Legislature(1997 - 1998)

03/24/1998 08:08 AM House STA

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
       HOUSE STATE AFFAIRS STANDING COMMITTEE                                  
                   March 24, 1998                                              
                     8:08 a.m.                                                 
                                                                               
                                                                               
MEMBERS PRESENT                                                                
                                                                               
Representative Jeannette James, Chair                                          
Representative Ivan Ivan, Vice Chairman                                        
Representative Ethan Berkowitz                                                 
Representative Joe Ryan                                                        
Representative Kim Elton                                                       
                                                                               
MEMBERS ABSENT                                                                 
                                                                               
Representative Mark Hodgins                                                    
Representative Al Vezey                                                        
                                                                               
COMMITTEE CALENDAR                                                             
                                                                               
HOUSE BILL 468                                                                 
"An Act relating to damages awarded in complaints before the State             
Commission for Human Rights."                                                  
                                                                               
     - HEARD AND HELD                                                          
                                                                               
(* First public hearing)                                                       
                                                                               
PREVIOUS ACTION                                                                
                                                                               
BILL: HB 468                                                                   
SHORT TITLE: DAMAGE AWARDS HUMAN RIGHTS COMMISSION                             
SPONSOR(S): RULES                                                              
                                                                               
Jrn-Date    Jrn-Page           Action                                          
 3/09/98      2565     (H)  READ THE FIRST TIME - REFERRAL(S)                  
 3/09/98      2565     (H)  STATE AFFAIRS                                      
 3/19/98               (H)  STA AT  8:00 AM CAPITOL 102                        
 3/19/98               (H)  MINUTE(STA)                                        
 3/21/98               (H)  STA AT 10:00 AM CAPITOL 102                        
 3/21/98               (H)  MINUTE(STA)                                        
 3/24/98               (H)  STA AT  8:00 AM CAPITOL 102                        
                                                                               
WITNESS REGISTER                                                               
                                                                               
JIM CHASE, Commissioner                                                        
State Commission for Human Rights                                              
Office of the Governor                                                         
13351 Gimple Circle                                                            
Anchorage, Alaska 99516                                                        
Telephone:  (907) 428-6854                                                     
POSITION STATEMENT:  Testified in opposition to HB 468                         
                     and answered questions.                                   
                                                                               
REPRESENTATIVE FRED DYSON                                                      
Alaska State Legislature                                                       
Capitol Building, Room 428                                                     
Juneau, Alaska  99801                                                          
Telephone:  (907) 465-2199                                                     
POSITION STATEMENT:  Provided information on HB 468.                           
                                                                               
PAULA HALEY, Director                                                          
State Commission for Human Rights                                              
Office of the Governor                                                         
800 A Street, Suite 204                                                        
Anchorage, Alaska  99501                                                       
Telephone:  (907) 276-7474                                                     
POSITION STATEMENT:  Provided information and answered questions               
                     on HB 468.                                                
                                                                               
FRANK ROSE, President                                                          
Alaska Lodging Management                                                      
P.O. Box 72478                                                                 
Fairbanks, Alaska  99707                                                       
Telephone:  (907) 474-8555                                                     
POSITION STATEMENT:  Testified on HB 468.                                      
                                                                               
CATHY SCHULTZ, Genal Manager                                                   
Sophie Station Hotel                                                           
1717 University Avenue                                                         
Fairbanks, Alaska  99707                                                       
Telephone:  (907) 479-3650                                                     
POSITION STATEMENT:  Testified on HB 468.                                      
                                                                               
KAREN ROGINE, Executive Director                                               
Alaska Hotel and Motel Association                                             
7001 East Tree Court                                                           
Anchorage, Alaska  99516                                                       
Telephone:  (907) 346=3738                                                     
POSITION STATEMENT:  Testified on HB 468.                                      
                                                                               
ACTION NARRATIVE                                                               
                                                                               
TAPE 98-41, SIDE A                                                             
Number 0001                                                                    
                                                                               
CHAIR JEANNETTE JAMES called the House State Affairs Standing                  
Committee meeting to order at 8:08 a.m.  Members present at the                
call to order were Representatives James, Ivan, Berkowitz, and                 
Elton.  Representative Ryan arrived at 8:11 a.m.                               
                                                                               
HB 468 - DAMAGE AWARDS HUMAN RIGHTS COMMISSION                                 
                                                                               
CHAIR JAMES announced HB 468, "An Act relating to damages awarded              
in complaints before the State Commission for Human Rights," is                
before the committee.                                                          
                                                                               
Number 0006                                                                    
                                                                               
JIM CHASE, Commissioner, State Commission for Human Rights, Office             
of the Governor, testified via teleconference in opposition of HB
468.  He said he was a member of the commission from 1979 until                
1988, and then he left the state for five years.  Mr. Chase noted              
he is serving as the commissioner to the commission again.                     
                                                                               
MR. CHASE said he is concerned about HB 468 because he doesn't                 
think it's going to do anyone any good.  He stated he believes the             
business people who are trying to push this bill have not examined             
the consequences of it.  He does not believe that what they wish to            
have happen will happen with this bill.                                        
                                                                               
