Legislature(2003 - 2004)
03/31/2004 03:27 PM House L&C
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 391-EMPLOYER MUST LET CRIME VICTIM OFF WORK Number 0108 JOHN BITTNER, Staff to Representative Cheryll Heinze, Alaska State Legislature, presented HB 391 on behalf of Representative Heinze, sponsor of the bill. He explained that HB 391 gives statutory penalties for employers who prevent their employees, who have been victims of felonious crimes, from leaving work to attend the court proceeding for which they are involved. It does have exemptions for small businesses, he added. CHAIR ANDERSON asked Mr. Bittner to provide an example of what this bill might do. MR. BITTNER replied that the employer cannot prevent an employer from attending a criminal proceeding relating to the crime at which the victim has a right to be present, unless it would cause the employer undue hardship to the business or they fall into the small business category. CHAIR ANDERSON gave an example of a person who wants to be present at his sister's DUI hearing. He suggested that this bill does not apply in that case. MR. BITTNER replied that the only exceptions would be if the victim was a minor or mentally impaired, then a person who is not the victim could attend the court proceeding. CHAIR ANDERSON said that it applies just to victims themselves. Number 0344 REPRESENTATIVE DAHLSTROM asked Mr. Bittner to talk more about the employee being penalized by not being paid for the time off. MR. BITTNER stated that they would not receive pay, just the time off. REPRESENTATIVE GATTO asked about page 2, line 8 of HB 391, "has suffered personal injury". He wondered if mental injury would also apply. MR. BITTNER said it would depend on whether or not it was a felony, and he offered to find out more information about it. CHAIR ANDERSON said he thought that personal injury meant just that. REPRESENTATIVE DAHLSTROM asked Mr. Bittner to point out where the bill addresses the responsibility that the employer has to share with the employer, proof that they need to attend the court hearings. MR. BITTNER replied that in the case of this bill, a subpoena would not be necessary. REPRESENTATIVE DAHLSTROM asked if the House Judiciary Standing Committee would be the appropriate place to address that issue. She said that she could see it as a problem if left wide open for that "one bad apple in the bushel" to abuse the situation. MR. BITTNER said he would be happy to have language drafted that would cover that issue. CHAIR ANDERSON referred to page 2, subsection (c), where it defines "penalize" as it applies to affecting the employment status, wages, and benefits payable to the victim, which includes demotion, dismissal and loss of pay or benefits. He asked if Mr. Bittner interprets that as, "I'm not going to terminate you, or dismiss you, or suspend you, but I am going - if you're going to take two weeks off as a victim of a felony - I am going to take all of your leave time." MR. BITTNER said he is not sure if leave falls under benefits. CHAIR ANDERSON gave an example where this might happen to a small employer. REPRESENTATIVE DAHLSTROM asked if there is a precedent in law already about such a situation. She said she thinks the requirements in the bill regarding the employer are good but that those regarding the employee need to be tightened up. Number 0794 REPRESENTATIVE LYNN asked if there is a limitation for the length of the trial. MR. BITTNER replied that there is, and he referred to page 1, line 11, "an employer may limit the amount of leave an employee may take if the employer would suffer undue hardship to the employer's business or operations." REPRESENTATIVE LYNN remarked that that could be a very debatable point. MR. BITTNER agreed that it could. It would have to be decided in court, he added. He said it was too difficult to include undue hardship in the bill in a "broad blanket sense". CHAIR ANDERSON gave an example of undue hardship where a person is working in an auto mechanics shop with only two mechanics in the peak season. Number 0875 REPRESENTATIVE LYNN said it would be difficult to challenge an employer on this issue. REPRESENTATIVE GATTO said that typically, even when an employee is discharged, they still get their insurance coverage until the end of the month. REPRESENTATIVE DAHLSTROM responded, "Not always." REPRESENTATIVE GATTO said all of the employees he has worked for have allowed that. He opined that a person's insurance coverage would still be in effect if they had to attend a court proceeding and that it is not the intent of the bill to take a person's benefits away. He wondered if the bill needs to address some of the benefit issues. MR. BITTNER said that Representative Gatto's question falls under the pay and benefits question mentioned earlier. He stated that he would get a legal opinion on that issue. Number 0993 CHAIR ANDERSON stated his intent to bring [HB 391] back at a later date with the answers to these questions included in it. REPRESENTATIVE DAHLSTROM noted that in the case of jury duty, the employee has to give the employer proof of the jury duty notice, for a leave request. REPRESENTATIVE ROKEBERG asked why the size of the business is limited to six or more employees. MR. BITTNER replied that it was felt that for a business any smaller than that, the loss of one employee would cause an undue hardship. REPRESENTATIVE ROKEBERG asked why the number six was used. MR. BITTNER responded that that was a number determined by the Legislative