Acts 10 and 32 Public Safety Employees and Contributions to Health Care Benefits

Among other things, Wisconsin 2011 Act 32 modified “Act 10” by removing public safety employees’ rights to collectively bargain for health care benefits. Specifically, by statute, municipal employers are prohibited from bargaining with a public safety employee union about:

The design and selection of health care coverage plans by the municipal employer for public safety employees, and the impact of the design and selection of the health care coverage plans on the wages, hours, and conditions of employment of the public safety employee.

Wis. Stat. § 111.70(4)(mc)6.

This may seem like plain and unambiguous language, but three circuit courts have reached apparently conflicting conclusions about exactly what it means, particularly with respect to contributions employees have to make to their health care benefits.

In December 2012, a Brown County judge determined that the scope of this ban extended to bargaining about incidental medical costs, such as deductible amounts. Green Bay Professional Police Ass’n v. City of Green Bay, Brown County Case No. 2011CV2195. The case involved various area law enforcement and fire fighter associations. The associations contended they were not barred from bargaining about “their proportionate cost of, and financial exposure to, the ‘design and selection’ choices made by a municipality.” The city and county, on the other hand, argued those costs fell under the prohibition of bargaining for health care benefits. The Court ruled that since the proportionate share of the costs of health care plans would impact, even if indirectly, “the wages, hours and conditions of employment” and thus was prohibited by Wis. Stat § 111.70(4)(mc)6.

Earlier in 2012, a Milwaukee County judge issued a ruling that contrasts sharply with the Brown County decision. Milwaukee Police Ass’n Local 21 IUPA AFL CIO v. City of Milwaukee, Milwaukee County Case No. 2011CV15086. In that case, the Court held that the term “design,” as contained in Wis. Stat. § 111.70(4)(mc)(6), does not allow a municipality to unilaterally determine all aspects of health care coverage and granted a permanent injunction against the city from “imposing health insurance deductibles, co-pays, prescription costs, etc., other than as was agreed to as part of bargaining the 2010-2012 Labor Agreement between the parties.”

Additionally, in October of 2012, a Dane County judge similarly ruled that Eau Claire County sheriff deputies can negotiate their health care deductibles. Wisconsin Professional Police Ass’n v. Wisconsin Employment Relations Comm’n, Dane County Case No. 2012CV1123.

Municipalities should note that as of the date of this writing, all three of these cases are on appeal, and thus the law on this point remains uncertain.

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