MR. CHASE said it takes up a lot of our time to try and correct                
after the fact.  So what he is trying to do is to provide                      
additional information so the members might reconsider this bill in            
the long run.  He pointed out the area that he is concerned about              
is the fact that the people who are pushing this bill believe that             
it will give them some relief from claims from a respondent - that             
is from complainants who think they have been wronged.  The problem            
is that these complainants are not just citizens of the state of               
Alaska.  They're citizens of the United States of America.  And                
though we may be affecting a state law, they still have the                    
coverage from the federal law.  We as a state agency, are in                   
partnership with the federal agency, the EEOC, (Equal Employment               
Opportunity Commission).  They review our law and they say, "Okay,             
Alaska, if your law is culpable to the law of the nation, then we              
will allow you to take cases for us so that we can put justice as              
close to the people as possible."  In doing this, they hold the                
right to review our work and to make sure that we are in concert               
with the federal law.                                                          
                                                                               
Number 0033                                                                    
                                                                               
MR. CHASE explained that, if HB 468 is put into our law, EEOC for              
one thing is going to say, "You're not in concert with the federal             
law, therefore, you cannot work for us any longer, you cannot                  
represent us."  The word will get out and people who complained                
will have the right to and will go directly to the EEOC.  What this            
does for the business community, or possible respondents, is to                
lengthen everything.  It lengthens the distance between the                    
investigator and their place of business, it lengthens the time                
between contacts and it also lengthens the possible (indisc.) that             
would come forth should the complaint be found with merit.                     
                                                                               
MR. CHASE stressed his concern is that we're not getting our intent            
satisfied by this bill.  He suggested we ought to take another look            
at it from that point of view to examine exactly what we are doing             
by limiting the state in doing its job which has been sort of                  
mandated by the federal government in the first place.                         
                                                                               
Number 0049                                                                    
                                                                               
CHAIR JAMES noted, since her last conversation with Mr. Chase, that            
she has been mulling this over to see what's wrong with this system            
which is causing distress on both sides of the issue.  She                     
indicated part of the problem that we have is, if a person lays off            
or fires an employee, let's assume they had good reason, that if               
that person that was fired happens to meet the criteria of a legal             
discrimination, then the chances are, she believes at least 50-50,             
that that person will file a claim with the Human Rights Commission            
only because they qualify by their status - not necessarily because            
of the way that they were discharged.  She mentioned her personal              
experience along that line, proves that out.  However, in common               
law, intent is supposed to determine - or is used to determine                 
guilt.  Chair James asked, in the particular cases of human rights             
violations, intent is never used, is it.                                       
                                                                               
MR. CHASE replied that comes along with the investigation.  It                 
cannot be determined right off the bat when the complainant is                 
coming in to make the complaint.  The issue is, was the person                 
harmed.  And to the complainant, it doesn't matter whether they                
were intended to be harmed or whether it was unintentional - were              
they harmed.                                                                   
                                                                               
Number 0069                                                                    
                                                                               
CHAIR JAMES asked whose fault was it that they were harmed.  Was it            
their work ability, or themselves as an employee, or was it because            
they were intentionally disregarded because of who they were?                  
                                                                               
MR. CHASE responded what the commission does is they handle them by            
case by case basis.  He said he can't make a generalization like               
that.                                                                          
                                                                               
CHAIR JAMES stated she knew he couldn't, she just wanted him to                
hear that concern from the other side because that seems to be the             
complaint that she hears on the street and in talking to people in             
her 30 years of consulting small businesses.  Chair James indicated            
the net result in that many times is, keeping on a person who is               
not doing the job well, because of the fear of retribution if for              
any reason they dispose of them, that's the serious side of this               
issue.  She mentioned this has nothing to do with this specific                
piece of legislation, but she thought this was just a good                     
opportunity to put that on the record.                                         
                                                                               
Number 0080                                                                    
                                                                               
MR. CHASE remarked that if a person is not doing their job well,               
and the manager says you are not performing well - and using their             
own personnel rules takes that action to either suspend, layoff, or            
fire the person, that's not discrimination.  That is not illegal               
discrimination.  The investigator would initially look for                     
substantial evidence of discrimination, if that claim cannot be                
initially made then the case is not even accepted.                             
                                                                               
CHAIR JAMES said, "I understand.  And so the proof is in the                   
pudding, it's what do you have in your files.  Over the 30 years,              
I have done business for a lot of very small businesses and have               
very little files and there in lies the problem I think."                      
                                                                               
Number 0090                                                                    
                                                                               
REPRESENTATIVE KIM ELTON pointed out one of the concerns that has              
been expressed to the State Affairs Committee several times is the             
amount of back wages that employers are potentially liable for.  He            
said he would be interested in Mr. Chase addressing that issue and             
what the average award has been.  He said he believes, in previous             
testimony, that the average award was in the neighborhood of                   
$4,000.  Representative Elton asked Mr. Chase if he could tell us              
if somebody has actually been awarded back wages in the                        
neighborhood of $20,000 or $30,000.                                            
                                                                               
