Legislature(1995 - 1996)
03/28/1995 08:10 AM House STA
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE STATE AFFAIRS STANDING COMMITTEE
March 28, 1995
8:10 a.m.
MEMBERS PRESENT
Representative Jeannette James, Chair
Representative Scott Ogan, Vice Chair
Representative Joe Green
Representative Caren Robinson
Representative Ed Willis
MEMBERS ABSENT
Representative Ivan
Representative Brian Porter
COMMITTEE CALENDAR
SCR 9: Relating to the twenty-seventh annual Girls' State.
PASSED OUT OF COMMITTEE
SCR 10: Relating to the twenty-ninth annual Boys' State.
PASSED OUT OF COMMITTEE
*HB 238: "An Act excluding certain direct sellers of consumer
products from coverage under the state unemployment
compensation laws."
PASSED OUT OF COMMITTEE
*HJR 9: Requesting the governor to file suit in the United
States Supreme Court against the United States
government alleging violations of the civil
rights of Americans listed as prisoners of war or
missing in action in Southeast Asia, demanding that
documents concerning these individuals be released; and
requesting the other states to join in this suit.
PASSED OUT OF COMMITTEE
HSTA - 03/28/95
*HB 267: "An Act relating to review and expiration of
regulations; and providing an effective date."
SCHEDULED BUT NOT HEARD
HSTA - 03/28/95
SB 1: "An Act relating to state implementation of federal
statutes."
SCHEDULED BUT NOT HEARD
(* First public hearing)
WITNESS REGISTER
SENATOR JOHN TORGERSON
Alaska State Legislature
Capitol Building, Room 427
Juneau, AK 99801
Telephone: 465-2828
POSITION STATEMENT: Sponsored SCR 9 and SCR 10
GEORGE DOZIER, Legislative Assistant
Representative Pete Kott
Capitol Building, Room 432
Juneau, Alaska 99801
Telephone: 465-3777
POSITION STATEMENT: Provided information on HB 238
MICHAEL LUNCEFORD
Mary Kay Cosmetics
8787 Stemmons
Dallas, TX 75247
Telephone: 214-905-5734
POSITION STATEMENT: Supported CS for HB 238
BILL JERMAIN, Attorney
Jermain, Dunnigan, and Owens
Suite 300, 3000 A Street
Anchorage, AK 99503
Telephone: 56308844
POSITION STATEMENT: Supported CS for HB 238
JAMES CROSS, Distributor
Kirby Company of Anchorage
76 Old Seward Highway
Anchorage, AK 99504
Telephone: 344-4545
POSITION STATEMENT: Supported HB 238
ROB SHUMAY, In-House Counsel
Kirby Company
28800 Clemens Road
West Lake, Ohio 44145
Telephone: 216-892-3000
POSITION STATEMENT: Supported HB 238
EVELYN JARVIS-FERRIS, Vice President of Government Relations
Shaklee Corporation
444 Market Street
San Francisco, CA
Telephone: 4415-954-2016
POSITION STATEMENT: Supported CS for HB 238
DIRK BLOEMENDAAL, Corporate Government Affairs Counsel
Amway Corporation
7575 East Fulton Road
Ada, Michigan
616-676-7010
POSITION STATEMENT: Supported CS for HB 238
JOSEPH MARIANO, Vice-President and Legal Counsel
Direct Selling Association
1666 K Street Northwest
Washington, D.C. 20006
Telephone 202-293-5760
POSITION STATEMENT: Supported HB 238
STEVE EGLI
Kirby Corporation
