Today we have part 2 in our series on legislative initiatives that may allow employers to “opt out” of Workers’ Compensation across the country.

Although judges and juries in the late 19th and early 20th centuries softened the impact of the three employer defenses (contributory negligence, assumption of risk and fellow servant rule), significant numbers of injured workers were denied benefits. Despite periodic efforts by the Wisconsin Supreme Court and legislature to modify the common law, an increasing number of Wisconsinites during the early Progressive years came to feel that more sweeping changes in the employer liability system were essential. The Wisconsin State Federation of Labor and the Social Democratic Party began to advocate a workers’ compensation system shortly after 1900, and they introduced the first workers’ compensation bill in the legislature in 1905.

Professor John R. Commons of the University of Wisconsin and State Commissioner of Labor Joseph Beck also endorsed workers’ compensation and vigorously promoted it to business groups around the state. Support for workers’ compensation came also from Justice Rouget Marshall of the Wisconsin Supreme Court.

Although a conservative in most areas of law, he used every opportunity on and off the bench to urge a change in what he believed was a defective and imperfect system of common law employer liability. Marshall and his colleagues grew tired of regularly having to issue defensively worded decisions for employers in cases where the court’s sympathies and those of the public were on the side of the injured worker.

Check back later this week for the third installment in this series.