the process,” Beightol says.

National Push

Management-side employment lawyers and proponents of mandated sick pay agree on one thing: With 43 percent of American workers lacking any paid sick leave, the issue won’t be going away soon.

“This is a trend that’s here to stay,” says Bosley. “We’re going to see more and more activity around this concept of workplace flexibility, whether that be paid family leave or paid sick time.”

The push for paid sick time has already reached Congress. The Healthy Families Act, introduced in the Senate in late May by Democratic Sens. Edward Kennedy of Massachusetts and Chris Dodd of Connecticut and in the House by Rosa DeLauro, D-Conn., would mandate paid sick leave nationally. Its chances of passage this year appear doubtful, but Leiwant and others believe it could muster enough support for passage next year.

Meanwhile, proponents of paid sick leave have also set their sights on state legislatures–bills have been introduced in about 15 states. None has passed, although Leiwant expects that several will succeed in 2010.