Legislature(2005 - 2006)BUTROVICH 205
04/14/2005 08:00 AM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB140 | |
| Confirmation Hearing: Attorney General: Mr. David Marquez | |
| SB135 | |
| SB132 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 135 | TELECONFERENCED | |
| += | SB 132 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| = | SB 140 | ||
SB 132-HUMAN RIGHTS COMMISSION
9:45:03 AM
MR. SCOTT NORDSTRAND, deputy attorney general, Department of Law
(DOL) presented SB 132. He explained SB 132 is similar to a bill
that passed out of the Senate Judiciary Standing Committee in
2004. SB 132 would allow the Human Rights Commission to evaluate
complaints of unlawful discrimination and allocate its resources
to prosecuting those complaints that best serve the goal of
eliminating unlawful discrimination. SB 132 improves the
Commission procedures and enhances fairness. It clarifies
remedies the Commission may award to remedy unlawful
discrimination. Any person who believes they have been subjected
to unlawful discrimination can file a complaint with the Human
Rights Commission. If substantial evidence of unlawful
discrimination is found, the case proceeds to conciliation. If
that is unsuccessful the case evolves into a more formal
adjudication process.
9:47:28 AM
The case would go forward into a litigation-type process. SB 132
would put the process into a central panel. The hearing officer
would make a recommended decision to the Commission to resolve
the case. SB 132 addresses a problem created by the Department
of Fish and Game in 1995. The Alaska Supreme Court said a case
has to be completely lacking in merit otherwise it has to be
heard. This created a workload problem for the Commission.
9:49:31 AM
Most cases are subject to judicial review and are regularly
overturned by the Superior Court. SB 132 provides some basis for
the executive director to dismiss cases. Page 3 lists the basis
the executive director can dismiss. This is putting the
Commission in a more similar position with the Equal Opportunity
Commission. They have the power to review the most egregious
cases with the resources they have.
9:51:06 AM
SB 132 also clarifies some of the processes. It allows employers
to have a better understanding of what is being charged.
Oftentimes complaints are very ambiguous and general. The
complaint does not necessarily identify all areas of
discrimination. Currently there is no requirement the Human
Rights Commission inform either party they are changing the
complaint to address other issues that have come up during the
investigation.
9:52:44 AM
SB 132 also gives the parties the opportunity to go through the
conciliation process with benefit of all the information. If
evidence reveals there is greater discrimination, it may be much
easier to bring the parties to resolution.
9:53:47 AM
At the point of failed conciliation a formal accusation by the
Commission must be drafted against the charged party. SB 132
improves procedures because it allows agreements during the pre-
hearing phase and it allows the compromise of damage claims.
There has been past confusion regarding whether the Commission
could compromise claims at the conciliation stage. The
Administrative Procedure Act would now apply except as otherwise
provided in statute AS 18.80. It allows summary judgment.
9:56:21 AM
SB 132 clarifies the remedies section of the act and provides a
list of remedies available. It also includes a prohibition of
non-economic damages. It defines pay for the purposes of back
pay and front pay and it also limits front pay to one year.
9:58:46 AM
SB 132 specifically says people have an obligation in an
employment discrimination case to use reasonably diligent
efforts to find other employment. In terms of housekeeping, the
regulatory statute of limitations (180 days) is put in the
statute. This makes it consistent with federal law. It also
incorporates the federal fund rate plus 3 percent as an interest
rate.
10:00:02 AM
SENATOR GENE THERRIAULT said there was concern from the
Commission regarding the verbiage on Page 2 lines 27-31. People
from the Commission have expressed they did not want the
discretion. He asked Mr. Nordstrand whether he has discussed
that with them.
MR. NORDSTRAND responded they have had discussions. Their
concern was it would require the Commission to review all of the
cases. SB 132 uses the word "may" for the specific reason that
it allows them to implement discretion if they want. However it
is enough discretion that they could pass a regulation saying,
"we won't". He said as a matter of public policy, there should
be some review by the actual Commission that is charged with the
responsibility. There may be the case where an investigator
interviews people to determine whether there is substantial
evidence of discrimination and that is reviewed by the executive
director.
10:02:45 AM
SENATOR THERRIAULT stated part of the concern expressed by the
Commission is in their effort to focus their attention to
resources they are going to have to review all of the cases to
see which ones they need to take up.
MR. NORDSTRAND said it does not need to be more complicated than
an executive investigation. If there is a close call case, the
Human Rights Commission should consider it.
SENATOR HOLLIS FRENCH asked how the Commission gets notice of
case dismissals.
MR. NORDSTRAND replied he does not know.
CHAIR RALPH SEEKINS advised two people from the Human Rights
Commission were online waiting to testify.
