HCS SB 132(FIN) am H: "An Act relating to complaints filed with, investigations, hearings, and orders of, and the interest rate on awards of the State Commission for Human Rights; and making conforming amendments."
00 HOUSE CS FOR SENATE BILL NO. 132(FIN) am H 01 "An Act relating to complaints filed with, investigations, hearings, and orders of, and 02 the interest rate on awards of the State Commission for Human Rights; and making 03 conforming amendments." 04 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 05 * Section 1. AS 18.80.100 is amended to read: 06 Sec. 18.80.100. Complaint; time limitations. A person who is aggrieved by 07 a [ANY] discriminatory practice [CONDUCT] prohibited by this chapter may sign 08 and file with the commission a written, verified complaint stating the name and 09 address of the person alleged to have engaged in the discriminatory practice 10 [CONDUCT], and the particulars of the discrimination. A complainant may 11 withdraw the complaint at any time before the service of an accusation under 12 AS 18.80.120. A withdrawal must be signed by the complainant and be in 13 writing. A withdrawal does not limit the discretion of the executive director 14 provided in (b) of this section [THE EXECUTIVE DIRECTOR MAY FILE A
01 COMPLAINT IN LIKE MANNER WHEN AN ALLEGED DISCRIMINATION 02 COMES TO THE ATTENTION OF THE DIRECTOR]. 03 * Sec. 2. AS 18.80.100 is amended by adding a new subsection to read: 04 (b) The executive director may file a complaint in the manner provided in (a) 05 of this section when a discriminatory practice comes to the attention of the executive 06 director. 07 * Sec. 3. AS 18.80.110 is amended to read: 08 Sec. 18.80.110. Investigation and conciliation. The executive director or a 09 member of the commission's staff designated by the executive director shall 10 informally investigate the matters set out in a filed complaint, promptly and 11 impartially. If the investigator determines that there is [THE ALLEGATIONS ARE 12 SUPPORTED BY] substantial evidence of an unlawful discriminatory practice 13 under this chapter, the investigator shall immediately try to eliminate or remedy the 14 discriminatory practice through an agreement reached [DISCRIMINATION 15 COMPLAINED OF,] by conference, conciliation, and persuasion. If an agreement is 16 reached, it must be reduced to writing and signed by the complainant, executive 17 director, and respondent. The agreement is binding and enforceable under this 18 chapter as an order of the commission. An agreement reached under this section 19 may include the compromise of damages authorized under this chapter. 20 * Sec. 4. AS 18.80 is amended by adding a new section to read: 21 Sec. 18.80.112. Dismissal of complaint without prejudice. (a) If an 22 investigation of a complaint under AS 18.80.110 fails to discover substantial evidence 23 of an unlawful discriminatory practice under this chapter, the executive director shall 24 issue an order dismissing the complaint without prejudice. 25 (b) At any time before the issuance of an accusation under AS 18.80.120, the 26 executive director may dismiss without prejudice a complaint if the executive director 27 determines that 28 (1) the complainant's objection to a proposed agreement under 29 AS 18.80.110 is unreasonable; 30 (2) the complainant is unavailable or unwilling to participate in a 31 hearing;
01 (3) relief is precluded by the absence of the person alleged to have 02 engaged in the discriminatory practice; 03 (4) the person aggrieved by the discriminatory practice has initiated or 04 has notified in writing the commission of the intent to initiate an action or proceeding 05 in another forum based on the same facts; 06 (5) a hearing will not represent the best use of commission resources; 07 (6) a hearing will not advance the purposes stated in AS 18.80.200; or 08 (7) the probability of success of the complaint on the merits is low. 09 (c) The commission, in its discretion, may, but is not required to, review the 10 executive director's order of dismissal under (a) or (b) of this section and may affirm 11 the order, remand the complaint for further investigation, or, if the commission 12 concludes that substantial evidence supports the complaint of an unlawful 13 discriminatory practice, refer the complaint for conference, conciliation, and 14 persuasion as provided in AS 18.80.110, or for hearing. 15 (d) Dismissal under this section does not prevent a complainant from 16 (1) initiating an action or proceeding in another forum; or 17 (2) filing a new complaint under AS 18.80.100 that resolves the 18 grounds for the dismissal under this section. 