Legislature(2017 - 2018)GRUENBERG 120
02/02/2017 01:30 PM House MILITARY & VETERANS' AFFAIRS
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| Audio | Topic |
|---|---|
| Start | |
| HB3 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| += | HB 3 | TELECONFERENCED | |
HB 3-NATL GUARD LEAVE/REEMPLOYMENT RIGHTS
1:54:15 PM
CHAIR TUCK announced that the only order of business would be
HOUSE BILL NO. 3, "An Act relating to the employment rights of
employees in the state who are members of the National Guard of
another state, territory, or district of the United States."
CHAIR TUCK stated that the bill would correct a deficiency in
the employment protections for Alaskans serving in the National
Guard. He noted that HB 3 is part of a nationwide effort driven
by the U.S. Department of Defense (DoD) to make sure those who
serve in the National Guard have reemployment rights to their
civilian jobs after completing their duties.
1:55:03 PM
REPRESENTATIVE RAUSCHER moved to adopt Amendment 1 [labeled 30-
LS0073\A.1, Martin/Wayne, 1/27/17], which read as follows:
Page 2, line 12:
Delete "a new subsection"
Insert "new subsections"
Page 2, following line 12:
Insert a new subsection to read:
"(h) An employer is not required to allow a
member of the National Guard to return to work under
this section if
(1) the employer's circumstances have
changed, making employment impossible or unreasonable;
or
(2) employment would impose an undue
hardship on the employer."
Reletter the following subsection accordingly.
CHAIR TUCK objected for discussion purposes.
1:55:19 PM
REPRESENTATIVE RAUSCHER drew attention to language in HB 3,
beginning on page 1, line 13, through page 2, line 2, which read
as follows:
discharged from hospitalization that arose from that
active [STATE] service, the employee is entitled to
return to the employee's former position, or a
comparable position, at the pay, seniority, and
benefit level the employee would have had if the
employee had not been absent as a result of active
state service
REPRESENTATIVE RAUSCHER expressed concern that ["if the employee
had not been absent as a result of active state service"] would
lock the employer into all previous [employment commitments].
He mentioned that the concept for the amendment came from a
conversation with Deputy Commissioner Robert Doehl. He urged
the committee to support Amendment 1.
1:57:44 PM
ROBERT DOEHL, Deputy Commissioner, Department of Military &
Veterans' Affairs (DMVA), stated that the language proposed in
Amendment 1 reflects the common law precedent, which has looked
to federal [Uniformed Services Employment and Reemployment
Rights Act of 1994] (USERRA) laws US 38.4301-4335. The language
mirrors what the courts have interpreted as an impossibility
situation: the employee can't go back to the job because it no
longer exists or is not economically viable for the employer due
to changes in conditions that occurred since the individual was
mobilized. He noted that currently, there is no state law
precedent on the matter. State courts interpreting HB 3 could
follow the federal approach, but might not. Amendment 1 would
leads the courts to follow the federal example and have more
predictable results for employers and employees.
1:58:57 PM
REPRESENTATIVE RAUSCHER stated that the reason for Amendment 1
is to avoid future litigation.
1:59:25 PM
REPRESENTATIVE PARISH stated that the analogous federal law has
been consistently interpreted to have the same effect as
Amendment 1 - that [the employee] would have the position, pay,
seniority, and benefit level the employee would have had if
he/she had not been absent as a result of state service. He
noted that state service is likely to be brief. He asked if the
amendment's language would reduce risk of litigation, add
complexity to latch onto for litigation, or dismiss people's
claims unreasonably.
2:01:14 PM
MR. DOEHL stated his belief that being more explicit concerning
the situation removes the potential for litigation testing the
state's approach. He mentioned two instances where the state
has not followed the federal approach, and he stated that the
lack of predictability has resulted in extensive litigation for
the state. He offered his opinion that aligning state [statute]
to the federal approach reduces the probability of litigation;
but he acknowledged that anyone can sue if he/she chooses.
2:02:19 PM
REPRESENTATIVE LEDOUX asked for clarification regarding the
language of Amendment 1, and stated it is ambiguous and
confusing. She asked if Amendment 1 should read "an employer is
not required to rehire" as opposed to "allow".
2:03:15 PM
REPRESENTATIVE RAUSCHER added that the amendment [grants
flexibility] if the employer's circumstances change.
2:04:54 PM
CHAIR TUCK wondered if the amendment would be better with the
language adjusted.
2:05:18 PM
REPRESENTATIVE PARISH suggested a conceptual amendment to
parallel language from HB 3, on page 1, line 14, which would
read "the employee is not entitled to return to work under this
section if".
2:05:46 PM
REPRESENTATIVE REINBOLD suggested a conceptual amendment and she
stated that her amendment is similar to Representative Parish's
amendment. It would read "employer is not mandated to rehire a
member of the National Guard if".
CHAIR TUCK asked if any member wished to make a motion.
2:06:23 PM
REPRESENTATIVE PARISH [moved to adopt] Amendment 1 to Amendment
1, to strike from Amendment 1 "An employer is not required to
allow a member of the National Guard to return to work under
this sections if" and add "The employee is not entitled to
return to work under this section if".