10:05:09 AM
MS. GRACE MERKES, commissioner, Alaska State Commission for
Human Rights, answered Senator French's question. She said
summaries of cases are given to the Commission during the
regular quarterly meetings. She is not sure whether the
Commission gets a summary of every complaint.
MS. PAULA HALEY, executive director, Alaska State Commission for
Human Rights, answered Senator French's question regarding how
the Commission informs the commissioner on the "no substantial
evidence findings" (NSE) cases. She said they do not provide
them with a list. They are involved in cases where there is a
substantial evidence finding. Until a repeal of the regulation
regarding review and reconsideration, there is no other format
to review the NSE findings.
10:06:50 AM
MS. HALEY continued the decision was the threshold prosecutorial
decision whether the Commission goes further to conciliation and
ultimately to the public hearing that Mr. Nordstrand was
describing.
SENATOR FRENCH asked Ms. Haley how the Commission would in its
discretion review the executive director's order of dismissal.
MS. HALEY responded it was the commissioner's belief that
perceived errors would create petitions from individuals or
their attorneys. The Commission would need to devise regulations
to look at them. Concern has been expressed that in time there
would be limited resources and low return on investment.
10:09:03 AM
SENATOR GRETCHEN GUESS asked Mr. Nordstrand to explain how the
limitations on front and back pay work. She expressed concern
over whether a person could readily find other employment.
MR. NORDSTRAND said it was essentially a description of the
current legal standard of a requirement that anyone who claims
damages in an employment discrimination case has an obligation
to attempt to mitigate their damages. This is continuing along
the line of full disclosure for people who are in the process.
People know this is a requirement. There is no doubt that
mitigation is required for those who seek damages. However, if a
person is shown not to have searched hard enough for other
employment, they may not get all of their front pay.
10:11:27 AM
SENATOR GUESS advised Mr. Nordstrand that Page 5, line 15 says
"must be reduced" and not "may".
MR. NORDSTRAND responded SB 132 was talking about the
intangible. The "must" is there because under current law, it
must be reduced. If through reasonably diligent efforts, a
person could have earned some money, then it must be reduced.
That is not optional under the law.
CHAIR SEEKINS stated when no reasonable effort is put forth
damages could be reduced.
MR. NORDSTRAND answered correct.
CHAIR SEEKINS commented a person who has shown a reasonably
diligent effort would not be penalized.
10:14:05 AM
SENATOR GUESS asked Mr. Nordstrand the reason the Legislature
was not tackling the definition of substantial.
MR. NORDSTRAND said it would be a much more difficult and
dangerous thing to do in terms of protecting the rights of the
people suffering from discrimination. He said there are cases
where witnesses are not credible, or where the case is not
enough money to worry about. Tinkering with substantial evidence
is like tinkering with air. It is a legal standard known when
seen. The Supreme Court determined any factual disputes could
not be settled without a hearing. The ultimate outcome would
create an opportunity for abuse. There are cases that are not
worth the time and money. At the end of the day everybody still
has a right to take the case to court.
10:17:22 AM
CHAIR SEEKINS commented currently a factual dispute has to go to
hearing.
MR. NORDSTRAND agreed.
CHAIR SEEKINS commented SB 132 was now giving the executive
director prosecutorial discretion.
MR. NORDSTRAND added SB 132 allows the use of state resources to
achieve a very important government purpose. The question is how
to best use the resources. There will be marginal cases that do
not merit pursuing. For those cases a person can hire a lawyer
or file a complaint on their own. The remedies are still there;
the question is whether to use government resources when there
are more important cases to deal with.
10:18:49 AM
CHAIR SEEKINS commented currently an employer gets dragged into
a hearing simply based on allegations.
MR. NORDSTRAND agreed. He said the government essentially
provides a lawyer to a claimant while requiring an employer or
landlord to respond. There is no provision for the employer to
recoup money spent on unnecessary legal representation.
CHAIR SEEKINS commented a disingenuous employee has the
advantage.
MR. NORDSTRAND agreed and stated currently the Human Rights
Commission is without power to stop unfounded claims. The Alaska
Superior Court forces a hearing and it puts financial pressure
on the person bearing the burden.
10:21:10 AM
MR. NORDSTRAND added employers often choose to settle the case
because the cost to settle would be substantially less than the
cost to challenge the claim.
SENATOR GUESS said she believes there is a better way to
structure the language because SB 132 as currently written gives
the executive director an incredible amount of power.
CHAIR SEEKINS commented district attorneys are given an
incredible amount of power.
SENATOR GUESS agreed but stated she has issues with Section 4,
paragraphs 1,5,6 & 7, which are all very subjective decisions.
She expressed concern about the breadth of the language and
offered there should be another way to deal with the situation.
