Legislature(1993 - 1994)
03/08/1993 01:00 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
March 8, 1993
1:00 p.m.
MEMBERS PRESENT
Rep. Brian Porter, Chairman
Rep. Jeannette James, Vice-Chair
Rep. Gail Phillips
Rep. Pete Kott
Rep. Jim Nordlund
Rep. Joe Green
Rep. Cliff Davidson
OTHER MEMBERS PRESENT
Rep. Eileen MacLean
COMMITTEE CALENDAR
HB 62: "An Act prohibiting employers from discriminating
against individuals who use legal products in a
legal manner outside of work."
HEARD AND HELD FOR FURTHER CONSIDERATION
HB 147: "An Act relating to the disclosure of information
by an employer about the job performance of an
employee or former employee."
HEARD AND HELD FOR FURTHER CONSIDERATION
HB 181: "An Act relating to the state's right to appeal in
criminal cases; relating to sentence appeals;
amending Rule 202 of the Alaska Rules of Appellate
Procedure; and providing for an effective date."
PASSED OUT WITH A DO PASS RECOMMENDATION
(* First public hearing.)
WITNESS REGISTER
REP. BEN GRUSSENDORF
Alaska State Legislature
Capitol Building, Room 415
Juneau, Alaska 99801-1182
Phone: 465-3824
Position Statement: Prime Sponsor of HB 62
MIKE MCMULLEN
Manager, System Services
Division of Personnel/EEO
Department of Administration
P.O. Box 110201
Juneau, Alaska 99811-0201
Phone: 465-4430
Position Statement: Opposed HB 62; Supported HB 147
RENA BUKOVICH
Legislative Aide
Rep. Eileen MacLean
Alaska State Legislature
Capitol Building, Room 507
Juneau, Alaska 99801-1182
Phone: 465-4833
Position Statement: Represented Prime Sponsor of HB 147
JAMIE PARSONS
Alaska State Chamber of Commerce
217 Second Street, Suite 201
Juneau, Alaska 99801
Phone: 586-2323
Position Statement: Supported HB 147
RESA JERREL
National Federation of Independent Businesses
9159 Skywood
Juneau, Alaska 99801
Phone: 789-4278
Position Statement: Supported HB 147
WILLIE ANDERSON
National Education Association-Alaska
114 Second Street
Juneau, Alaska 99801
Phone: 586-3090
Position Statement: Commented on HB 147
GAYLE HORETSKI
Committee Counsel
House Judiciary Committee
Capitol Building, Room 120
Juneau, Alaska 99801-1182
Phone: 465-6841
Position Statement: Discussed HB 181
DOUG RICKEY
Legislative Aide
Rep. Ben Grussendorf
Alaska State Legislature
Capitol Building, Room 415
Juneau, Alaska 99801-1182
Phone: 465-3824
Position Statement: Discussed HB 62
MARGOT KNUTH
Assistant Attorney General
Criminal Division
Department of Law
P.O. Box 110300
Juneau, Alaska 99811-0300
Phone: 465-3428
Position Statement: Discussed HB 181
PREVIOUS ACTION
BILL: HB 62
SHORT TITLE: EMPLOYEE'S RIGHT TO USE LAWFUL PRODUCTS
BILL VERSION: CSHB 62(JUD)
SPONSOR(S): REPRESENTATIVE(S) GRUSSENDORF
TITLE: "An Act prohibiting employers from discriminating
against individuals who use legal products in a legal manner
outside of work."
JRN-DATE JRN-PG ACTION
01/15/93 74 (H) READ THE FIRST TIME/REFERRAL(S)
01/15/93 74 (H) LABOR & COMMERCE, JUDICIARY
02/16/93 (H) L&C AT 03:00 PM CAPITOL 17
02/16/93 (H) MINUTE(L&C)
02/17/93 358 (H) L&C RPT 4DP 2NR
02/17/93 358 (H) DP: SITTON, MULDER, WILLIAMS,
HUDSON
02/17/93 358 (H) NR: PORTER, GREEN
02/17/93 358 (H) -2 ZERO FNS (ADM, LABOR) 2/17/93
03/08/93 (H) JUD AT 01:00 PM CAPITOL 120
BILL: HB 147
SHORT TITLE: EMPLOYER'S LIABILITY FOR REFERENCE INFO
BILL VERSION:
SPONSOR(S): REPRESENTATIVE(S) MACLEAN,Phillips,Porter
TITLE: "An Act relating to the disclosure of information by
an employer about the job performance of an employee or
former employee."
