History of the courts
Articles on Wisconsin legal history
The nation's first workers' compensation system
Written by Joseph A. Ranney, Attorney at Law
Phone: (608) 283-5612
In 1911 Wisconsin became the first state in the nation to put a broad workers compensation system into place. Despite the system's novelty, a strikingly wide variety of Wisconsinites supported it as an idea whose time had come.
Before workers' compensation, injured Wisconsin workers had very limited rights of recovery. Under the traditional legal rule of "contributory negligence," if they were partly responsible for the accident they could not force their employer to pay them -- no matter how small their part. They also could not recover from the employer if their injury was caused by a fellow worker.
As Wisconsin became more industrial and the number of accidents increased, these rules created many problems for the legal system and bothered many Wisconsinites. It was well known that juries were sympathetic to workers and would bend over backwards not to find workers at fault. Judges had the power to overrule juries where the worker's negligence was clear. Some judges used this power freely; some did not. Because of the differences between judges, many people believed the system was unfair. Many judges, including Chief Justice John Winslow of the Wisconsin Supreme Court, worried that this perception would undermine the judicial system itself.
Germany created the first workers' compensation system in the 1880s, and by the early 1900s many American states were thinking about creating their own systems. Workers compensation had advantages for both workers and employers. Workers could receive compensation even if they were partly at fault. Employers would have to pay, but only according to a fixed schedule based on the seriousness of the injury. No longer would they have to worry about capricious juries giving workers huge awards.
By 1909, the Supreme Court was openly urging the Legislature to adopt the new system. Justice Roujet Marshall explained that it was better to spread the cost of accidents throughout society, since workers labored for the good of society as a whole:
Why should not the sacrifices for all be taken at once as the burdens of all; not scattering by the way human wrecks to float as derelicts for a time, increasing the first cost till the accumulation disappears from view in the world of consumable things? The courts cannot answer. They do not make the law. Only [the Legislature] can answer.
In 1911 the Legislature passed a workers' compensation law. In its final form, the law made some compromises between business and labor. Workers were given generous benefits, but in return the law required them to choose before they were injured whether or not they would join the new system, rather than picking and choosing after they were injured.
Worries about the law's constitutionality increased when, in mid-1911, the New York Supreme Court struck down a similar law which that state's Legislature had just passed. But in late 1911 the Wisconsin Supreme Court upheld the law, largely because it was voluntary. Employers and workers could choose to remain under the old system if they wished (though few did). In a famous passage, Chief Justice Winslow served notice that the court would interpret the Constitution to meet the needs of changing times:
When an 18th century constitution forms the charter of liberty of a 20th century government must its general provisions be construed and interpreted by an eighteenth century mind in the light of eighteenth century conditions and ideals? Clearly not. This were to command the race to halt in its progress, to stretch the state upon a veritable bed of Procrustes.
Some years later, after the courts had indicated they would also uphold a compulsory system, the Legislature made workers compensation binding on all employers and workers. Wisconsin can take pride in leading the way to a change that has improved life for more people than almost any other reform of the 20th century.
Note: The views expressed in this article are the author's alone. Distributed as a public service by the Wisconsin Supreme Court in honor of the state's sesquicentennial.