Legal and Research Services and Representative Heinze's office. REPRESENTATIVE ROKEBERG, looking at the Legislative Research Report, pointed out that it indicates that the Arizona statute defines [and applies to] an employer with 50 or more workers. He noted that 50 or more workers is a typical federal, standard size of a large business versus a small business with less than 50 workers. He inquired of Mr. Bittner whether that number was considered. MR. BITTNER replied that while the language in the Arizona statute is similar to the bill, [Representative Heinze's office] felt that the actual, practical business concerns between Arizona and Alaska are somewhat different. Alaska has more rural areas and smaller businesses than Arizona does, he explained. REPRESENTATIVE ROKEBERG asked if there is a rational basis for the "six figure" other than what has been said. MR. BITTNER answered, "Other than trying to protect the largest number of victims and the largest number of small businesses. That was the happy medium we were going for and that is what we felt this number would do." Number 1116 CHAIR ANDERSON asked what the [Alaska State Chamber of Commerce] thinks of this bill. MR. BITTNER said that it had not weighed in yet. REPRESENTATIVE ROKEBERG referred to page 2, [line 9], and questioned the meaning of "who is a victim by reason of the person's relationship to a minor, incompetent, or incapacitated person who has suffered personal injury or death from a felony". He asked if the person is a victim because the injury or death was to a family member and was caused by a felony. He wondered if the intention in the drafting is that the personal injury was also caused by a felony. MR. BITTNER said yes. CHAIR ANDERSON responded that it would drastically reduce the number of employees who would apply for leave because the bill addresses felonious cases only. Number 1229 REPRESENTATIVE ROKEBERG remarked that what the bill does is takes the current statute that sets up a recourse for a victim who has requested to participate in [court] proceedings or who has been subpoenaed for the purpose for giving testimony, and expands it to include the victim's right to no retaliation from an employer for taking the needed time off of work. He asked if that is the intention of the bill. MR. BITTNER answered that that is part of the intention and the other part is that the bill insures that the victim can attend the whole proceeding, not just the part that they are required or subpoenaed to attend. REPRESENTATIVE ROKEBERG, referring to page 1, line 10, "the victim has the right to be present", asked if that right is found in the constitution and in Alaska's statutes. MR. BITTNER replied yes. The current statute AS12.61.010 says that the victim has the right to be present during any proceeding in the prosecution and sentencing of the defendant, if the defendant has the right to be present, including being present during testimony, even if they are going to be giving testimony at a later date. "The problem with that is that the coverage for employers of victims only applies to a certain small aspect of this," he said. "There is no statutory language that gives teeth to the earlier statute," he explained. REPRESENTATIVE ROKEBERG said he is confused about whether it covers both criminal and civil actions. Number 1361 MR. BITTNER replied that it covers all felonious personal injury. REPRESENTATIVE ROKEBERG said that the victim would be the subject of a felonious injury. It says "court proceedings" so there could be an issue if the victim was a witness, whether he or she could participate in the court proceedings. MR. BITTNER replied that Alaska is one of the few states that allows for that. REPRESENTATIVE ROKEBERG said, "So they can sit in the courtroom and watch the trail even though they're going to testify?" MR. BITTNER said yes. REPRESENTATIVE ROKEBERG asked Mr. Bittner if his testimony stated that [HB 391] is a follow-up civil cause of action for personal injury. MR. BITTNER said he does not understand the question. REPRESENTATIVE ROKEBERG clarified that if it was a civil action they would be a party to the case and would want to be in attendance. MR. BITTNER replied that he does believe that they would be covered under this law. Number 1428 CHAIR ANDERSON explained that what Representative Rokeberg is saying is in a case where someone is robbed and had their arm broken, the defendant would be charged for a felony by the state and then the victim would sue for injury, so it would become a trial where it has dual purposes. REPRESENTATIVE ROKEBERG replied that is right. It would be a civil case rather than a criminal case, he added. REPRESENTATIVE GUTTENBERG discussed insurance coverage and explained how it is based on how many hours are worked in a month. In a situation where the victim is required to miss work, he wondered if there is anything in the bill that could address this issue. CHAIR ANDERSON said that Mr. Bittner plans to check on this issue. He summarized the issues that still needed to be addressed regarding HB 391: leave time, insurance, benefits, the number six for business size, and support by other groups such as the Chamber of Commerce. REPRESENTATIVE GUTTENBERG suggested that the various types of leave that an employer could require needs to be checked out, also. CHAIR ANDERSON asked Mr. Bittner to bring the bill back at a future date with those questions answered. [HB 391 was held over.]
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