9310 Glacier Highway
Juneau, AK 99801
Telephone: 790-4446
POSITION STATEMENT: Supported HB 238
PAM NEAL, Executive Director
Alaska State Chamber of Commerce
217 2nd Street
Juneau, AK 99801
Telephone: 586-2323
POSITION STATEMENT: Supported HB 238
ED FLANAGAN, Deputy Commissioner
Alaska Department of Labor
1111 W. 8th Street
Juneau, AK 99801
Telephone: 465-2700
POSITION STATEMENT: Provided information on HB 238
GARY TYNDALL
P.O. Box 82977
Fairbanks, AK 99708
Telephone: 488-1433
POSITION STATEMENT: Supported HJR 9
WILLIAM FREDERICK
P.O. Box 71771
Fairbanks, AK 99707
Telephone: 488-7922
POSITION STATEMENT: Supported HJR 9
TOM GOGGINS
c/0 119 N. Cushman
Fairbanks, AK 99701
Telephone: 458-6710
POSITION STATEMENT: Supported HJR 9
ART GRISWOLD
873 Runamuck
North Pole, AK 99705
Telephone: 488-7805
POSITION STATEMENT: Supported HJR 9
DEE FIELDS
2050 Resolution Road
Fairbanks, AK 99712
Telephone: 322-2720
POSITION STATEMENT: Supported HJR 9
LADD MCBRIDE
P.O. Box 83567
Fairbanks, AK 99708
Telephone: 479-8096
POSITION STATEMENT: Supported HJR 9
JACK HETHERTON
P.O. Box 2376
Soldotna, AK 99669
Telephone: 262-5455
POSITION STATEMENT: Supported HJR 9
NANCY GOURLEY
P.O. Box 1082
Kenai, AK 99611
Telephone: 283-3208
POSITION STATEMENT: Supported HJR 9
PREVIOUS ACTION
BILL: SCR 9
SHORT TITLE: TWENTY-SEVENTH ANNUAL GIRLS' STATE
SPONSOR(S): SENATOR(S) TORGERSON, R.Phillips, Pearce, Green,
Leman, Ellis, Rieger; REPRESENTATIVE(S) Bunde, Navarre,
Grussendorf
JRN-DATE JRN-PG ACTION
03/08/95 538 (S) READ THE FIRST TIME - REFERRAL(S)
03/08/95 538 (S) STATE AFFAIRS
03/14/95 (S) STA AT 03:30 PM BELTZ ROOM 211
03/14/95 (S) MINUTE(STA)
03/15/95 616 (S) STA RPT 4DP
03/15/95 616 (S) ZERO FN (LAA)
03/16/95 (S) RLS AT 12:00 PM FAHRENKAMP
ROOM 203
03/16/95 (S) MINUTE(RLS)
03/17/95 664 (S) RULES TO CALENDAR 3/17/95
03/17/95 668 (S) READ THE SECOND TIME
03/17/95 678 (S) COSPONSOR: RIEGER
03/17/95 668 (S) PASSED Y18 N- E2
03/17/95 679 (S) TRANSMITTED TO (H)
03/20/95 801 (H) READ THE FIRST TIME - REFERRAL(S)
03/20/95 801 (H) STATE AFFAIRS
03/20/95 825 (H) CROSS SPONSOR(S): BUNDE, NAVARRE
03/20/95 825 (H) CROSS SPONSOR(S): GRUSSENDORF
03/28/95 (H) STA AT 08:00 AM CAPITOL 102
BILL: SCR 10
SHORT TITLE: TWENTY-NINTH ANNUAL BOYS' STATE
SPONSOR(S): SENATOR(S) TORGERSON, R.Phillips, Pearce, Green,
Leman, Ellis, Rieger; REPRESENTATIVE(S) Bunde, Navarre,
Grussendorf
JRN-DATE JRN-PG ACTION
03/08/95 538 (S) READ THE FIRST TIME - REFERRAL(S)
03/08/95 538 (S) STATE AFFAIRS
03/14/95 (S) STA AT 03:30 PM BELTZ ROOM 211
03/14/95 (S) MINUTE(STA)
03/15/95 617 (S) STA RPT 4DP
03/15/95 617 (S) ZERO FN (LAA)
03/16/95 (S) RLS AT 12:00 PM FAHRENKAMP
ROOM 203
03/16/95 (S) MINUTE(RLS)
03/17/95 664 (S) RULES TO CALENDAR 3/17/95
03/17/95 669 (S) READ THE SECOND TIME
03/17/95 678 (S) COSPONSOR: RIEGER
03/17/95 669 (S) PASSED Y18 N- E2
03/17/95 679 (S) TRANSMITTED TO (H)
03/20/95 801 (H) READ THE FIRST TIME - REFERRAL(S)