2:07:09 PM
The committee took an at-ease from 2:07 p.m. to 2:08 p.m.
2:08:40 PM
CHAIR TUCK stated the committee would take another at ease to
contact a bill drafter.
The committee took an at-ease from 2:09 p.m. to 2:23 p.m.
2:23:52 PM
CHAIR TUCK noted that Dan Wayne of Legislative Legal and
Research Services was online to answer questions about amendment
language. He recapped Amendment 1 to Amendment 1. He asked
Representative Parish to withdraw his motion.
2:24:45 PM
REPRESENTATIVE PARISH withdrew his motion to adopt Amendment 1
to Amendment 1.
REPRESENTATIVE PARISH moved to adopt [Amendment 2] to Amendment
1, to delete lines 7 and 8 [as numbered in] Amendment 1 and add
"(h) An employee is not entitled to return to the employee's
former position or comparable position at the pay, seniority,
and benefit level the employee would have had if".
2:25:25 PM
REPRESENTATIVE SADDLER asked where the language would be
inserted.
CHAIR TUCK stated that the language of Amendment 2 to Amendment
1 would be inserted in Amendment 1, page 1, in lines 7 and 8 [as
numbered in Amendment 1].
2:25:49 PM
REPRESENTATIVE LEDOUX objected to Amendment 2 to Amendment 1 for
purposes of discussion, and asked for a response from
Legislative Legal and Research Services.
2:26:16 PM
REPRESENTATIVE PARISH again read Amendment 2 to Amendment 1, and
he stated that the proposed language parallels the language from
HB 3, page 1, line 13, through page 2, line 3.
2:27:23 PM
DAN WAYNE, Attorney, Legislative Legal and Research Services,
stated that to say "an employee is not entitled" could be
interpreted so that the employer couldn't [rehire the employee]
even if he/she wanted to do so. He suggested an employee could
ask for his/her old job, and the employer could respond by
saying, "Well you are not entitled, but I'll think about it and
I might give it to you."
REPRESENTATIVE LEDOUX referenced paragraphs 1 and 2 of Amendment
1, which read:
(1) the employer's circumstances have changed,
making employment impossible or unreasonable; or
(2) employment would impose an undue hardship on
the employer."
REPRESENTATIVE LEDOUX observed that the new language wouldn't
preclude the employer from rehiring the person any more than the
amendment's former language.
MR. WAYNE stated that he agrees.
REPRESENTATIVE LEDOUX asked if Amendment 2 to Amendment 1
accomplishes "what the preface ... with respect to [subsection]
(h) was intended to accomplish."
MR. WAYNE stated his belief that it does.
2:30:36 PM
REPRESENTATIVE LEDOUX removed her objection to the motion to
adopt Amendment 2 to Amendment 1. There being no further
objection, Amendment 2 to Amendment 1 was adopted.
2:30:59 PM
REPRESENTATIVE PARISH stated his support of Amendment 1, as
amended.
2:31:15 PM
REPRESENTATIVE SADDLER asked if the current statute forces an
employer to return a National Guard member returning from
active state service to a job that doesn't exist, exposing [the
employer] to hardship. He asked for Mr. Wayne's opinion on
whether there is a problem in current statute that needs to be
remedied.
2:32:20 PM
MR. WAYNE stated that he needs to look at the statute again.
REPRESENTATIVE SADDLER asked Mr. Doehl whether [Amendment 1, as
amended] solves an existing problem in statute, as opposed to a
problem that may not exist.
2:33:10 PM
MR. DOEHL stated his belief that the proposed amendment reduces
ambiguity that could be difficult for a small business to
overcome in litigation. He stated his belief that Amendment 1,
[as amended], corrects a weakness in HB 3.
REPRESENTATIVE SADDLER stated he does not want to impose a
"business breaking obligation" on an employer, and stated his
support of "this amendment as currently drafted."
2:33:50 PM
CHAIR TUCK removed his objection to Amendment 1, [as amended].
There being no further objections, Amendment 1, as amended, was
adopted.
2:34:12 PM
REPRESENTATIVE SADDLER mentioned a description of ways to
improve veteran laws in the letters of support [included in the
committee packet]. One element [in the description] relates to
returning employment rights - basically what this bill
accomplishes. The other was to make sure that there was a
"right of action" should this right be denied. He asked if the
bill needs to be amended to include a right of action, or if
statute already includes a right of action.
2:35:28 PM
MR. DOEHL stated that he hasn't researched that aspect.
REPRESENTATIVE SADDLER stated that he would let the issue go.
He suggested that a future bill could address the issue if
further research shows a gap [in right of action].
2:36:08 PM
REPRESENTATIVE LEDOUX moved to report HB 3, as amended, out of
committee with individual recommendations and the accompanying
fiscal notes.
2:36:26 PM
CHAIR TUCK clarified that there are two zero fiscal notes. There
being no further objection CSHB 3 (MLV) was moved out of
committee.
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