MR. CHASE replied that's correct.  The average back pay award the              
Alaska state commission has found necessary to issue was $4,713.               
He further explained, "Now, here again, we're the hometown                     
commission, if you want to say so.  We work in a much more informal            
situation than with the more distant EEOC.  And I'm not sure                   
whether it's because of a distance or because of a specific case,              
but their average - and they're working of course across the                   
nation, and their average is much higher than ours.  Their average             
is $21,439 which is considerably different than what the state has             
ever ever reached.  So I think that what we have as law, is more               
stringent right now than what the 'feds.' have.  That's why we were            
able to become what we call a '706 agency' so readily.  On the tope            
of that, we have another 706 agency here in Anchorage which is                 
under our umbrella.  We have been trying over the years to get the             
legislative bodies in the other population centers of Juneau and               
Fairbanks to have agencies which could qualify to be 706 agencies              
and do the like kind of work and get just as closer to both the                
complainant and the respondent.  We have not yet been successful in            
doing that though."                                                            
                                                                               
Number 0115                                                                    
                                                                               
REPRESENTATIVE IVAN IVAN said he thought this bill was trying to               
help the commission deal with its current caseload and backlog and             
some limitations, such as the 90-day limitation after the complaint            
was filed, and the back wages interest ringing up.  He asked Mr.               
Chase to again summarize why he doesn't support HB 468.                        
                                                                               
MR. CHASE replied the only way they could say that this bill would             
help the commission do its job is with the accompanying fiscal                 
note.  He said, "We believe this fiscal note is very unreasonable.             
But it is the truth, it would take a whole lot of dollars to meet              
the 90-day cap and do what the law requires them to do which is to             
bring justice to a situation.  It's an impossible situation, we                
cannot get there and satisfy the intent of Alaska Statute.  That's             
why I say this fiscal note has an unreasonable expectation, we're              
not going to get it and we know that.  But it is the truth, that's             
the closest thing we can get to saying how we can do the entire                
law.  You see, my problem is that this statute change would require            
us to put on blinders and say, 'Okay, we're just going to look at              
90 days and nothing more.'  If we can't get it done in 90 days then            
we'll forget about it because we can't do justice to either side.              
A lot of times people believe that the Alaska State Commission for             
Human Rights is an advocacy agency.  We are not.  We are a                     
judicatory agency, we are here to make sure that there's equality              
on both sides.  We're not pulling for the respondent any more than             
we're pulling for the complainant."                                            
                                                                               
Number 0140                                                                    
                                                                               
REPRESENTATIVE ETHAN BERKOWITZ said he wanted to refresh his memory            
on some of the numbers we've heard.  He asked Mr. Chase if he                  
declined to pursue 90 percent of the cases that come his way - of              
the 5,000 calls you had last year, you generated approximately 500             
cases.                                                                         
                                                                               
MR. CHASE replied, "Yes, but I wouldn't say that each one of those             
calls was a potential case.  It was clarification - what is the                
law, what are my rights?  We could call some potential respondent              
as well as complainants.  We answer their questions, anybody is not            
as knowledgeable about the state law as we who work with it all the            
time.  So, I don't like to give you a percentage that I can't                  
attest to as being true."                                                      
                                                                               
REPRESENTATIVE BERKOWITZ asked, but after that initial screening,              
then of the 500 cases you've taken, how many result in the awards              
to the plaintiff?                                                              
                                                                               
MR. CHASE responded he can provide that later because he doesn't               
have that number.                                                              
                                                                               
Number 0152                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ asked Mr. Chase to explain what the duty              
to mitigate is for an employee who pursues an employment action and            
why that would have an impact on a damage award.                               
                                                                               
MR. CHASE said he thinks he understands his question as being what             
is the responsibility of the complainant party.  It should attempt             
to keep the damages as low as possible - and asked Representative              
Berkowitz is that what you're saying.                                          
                                                                               
REPRESENTATIVE BERKOWITZ said he believes that the (indisc. -                  
rustling of paper) of art is the duty to mitigate.  They have a                
responsibility to keep damages low, that means they have a                     
responsibility to get other employment.                                        
                                                                               
MR. CHASE acknowledged, yes, that's built into our law and they                
follow that very strictly.                                                     
                                                                               
Number 0160                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ asked, and if somebody has an opportunity             
to pursue other employment, but doesn't, that failure on the                   
complainant's part will be reflected in the damage award.                      
                                                                               
MR. CHASE replied definitely.  The commission puts a cap on at the             
time that they think that they should have made a reasonable effort            
and had the opportunity.  He noted they do not like to be used.                
                                                                               
REPRESENTATIVE BERKOWITZ said, so that means essentially, I can't              
get canned for discriminatory reason and go out and celebrate until            
you hand out an award.                                                         
                                                                               
MR. CHASE responded definitely not.                                            
                                                                               
CHAIR JAMES announced for the record that Representatives Joe Ryan             
is replacing Representative Dyson.  However, Representative Dyson              
is here because he has an interest in this piece of legislation.               
                                                                               
Number 0173                                                                    
                                                                               
CHAIR JAMES asked, what if - instead 90 days, we had 180 days.                 
That's six months.                                                             
                                                                               
MR. CHASE replied, "That still puts a cap - we would have to change            
the fiscal note of course.  But it still wouldn't be reasonable to             
(indisc.) fiscal note."                                                        
                                                                               
CHAIR JAMES asked how much more additional funds did the commission            
get last year to reduce the backlog by 24 percent.                             
                                                                               
MR. CHASE said they got two fully qualified investigators.                     
                                                                               
CHAIR JAMES asked if it's safe to assume that if two investigators,            
over a year, reduced the backlog by 24 percent could it be said                
then that this next year another 24 percent will be lobbed off.                
                                                                               