03/20/95 801 (H) STATE AFFAIRS
03/20/95 825 (H) CROSS SPONSOR(S): BUNDE, NAVARRE
03/20/95 825 (H) CROSS SPONSOR(S): GRUSSENDORF
03/28/95 (H) STA AT 08:00 AM CAPITOL 102
BILL: HB 238
SHORT TITLE: NO UNEMPLOYMENT COMP FOR DIRECT SELLERS
SPONSOR(S): LABOR & COMMERCE BY REQUEST
JRN-DATE JRN-PG ACTION
03/08/95 641 (H) READ THE FIRST TIME - REFERRAL(S)
03/08/95 641 (H) STATE AFFAIRS, LABOR & COMMERCE
03/23/95 (H) STA AT 08:00 AM CAPITOL 102
03/28/95 (H) STA AT 08:00 AM CAPITOL 102
BILL: HJR 9
SHORT TITLE: SUIT RE POWS & MIAS AGAINST U.S. & OTHERS
SPONSOR(S): REPRESENTATIVE(S) JAMES,Kubina,Therriault,Mulder
JRN-DATE JRN-PG ACTION
01/16/95 18 (H) READ THE FIRST TIME - REFERRAL(S)
01/16/95 18 (H) MLV, STA, JUD
01/19/95 87 (H) COSPONSOR(S): KUBINA
03/15/95 757 (H) COSPONSOR(S): THERRIAULT
03/20/95 (H) MLV AT 05:00 PM CAPITOL 17
03/20/95 (H) MINUTE(MLV)
03/22/95 847 (H) MLV RPT CS(MLV) 4DP
03/22/95 847 (H) DP: IVAN, WILLIS, FOSTER, KOTT
03/22/95 847 (H) INDETERMINATE FISCAL NOTE (LAW)
03/27/95 946 (H) COSPONSOR(S): MULDER
03/28/95 (H) STA AT 08:00 AM CAPITOL 102
BILL: HB 267
SHORT TITLE: REGULATION REVIEW AND EXPIRATION
SPONSOR(S): REPRESENTATIVE(S) JAMES,Kelly
JRN-DATE JRN-PG ACTION
03/17/95 779 (H) READ THE FIRST TIME - REFERRAL(S)
03/17/95 779 (H) STATE AFFAIRS, FINANCE
03/20/95 825 (H) COSPONSOR(S): KELLY
03/23/95 (H) STA AT 08:00 AM CAPITOL 102
03/28/95 (H) STA AT 08:00 AM CAPITOL 102
BILL: SB 1
SHORT TITLE: REVIEW OF FEDERALLY MANDATED PROGRAMS
SPONSOR(S): SENATOR(S) TAYLOR,Kelly,Halford,Sharp
JRN-DATE JRN-PG ACTION
01/06/95 12 (S) PREFILE RELEASED - 1/6/95
01/16/95 12 (S) READ THE FIRST TIME - REFERRAL(S)
01/16/95 13 (S) STATE AFFAIRS, JUDICIARY
02/07/95 (S) STA AT 03:30 PM BELTZ ROOM 211
02/07/95 (S) MINUTE(STA)
02/08/95 204 (S) STA RPT 2DP 2NR
02/08/95 204 (S) FN(S):DOT #9,REV #13,DPS #14,
LAW #15
02/08/95 204 (S) DHSS #16, F&G #17, DCRA #18
02/08/95 204 (S) ZERO FN(S):(DNR #1,DMVA#2,DOE
#3,#4,
02/08/95 204 (S) CORR #5, DCED #6, ADM #7, GOV #8,
LABOR
02/08/95 204 (S) #10, F&G #11, DEC #12)
02/08/95 209 (S) JUD REFERRAL WAIVED
02/08/95 209 (S) FIN REFERRAL ADDED
03/02/95 454 (S) FIN RPT 4DP 3NR
03/02/95 454 (S) ZERO FISCAL NOTE (S.FIN/ALL DEPTS
#19)
03/02/95 (S) FIN AT 09:00 AM SENATE FINANCE 520
03/03/95 (S) RLS AT 11:20 AM FAHRENKAMP ROOM 203
03/03/95 (S) MINUTE(RLS)
03/08/95 537 (S) RULES TO CALENDAR 3/8/95
03/08/95 539 (S) READ THE SECOND TIME
03/08/95 539 (S) ADVANCE TO 3RD READING MOTION
WITHDRAWN
03/08/95 539 (S) THIRD READING 3/9 CALENDAR
03/09/95 559 (S) READ THE THIRD TIME SB 1
03/09/95 559 (S) PASSED Y11 N8 E1
03/09/95 565 (S) TRANSMITTED TO (H)
03/10/95 696 (H) READ THE FIRST TIME - REFERRAL(S)
03/10/95 696 (H) STATE AFFAIRS, FINANCE
03/15/95 755 (H) WTR REFERRAL ADDED
03/22/95 868 (H) WTR REFERRAL WAIVED
03/28/95 (H) STA AT 08:00 AM CAPITOL 102
ACTION NARRATIVE
TAPE 95-36, SIDE A
Number 000
CHAIR JEANNETTE JAMES called the meeting to order at 8:10 a.m.