19 * Sec. 5. AS 18.80.120 is repealed and reenacted to read: 20 Sec. 18.80.120. Hearing. (a) If no agreement is reached under AS 18.80.110 21 and the executive director determines to refer the complaint for hearing, the executive 22 director shall issue an accusation based on the investigator's determination of 23 substantial evidence and serve the person charged in the accusation and the 24 complainant with notice of the referral and a copy of the accusation. The executive 25 director's decision to refer the complaint to hearing is not reviewable by the 26 commission under this chapter. The location of the hearing is the commission office 27 unless the commission designates another location. The executive director, or the 28 executive director's designee, shall present the case in support of the accusation before 29 the commission. The person charged in the accusation may file a written answer and 30 may appear at the hearing, with or without counsel, and submit evidence. 31 (b) The commission shall request the chief administrative law judge to
01 appoint, under AS 44.64.020, an administrative law judge employed or retained by the 02 office of administrative hearings to preside over a hearing conducted under this 03 section. AS 44.64.040 - 44.64.055, 44.64.070 - 44.64.200, and the procedures in 04 AS 44.62.330 - 44.62.630 (Administrative Procedure Act) apply to the hearing except 05 as otherwise provided in this chapter. 06 (c) An accusation may be reasonably and fairly amended by the commission. 07 An amendment to name a different discriminatory practice must be supported by 08 substantial evidence, and the discriminatory practice must be referred for conference, 09 conciliation, and persuasion as provided in AS 18.80.110, before a hearing may 10 proceed. 11 (d) In a hearing on an accusation, each element of an accusation or defense 12 must be proven by a preponderance of the evidence. 13 (e) At any time after the issuance of an accusation, the executive director or 14 the person charged in the accusation may petition for a summary decision on the 15 accusation. The commission shall grant a petition if, after a reasonable opportunity for 16 discovery, the record shows that there is no genuine issue of material fact and the 17 petitioner is entitled to an order under AS 18.80.130 as a matter of law. 18 * Sec. 6. AS 18.80.130(a) is amended to read: 19 (a) At the completion of the hearing or after consideration of a petition for 20 summary decision under AS 18.80.120(e), if the commission finds that a person 21 charged in an accusation [AGAINST WHOM A COMPLAINT WAS FILED] has 22 engaged in the discriminatory practice [CONDUCT] alleged in the accusation 23 [COMPLAINT], it shall order the person to refrain from engaging in the 24 discriminatory practice [CONDUCT]. The order must include findings of fact [,] and 25 may order the person to take affirmative action to correct the discriminatory 26 practice. The commission may not order an award of noneconomic or punitive 27 damages in a case [PRESCRIBE CONDITIONS ON THE ACCUSED'S FUTURE 28 CONDUCT RELEVANT TO THE TYPE OF DISCRIMINATION]. In a case 29 involving a discriminatory practice [DISCRIMINATION] in 30 (1) employment, the commission may order any appropriate relief, 31 including one or more of the following: training of an employer, labor
01 organization, or employment agency, and its employees concerning 02 discriminatory practices; an accommodation for a person with a disability; 03 removal of or changes to a personnel record; posting of signs; back pay; [BUT 04 NOT LIMITED TO,] the hiring, reinstatement, or upgrading of an employee with or 05 without back pay; the payment of front pay for a period of not more than one year 06 if hiring, reinstatement, or upgrading of an employee is inappropriate because a 07 vacancy does not exist, the employer's discriminatory practice rendered the 08 employee incapable of returning to work, or the relationship between the 09 employer and employee has so deteriorated as to make working conditions 10 intolerable; [,] restoration to membership in a labor organization; [, OR] admission 11 to or participation in an apprenticeship training program, on-the-job training program, 12 or other retraining program; or restoration of seniority; however, an order for back 13 pay or front pay must be reduced by the amount the employee could have earned 14 or could earn by making reasonably diligent efforts to obtain similar 15 employment; 16 (2) housing, the commission may order the sale, lease, or rental of the 17 housing accommodation to the aggrieved person if it is still available, or the sale, 18 lease, or rental of a like accommodation owned by the person charged in the 19 accusation [AGAINST WHOM THE COMPLAINT WAS FILED] if one is still 20 available, or the sale, lease, or rental of the next vacancy in a like accommodation, 21 owned by the person charged in the accusation [AGAINST WHOM THE 22 COMPLAINT WAS FILED]; the commission may award actual damages, which shall 23 include [, BUT NOT BE LIMITED TO,] the expenses incurred by the complainant for 24 obtaining alternative housing or space; for storage of goods and effects; and for 25 moving and [FOR] other costs actually incurred as a result of the unlawful practice or 26 violation. 