The Labor & Industry Review Commission (LIRC) interprets Wisconsin laws on unemploment insurance, workers compensation and other worker-related protections. (Getty Images)

Six years after Gov. Scott Walker left office, an official he appointed continues to interpret state laws covering jobless pay, workplace injuries and civil rights.

Georgia Maxwell’s term as one of three members of the Wisconsin Labor & Industry Review Commission (LIRC) expired March 1, 2023, more than 18 months ago. Nevertheless she remains in the seat even though Gov. Tony Evers has appointed her replacement.

Maxwell is following the example of another Walker appointee, Fred Prehn, a Wausau dentist who refused to step down from the Natural Resources Board at the end of his term in May 2021.

As the Wisconsin Examiner reported, Republican leaders in the Legislature held off formally confirming Evers’ appointed successor to Prehn and encouraged the Walker appointee to hang on to his seat. A legal battle led to a landmark state Supreme Court ruling in June 2022 declaring Prehn could remain in the post until the Wisconsin Senate approved his successor.

In response to an interview request Monday, Maxwell said she would not answer questions about her decision and instead referred to the letter she sent Evers the day before her term expired.

In that Feb. 28, 2023 letter, Maxwell cited the Supreme Court ruling in the Prehn case and asserted her belief “in the continuity of work that we do” at the commission.

Prehn ultimately did step down from the Natural Resources Board before his successor had been confirmed. But environmental advocates said the Walker appointee’s decision to linger for 20 months after his term expired delayed efforts to advance new measures to address pollution — chief among them,  imposing limits on PFAS “forever chemicals” in groundwater.

Regardless of whether Maxwell’s decision to hold on to her LIRC post has materially affected policy — and notwithstanding the Supreme Court ruling —  critics say such maneuvers are an affront to the democratic process.

“It’s wrong,” said Jay Heck, director of the nonpartisan voting rights and good government group Common Cause Wisconsin. “When people elect a governor, he’s elected or she’s elected statewide, and the expectation is that the governor will be able to implement policies with his or her own personnel.”

The role of the labor commission

The Labor & Industry Review Commission interprets state laws governing unemployment insurance (UI), workers compensation, and the discrimination and fair labor standards laws that make up Wisconsin civil rights laws.

The three groups of laws are all administered by the state Department of Workforce Development (DWD).

The department’s equal rights division investigates discrimination in jobs and housing, labor standards such as job misclassification, child labor law violations and wage theft, Wisconsin’s family and medical leave law and other related worker protection laws.

DWD investigators review complaints filed by workers or advocates alleging violations of those and related laws. If an investigator concludes that there’s probable cause of a violation, the case can go to a hearing with witnesses and evidence before an administrative law judge.

UI and workers comp cases involve claims that workers file with DWD for benefits under those programs. If DWD accepts or rejects a claim, workers or their employers can file an appeal, which also leads to a hearing before an administrative judge.

The labor commission is the next step in the process: The three-member commission hears appeals of administrative law judge decisions, whether involving UI, workers comp or equal rights. The commission is an independent agency separate from DWD.

Commission rulings in turn can be appealed in circuit court, a process that can extend through the state court system to the Wisconsin Supreme Court.

The Labor & Industry Review Commission’s three members are appointed by the governor to staggered six-year terms and confirmed by the state Senate.

In 2019, his first year in office, Evers made his first appointment to the commission, appointing Michael Gillick, a veteran workers comp attorney. Gillick took office March 1, 2019. His term expires March 1, 2025.

Evers’ next appointment to the commission came March 1, 2021, with Marilyn Townsend, a Madison lawyer.

Republican leaders in the state Senate have never scheduled confirmation hearings or held confirmation votes for either Gillick or Townsend.

With Walker from the start

Georgia Maxwell was the last labor commission member Walker appointed before he left office at the end of 2018 after losing the election to Evers. Maxwell’s tenure on the commission has had a complicated history.

Maxwell joined Walker’s administration when he first took office after his election in 2010. She started as assistant deputy secretary at DWD in January 2011, moved to assistant deputy secretary at the Department of Financial Institutions in April 2013, and returned to DWD as deputy secretary in July 2015, according to her commission biography.

In November 2017 Walker tapped Maxwell to fill the last year and a half of a commissioner’s post that expired March 1, 2019. The state Senate confirmed her on a unanimous vote.

A year later, on Nov. 29, 2018, another commissioner, Laurie McCallum, sent Walker a letter announcing she would resign midway through her term. She announced her departure just four weeks after Evers defeated Walker’s bid for a third term as governor.

In her resignation letter McCallum said her last day would be Jan. 4, 2019.

Four days after McCallum’s announcement, Walker appointed Maxwell to fill out the balance of McCallum’s term, which ended March 1, 2023. The appointment took effect on Jan. 6, 2019.

Maxwell’s second appointment as a commissioner went before the state Senate for a confirmation vote on Dec. 4, 2018 — one month before that new appointment started. The lame-duck session vote took place on the same day that the Legislature’s Republican majority passed a series of bills placing new limits on the incoming Democrats, Gov.-elect Evers and Attorney General-elect Josh Kaul.