Present at roll call were Representatives Robinson, Ogan, Green,
and James. Representative Willis arrived later.
HSTA - 03/28/95
SCR 9 - TWENTY-SEVENTH ANNUAL GIRLS' STATE
SCR 10 - TWENTY-NINTH ANNUAL BOYS' STATE
SENATOR JOHN TORGERSON read his sponsor statement for SCR 9 and
SCR 10.
"I have requested these two concurrent resolutions because I
am a lifetime member of the Veterans of Foreign Wars and
also a member of the American Legion. Senate Concurrent
Resolutions 9 and 10 applaud the sponsors and the
participants of the twenty-ninth annual Girls' and Boys'
State Programs. These programs work toward bringing an
increased awareness of the roles young men and women have in
the future of our state. The annual program sponsored by
the American Legion and the Auxiliary as well as other
cooperating organizations do not receive governmental or
taxpayer monetary support but rather are completely
organized through volunteer efforts. Without question, the
organizers of this annual event are to be congratulated and
recognized. Their commitment to preparing our young men and
women is outstanding, and I would urge your support for
these resolutions."
Number 056
CHAIR JAMES noted the arrival of Representative Willis.
REPRESENTATIVE JOE GREEN added, for the record, he could not
think of a finer place for young people to go than Boys' State or
Girls' State. He went when he was young and it was a tremendous
experience where he learned a great deal about government.
Number 073
REPRESENTATIVE ED WILLIS agreed with Representative Green, adding
as a Legionnaire he was privileged to attend and participate in
Boys' State last year. It was a tremendous experience. One of
his sons attended Boys' State years ago and benefitted greatly.
He urged support for the resolutions.
Number 101
REPRESENTATIVE CAREN ROBINSON asked why they should use a
resolution and not a citation.
CHAIR JAMES replied a resolution was a little higher honor than a
citation.
REPRESENTATIVE SCOTT OGAN made a motion to move SJR 9 and SJR 10
out of committee.
CHAIR JAMES added she had participated in Girls' State in
Fairbanks recently, doing their inauguration twice and giving
educational speeches to the group. They are a fine group of
young ladies, and she added her support to the resolutions.
Number 128
CHAIR JAMES repeated there was a motion to move the resolutions,
with unanimous consent and zero fiscal notes. There were no
objections, so SJR 9 and SJR 10 were moved from the State Affairs
Committee.
HSTA - 03/28/95
HB 238 - NO UNEMPLOYMENT COMP FOR DIRECT SELLERS
Number 139
GEORGE DOZIER, Legislative Assistant to Representative Pete Kott,
reported HB 238 would amend Alaska law to exempt direct sellers
from unemployment compensation coverage. The sponsor,
Representative Kott, believes that outside salesmen who are
direct sellers are not traditional employees, but independent
contractors because they have no supervision and are not
controlled by an employer. They assume the risk of their
activities, earning money only when they sell.
Number 169
MR. DOZIER offered a committee substitute, CS HB 238(STA) version
F, for consideration.
Number 184
REPRESENTATIVE GREEN asked why the CS was significantly shorter
than the original bill.
MR. DOZIER replied the original bill potentially excluded a
significant number of sales people from its coverage, so the CS
broadens the coverage with respect to the original bill.
Number 204
MICHAEL LUNCEFORD, Mary Kay Cosmetics, testified via
teleconference from Dallas in support of the proposed CS because
it now includes many other direct sales people than the original
bill, and because it is now consistent with employment statutes.
Number 256
BILL JERMAIN, attorney who represented the Kirby Company in
litigation regarding the employment security act, testified via
teleconference from Anchorage in support of HB 238 or the CS,
stating individuals covered by the bill are clearly not
employees, they are independent contractors, and it will help
avoid a great deal of litigation.
Number 309
JAMES CROSS, a Kirby Company distributor, testified via
teleconference from Anchorage in support of HB 238. He said the
bill defines independent contractors and avoids many potential
problems.
Number 340
ROB SHUMAY, in-house counsel for the Kirby Company, testified via
teleconference from Ohio in support of HB 238. He agreed with
previous testifiers and stated he was available for questions.