JRN-DATE JRN-PG ACTION
02/10/93 292 (H) READ THE FIRST TIME/REFERRAL(S)
02/10/93 292 (H) L&C, JUDICIARY
02/25/93 (H) L&C AT 03:00 PM CAPITOL 17
02/25/93 (H) MINUTE(L&C)
03/01/93 480 (H) L&C RPT 5DP
03/01/93 481 (H) DP: PORTER, MACKIE, WILLIAMS,
GREEN, HUDSON
03/01/93 481 (H) -3 ZERO FNS (ADM, COURT, LAW)
3/1/93
03/01/93 481 (H) REFERRED TO JUDICIARY
03/08/93 (H) JUD AT 01:00 PM CAPITOL 120
BILL: HB 181
SHORT TITLE: APPEALS IN CRIMINAL CASES
BILL VERSION: HB 181 AM
SPONSOR(S): JUDICIARY
TITLE: "An Act relating to the state's right to appeal in
criminal cases; relating to sentence appeals; amending Rule
202 of the Alaska Rules of Appellate Procedure; and
providing for an effective date."
JRN-DATE JRN-PG ACTION
02/25/93 455 (H) READ THE FIRST TIME/REFERRAL(S)
02/25/93 456 (H) JUDICIARY, FINANCE
03/08/93 (H) JUD AT 01:00 PM CAPITOL 120
ACTION NARRATIVE
TAPE 93-28, SIDE A
Number 000
The House Judiciary Standing Committee meeting was called to
order at 1:12 p.m. on March 8, 1993. A quorum was present.
CHAIRMAN PORTER announced that three bills were before the
committee: HB 62, HB 147 and HB 181. He noted that the
committee would address HB 62 first.
HB 62 - EMPLOYEE'S RIGHT TO USE LAWFUL PRODUCTS
Number 027
REP. BEN GRUSSENDORF, PRIME SPONSOR OF HB 62, commented that
some people were so health-conscious that they wanted to
carry those attitudes over into the homes of their
employees. He noted that he never thought that he would see
the day that a bill like HB 62 would be necessary. He said
HB 62 provided that an employee, in the privacy of her or
his own home, or in any other place where they were not
associated with their employer, could use any lawful
products that they desired.
REP. GRUSSENDORF commented that the bill specifically
provided that if use of the lawful products affected an
employee's job performance, that was grounds for dismissal.
He noted that the "bottle to throttle" policy of some
airlines, in which pilots were not to drink within 12 hours
of flying, was reasonable. He noted that he had heard a
number of complaints and concerns about company policies
that went too far.
REP. GRUSSENDORF explained that nothing in HB 62 ran counter
to public health. He said that religious corporations were
exempt from the provisions of HB 62. In summary, he said
that HB 62 was a very straightforward, simple piece of
legislation which was unfortunately necessary.
Number 114
REP. PHILLIPS asked Rep. Grussendorf why he felt it was
necessary for the legislature to pass HB 62.
Number 121
REP. GRUSSENDORF replied that some companies had policies
which discriminated against employees who used lawful
products. He noted that HB 62 would not prohibit companies
from charging employees who used certain lawful products
higher rates for health insurance.
Number 157
REP. PHILLIPS asked Rep. Grussendorf if HB 62 would impact
an employee who lived in a work camp.
Number 170
REP. GRUSSENDORF responded that HB 62 addressed "places
other than the work site or premise of the employer." He
said that, in his interpretation, the existing rules in work
camps would not be changed by HB 62.
Number 191
REP. PHILLIPS indicated her desire to make sure that Rep.
Grussendorf's interpretation was correct.
Number 200
REP. JAMES asked Rep. Grussendorf if he had ever been an
employer.
Number 203
REP. GRUSSENDORF said he had been a crew chief, but not a
true employer.
Number 212
REP. JAMES commented that she was opposed to the unfair
treatment of any person for any reason. However, she said
that Rep. Grussendorf, as a non-employer, might not be able
to understand the rationale behind companies being able to
choose who they hired. She expressed her concern that
government should not take all of an employer's options away
with regard to who that employer would hire and fire.