MR. CHASE replied, "The problem with people in mass -- they don't              
work together like that.  We were just happy to be able to report              
the fact.  I could not extrapolate that into the future because                
cases have densities, if you can understand that term.  They're all            
different.  So, our reporting is historical basically in nature -              
we do have (indisc.) for good business practices - some way to go              
forward and say, based upon this history, how well we think we're              
going to do in the future.  But, I wouldn't want to hang my hat on             
that."                                                                         
                                                                               
Number 0188                                                                    
                                                                               
CHAIR JAMES asked what is the average length of time per case, the             
actual time that was spent on the case.                                        
                                                                               
MR. CHASE replied the actual time spent on a case is an ambiguous              
thing as we discussed.  If an investigator gets a case on the first            
of April, one of the things that investigator has to do is gather              
information, one of the ways to gather information would be to put             
together an interrogatory to send to the respondent to find out                
what are the facts on their side.  They put out this interrogatory             
and then they say, "Okay, you have 30 days, respondent, to answer              
this."  He said this is a reasonable time to expect for the biggest            
business to the smallest business to be able to get information                
together.  If we're working in isolation, what is that investigator            
now doing on that case.  You can say, well, they're waiting.                   
They're not really waiting, they need to be doing other things like            
gathering witnesses, finding witnesses that the complainant has put            
together.  But that doesn't take that whole 30 days, so they're                
doing something with some other case.  They don't have a credit --             
that initial case, with time used, unless we stop the clock every              
time the investigator is not doing something on that case.                     
                                                                               
Number 0202                                                                    
                                                                               
CHAIR JAMES said she understood his rational response.  She stated,            
"We've heard testimony from you that you hold the cases, and other             
new cases - and this is a quote from a letter, 'that the inventory             
of cases has grown at a disproportionate rate to the number of                 
investigators available, and to manage our inventory, withhold this            
case and other new cases in a suspense cabinet, we'll assign held              
cases in order of receipt as investigator's caseload allows."                  
Chair James asked Mr. Chase if he knows what the time frame is for             
the holding in the cabinet while you're waiting for staff to                   
address it.  She indicated the committee was told the average                  
length of time for a case is now approximately 11 months.                      
                                                                               
MR. CHASE replied he doesn't remember saying that, but the time of             
wait is between nine months to a year.                                         
                                                                               
CHAIR JAMES noted someone else from the commission that gave us                
that information.  She asked about how much of that 11 months, that            
these cases are in the cabinet.                                                
                                                                               
MR. CHASE remarked that they're in the cabinet nine months to a                
year before they can be assigned to an investigator.  He asked if              
that's what she is asking.                                                     
                                                                               
CHAIR JAMES replied yes, she wanted to know long it sits there with            
nothing being done on it.                                                      
                                                                               
Number 0216                                                                    
                                                                               
MR. CHASE said he thinks he's answered that, from nine months to a             
year.  He explained the problem is, of the caseload of their                   
investigators is between 40 and 50 cases, and that's about all they            
can humanly expect them to handle.  Mr. Chase said they don't                  
assign them another 30 just to get them out of the cabinet, it's               
not realistic.  So, as these investigators finalize a case and get             
it off their desk, then they are assigned additional cases out of              
the cabinet.  He further explained, "And I can tell you now, that              
the average wait in the cabinet is maybe up to a year."                        
                                                                               
Number 0223                                                                    
                                                                               
REPRESENTATIVE FRED DYSON, Alaska State Legislature, responded to              
Chair James' question.  He first noted that he served on the Human             
Rights Commission until December 1997.  Representative Dyson said              
the caseload tracks a couple of things, the filings, because of                
discriminatory employment often have to do quite a bit with what's             
going on with the economy.  It was a big bump in it with the                   
downturn of the economy in the late 80's.  And then the American               
Disabilities Act also produced a significant bump in the number of             
filings.                                                                       
                                                                               
REPRESENTATIVE DYSON pointed out during the last year he was on the            
commission, they did something fairly radical - one of the first               
three states in the nation to do it, and that was a decision to use            
exercise and triage on the complaints and classify them by how                 
reasonable it seemed that there would be a case that could be taken            
through to a hearing.  He noted that has helped in working down the            
backlog.                                                                       
                                                                               
REPRESENTATIVE DYSON said he also believes the legislature pushed              
through legislation last year that changed the law because it had              
said that the hearings had to take place where the offense was.  If            
the offense had taken place in the summer in a canary, in a remote             
location, both employee that filed and the employer weren't on that            
location during the rest of the year.  We changed the law so that              
the hearing could take place where it was most convenient for the              
folks and that saved quite a bit of money and time.  The commission            
also made a huge effort to automate more of the functions there.               
Several of those things have combined to bring down the backlog -              
the 24 percent.                                                                
                                                                               
Number 0242                                                                    
                                                                               
REPRESENTATIVE DYSON concluded that by just adding more staff                  
wouldn't necessarily - because we did some things that brought down            
the backlog, there were several of them, like the hearing location             
triage and the computerization were one-time benefits.  So it's not            
logically necessarily to assume that they'll get another 24 percent            
reduction in the backlog next year because some of those were one-             
time events.  He noted the Human Rights Commission cannot control              
the front door, people coming in and filing complaints are beyond              
their control.  The commission can only respond to them and try to             
respond to them efficiently.                                                   
                                                                               