Number 340
EVELYN JARVIS-FERRIS, Vice President of Government Relations,
Shaklee Corporation, testified via teleconference from San
Francisco in favor of the CS for HB 238, stating it would bring
Alaska law into consistency with federal law in its definition of
independent contractor as it relates to direct sellers.
Number 397
DIRK BLOEMENDAAL, Corporate Government Affairs Counsel, Amway
Corporation, testified via teleconference from Oklahoma in favor
of the committee substitute for HB 238, stating it tracks federal
law. He agreed with previous testifiers that the original bill
had problems in terms of location of sale as well as the
definition of compensation. A bill similar to the proposed CS
has passed both legislative houses in Michigan.
Number 338
JOSEPH MARIANO, Vice President and Legal Counsel, Direct Selling
Association, supported proposed committee substitute for HB 238.
His association applauded Representative Kott's efforts for
bringing Alaska law into agreement with federal law.
Number 460
STEVE EGLI, Kirby Company of Southeast Alaska, testified in favor
of HB 238, saying he had been in a legal dispute with the
Department of Labor for three years and the laws need to be
redefined to end such disputes.
Number 487
REPRESENTATIVE GREEN asked Mr. Egli whether either version might
stop the litigations currently in Superior Court.
MR. EGLI replied "yes."
Number 500
CHAIR JAMES said she had gotten a FAX from the Department of
Labor and they oppose the bill, but they had prefaced that
statement by saying the Department of Labor is rarely, if ever,
in support of legislation removing classes of employees from
coverage under any of its protective statutes. She added the
committee therefore could not count on ever getting a positive
response from the Department of Labor; their function is to
include, not exclude, people.
CHAIR JAMES added the committee substitute for HB 238 would also
help independent contractors get out from under other
requirements such as minimum wage and overtime.
Number 525
REPRESENTATIVE ROBINSON said her understanding was the Department
of Labor was against the proposed working draft, not the original
bill, and in fact had worked with Senator Kelly to help draft the
original Senate bill.
Number 533
MR. EGLI said the Senate committee substitute says on line 11
"commissions on sales or other remuneration directly related to
sales or sales performance," and this covers their concerns. He
added sales people want to be independent. Selling is a skill,
and successful direct sellers are never out of a job or
unemployed. Unsuccessful sellers would never make enough money
to pay into unemployment so could never collect it anyway and
would have no benefits, so it is an unfair tax on the successful
direct sellers.
Number 558
CHAIR JAMES observed HB 238 is somewhat open-ended regarding
employee or nonemployee status.
Number 570
MR. MARIANO reinforced Chair James' comments, adding the typical
profile of a direct seller is a person who is a woman who sells
on a part-time basis. The most important aspect is they view
themselves as independent business people, not employees, both
legally and philosophically. The committee substitute clarifies
this.
Number 585
REPRESENTATIVE GREEN observed the Department of Labor prefers the
original bill, and wondered whether the committee should adopt
the committee substitute as a working draft.
CHAIR JAMES noted the Department of Labor would soon be available
for questions on conference call.
Number 605
PAM NEAL, Executive Director, Alaska State Chamber of Commerce,
stated Avon is a member of the Chamber, as are some other direct
sellers. She agreed the changes outlined in HB 238 are
necessary.
Number 632
ED FLANAGAN, Deputy Commissioner, Alaska Department of Labor,
testified via conference call, stating he was not familiar with
the proposed CS for HB 238.
CHAIR JAMES read the proposed committee substitute for Mr.
Flanagan and asked for his comments.
Number 680
MR. FLANAGAN referred to the letter he had FAXed outlining the
department's position. He said the department opposes any
exemption to protective statutes. He had, however, met with
proponents of this bill, namely people from the Kirby Vacuum
Company of Alaska, and asked why Kirby was in litigation when
other direct sellers were not. It became apparent Kirby sellers
are set up as distributors with their own stores, engaging also
in retail sales, and thus could not meet the test of being
independent contractors.
MR. FLANAGAN continued the Department of Labor has problems with
the draft CS. Independent contractor status has been abused, and
the original bill dealt with this. The department would oppose
adopting the CS or any other language similar to the federal law,
which leaves too many loopholes and is too open to abuse. He
urged the committee to adopt the original bill.
Number 696
CHAIR JAMES referred to her own experience as a small business
owner, accountant, and tax preparer. She added she believes the
original bill is just as open as the federal law.