27 * Sec. 7. AS 18.80.130(c) is amended to read: 28 (c) If the commission finds that a person charged in an accusation 29 [AGAINST WHOM A COMPLAINT WAS FILED] has not engaged in the 30 discriminatory practice [CONDUCT] alleged in the accusation [COMPLAINT], it 31 shall issue and cause to be served on the complainant an order dismissing the
01 complaint. 02 * Sec. 8. AS 18.80.130 is amended by adding a new subsection to read: 03 (f) The interest rate for an award under this section is determined in the 04 manner provided in AS 09.30.070. 05 * Sec. 9. AS 18.80.135(b) is amended to read: 06 (b) The commission may obtain a court order for the enforcement of any of its 07 orders by filing a complaint with the superior court in the judicial district in which the 08 unlawful practice [CONDUCT] is alleged to have occurred. 09 * Sec. 10. AS 18.80.140 is amended to read: 10 Sec. 18.80.140. Effect of compliance with order. Immediate and continuing 11 compliance with all the terms of a commission order is a bar to criminal prosecution 12 for the particular instances of discriminatory practice [CONDUCT] described in the 13 accusation issued under AS 18.80.120 [FILED BEFORE THE COMMISSION]. 14 * Sec. 11. AS 18.80.270 is amended to read: 15 Sec. 18.80.270. Penalty. A person, employer, labor organization, or 16 employment agency, who or that wilfully engages in an unlawful discriminatory 17 practice [CONDUCT] prohibited by this chapter, or wilfully resists, prevents, 18 impedes, or interferes with the commission or any of its authorized representatives in 19 the performance of duty under this chapter, or who or that wilfully violates an order of 20 the commission, is guilty of a misdemeanor and, upon conviction by a court of 21 competent jurisdiction, is punishable by a fine of not more than $500, or by 22 imprisonment in a jail for not more than 30 days, or by both. 23 * Sec. 12. AS 18.80.300 is amended by adding new paragraphs to read: 24 (17) "complainant" means a person who is aggrieved by a 25 discriminatory practice prohibited by this chapter and who has filed a complaint as 26 provided in AS 18.80.100; 27 (18) "pay" means wages; salaries; commissions; amounts an employer 28 contributes to retirement, health, or other fringe benefit plans; and other forms of 29 remuneration paid to an employee for personal services. 30 * Sec. 13. AS 44.62.330(a) is amended by adding a new paragraph to read: 31 (46) State Commission for Human Rights, where procedures are not
01 otherwise expressly provided in AS 18.80. 02 * Sec. 14. The uncodified law of the State of Alaska is amended by adding a new section to 03 read: 04 APPLICABILITY. This Act applies to all complaints filed on or after the effective 05 date of secs. 1 - 13 of this Act. 06 *Sec. 15. The uncodified law of the State of Alaska is amended by adding a new section to 07 read: 08 REPORT. (a) The State Commission for Human Rights shall prepare a report of 09 inquiries made to the commission after 180 days, but before one year, after the alleged 10 discriminatory practice under AS 18.80 occurred or, for a continuing discriminatory practice, 11 after 180 days, but before one year, after the alleged discriminatory practice stopped. 12 (b) The report required in (a) of this section 13 (1) shall be included with the annual report provided in 2007 and 2008 under 14 AS 18.80.150; and 15 (2) shall 16 (A) contain information for the period from the effective date of this 17 section through December 31, 2007; 18 (B) provide statistical data on the following: 19 (i) the type of the discriminatory practice; 20 (ii) the basis of the inquiry; 21 (iii) action taken on the inquiry. 22 (c) In this section, ''commission'' means the State Commission for Human Rights 23 created in AS 18.80.010. 24 * Sec. 16. The uncodified law of the State of Alaska is amended by adding a new section to 25 read: 26 TRANSITION: REGULATIONS. The State Commission for Human Rights may 27 proceed to adopt regulations necessary to implement the changes made by this Act. The 28 regulations take effect under AS 44.62 (Administrative Procedure Act), but not before the 29 effective date of the statutory change.