Number 226
REP. GRUSSENDORF commented that it would be very difficult
to refuse to hire someone based on the use of lawful
products. He noted his concern about the treatment of
employees after they had been hired.
Number 236
REP. JAMES stated that the bill said "may not refuse to
hire." She asked about an employer who owned a business
which counseled people to quit smoking. She asked if that
sort of business should be able to refuse to hire someone
who smoked.
Number 245
REP. GRUSSENDORF cited exemptions included in HB 62,
including religious corporations, associations, educational
institutions, and societies. He commented that the example
that Rep. James had offered would probably be considered an
educational institution.
Number 260
REP. GRUSSENDORF commented that an amendment being offered
by the Department of Administration would gut HB 62.
Number 292
MIKE MCMULLEN, of the DEPARTMENT OF ADMINISTRATION,
testified in opposition to HB 62. He offered an amendment
to the bill, which he felt would adequately address the
department's concerns with the bill. He said that
currently, the state and all other employers could take
disciplinary action against an employee for off-duty conduct
when the employer could demonstrate a close relationship
between that conduct and the employee's job performance.
Number 320
MR. MCMULLEN said that employers could establish reasonable
rules for off-duty conduct and enforce them, as long as they
could demonstrate the aforementioned close relationship. He
noted that some employees could not be separated from their
employment identity. He mentioned that if the head of the
state's Office of Alcoholism and Drug Abuse were to
habitually drink excessively and publicly while off-duty,
the state would want to be able to take disciplinary action.
Number 330
MR. MCMULLEN stated that HB 62 would cause the state to give
up the ability that it now enjoyed to take disciplinary
action against employees based on their off-duty conduct.
He noted that his amendment would serve as an exemption to
provisions of HB 62.
Number 357
REP. PHILLIPS asked if HB 62 pertained to lawful products
only or also to lawful activities. As a hypothetical
example, she cited a state employee who worked for a
division that worked with children who moonlighted as a
stripper.
Number 387
REP. DAVIDSON asked if HB 62 was before the committee.
CHAIRMAN PORTER indicated that HB 62 was indeed before the
committee.
Number 400
REP. DAVIDSON made a motion to move HB 62 out of the
Judiciary Committee with individual recommendations. There
was objection.
REP. DAVIDSON commented that modern American society was
going after individual rights more and more. He said if
employers were going to try to dictate to employees what
lawful products they could and could not consume in the
privacy of their own homes, he feared for future
generations. For that reason, he said, he supported moving
HB 62 out of committee. He noted that he had been an
employer in the past. He said he agreed with HB 62's
sponsor that the Department of Administration's amendment
would gut the bill.
Number 440
REP. JAMES indicated her support for the intentions of HB
62. She expressed her concern that when government tried to
legislate every small situation that occurred, larger
problems were created than those that government had
attempted to solve. She stated that more and more
restrictions were being placed on employers. She said she
would like to see the elements of HB 62 accomplished without
legislation. She agreed that a problem existed, but said it
was her opinion that HB 62 would create more problems than
it solved.
REP. JAMES expressed her opinion that an employer did not
have the right to tell an employee what to do or not do on
that employee's off-duty time. She stated that HB 62 would
be a roadblock to jobs, however.
Number 495
CHAIRMAN PORTER commented that he did not favor the
Department of Administration's amendment. He said it was a
close call for him, but he would support moving HB 62 out of
committee.
Number 534
REP. DAVIDSON offered a hypothetical example of a
legislative staffer who took RU486, if lawful, although her
boss was opposed to abortion. Could she be fired for that
action, he asked? He questioned when an individual's rights
kicked in.
Number 577
REP. JAMES noted that labor laws were already very
protective of employees, and HB 62 was therefore redundant.
She reiterated her concern that legislation passed to remedy
one small problem often resulted in the creation of more,
larger problems. She said she was not so concerned with HB
62's impact on who an employer fired, but was concerned with
its impacts on an employer's ability to hire whomever she or
he wanted to hire.
Number 616
REP. PHILLIPS indicated her desire to tighten up the bill's
language regarding work sites.
CHAIRMAN PORTER announced that discussion of HB 62 would be
suspended until Rep. Phillips' amendments could be prepared
and distributed to the committee. He announced that the
committee would take up HB 147 next.