MR. FLANAGAN said he did not agree; the exemption would provide a
safe harbor which would be too broad and would open itself to
other businesses that should not be considered independent
contractors.
TAPE 95-36, SIDE B
Number 000
MR. FLANAGAN noted there is a difference between the Senate and
House versions of the bill. The CS for Senate Bill 122 (JUD) is
a little tighter, but both bills allow bogus schemes for abusing
the definition of independent contractors.
Number 047
CHAIR JAMES stated she thinks the Department of Labor's goal
should be to include as many people as possible for benefits, and
secondary to that should be collecting the tax from those people,
rather than having the goal be just collecting the tax for their
fund.
MR. FLANAGAN replied the two go hand in hand. Concern for the
trust fund is to assure there is money to pay the benefits; it is
basically an insurance system for people who need it.
Number 084
REPRESENTATIVE ROBINSON said it was her understanding the
Department of Labor favors the bill as amended in the Senate and
asked if that was correct.
MR. FLANAGAN said she was correct.
Number 100
MR. MARIANO observed it is vital to the direct selling industry
that the CS and the federal language be adopted. It would be
unfortunate to inadvertently exclude a majority of direct sellers
from a direct seller exemption, which could happen without the
CS. He added the federal language is very clear cut and
articulate and would not allow unintended beneficiaries to take
advantage of the exclusion.
Number 141
CHAIR JAMES said she believed it would be most fair to include
the federal language.
Number 154
REPRESENTATIVE OGAN moved to accept the CS as the working
document.
REPRESENTATIVE GREEN asked for a delay in the vote until the back
page of the CS was available.
MR. EGLI said the back page was the same as the back page of the
original HB 238.
Number 171
REPRESENTATIVE ROBINSON asked Mr. Flanagan why the Department of
Labor was opposed to the working draft.
MR. FLANAGAN said it references a federal statute which lends
itself to problems. True direct sellers who are truly
independent contractors "aren't broke and they don't need
fixing." Although Kirby needs a special exemption, others do
not.
Number 219
REPRESENTATIVE ROBINSON said as she understood it, Mr. Flanagan
was saying the laws in Alaska have not presented a problem to
date except for Kirby, and the Department of Labor wants the
language narrowed to accommodate just that one problem.
MR. FLANAGAN said she was correct, and the Department of Labor
could only support a bill which was that narrow and limited.
Number 235
CHAIR JAMES asked Mr. Flanagan how he would define "sale of
services."
MR. FLANAGAN this could be construed as the performance of actual
labor on somebody's dwelling, which is frequently abused, and
this is what he wants to avoid. A ludicrous example is when a
restaurant owner tries to apply it to waiters and waitresses.
Number 258
CHAIR JAMES said she recognized the exemptions are abused, and
this occurs because the rules and regulations regarding employees
make it impossible for many people to work and they have created
a depressed economy in the country.
Number 267
MR. FLANAGAN responded the statutes and regulations are "pretty
basic stuff" such as minimum wage, time and a half for overtime,
unemployment insurance, and workers compensation. He did not see
these "basic protections" as creating excessive costs.
Number 280
CHAIR JAMES gave an example of a sales person who works ten hours
a day and sells nothing for three days, then on the fourth day
makes a sale. If that person is an employee for those three
days, he is on minimum wage plus overtime, and his employer has
to pay that. That is a deterrent. There are a lot of products
that can be sold by direct sale, other than Kirbys, and those
direct sellers should not be treated as employees. We have been
putting dampers on employment opportunities, in a depressed
economic situation, and including direct sellers under the
federal law might solve the problem.
Number 320
MR. FLANAGAN replied the language the Department of Labor
supports would accomplish the same goal, if a seller is truly an
independent contractor.
CHAIR JAMES responded she has done federal audits, and they are
just as stringent as the state, and they are not likely to allow
restaurant workers.
Number 335
REPRESENTATIVE OGAN reminded the Chair there was a CS on the
table.
CHAIR JAMES said the discussion was about whether to accept the
CS as a working document.
REPRESENTATIVE GREEN requested the maker of the motion to
withdraw it, because he was not ready to vote.
REPRESENTATIVE OGAN withdrew his motion to accept the CS as the
working document.
