June 24, 2013 – Former Milwaukee County employees who sued to get unused sick time at retirement will get it, without a 400-hour cap, a state appeals court has ruled.

Judith Pasko and Robert Porth began working for Milwaukee County in the mid-1980s. Both were union members, but both became non-union workers when they were promoted to managerial positions in 2004 and 2006, respectively.

At the time of their promotions, non-union workers were entitled to unpaid sick time at retirement, capped at 400 hours (50 days). Union workers who became union members before 1996 received full payment for accrued sick time at retirement, with no cap.

When Pasko and Porth retired in 2008 and 2010, Milwaukee County applied the 400-cap to determine amounts of unused sick time to be paid. Pasko had accrued 1,426 hours of unused sick time, and Porth had 2,163 hours of accrued time at retirement.

The circuit court determined that Pasko and Porth had vested rights in the unused sick time they accrued as union workers and did not waive those rights upon promotion.

In Porth & Pasko v. Milwaukee County, 2012AP2256 & 2012AP2257 (June 18, 2013), a three-judge panel for the District I Court of Appeals affirmed, concluding that unused sick time vested as it accrued and did not divest when plaintiffs became managers.

“If Milwaukee County wanted to be able to modify the vesting trigger from a day-by-day accrual … and thereby preserve its freedom to make retroactive changes, it could have sought to do so in its contracts with the unions representing Pasko and Porth. It did not,” wrote Judge Ralph Adam Fine for the three-judge panel.

The panel also ruled that Pasko and Porth did not waive their right to previously uncapped sick time accruals, despite Milwaukee County’s argument that accepting their promotions triggered an “implied waiver” because they remained silent about it.

Thus, the appeals court panel upheld the circuit court’s calculations with respect to accrued sick time payouts. Pasko gets $21,779, and Porth gets $30,174.