CHAIR JAMES asked Mr. Chase if he is still doing the same triage               
that Representative Dyson mentioned.                                           
                                                                               
MR. CHASE replied that he wasn't on the scene when that happened,              
he doesn't know the details of that.                                           
                                                                               
Number 0253                                                                    
                                                                               
CHAIR JAMES asked again, are you currently doing triage to classify            
the cases as they come in as to different levels of potential                  
cases.                                                                         
                                                                               
MR. CHASE responded they do their normal intake to determine                   
whether the complainant has standing, whether there is                         
jurisdiction, whether it's covered by our law.  If that's triage,              
then yes, that's the standard operating procedure.                             
                                                                               
Number 0258                                                                    
                                                                               
CHAIR JAMES stated, "I don't think that's exactly what we were                 
intending it to mean. ... Representative Dyson, how much of the 24             
percent reduction was the result of triage because I would think               
that the change in the law is a different issue and is a continuing            
advantage, and the two full-time people is a continuing advantage.             
It appears to me, if we're catching up with two extra people - my              
own sense would say, unless we have a rash of new cases, that some             
time you'll be caught up.  Eventually you'll be caught up and then             
maybe you don't need but maybe one of them after that.  And so                 
that's my concern."                                                            
                                                                               
REPRESENTATIVE DYSON said his point was that the catching up had to            
do also with more computerized records and some more intensive                 
screening on the front end - which he was calling triage, and some             
streamlining having to do with the possibility of not having the               
hearings in the place of the offense.  So, another year, we can get            
an idea of what part of the catching up had to do with the                     
additional staff and what part of it had to do with those one-time             
things.  He said Ms. Haley is probably more qualified to answer                
that question.                                                                 
                                                                               
Number 0274                                                                    
                                                                               
PAULA HALEY, Director, State Commission for Human Rights, Office of            
the Governor, responded to Representative Dyson's statement.  She              
said she thinks the exact reasons we saw a 24 percent decrease in              
the backlog last year is hard to pinpoint because the commission               
did so many things.  They changed some of their internal procedures            
to streamline -- Representative Dyson correctly points out that                
there was a statutory change that they are just seeing the savings             
from now.                                                                      
                                                                               
MS. HALEY stated, "We had a regulatory change to provide fewer days            
for potential complainants to file and so we're seeing filings                 
beginning to go down, which we expect to help us catch up.  And we             
had two additional staff people who came in around August and we're            
starting to see some productivity from them.  So it's very hard for            
me to say, if we had 24 percent, which pieces caused that.  I think            
he is correct, Madam Chairman and committee members, in saying that            
it's probably too early to tell what the full impact of all of                 
those fixes is because we haven't had even a full year to watch                
them.  And for example, the regulatory change is not fully                     
effective until June because we couldn't make it retroactive so it             
had to be phased in.  And as of June we'll start to see that nobody            
will be able to file a case unless it's within 180 days.  We expect            
that will have a significant reduction in our filings."                        
                                                                               
Number 0285                                                                    
                                                                               
CHAIR JAMES said the 180-day limit isn't on getting the case                   
settled.  If we changed from 90 to 180-limit that is the most back             
pay you could get.                                                             
                                                                               
MS. HALEY remarked that she was referring to the changes that they             
made as a commission to try to handle their back log (indisc. -                
noise) included reducing the amount of time that a person has to               
come to them in the first place.  It used to be 300 days, the                  
commission decided that they could decide themselves within six                
months whether or not they wanted to use the alternative forum of              
the administrative process.  If they can to go to court, they have             
a full two years.                                                              
                                                                               
CHAIR JAMES asked if you didn't have any cases in the cabinet, just            
at the current rate of filing, what is an average length of time,              
from the beginning to the end of a case?                                       
                                                                               
Number 0294                                                                    
                                                                               
MS. HALEY explained, "If we had nothing in the cabinet, and                    
assuming that we had say 450 to 500 cases filed per year, which is             
what we're seeing now, and we were all caught up and we had at                 
least the current staff, maybe two additional staff for                        
investigations, we should be able to complete the investigative                
stage, which is just the first piece, in 300 days, and that I can              
only conclude from looking at the days when we were caught up.                 
That would be the average time."                                               
                                                                               
MS. HALEY stated, "But it is the second piece that is much more                
difficult to address.  And I apologize that I don't have numbers               
for you yet, but our data system is basically made up of surplus               
computers and an old DisplayWrite and we're trying to upgrade but              
it costs us money which we don't have, and so we're having trouble             
getting all the data.  But it's the second phase which is hard to              
pinpoint because that's the phase for going to hearing, that's the             
phase that involves not only our presenting the case at public                 
hearing but the respondents often hiring attorneys, making requests            
for continuances so they can have more time, and that's the piece              
I don't have."                                                                 
                                                                               
MS. HALEY continued.  "We always look at our process as two parts,             
the investigation, in which many of the cases will fall out, about             
62 percent of the cases will fall out as 'no substantial evidence              
of discrimination,' and others will fall out for settlements and               
withdrawals.  And it's probably a fairly small percentage, say 10              
to 15 percent at the most that we would ever take forward for a                
substantial evidence finding or onto hearing.  So that's the piece             
of the process, I'm having trouble getting numbers for."                       
                                                                               