Number 350
REPRESENTATIVE GREEN disclosed his wife had been a dental
hygienist and had worked as an independent contractor. When her
boss realized the criteria was whether she had to work at the
direction and discretion of someone else, it became apparent to
the dentist that she did not qualify as an independent contractor
but was actually an employee. Representative Green asked if this
would be a criteria in the case of network marketing
organizations such as Shaklee: do the organizations exercise any
direct authority or instruction over their network people, or are
they completely independent in their marketing.
Number 374
REPRESENTATIVE OGAN said his wife used to sell Shaklee, and she
was a completely independent business person, setting her own
hours. He added the language in the federal law is pretty clear
on this issue.
Number 391
REPRESENTATIVE ROBINSON noted sales people for companies like
Avon and Amway are already exempt.
CHAIR JAMES agreed, adding the Department of Labor said they
never audit them because they do not have retail establishments
and have no employees.
REPRESENTATIVE ROBINSON referred to Merle Norman make-up sales
people, for example, who can either sell independently or set up
a retail business. She believes that once a person sets up a
retail business, all the laws should be followed.
Number 412
MR. MARIANO agreed, adding the reason the federal government
exempted people in his industry was because it was clear no
controls were imposed on the sellers. He would like to see the
committee substitute passed to include all who should be included
in the exemption.
Number 455
REPRESENTATIVE GREEN asked Mr. Flanagan if the independent
sellers excluded would later be subject to unemployment
compensation.
MR. FLANAGAN said they are not subject to it now and would not be
under the proposed bill. He referred to the "ABC test" for
employees: A. The individual is free of control and direction in
the performance of service; B. The service is performed outside
the places of business; and C. The individual is engaged in an
independently established business of the same nature.
MR. FLANAGAN said sellers for Avon, Shaklee, and the others, meet
this test now and had no problems in the first place.
Number 495
REPRESENTATIVE ROBINSON noted the bill has a referral to the
Labor and Commerce Committee. She believes it is in the state's
interest to address the problem and would recommend moving HB 238
as written and let the next committee decide the best direction
to go.
Number 514
MR. DOZIER said he believed Representative Kott would not have a
problem with passing it on to Labor and Commerce, which he
Chairs.
CHAIR JAMES listed the committee's options: They could move the
original bill without the CS, or they could move the CS, or they
could do a conceptual amendment similar to SB 122 in accordance
with the Department of Labor's wishes. Her personal opinion was,
in an effort to put more people to work and allow businesses to
profit, and to lessen rules and regulations which strangle
employment opportunities, a change needed to be made and the CS
needed to be adopted.
Number 551
REPRESENTATIVE OGAN commented people in direct sales are one of
"the last of a dying breed of true capitalists in this country,"
where everyone is regulated by government intervention in all
aspects of life. He moved the committee substitute for HB 238.
Number 567
REPRESENTATIVE GREEN said, after hearing all the debate, he
tended to learn toward the CS. He observed that a large number
of the direct sellers affected were women with children at home,
and he was in favor of the motion.
Number 580
REPRESENTATIVE WILLIS said he agreed with the Department of Labor
and favored the Senate version of the bill because it addressed
the specific concerns of Alaska as opposed to the federal law.
He did not want to see Alaska tied to regulations and laws at the
federal level.
Number 604
CHAIR JAMES said there already is a direct tie to the federal
law, because all income is reported to the federal government.
So it is imperative we define employees the same way the federal
government does in order to avoid penalties.
Number 625
REPRESENTATIVE ROBINSON observed SB 122 is already in Rules, so
the House will probably be seeing that version soon anyway and it
will probably be the vehicle.
Number 630
CHAIR JAMES repeated the motion, to use the CS as the working
document. There were objections. A roll call vote was taken.
Representatives Ogan, Green, and James voted yes. Representatives
Robinson and Willis voted no. The motion passed 3 to 2.
REPRESENTATIVE OGAN made a motion to move the CS from committee
with individual recommendations and zero fiscal note. Hearing no
objection, CSHB 238(STA) passed out of committee.
HSTA - 03/28/95
HJR 9 - SUIT RE POWS & MIAS AGAINST U.S. & OTHERS
Number 660
GARY TYNDALL testified via teleconference from Fairbanks in
support of HJR 9, noting similar resolutions had been passed or
introduced in 37 states. Alaska has the highest percentage of
veterans of any state. During the Vietnam peace talks in 1973,
Alaska presented the North Vietnamese with a list of over 3,700
names of people known or suspected of being alive in enemy hands.
