Appeal: Employment Category Change (Jailers)

The WRS has four employment categories:

• General
• Executive/Elected
• Protective Occupation Participant with Social Security
• Protective Occupation Participant without Social Security (most firefighters)

Employers are responsible for determining an individual employee’s employment category. Generally, an employee may appeal an employer’s employment category determination to the ETF Board.

ETF offers an administrative appeal process. Employees file an appeal by writing a letter or submitting a completed Appeal Form (ET-4938) to the Appeals Coordinator at ETF. A brochure entitled Department of Employee Trust Funds Administrative Appeal Process(ET-4943) is available for more information

Beginning in 2012, certain Wisconsin counties changed the employment category of jailers employed by those counties from Protective to General. As a result, many of those jailers filed an appeal with ETF to challenge that change, based on their belief that they should be reported to the WRS as Protective category employees

To be reported as a WRS protective, state law requires that an employee’s principal duties must involve the following:

• Active law enforcement or active fire suppression or prevention;
• Frequent exposure to a high degree of danger or peril; and
• A high degree of physical conditioning.

The ETF Board has previously interpreted “principal duties” to require that 51% or more of the employee’s duties be spent in active law enforcement. “Active law enforcement” includes being actively, currently and directly involved in detecting and preventing crime, and enforcing laws or the ordinances of a participating employer.

Wis. Stat. §40.02(48)(am) lists specific positions typically qualifying as protectives, such as police officers, firefighters and deputy sheriffs. However, bearing one of those titles does not automatically confer protective status. An employer must still evaluate whether at least 51% of an employee’s duties meet the three criteria above.

As noted above, it is an employer’s responsibility to determine the proper WRS employment category in which to enroll an employee. Based on evidence presented by the county involved in the current administrative appeal, the county did not believe the jailers duties met the definition of protective because 51% of their time was not spent on active law enforcement, their positions did not expose them to a high degree of danger or peril and their positions did not require a high degree of physical conditioning.

Many of the jailers submitted appeals to ETF. Five of those cases were chosen by the parties as representative of the different types of position descriptions and varying duties. The position titles, as provided by their employer, were: (1) Jail Lieutenant, (2) Jail Sergeant, (3) Jailer, (4) Transit Officer and (5) Huber Deputy.

A hearing was held before an administrative law judge from May 18-21, 2015, and May 28-29, 2015. The parties submitted written briefs, the last of which was received on November 7, 2015. The administrative law judge issued a proposed decision, including preliminary findings and conclusions of law, on January 6, 2016. The ETF Board heard the five cases on March 24, and issued a written decision on July 5. 

The ETF Board decided that all five jailers involved in the appeal were properly categorized as generals for three reasons:

• The evidence did not support the conclusion that the five spent 51% or more of their time engaged in active law enforcement;
• They offered no evidence that their work involved frequent exposure to a high degree of danger or peril; and
• They did not offer evidence that their work required a high degree of physical conditioning.

The ETF Board further noted that the test for being a protective is a strict one and cannot be met by an employer’s decision to have classified the employee as a protective in the past.

A copy of the ETF Board decision may be found here. The names of the parties have been redacted because state law, specifically Wis. Stat. §40.07, prohibits the release of personal information related to WRS members.

Yes. The five jailers have 30 days from July 5 (the date the decision was mailed to the parties) to file an appeal in Dane County Circuit Court. A Circuit Court decision would then be subject to further appeal in the Court of Appeals.

While ETF cannot predict how a Circuit Court may view this case, the ETF Board decision cited its long-standing interpretation of Wis. Stat. §40.02(48) in arriving at its conclusion. When a state agency applies a long-standing interpretation of its own statutes to a given case, a circuit court typically gives great weight deference to that interpretation. To the extent that previous ETF Board decisions on this issue have been appealed, the Court of Appeals has affirmed the Board’s decisions.

The five jailers involved in the current appeal were chosen by the parties as being representative of jailers throughout the state because of their varying position descriptions. As a result, the ETF Board decision applies insofar as it provides information on how the Board may evaluate whether a given position meets the requirements to be categorized as a WRS protective. As noted above, in the current five cases, the Board found that the jailers did not present evidence that at least 51% of their time was spent engaged in active law enforcement, that their positions exposed them to a high degree of danger or peril, and that their positions required a high degree of physical conditioning.