The confirmation vote for Maxwell’s first appointment to the commission a year earlier was unanimous. For the December 2018 confirmation vote she was one of more than 80 lame-duck Walker appointees confirmed as a group, en masse. The party-line vote was 18-15, with no Democrats voting for the slate.

For the first two months of the new Evers administration, the labor commission had only two members — although one of them, Maxwell, appeared to fill two positions. The expiration of the term for the first of those positions created the opening that Evers’ appointee Michael Gillick took starting March 1, 2019.

Maxwell remained on the commission, now solely filling out the term that Laurie McCallum had vacated — the one expiring March 1, 2023.

Asks to be reappointed

On Jan. 11, 2023, a little more than six weeks before her second term expired, Maxwell wrote to Evers asking to be reappointed for another six-year term — Holding herself out as a someone who combined “empathy and impartiality” and citing her tenure as “the longest-serving LIRC Commissioner.”

Evers declined the request, instead appointing Katy Lounsbury, an attorney and currently a staff lawyer at the Labor & Industry Review Commission, as her successor effective March 1.

Her next letter to the governor was the one Maxwell sent Evers on Feb. 28, via email.

“I have been verbally informed that you have nominated someone to succeed me as a Commissioner on the Labor and Industry Review Commission,” Maxwell wrote. “Please be advised that pursuant to [the state Supreme Court opinion in the Fred Prehn case], the ‘expiration of a defined term for an appointed office does not create a vacancy.’ … I will continue to serve as Commissioner until my successor is confirmed by the Wisconsin State Senate.

“As I outlined in my January 11, 2023 letter to you, I believe strongly in the continuity of work that we do at the Labor and Industry Review Commission. I thank you for your consideration.”

A veteran Wisconsin unemployment insurance lawyer contends Maxwell’s refusal to step down may have led to commission decisions that penalized some workers seeking to collect jobless pay.

Victor Forberger, whose law practices consist almost exclusively of assisting unemployment insurance applicants in legal disputes arising from their claims, told the Wisconsin Examiner that in the last several years he has seen commission decisions increasingly equate genuine mistakes by applicants in the information they submit as instances of fraud against the U.I system.

Changes in state law during the Walker administration as well as in procedure at the Department of Workforce Development during that period paved the way for penalizing applicants’ innocent errors as fraud, Forberger said. At the time, Maxwell was deputy secretary at DWD.

In a 2015 memo, the Labor & Industry Review Commission warned the department against assuming fraud without evidence of fraudulent intent by the person accused, he said.

Nevertheless, Forberger said he’s been seeing more recent commission decisions that have moved away from the principle that requires evidence of intent — a reversal from the agency’s own memo to DWD nine years ago.

“I chalk this all up to the influence of Georgia Maxwell,” Forberger said.

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Porchá Perry demonstrates with other workers in Lansing, Michigan, in favor of bills restoring local control to pass workforce and labor policies on Sept.13, 2023. A new report finds growing union organizing across the country has triggered an anti-labor legislative response in some states, but cities and counties are increasingly pushing back. (Photo courtesy of SEIU Local 1)

Growing union organizing across the country has triggered an anti-labor legislative response in some states, but cities and counties are increasingly pushing back, a new report found.

The report, released this month by the New York University Wagner Labor Initiative and Local Progress Impact Lab, a group for local elected officials focused on economic and racial justice issues, cites examples of localities all over the U.S. using commissions to document working conditions, creating roles for protecting workers in the heat and educating workers on their labor rights.

In the face of increased worker organizing and Americans’ higher approval of labor unions in the past few year (hitting levels not seen since the 1960s), many states have introduced bills aimed at stopping payroll deduction for union dues and punishing employers that voluntarily recognize a union through the card check process. In April, several governors in Southern states, including Tennessee, Alabama, Georgia, and Mississippi, advocated against auto workers voting for a union.

“We know that there has been an increase in worker organizing and definitely an increase in high-profile worker organizing and certainly that action has had a reaction,” said Terri Gerstein, director of the NYU Wagner Labor Initiative and co-author of the report.

However, state preemption laws, which can make local ordinances void and could prevent many localities from implementing more worker-friendly policies, are also on the rise. There was a surge in preemption laws from 2015 to 2017 on everything from the minimum wage to paid leave, according to a June 2024 analysis from the Economic Policy Institute, a left-of-center think tank.

Although the passage of preemption legislation has slowed, according to the EPI analysis, the effects on localities are still damaging to workers’ rights, authors of the report explain. But labor and policy experts say there are still opportunities for localities to push back against efforts to limit labor organizing and gut the enforcement of labor protections.

“Localities are doing more to fight for working people and advance workers’ rights, and I think in states where there is rampant state hostility and abusive state preemption, local governments are also the leaders of trying to advance workers rights in those states and address new challenges and threats like heat, for example,” said the report’s other co-author, LiJia Gong, the policy and legal director at Local Progress.

