03/10/1993 01:00 PM House JUD

  HB 147 EMPLOYER'S LIABILITY FOR REFERENCE INFO                               
                                                                               
  Number 619                                                                   
                                                                               
  MS. HORETSKI called the members' attention to a draft                        
  committee substitute for HB 147 dated March 9, 1993.  She                    
  said in the original bill there was a question regarding the                 
  construction of the language.  Additionally, she said, Rep.                  
  Davidson had offered an amendment inserting "negligently and                 
  recklessly" before "by the former employer" on line 12, when                 
  the bill was last before the committee.                                      
                                                                               
  MS. HORETSKI said that she had rewritten the bill, resulting                 
  in new numbered paragraphs at the bottom of the committee                    
  substitute.  She added that she had not changed the language                 
  of the bill, but merely the construction.  The bill now                      
  read, "For purposes of this section, the presumption of good                 
  faith is rebutted upon a showing that the former employer                    
  (1) knowingly or recklessly disclosed false or deliberately                  
  misleading information; (2) disclosed information with a                     
  malicious purpose; or (3) disclosed information in violation                 
  of a civil right of the employee or former employee that is                  
  protected under AS 18.80 or under federal law."                              
                                                                               
  MS. HORETSKI said that Rep. Davidson's amendment would have                  
  added "negligently or recklessly" on line 14 in front of                     
  what was now the new paragraph (2).  She said that some of                   
  that language was in conflict with the language regarding                    
  malicious purpose.  Therefore, "recklessly" was added to                     
  line 12; so if an employer knowingly or recklessly disclosed                 
  false or deliberately misleading information, he or she                      
  would lose the presumption of good faith.                                    
                                                                               
  MS. HORETSKI called the members' attention to a memorandum                   
  from the Legal Services Division regarding the definitions                   
  of "negligently" and "recklessly" in the context of civil                    
  law.  In the memorandum, however, definitions of those terms                 
  were cited from criminal law.                                                
                                                                               
  CHAIRMAN PORTER commented that the rewritten language in the                 
  draft committee substitute made more sense than that in the                  
  original bill.  With regard to Rep. Davidson's amendment, he                 
  expressed his opinion that inclusion of "negligently" would                  
  defeat the purpose of the bill.                                              
                                                                               
  CHAIRMAN PORTER noted that inclusion of "negligently" could                  
  impact employers who made simple errors, with no intention                   
  to harm an employee.                                                         
                                                                               
  Number 637                                                                   
                                                                               
  REP. NORDLUND commented that Rep. Davidson was attempting to                 
  ensure that employers acted with care when disclosing                        
  information regarding employees.  He said he would like to                   
  see employers be able to tell the truth, without facing                      
  negative consequences, but added that he would also like to                  
  see employers act carefully.                                                 
                                                                               
  Number 661                                                                   
                                                                               
  REP. JAMES expressed her concern that including the words                    
  "negligently" and "recklessly" practically negated the                       
  intent of HB 147.  She said that in her understanding, the                   
  intent of the bill was to put the burden on the employee to                  
  prove that an employer was causing harm.  However, she said,                 
  including "negligently" and "recklessly" could put the                       
  burden on the employer.                                                      
                                                                               
  Number 679                                                                   
                                                                               
  CHAIRMAN PORTER commented that his interpretation of HB 147                  
  was not to establish a burden of proof, but simply to allow                  
  an employer to speak freely with another employer regarding                  
  an employee's job performance.  He stated that the committee                 
  needed to agree upon where the line should be drawn, with                    
  regard to the care exercised by an employer.  He suggested                   
  that the committee hold the bill until the Legal Services                    
  Division could provide a definition of "negligently" and                     
  "recklessly" in civil law.                                                   
                                                                               
  Number 705                                                                   
                                                                               
  REP. PHILLIPS asked for clarification on the original bill                   
  language on line 13 and the rewrite of that line in the                      
  draft committee substitute.                                                  
                                                                               
  Number 712                                                                   
                                                                               
  CHAIRMAN PORTER replied that the language change was                         
  technical in nature.                                                         
                                                                               
  Number 716                                                                   
                                                                               
  MS. HORETSKI agreed with the Chairman that the change was                    
  merely technical, not substantive.                                           
                                                                               
  Number 723                                                                   
                                                                               
  REP. KOTT said that perhaps the bill should provide that an                  
  employer could only disclose factual information, which                      
  could be substantiated.                                                      
                                                                               
  Number 734                                                                   
                                                                               
  CHAIRMAN PORTER invited Rep. Kott to work on language                        
  accomplishing that goal.                                                     
                                                                               
  Number 740                                                                   
                                                                               
  ADJOURNMENT                                                                  
                                                                               
  CHAIRMAN PORTER adjourned the meeting at 3:24 p.m.