The Constitutional Challenge to Act 10 is Serious

On Friday, Judge Juan Colas issued a ruling that struck down Act 10, the “Budget Repair Bill,” on the grounds that the law violates the Wisconsin and U.S. Constitutions.  In essence, he held that the law differentiates between entities that represent public employees in collective bargaining — imposing conditions on certain bargaining entities but not others – and that the State had failed to advance a sufficient justification for this disparate treatment.  According to Judge Colas, the differential treatment of bargaining entities violated the First Amendment right of the affected unions to association and expression, and it also violated the Equal Protection Clause.  Judge Colas also held that the law violates the Home Rule provisions of the Wisconsin Constitution by dictating rules for Milwaukee that the law did not apply to other municipalities.

The reaction to the ruling from the Walker Administration – that Judge Colas is a “liberal Dane County judge” — was as hollow as it was predictable.  Some supporters of the Governor view the judiciary as an obstacle to their political agenda.  Therefore, judges who do not agree with the Administration’s legal arguments become, in their mind, opponents who must be demonized (like Dane County Circuit Judge Maryann Sumi) or else targeted with frivolous disciplinary complaints.

Clearly, some supporters of the Walker Administration have a difficult time separating the political debate over Act 10 from the separate legal debate over its contents.

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Illinois Prohibits Employers From Seeking Social Networking Passwords

On August 1, 2012, Illinois Governor Pat Quinn signed into law a bill that prohibits employers from requesting or requiring employees or prospective employees from providing “any password or other related account information” to gain access to the individual’s social networking account. Ill. Public Act 097-0875. By enacting the legislation, Illinois joins Maryland as states that prohibit employers from obtaining social media account password information. The law amends the Illinois Right to Privacy in the Workplace Act, 820 ILCS 55, and is effective January 1, 2013.

Illinois’ new social media legislation confirms that employers maintain the right to create lawful workplace policies that regulate the use of computer equipment, e-mail, and internet use. Moreover, the law also allows employers to monitor employee use of the employer’s electronic equipment and e-mail. Employers also may still obtain publicly available information concerning employees or prospective employees under the new law.

As part of the Right to Privacy in the Workplace Act, the law is subject to investigation and enforcement by the Illinois Department of Labor. Potential damages under the law include reasonable attorney’s fees if the violation is found to be willful and knowing.

This legislation comes in response to public criticism of reported incidences of employers seeking social media account password information for purposes of evaluating position applicants. Illinois employers who currently engage in such practices should be aware that any hiring policy or practice that requires applicants or employees to reveal such information will be a violation of Illinois law after the end of the calendar year.

Cross-posted to General Counselor.

 

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Reviewing John Nichols’ Uprising: How Wisconsin Renewed the Politics of Protest, from Madison to Wall Street

What is it that is swelling the ranks of the dissatisfied?  Is it a growing conviction in state after state, that we are fast being dominated by forces that thwart the will of the people and menace representative government?

Robert M. LaFollette, July 4, 1897, Mineral Point, Wis.

With that quote, John Nichols begins the first chapter of his unapologetically biased book Uprising:  How Wisconsin Renewed the Politics of Protest, from Madison to Wall Street (2012). Nichols, The Nation’s Washington correspondent and an associate editor of Madison’s Capital Times newspaper, recounts the protests in Madison and around the state in early 2011 and analyzes their importance in renewing a spirit of protest that spread from Madison to, ultimately, Manhattan.

Just as Nichols is not an unbiased author, I am not an unbiased reader. What Nichols writes about brings back vivid memories of weekends around the capitol square, in sun as well as in snow and cold, as part of the massive, diverse, palpably energetic crowds that marched around the square in February and March 2011.  Uprising is not a chronological account of the protests; rather, Nichols organizes thematically, beginning with the beginning:  the cold mid-February day, one day after Governor Scott Walker announced his 144-page budget repair bill that contained provisions that went far beyond repairing the budget to stripping collective bargaining rights of public employees.  On that day, Nichols says, fifty members of UW Madison’s Teaching Assistants’ Association (TAA) gathered in front of UW Madison’s Memorial Union and protested (4).  Two days later, Nichols tells us, more than 1,000 TAA members marched to the capitol. They were joined each day thereafter by hundreds and then thousands of others from all walks of life – union and non-union members, public and private employees alike – and they continued marching.

How and why what fifty or so students started became an incredible historical event is chronicled in Nichols’ subsequent chapters. 

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