Number 308                                                                     
                                                                               
CHAIR JAMES said she is frustrated in trying to understand exactly             
how this process is working and finds it very difficult to believe             
that it would take 300 days to do an investigation, it just seems              
like a long time.                                                              
                                                                               
REPRESENTATIVE BERKOWITZ said let me explore the alternatives to               
pursuing a case to the Human Rights Commission.  He said someone               
could go to court, is that right, federal or state.                            
                                                                               
MS. HALEY replied yes, many people choose to go to court.  She said            
she believes the vast majority right now are using their agency,               
the Human Rights Commission.                                                   
                                                                               
REPRESENTATIVE BERKOWITZ asked, they choose to use your agency for             
which reasons.                                                                 
                                                                               
Number 0316                                                                    
                                                                               
MS. HALEY said she thinks there are any number of reasons.  One of             
the reasons is it's a less formal forum, it's a place where they               
can often resolve their situations without going into court and                
making a big public stink about it.  It's a confidential process               
for everybody unless and until we find discrimination.  For some,              
certainly, it's a cost factor, but they are finding more private               
attorneys willing to take cases into court.  She said she thinks               
that with the federal laws, which allow for punitive and                       
compensatory damages, and attorney fee awards, they're going to see            
the possibility, particularly if they have a 90-day cap that more              
of these people would go into court than come to them.                         
                                                                               
REPRESENTATIVE BERKOWITZ asked, "Assuming you put a 90-day cap on,             
and someone's awarded, or entitled to damages in excess of 90 days             
in court, would you think it likely that people whose damages have             
been limited by this proposal would pursue an action in court?"                
                                                                               
Number 0323                                                                    
                                                                               
MS. HALEY replied, "I think they would go to court, and even more              
importantly the EEOC has told us that, if they did not terminate               
their contract - which is very possible, they would look at all of             
those cases where we found substantial evidence of discrimination,             
and they would value the case to include punitive and compensatory             
damages."                                                                      
                                                                               
MS. HALEY further explained, so where an employer now comes before             
the Human Rights Commission, if they find substantial evidence of              
discrimination, for example the case where it was a $2,400 back pay            
award, the EEOC might add punitive damages or any special damages              
to that award.  Where they don't look over the Human Rights                    
Commission's shoulders now, she said they have told her in writing             
that they will look over her shoulder in the future if this 90-day             
cap occurs.                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ said would it be fair to say that passage             
of this bill would expose defendants to greater potential liability            
than they currently face under the current circumstances.                      
                                                                               
MS. HALEY responded that she thinks that is absolutely true, not               
only because of the federal agency, but as was mentioned before,               
people will choose to go to court.                                             
                                                                               
Number 0337                                                                    
                                                                               
FRANK ROSE, President, Alaska Lodging Management, testified via                
teleconference on HB 468.  He said, "The first thing that I'd like             
to point out is that I certainly see the need for the role and                 
function that the Human Rights Commission play, I think we've all,             
if we've been around any length of time, have seen some employers              
that have done some things that probably they shouldn't have done              
and deserve to be held to task for some of those things.  However,             
the issue at hand today, I think is a little simpler than looking              
at the case load of the Human Rights Commission and dealing with               
that.  We're not looking for relief from the complainant, as was               
previously mentioned, and we're not dealing with trying to get rid             
of the back log, though that would be a wonderful thing to try to              
accomplish.  We're not limiting the state in trying to do its job,             
and we're certainly not trying to put blinders, or limit penalties,            
other than the one issue that's at hand here today which is the                
limitation of a liability on back wages that might be paid to a                
complainant.  And that is the issue.  And Representative James, I              
think you stated it very clearly that that does not mean that other            
penalties might not be accessed."                                              
                                                                               
MR. ROSE continued.  "Our point is, I believe that 90 days is                  
adequate time for the complainant to go out and find another job,              
and that to me seems like a reasonable amount of time that the                 
employer should be held liable for back wages that might be paid.              
Again, that seems to be the issue here.  It would be great to be               
able to solve the back log of the Human Rights Commission, but I'm             
not sure that's what this particular bill is meant to do.  Again,              
the issue is one of back wages and trying to limit the liability               
from that perspective in thinking that that's ample time for an                
employee to go out and find another position."                                 
                                                                               
Number 0353                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ said, if I understand you correctly,                  
you're saying that the 90-day provision is really an incentive for             
the complainant to go get a new job.                                           
                                                                               
MR. ROSE replied that's correct, and a limitation on the part of               
the employer to be responsible for anything past that.                         
                                                                               
REPRESENTATIVE BERKOWITZ asked Mr. Rose if he understood the duty              
to mitigate that's currently part of statute.                                  
                                                                               
MR. ROSE replied he does.  He said the problem is that there are no            
guarantees and indicated that he feels that the employer some times            
is forced to settle a case because of the potential liability out              
there - even though the employer can be told that the employee, or             
the former employee has the duty to go out and find additional                 
employment.  Mr. Rose said the threat is still there, the                      
possibility of tremendous back wage settlement is still there.  The            
determination of whether or not that employee has done a good job              
in going out and trying to find new employment is not up to the                
employer, it's up to the Human Rights Commission.                              
                                                                               
Number 0362                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ asked if he knows of any instances where              
wages in the amount of tens of thousands of dollars, not could                 
accrue, but did accrue.                                                        
                                                                               
