Legislature(2005 - 2006)BELTZ 211
03/01/2005 01:30 PM Senate LABOR & COMMERCE
| Audio | Topic |
|---|---|
| Start | |
| SB105 | |
| SB67 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 105 | TELECONFERENCED | |
| += | SB 67 | TELECONFERENCED | |
SB 105-OVERTIME WAGES FOR FLIGHT CREW
CHAIR BUNDE announced SB 105 to be up for consideration.
PETER NOSEK, Birch, Horton, Bittner and Cherot, said he
represented Hageland pilots, the plaintiffs, and advised the
committee that before the lawsuit was filed, Mr. Harms offered
to settle and walk away for $45,000. He believed SB 105 has a
very serious constitutional problem. The Alaska Supreme Court
has recognized that legal claims are property for purposes of
the constitution. Since the time claims were filed in 2002, long
rd
before the flight crew exemption was passed by the 23
Legislature, the Superior Court had already ruled that pilots
were entitled to overtime. To retroactively wipe out rights the
court has already recognized would be a constitutional taking.
SB 105 puts into place the Department of Labor and Workforce
Development (DOLWD) interpretation of overtime based on the
attorney general's letter, which says that air carriers
operating solely instate are not exempt under the federal
Railway Labor Act and that the Alaska Wage and Hour Act (AWHA)
applies to them.
Before filing any claim, Mr. Nosek said he wrote a letter to the
DOLWD about its position on pilots' wages in the state of
Alaska. The chief of the Labor Standards Division replied saying
that he follows the 1980 attorney general's opinion saying that
air carriers operating solely in-state are subject to AWHA. When
the claim was filed on behalf of the pilots, the department
recognized that their employer was subject to the law and the
claims were valid.
MR. NOSEK claimed that Hageland Aviation tried to have the best
of both worlds. If a pilot was late, he would be docked pay; if
he worked longer than eight hours, he wasn't paid extra. "To
have the best of both worlds is simply a violation of the Wage
and Hour Act as it has been established."
MR. NOSEK said the law was changed in 2003 to exempt flight
crews. That change provided the protection the industry needs. A
claim can only be filed for two years and that two-year window
is almost completely closed. SB 105 is only about the three air
carriers that have been subjected to lawsuits. To resolve the
constitutional problem, he suggested an amendment that would
provide certainty to the air carrier industry, protection that
air carrier industry seeks and recognizes the court judgment
giving overtime rights solely to Hageland Aviation.
No other lawsuit was filed before the change in the
law. No other lawsuit has had a judgment in their
favor on the right to overtime. By simply amending SB
105 to say this doesn't apply, if a court of law has
recognized in summary judgment the entitlement to
overtime. Then the air carrier industry is fully
protected and the rights of those pilots as
established by the Superior Court are protected as
well. While we believe there are problems with SB 105,
we believe it could be simply fixed to protect the
industry as well as protect those pilots who went
forward in good faith under the law before 2003.
GREY MITCHELL, Director, Labor Standards and Safety, Department
of Labor and Workforce Development (DOLWD), said the department
has applied a policy since 1980 that looks at two factors. One
is whether the air carrier is interstate and whether the pilot
is covered by a collective bargaining agreement. Both are exempt
from the Wage and Hour Act under the department's policy. Once
the inter/intra-state issue is cleared up, he can go on to
further clarify whether an employee is subject to the law.
1:42:55 PM
TOM DANIEL, representing Hageland Aviation, said Mr. Nosek's
position is that SB 105 doesn't enact DOLWD policy, but it does
because of the way the statute that passed in 2002 was worded.
It only applies effectively to the interstate carriers because
it only covers carriers that are covered under the Railway Labor
Act. Also, the constitutional issue in SB 105 could be dealt
with elsewhere, but he didn't think it presented a takings
problem, because it's quite common for the Legislature to pass
legislation on pending legislation. He said that SB 105 is
constitutional and implements DOLWD policy as it has been
followed for over 20 years.
SENATOR ELLIS moved to adopt Amendment 1.
24-LS0502\G.1
Craver
6/10/05
A M E N D M E N T 1
OFFERED IN THE SENATE
TO: SB 105
Page 1, line 13:
Delete "resolved"
Insert "determined"
Page 1, line 14:
Delete "final"
CHAIR BUNDE objected for an explanation.
SENATOR ELLIS said he had looked for ways to overcome his
concerns about retroactivity and preventing people from their
final day in court on this subject and explained that Amendment
1 makes him more comfortable. Using "determined" instead of
"resolved" makes the language clearer. The second part of the
amendment deleting "final" would obviate the court cases that
came along after the law was changed. But it would leave in
place the court case that was brought before the law was changed
- that has summary judgment going in their favor at this stage
of the proceedings.
SENATOR SEEKINS asked him to explain the difference between
"resolved" and "determined".
SENATOR ELLIS replied that a settlement would have to be signed
off by a judge. He is not an attorney and "determined" seemed
clearer from a layman's perspective.
SENATOR SEEKINS said he didn't mind using "determined", but
objected to using "final". The intent of the legislation is to
make sure state law is on an equal footing with federal law. If
this legislature knew there was a conflict, it would have acted
to eliminate it sooner. It was always the intent of the
Legislature to agree with the principals the state was operating
under since 1980. He wouldn't object to its passing out of
committee, because the Judiciary Committee would look at the
legal aspects of the word.
SENATOR ELLIS moved to divide the question. There were no
objections.
CHAIR BUNDE moved Amendment 1, on page 1, line 13, to delete
"resolved" and insert "determined". Senators Ellis, Seekins, Ben
Stevens and Chair Bunde voted yea; and Amendment 1 passed.
CHAIR BUNDE moved Amendment 2 to delete "final" on page 1, line
14. Senators Ben Stevens, Seekins and Chair Bunde voted nay;
Senator Ellis voted yea; and Amendment 2 failed.
SENATOR SEEKINS moved to pass CSSB 105(L&C) out of committee
with individual recommendations and attached fiscal note.
SENATOR ELLIS objected saying he still has legitimate concerns
without adopting the second half of the amendment.
SENATOR SEEKINS guaranteed looking at the issue in the Judiciary
Committee. Senators Ben Stevens, Seekins and Chair Bunde voted
yea; Senator Ellis voted nay; and CSSB 105(L&C) moved from
committee.
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