A labor union-backed group in Wisconsin has filed a lawsuit demanding Governor Scott Walker unilaterally increase the state’s current minimum wage of $7.25.

The lawsuit hinges on a unique, and little-known, 101-year old law that says the state minimum wage “shall not be less than a living wage,” which is defined as a wage “sufficient to enable the employee receiving the compensation to maintain himself or herself under conditions consistent with his or her welfare."   The law goes on to define “welfare” as “reasonable comfort, reasonable physical well-being, decency, and moral well-being.”   The lawsuit, filed by the SEIU-funded group Wisconsin Jobs Now, does not say what that wage is, only that the current minimum is not high enough.

The lawsuit comes on the heels of the Wisconsin Department of Workforce Development’s (DWD) recent rejection of a complaint filed by the union group calling for a higher minimum wage.  In dismissing the complaint, the state agency found “no reasonable cause to believe that the wages paid to the complainants are not a living wage.”  The same agency now has 20 days to again determine whether an increase in the state’s minimum wage is warranted.

Interestingly, in addition to determining whether a higher minimum wage is needed to maintain the welfare of workers, Wisconsin state law requires DWD to base decisions on minimum wage increases on how the proposed increase would affect “job creation, retention, and expansion, on the availability of entry-level jobs, and on regional economic conditions within the state.”

Marquette University political science professor John McAdams notes that Wisconsin’s governor can only authorize an increase in the minimum wage if the state legislature first passes a bill mandating a higher minimum wage.  “Unless the Democrats take the Assembly and the Senate and Burke wins the governorship … the state is not going to have a minimum wage higher than the federal minimum wage,” McAdams said.

That isn’t likely to happen anytime soon.  Wisconsin’s Assembly and Senate remain in Republican control after yesterday’s election.  And while labor unions think the state’s minimum wage should be increased, it appears voters may not agree.  Walker defeated his well-funded challenger, who supports increasing the state’s minimum wage, in yesterday’s election.