MR. ROSE responded wages would have accrued, as to whether or not              
they were paid, he said he doesn't know.  Mr. Rose pointed out that            
these examples were given to me by other hoteliers.  He said, "I               
can also tell you though, that from my own personal experience, the            
case that I was involved in and that I ended up settling, the                  
reason that I settled was directly related to the concern and the              
potential liability associated with back wages."                               
                                                                               
REPRESENTATIVE BERKOWITZ asked what is the amount that you settled             
for.                                                                           
                                                                               
MR. ROSE replied that's the case that Ms. Haley was referring to.              
He said he believes they ended up settling for twenty-four, twenty-            
five hundred dollars.                                                          
                                                                               
Number 0370                                                                    
                                                                               
CATHY SCHULTZ, General Manager, Sophie Station Hotel, testified via            
teleconference on HB 468.  She said, "I'd like to reiterate and                
echo and number of things Mr. Rose mentioned this morning.  First              
of all, when we started to consider bringing this issue to your                
attention a couple years ago, one of our primary concerns was that             
it would not be implied or misunderstood as a statement against the            
commission in how they handled the case loads and how they worked.             
I want to compliment them on their ability to thoroughly                       
investigate circumstances."                                                    
                                                                               
MS. SCHULTZ stated, "What we want to look at, separate from how an             
office, which is very subject to public whim and public                        
circumstance - their case load increases and decreases as a matter             
of circumstance beyond their control, we as employers, don't want              
to be held a part of that increase or decrease in case load.  We               
simply ask for - not that the penalty phase be removed, not that               
employers seek a relief from a penalty.  We're very concerned that             
employers who wrongfully terminate individuals are taken to task               
and feel a penalty for that.  But the penalty should be defined in             
such a way that is fair and reasonable - that it benefits the                  
injured party and still injures the offending employer."                       
                                                                               
MS. SCHULTZ continued, "We're simply looking for a definition to               
the limit of penalty, we're not looking for changing how quickly               
the employee applies for relief, we're not looking for changing how            
quickly the employer responds to inquires from the commission.  You            
might start the penalty phase from date of termination which would             
give it a clear starting phase.  So, just to be very clear and to              
reiterate, we don't feel that we're in a position to pass judgement            
or draw assumptions about the case load or the work quality of the             
commission.  We simply want to not be held responsible as case                 
loads increase and decrease.  We carry the burden of a liability               
because there is no ending point to the liability that might be                
imposed or suggested."                                                         
                                                                               
Number 0396                                                                    
                                                                               
KAREN ROGINE, Executive Director, Alaska Hotel and Motel                       
Association, testified via teleconference on HB 468.  She said, "I             
think, building on the testimony of Mr. Rose and Ms. Schultz in                
Fairbanks, I think the difficulty that we're having here is that we            
have married the concept of employee compensation and case                     
resolution.  And we see the issues of compensation and case                    
resolution really to be mutually exclusive.  Our goal with this                
bill is to answer the question of what is a reasonable amount of               
time to expect someone to obtain a job of comparable status and                
compensation.  And if you look to job recruiters and placement                 
firms across the country, they have rock solid statistics of how               
long it..."                                                                    
                                                                               
TAPE 98-41, SIDE B                                                             
Number 001                                                                     
                                                                               
MS. ROGINE continued, "...to aggressively seek this kind of                    
employment.  And we also heard today that - definitely this isn't              
a celebratory thing that experience shows that people do go out and            
pursue employment, however, we've all hired people that were trying            
to allegedly seek employment and they're clearly not trying to get             
the job in many cases, they're just trying to fill out a form that             
says they applied for a job.  So, what we need is more teeth - more            
of a 'tough love approach,' if you will, to really (indisc. -                  
coughing) these people to go out and get a job and provide a cap on            
the reasonable amount of time that it should take them to                      
reestablish themselves in the manner that they had once enjoyed."              
                                                                               
REPRESENTATIVE BERKOWITZ said he is intrigued with the use of the              
term "tough love approach" because he thinks that's what we've got             
going here with employers is a tough love approach - is we want                
employers to engage in a reasonable type of behavior.                          
Representative Berkowitz said Ms. Rogine's suggestion essentially              
implies that employers who come in with dirty hands - that is                  
they've violated some provision of an employment statute, somehow              
can expect employees to go out and reasonably get a job.  He said              
he senses somewhat of a disparity between what she is saying the               
responsibilities of the employer are as opposed to what the                    
responsibilities of the employee are.                                          
                                                                               
Number 0015                                                                    
                                                                               
MS. ROGINE replied, "I think the employer is still responsible for             
their actions because what we're saying is that, if it takes longer            
to address this case, and if it takes longer to investigate the                
case, that that should be acceptable and that it should take                   
longer.  But what we're saying is that, if this employee indeed is             
a star performer and was wrongfully terminated, or if they have the            
qualifications for a promotion and were for whatever reason                    
wrongfully turned down, that there should be a reasonable amount of            
time in which they should get employment just by virtue of their               
status of being a star performer or being eligible for a higher                
paying - or promotion status.  So, this approach really gives                  
(indisc.) an incentive to somebody that should go out and get a                
job.  In the meantime, the case should be investigated and everyone            
should be granted due process for as long as it takes to determine             
if the employer was not following scrupulous employment                        
activities."                                                                   
                                                                               
