Burns Bair Successfully Argues Class Certification Appeal in Prison Guard Wage Loss Claim in Wisconsin Supreme Court

Decision could lead to increased pay to cover required tasks outside of normal eight-hour shifts

MADISON, Wis.--(BUSINESS WIRE)--The Wisconsin Supreme Court issued a decision this week affirming that correctional officers at state penitentiaries can pursue class action litigation against the state prison system and seek additional compensation for their pre- and post-shift work.

The ruling overturns an earlier appellate court decision and now allows an estimated 5,000 Wisconsin correctional officers to pursue their wage-and-hour disputes on a class-wide basis.

In overturning the Court of Appeals, the often-divided Wisconsin Supreme Court unanimously rejected the Court of Appeals’ attempted expansion of United States Supreme Court’s “rigorous analysis” test relating to class certification, with both the majority and the concurring dissenters agreeing that class certification does not require a showing that the plaintiffs will prevail on the merits.

Tim Burns of Madison-based Burns Bair LLP, who argued the case before the Court, noted that he was deeply honored to have been asked to argue the case in the Supreme Court by Court-appointed Class Counsel, Burger Law, Cuneo Gilbert and LaDuca, and DiCello Levitt.

“Every Wisconsin resident should recognize that these men and women are providing essential and thankless service under trying conditions and deserve to be paid for the time they are in this dangerous environment,” said Mr. Burns. Mr. Burns ran for election to the Wisconsin Supreme Court in 2018 and this was his first argument before the Court since his race.

The claims were originally brought by Nicole McDaniel and Matthew Davis, employees of detention facilities in Boscobel and Oshkosh, respectively, seeking additional pay for everyday tasks that extend past strict eight-hour work shifts. For example, all officers at the state’s 20 prisons are required to receive and provide briefings on events and security concerns, and these mandatory meetings occur outside of their normal, compensable shifts.

According to Mr. Burns, federal and state courts across the nation – including multiple appellate courts – have concluded that security screenings and correctional officers’ other pre- and post-shift work are fundamentally integral to their jobs and as a result are compensable.

The proposed class action is now remanded to the Milwaukee County Circuit Court for further deliberation and a trial, should that become necessary.