Some business organizations, such as the National Federation of Independent Business, say preemption laws help small businesses, which don’t have the capacity “to navigate duplicative, overlapping and potentially contradictory local labor laws.”

“NFIB has supported legislation that creates statewide, uniform standards for minimum wage rates and legislation that establishes a preemption of paid sick leave proposals by local governments,” the group said in a prepared statement.

Gerstein and Gong argue that these efforts are not always concerned with uniformity, such as taking away a locality’s ability to raise the minimum wage when the state does not set a higher minimum wage itself.

In states where there isn’t state-level wage enforcement, localities can pass ordinances that allow workers to file complaints and get stolen wages back without a lawyer, as some Florida localities have done.

There are also things cities and counties can do to prevent heat-related injuries and illnesses, including in the workplace. Miami-Dade County, Phoenix, and Los Angeles have chief heat officers whose role it is to protect people from the effects of extreme heat.

“Unlike a lot of other hazards, people don’t really understand how dangerous workplace heat is and that there are workplace fatalities. But research also shows that there are high rates of worker injuries and accidents of various kinds on hotter days,” Gerstein said.

Amid state efforts to weaken child labor laws, schools are also some of the best tools localities have to ensure kids aren’t working in dangerous conditions, the authors said. School boards could use their power to include workers’ rights education in the curricula, for example.

“School districts can do a lot to educate families on child labor laws and age-appropriate employment opportunities, and they can also play an important role in identifying students who might be working in prohibited occupations and refer those cases to state and federal labor enforcers,” Gong said.

Worker boards can also document and seek to improve working conditions on the local level. The boards, created by local governments, have worker representation and can conduct worker outreach and make policy recommendations on wages and benefits. Last year, the Detroit City Council voted to create an industry standards board for workers at pro sports facilities including Ford Field, Little Caesars Arena, and Comerica Park.

Board member Porchá Perry, a mother of two children who works at Comerica Park and Ford Field, said her role is reaching out to workers to share their experience of working conditions. Workers say they are concerned about low wages, child care, transportation and safety. Perry said that although she is personally less concerned about finding child care, she wouldn’t have to work multiple jobs if wages were higher and she would be able to see her kids more.

“It’s hard to have quality time,” she said.

The board also has spots for city council members and the mayor’s office.

“It’s a voice for everybody – government officials, employees, the management department. It’s somewhere for everybody to sit at the table and speak,” she said.

Britain Forsyth, legislative coordinator for Step Up Louisiana, a group that organizes for economic and education justice, said New Orleans has focused on becoming a model employer. New Orleans increased the minimum wage to $13.25 for city employees, which became effective in 2022, and rose to $15 in 2023. In 2023, the New Orleans City Council codified city employees’ right to organize. Louisiana does not have a state minimum wage law, so the city’s minimum wage is far above $7.25, the federal minimum wage.

Step Up Louisiana is also working to pass a workers’ bill of rights on the November ballot in New Orleans. It would add to the bill of rights in the city’s home rule charter that workers deserve a living wage, paid leave, safe workplaces and health care coverage and says that all laws and regulations regarding unions should be respected.

“We call the question to the city about what we believe in, and we make it clear to employers here and folks who want to open businesses here that this is how we think workers should be treated,” he said.

Authors of the report also suggest that more localities should take on wage theft, since state and federal authorities frequently struggle to enforce wage judgments and recover wages.

These agencies are often under-resourced, have frequent staff turnover and manage complex cases, Gerstein said. Local labor agencies could provide help conducting interviews or prepare cases for state or federal agencies to follow up on. San Diego County has a fund for staff to pursue employers for wages and provides $3,000 to people who are victims of wage theft and have final unpaid wage orders from the state.

Gerstein said she’s seeing cutting-edge approaches to enforcing worker protections in places like Seattle, Boston, New York City and Denver, where the state is friendlier to workers. For example, in Sept 2022, Boston Mayor Michelle Wu created the Worker Empowerment Cabinet, including the Office of Labor Compliance and Worker Protections.

Jodi Sugerman-Brozan, Boston’s deputy chief of worker empowerment and the director of the office of labor compliance and worker protections, said her office has done educational outreach, including free OSHA training sessions for over 1,200 people and a set of trainings for how to create a heat illness prevention plan. Last year, Wu signed an ordinance that requires certain safety standards and training for city construction projects.

“Cities and countries don’t have a lot of power but they can use the power of contracting and vending to drive labor standards,” Sugerman-Brozan said.

But Gerstein added that local governments in more employer-friendly states are also stepping up to advocate for workers.

“It’s a very different landscape where the local government may be the only place where the government is standing up for workers,” she said. “There is largely stagnation in Congress because of the filibuster and other reasons, an unfriendly state government, and your state department of labor isn’t particularly worker protective and is more focused on being employer and business-friendly. State AG offices aren’t really doing anything.”

Even a small local office can make a difference, Gerstein said.

“Hire dedicated staff to be the worker rights person. Create an office and an army of one. That’s how these things can start.”