Number 0029                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ stated, "That's one of my concerns, is                
that you put an arbitrary cap on time, and you're violating due                
process.  It seems, that when you have a duty to mitigate, which               
you're able to do - is evaluate each case based on its individual              
circumstances, some days 90 days might be appropriate, some days 45            
days might be appropriate, but some days a year might be                       
appropriate.  And I think the duty to mitigate covers those                    
distinctions.  And when you put an individual cap on it, you're                
putting everyone under the same umbrella.  And that to me, doesn't             
arrive at necessarily a fair solution to every situation."                     
                                                                               
MS. ROGINE said, "What we're really going after here though is                 
divorcing the whole idea of the investigation process with the                 
compensation process.  And that if it takes a year to investigate              
and resolve this case then it should take that long and there                  
should not be a cap on it.  The case load of the Human Rights                  
Commission should be peeled out of this bill so that they can                  
follow the course of action that they deem necessary to resolve the            
case."  Ms. Rogine reiterated, but in the mean time, this employee             
should seek employment of equal status and compensation.  There                
should be a reasonable amount of time, backed up by statistics, on             
how long it takes a person on an average to get that - 90 days, 180            
days.  She said, "If you look at the statistics of job placement               
and job recruitment, you'll find that that is absolutely,                      
nationwide, statistically, a very reasonable amount of time for                
people of all - the spectrum of compensation to be seeking                     
comparable employment."                                                        
                                                                               
Number 0048                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ said he agrees that it might well be a                
reasonable amount of time and when you have the duty to mitigate,              
you can present that evidence and suggest that anyone who has                  
exceeded that period of time is not entitled to extra benefits.                
                                                                               
REPRESENTATIVE BERKOWITZ indicated the concern he has with this                
proposed solution is that it's not particularly good for business              
because what it does is open businesses, including hotels and                  
motels, to the exposure that happens when you reduce the Human                 
Rights Commission to essentially a special master.  And once the               
determination has been made ... then you go into the court system              
where, instead of having final resolution in the Human Rights                  
Commission, all you have is a finding of essentially guilt or                  
innocence.  And then you go to court, in which case the business is            
exposed to potentially punitive and more compensatory damages.                 
Representative Berkowitz said he understands what seems to be                  
driving this bill, but thinks it's counterproductive to that end.              
                                                                               
Number 0059                                                                    
                                                                               
CHAIR JAMES stated we have on here a suggestion to extend that to              
180 days, she asked Ms. Rogine what her feeling on that.                       
                                                                               
MS. ROGINE replied that she thinks the 180 days is excessive, in               
terms of the reasonable amount of time it takes somebody to obtain             
comparable employment, 90 days is statistically, nationwide, more              
along the lines.                                                               
                                                                               
CHAIR JAMES gave an example.  She said what if someone gets                    
discharged and you had a valid reason for discharging him, and                 
you've given them all of the warnings and you've done all the                  
paperwork to establish that, and they still think they have a case.            
So, the first thing they have to do then, under this law, would be             
to try to find another job.  She asked Ms. Rogine to tell her what             
happens if they go to another hotel or motel and apply for work, do            
you have to put down references, do you have to put down where you             
worked before.  When they call for the references, what kind of a              
reference is that person going to get.                                         
                                                                               
Number 0079                                                                    
                                                                               
MS. ROGINE replied she thinks that legally references can only be              
given to include dates of employment and whether they are eligible             
for rehire.  If somebody gets another job at another hotel, and                
they become a star performer, and they're always on time, everyone             
loves them, and they're a team builder, and gets a job of higher               
status, that strengthens their case.  So it really can only help               
the employee to go out and seek the best possible job as quickly as            
possible to add credence and momentum to the case that they already            
have in place.                                                                 
                                                                               
CHAIR JAMES asked, if they're not eligible for rehire, do you think            
another hotel or motel would hire them.                                        
                                                                               
MS. ROGINE responded that it really depends on the amount of                   
reference that that person would have and how the employee handles             
questions.                                                                     
                                                                               
CHAIR JAMES remarked in an interview, you're right.  She asked what            
if we live in a place where there's only two hotels, do you think              
there's a chance for that person to get another job.                           
                                                                               
Number 0099                                                                    
                                                                               
MS. ROGINE replied, certainly there are lots of different                      
situations.  She pointed out that when they say comparable                     
employment, it doesn't necessarily mean the exact same job.                    
Comparable employment of status and compensation can mean many                 
different kinds of industries and many different kinds of jobs.                
                                                                               
CHAIR JAMES said we thought about putting a condition on the 90                
days due to extenuating circumstances.  If the employer didn't                 
respond quickly so that there was a stalling of things going on,               
and if it's very difficult for the employee to find another job,               
would those circumstances be able to extend the time.                          
                                                                               
MS. ROGINE replied yes.  She said she thinks there could be a                  
provision where they could cite extenuating circumstances and have             
a way for them to extend the time.                                             
                                                                               
CHAIR JAMES stated she honestly sympathizes with Ms. Rogine's                  
issue, however, she is not convinced that this piece of legislation            
says that.  Chair James said she doesn't think they are ready to go            
forward with this bill, she indicated she would take it under                  
advisement with the sponsor.                                                   
                                                                               
ADJOURNMENT                                                                    
                                                                               
CHAIR JAMES adjourned the House State Affairs Standing Committee at            
9:07 a.m.                                                                      

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