Legislature(2005 - 2006)BELTZ 211
03/01/2005 01:30 PM LABOR & COMMERCE
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
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.