Wisconsin Gov. Scott Walker
Ethan Miller—Getty Images
By Claire Zillman
September 25, 2014

The already tight Wisconsin gubernatorial race just got a bit more heated, thanks to a little-known 101-year-old state law.

On Wednesday, 100 low-wage workers, backed by the group Wisconsin Jobs Now, filed complaints with the state’s department of workplace development arguing that the state’s $7.25 minimum wage violates a 1913 law unique to Wisconsin that requires that the state minimum wage “shall not be less than a living wage,” which is defined as one that ensures “reasonable comfort, reasonable physical well-being, decency, and moral well-being.”

The filing is an attempt by Wisconsin Jobs Now to force the hand of the Governor Scott Walker on the state’s minimum wage, which was last increased in 2009. By law, the administration’s department of workforce development, whose secretary was appointed by Walker, must determine if there’s a basis for a minimum wage hike within 20 days.

That means two things: first, there’s a good chance this complaint this will go absolutely nowhere. Governor Walker, after all, is adamantly opposed to increasing the minimum wage. Second, it means that while other state legislatures wrangle over minimum wage proposals, in Wisconsin, the power to set the state’s minimum wage lies—albeit some indirectly—with the governor.

The complaint filed Wednesday “calls on Walker to use his authority to raise minimum wage to maintain a living wage,”says Paul Sonn of the National Employment Law Project Action Fund, an advocacy organization for the employment rights of lower-wage workers.

Its filing comes in the midst of a fierce race between Walker, who opposes a minimum wage hike, and his opponent in the race for governor, Democrat Mary Burke. A Marquette Law School poll from late August showed Walker leading narrowly by three points.

Walker’s office, in a statement to Fortune, said that the workplace development department is reviewing the complaint to determine next steps. “Governor Walker wants jobs in Wisconsin that pay two or three times the minimum wage,” the statement says. “He is focused on finding ways to help employers create jobs that pay far more than the minimum wage or any other proposed minimum.”

Burke did not reply to a request for comment, but has in the past, expressed support for a $10.10 minimum wage.

While the “living wage” law is unique to Wisconsin, there are four other states—California, Connecticut, New Jersey, and Massachusetts—that, in similar round-about fashions, give the governor the power to increase the minimum wage, according to NELP. California Governor Gray Davis, through the California Industrial Welfare Commission, exercised the power in 2000. In 1986, Governor Mario Cuomo’s Commissioner of Labor issued a wage order that updated rules for occupations in the state, eliminated the sub-minimum wage for young workers and apprentices, and extended time-and-a-half overtime to all workers in New York.

What some of these states have in common are minimum wage laws that stem from the nation’s progressive area, “when there was a sense that the minimum wage should be taken out of politics,” Sonn says.

The complaint filed by fast food, retail, home health care, and hospitality workers under Wisconsin’s law on Wednesday doesn’t directly call for a specific minimum wage, says Peter Rickman, director of Raise Wisconsin, a project of Wisconsin Jobs Now. “Our view is that the governor needs to make that determination,” he says. The complaint did include some data points. For example, Rickman says, if the minimum wage had kept up with inflation starting in 1968, it’d equal $11 per hour now; it’d be between $18 and $22 per hour if it kept up with worker productivity.

Regardless of the outcome of the complaint, Rickman says, “it’s great that this election could become a real debate over inequality and whether people here are making a living wage.”

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