10:24:00 AM
CHAIR SEEKINS said he has seen cases where an investigator does
not agree with the person's claim and yet it goes to public
hearing. He pondered the level the state should go to protect an
innocent employer when an investigator agrees there is no
substantial evidence. An employer is put in the position of
being publicly accused of discrimination whether or not it is
substantiated. He expressed support for SB 132. He said he is
willing to give discretion to the attorney, but currently the
system is weighted so heavily in favor of the complainant that
it creates abuse of the system.
10:26:00 AM
SENATOR GUESS suggested unfounded claims should be dismissed up
front. She said the problem should be fixed on the front end.
MR. NORDSTRAND said the elements in Section 4 subsection (b) are
an attempt to fix the problem on the front end. SB 132 would
represent the best use of resources. Some employers carry on
with the hearing on the basis of principle, which costs the
state much money. Section 4, paragraph 1 addresses a refusal to
compromise could be unreasonable. The Commission on the behalf
of the aggrieved person brings the cases. The discretion and
resources are those of the Human Rights Commission.
10:29:09 AM
CHAIR SEEKINS clarified the employee pays nothing for the
process.
MR. NORDSTRAND responded correct.
SENATOR THERRIAULT mentioned that sometimes the most
unreasonable clients are the pro bono clients.
SENATOR GUESS stated Section 4 paragraph (1) appears to be based
on either side. She asked Mr. Nordstrand whether that was the
case.
MR. NORDSTRAND said no. It is about whether or not the
complainant's case would be dismissed. The employer always has
the right to be unreasonable.
10:31:37 AM
SENATOR GUESS moved Amendment 1.
24G-1
11/3/2005
(10:23 AM)
A M E N D M E N T 1
Page 2, line 27:
Delete "The commission, in its"
Page 2, line 28, through page 3, line 1:
Delete all material.
Page 3, line 4:
Delete ", in the executive director's discretion,"
Page 3, following line 15:
Insert the following new material:
"(c) The commission, in its discretion, may review
the executive director's order of dismissal under (a) or
(b) of this section and may affirm the order, remand the
complaint for further investigation, or, if the commission
concludes that substantial evidence supports the complaint
of an unlawful discriminatory practice, refer the complaint
for conference, conciliation, and persuasion as provided in
AS 18.80.110, or for hearing."
Page 3, line 16:
Delete "(c)"
Insert "(d)"
Page 3, line 22:
Delete ", in the executive director's discretion,"
CHAIR SEEKINS objected for discussion.
SENATOR GUESS explained the proposed amendment would allow the
Commission to review a dismissal under Section 4, subsection (a)
and/or (b).
10:33:35 AM
CHAIR SEEKINS asked whether Commission members were paid.
MR. NORDSTRAND answered they receive per Diem.
MS. MERKES stated they were unpaid except for per diem. She said
if the Commission were to do what is being suggested, it would
take up a lot of volunteer time. Per Diem consists of dinner and
a plane ticket.
MS. HALEY commented a modicum per Diem of $40 a day was revoked
in the early 1990s.
SENATOR GUESS offered the committee might consider changing
Section 4 to a review under subsection (b) and not (a).
10:35:36 AM
CHAIR SEEKINS stated a claimant has the option of a civil action
if the claim was dismissed.
MR. NORDSTRAND agreed that any dismissal is free to go to court
so long as they are within the statute of limitations, which is
two years.
CHAIR SEEKINS asked Mr. Nordstrand the statute of limitations on
an action with the Commission.
MR. NORDSTRAND answered SB 132 places it in statute at 180 days.
CHAIR SEEKINS commented that seemed like a reasonable amount of
time.
MR. NORDSTRAND agreed. He said the claimant could seek
additional remedies in court based on the finding.
CHAIR SEEKINS clarified a civil remedy would require a person to
pay for their own defense.
10:37:47 AM
MR. NORDSTRAND agreed. He referred to Amendment 1 and stated the
practical consequence is a check and balance on the discretion
to dismiss if the Commission chooses to allow it. The Commission
could choose not to review cases based on lack of resources.
CHAIR SEEKINS asked Ms. Haley the procedure for a dismissed
case.
MS. HALEY said it would not be burdensome.
10:40:03 AM
CHAIR SEEKINS suggested using the wording "may by the request of
the majority of the Commission."
MS. HALEY recommended adding time constraints otherwise it could
be unfair to the responding party.
MR. NORDSTRAND said the proposed wording would essentially
require the Commission to consider all of the cases.
Roll call proved Amendment 1 failed 2-3 with Senators Huggins,
Therriault, and Chair Seekins dissenting.
10:42:18 AM
SENATOR GUESS voiced disappointment over not including
subsection (b) in the review. She asked the committee members to
consider possible consequences to the language of SB 132.
MR. NORDSTRAND reiterated all decisions are subject to superior
court review.
SENATOR CHARLIE HUGGINS moved SB 132 from committee with
individual recommendations and attached fiscal note(s). There
being no objection, the motion carried.
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