We got back 591 of those people. Three weeks later, the
remaining 3,100 were declared officially dead, just written off
and abandoned, with no explanation to the families. Within the
last few years, individuals within our government have admitted
they knew some men were left behind alive and have proof of
sightings; some were used as bargaining chips. They should not
be declared dead just for the convenience of the government and
then abandoned.
TAPE 95-37, SIDE A
Number 000
MR. TYNDALL continued, HJR 9 signals Alaska's willingness to join
with other states in petitioning to bring our men home.
WILLIAM FREDERICK testified via teleconference in Fairbanks in
support of HJR 9, stating he was past commander of American
Legion Post 1 in Anchorage, currently commander V.F.W. Post 10029
in North Pole, and a Vietnam veteran. He stated at least
families of deceased veterans have the solace of knowing their
loved ones are accounted for. The Missing in Action (MIAs)
families have had no such comfort for 20 years. He urged the
passage of HJR 9.
TOM GOGGINS testified via teleconference in Fairbanks in support
of HJR 9, saying he had served during World War II and also in
Korea. He believes Americans have a duty to do all we can to
recover the missing people. It is on his mind each and every day
of his life.
Number 128
ART GRISWOLD testified via teleconference in Fairbanks in support
of HJR 9. As a Korean veteran, he believes we must get behind
this resolution because these men have given the ultimate for
their country.
Number 148
CHAIR JAMES reminded listeners they could also send written
testimony to the committee.
Number 173
DEE FIELDS testified via teleconference in Fairbanks in support
of HJR 9, saying she is a proud member of the Alaska Independence
Party and it is time we resolve this issue and get our Prisoners
of War (POWs) and MIAs back from Vietnam.
LADD MCBRIDE testified via teleconference in Fairbanks in support
of HJR 9, stating he is a Korean veteran and just retired from
the military in 1992. He is sorry Alaska is not in the forefront
on this issue because Alaska has the highest military population
ratio in the United States. He is also chair of the Interior
Alaska Veterans Committee which unanimously supports HJR 9.
Number 203
JACK HETHERTON testified via teleconference from Kenai in favor
of HJR 9 on behalf of VFW Post 10046, of which he is Commander,
and on behalf of the two Alaskans still listed as missing in
action. Soldiers missing in action are too often declared dead
for political expediency. This has to be the ultimate shame of
our country. As a combat Vietnam veteran, there has not been a
day gone by in the past 25 years when he has not thought about
his abandoned comrades. He carries a great shame in his heart
where there should be pride. HJR 9 asks our country to honor a
sacred duty to our veterans.
Number 250
NANCY GOURLEY testified via teleconference from Kenai in support
of HJR 9, stating she is a family member of a man who has been
missing in action from Vietnam since November 18, 1971. In
addition, her uncle has been missing from Korea since July 5,
1950. She is keenly involved and interested in this issue. She
had an investigation into her brother's crash site, but the
information she received was very suspicious and questionable.
The family has had no resolution from the Central Intelligence
Agency (CIA), Department of Defense (DOD), State Department,
National Security Council, National Security Agency, seven
congressional investigations, or from Alaska's congressional
delegation, and they feel like this resolution is their last
hope. Everybody agrees on just one point: There were live men
left behind. She asked where are they now, and why aren't they
home.
Number 296
CHAIR JAMES stated Alaska has two service men missing and
unaccounted for in Southeast Asia, Thomas E. Anderson, USMF, from
Spenard and Howard M. Koslowski, US Navy, from Anchorage.
Number 313
REPRESENTATIVE WILLIS moved and asked unanimous consent that HJR
9 be moved out of committee. There was no objection; the
resolution was moved.
REPRESENTATIVE GREEN asked if this resolution was the "last shot"
at recovering the MIAs and POWs. He wondered if there was any
way to negotiate, or if filing suit was our last resort.
CHAIR JAMES responded yes, this was our last resort. The
movement started in Michigan, where a way was found to go
directly to the Supreme Court on behalf of the POWs and MIAs.
Previously, any court action could only be taken by the person
himself; not even relatives were allowed. But Alaska as a state
can do it for our residents and go directly to the Supreme Court,
and she hopes all the states will join in and do the same thing.
REPRESENTATIVE ROBINSON noted it is not just the existing
President but the last several, for the last twenty years at
least, who have failed to deal with this issue.
ADJOURNMENT
CHAIR JAMES adjourned the meeting at 10:02 a.m.
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