Legislature(2017 - 2018)GRUENBERG 120

02/02/2017 01:30 PM MILITARY & VETERANS' AFFAIRS

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Audio Topic
01:53:23 PM Start
01:54:15 PM HB3
02:37:02 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
-- Please Note Time Change from 1:00 pm --
+ Bills Previously Heard/Scheduled TELECONFERENCED
+= HB 3 NATL GUARD LEAVE/REEMPLOYMENT RIGHTS TELECONFERENCED
Moved CSHB 3(MLV) Out of Committee
                    ALASKA STATE LEGISLATURE                                                                                  
   HOUSE SPECIAL COMMITTEE ON MILITARY AND VETERANS' AFFAIRS                                                                  
                        February 2, 2017                                                                                        
                           1:53 p.m.                                                                                            
                                                                                                                                
MEMBERS PRESENT                                                                                                               
                                                                                                                                
Representative Chris Tuck, Chair                                                                                                
Representative Gabrielle LeDoux, Vice Chair                                                                                     
Representative Justin Parish                                                                                                    
Representative Ivy Spohnholz                                                                                                    
Representative George Rauscher                                                                                                  
Representative Lora Reinbold                                                                                                    
Representative Dan Saddler                                                                                                      
                                                                                                                                
MEMBERS ABSENT                                                                                                                
                                                                                                                                
All members present                                                                                                             
                                                                                                                                
COMMITTEE CALENDAR                                                                                                            
                                                                                                                                
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."                                                                                   
                                                                                                                                
     - MOVED CSHB 3(MLV) OUT OF COMMITTEE                                                                                       
                                                                                                                                
PREVIOUS COMMITTEE ACTION                                                                                                     
                                                                                                                                
BILL: HB   3                                                                                                                  
SHORT TITLE: NATL GUARD LEAVE/REEMPLOYMENT RIGHTS                                                                               
SPONSOR(s): REPRESENTATIVE(s) TUCK                                                                                              
                                                                                                                                
01/18/17       (H)       PREFILE RELEASED 1/9/17                                                                                
01/18/17       (H)       READ THE FIRST TIME - REFERRALS                                                                        
01/18/17       (H)       MLV, STA                                                                                               
01/26/17       (H)       MLV AT 1:30 PM GRUENBERG 120                                                                           
01/26/17       (H)       Heard & Held                                                                                           
01/26/17       (H)       MINUTE(MLV)                                                                                            
02/02/17       (H)       MLV AT 1:30 PM GRUENBERG 120                                                                           
                                                                                                                                
WITNESS REGISTER                                                                                                              
                                                                                                                                
ROBERT DOEHL, Deputy Commissioner                                                                                               
Department of Military & Veterans' Affairs (DMVA)                                                                               
Anchorage, Alaska                                                                                                               
POSITION STATEMENT:  Answered questions about HB 3.                                                                           
                                                                                                                                
DAN WAYNE, Attorney                                                                                                             
Legislative Council                                                                                                             
Legislative Legal Services                                                                                                      
Legislative Affairs Agency                                                                                                      
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:  Answered questions about HB 3.                                                                           
                                                                                                                                
ACTION NARRATIVE                                                                                                              
                                                                                                                                
1:53:23 PM                                                                                                                    
                                                                                                                                
CHAIR CHRIS TUCK  called the House Special  Committee on Military                                                             
and   Veterans'   Affairs  meeting   to   order   at  1:53   p.m.                                                               
Representatives  LeDoux, Parish,  Spohnholz, Rauscher,  Reinbold,                                                               
and  Tuck were  present at  the  call to  order.   Representative                                                               
Saddler arrived as the meeting was in progress.                                                                                 
                                                                                                                                
          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.                                                                                                                      
                                                                                                                                
2:37:02 PM                                                                                                                    
                                                                                                                                
ADJOURNMENT                                                                                                                   
                                                                                                                                
There being no further business before the committee, the House                                                                 
Special Committee on Military and Veterans' Affairs meeting was                                                                 
adjourned at 2:37 p.m.                                                                                                          
                                                                                                                                
                                                                                                                                

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