REP. KOTT moved to table the motion before the committee, to
move out HB 62, until Rep. Phillips' amendment was
officially offered. No objection was heard, so the motion
was tabled.
HB 147 - EMPLOYER'S LIABILITY FOR REFERENCE INFO
Number 635
RENA BUKOVICH, LEGISLATIVE AIDE TO REP. EILEEN MACLEAN,
PRIME SPONSOR OF HB 147, explained the bill. She stated
that the bill would add a new section to the Code of Civil
Procedure relating to job references, stating that an
employer was presumed to be acting in good faith unless it
was shown that a reference was knowingly false, deliberately
misleading, given with malicious purpose, or violated the
employee's civil rights.
Number 650
MS. BUKOVICH commented that HB 147 was needed to encourage
the exchange of information between a prospective employee
and employer. She said the courts were overburdened with
libel and slander claims based on negative job interviews
and unfavorable employment references. She stated that many
employers had stopped giving employment references entirely
out of fear of lawsuits. She noted that passage of HB 147
was the number one priority of the Alaska State Chamber of
Commerce. She added that it was modeled after a Florida law
which passed without opposition. She noted that HB 147 was
identical to HB 441, which passed the House unanimously the
year before and died in the Senate Rules Committee.
Number 660
REP. DAVIDSON asked Ms. Bukovich if the sponsor concurred
with the amendment he was offering to HB 147.
MS. BUKOVICH noted that Rep. MacLean did not oppose Rep.
Davidson's amendment.
Number 667
REP. KOTT asked Ms. Bukovich what the definition of
"malicious purpose" was.
Number 670
MS. BUKOVICH stated that "malicious purpose" meant acting
with ill-will or with the intent to harm another individual.
Number 685
JAMIE PARSONS, PRESIDENT OF THE ALASKA STATE CHAMBER OF
COMMERCE (ASCC), testified in support of HB 147. He said
the bill would protect employers who received inquiries
about the job performance of employees or former employees.
He stated that under the bill's provisions an employer who
provided reference information to another employer would be
presumed to be acting in good faith. Additionally, unless
the reference could be shown to be knowingly false,
deliberately misleading, and showing a lack of good faith,
the employer could not be held liable for the disclosure or
the consequences of the disclosure.
Number 700
MR. PARSONS noted that there was a relatively small
applicant base in Alaska, and it was therefore imperative
that employers be able to share information in good faith.
He said sharing information entailed a risk that many
employers could not afford to take. He reiterated that
passage of HB 147 was the number one priority of ASCC.
Number 717
REP. JAMES asked when an employee's rights came into play
under HB 147's provisions.
Number 727
MR. PARSONS stated that as a small business owner, he
treated the issue of employment reference disclosures
seriously. He said that under the Senate version of the
bill, employees would have access to written references.
Number 735
REP. JAMES questioned the need for HB 147.
Number 739
MR. PARSONS commented that there were many instances in
which employers hired people "blindly" because other
employers were afraid to disclose negative information about
an employee.
Number 749
REP. JAMES asked if information did not get carried over
because prospective employers did not ask questions, or
because former or current employers did not provide the
information.
Number 750
MR. PARSONS replied that previous or current employers,
because of the risks involved, did not want to disclose much
information about an employee.
Number 760
REP. JAMES said she had not been aware that the problem
existed. She said that many people called her for
references and she disclosed information about people who
had worked for her.
Number 763
REP. KOTT asked if the Department of Law was going to
testify on HB 147. He wondered if the situation addressed
by HB 147 was already covered by "qualified privilege" laws.
Number 768
CHAIRMAN PORTER noted that no representative of the
Department of Law was available to testify on HB 147. He
noted that as both a public and private-sector employer, he
had been advised to disclose very little information about
employees due to the risk of liability involved.
Number 778
REP. JAMES commented that labor laws were fairly strict.
TAPE 93-28, SIDE B
Number 000
RESA JERREL, representing the NATIONAL FEDERATION OF
INDEPENDENT BUSINESSES (NFIB), testified in support of HB
147. She stated that on the 1993 NFIB member ballot, 83
percent of respondents had supported this type of
legislation.
Number 020
MS. JERREL noted that in her former job she had been advised
by an attorney to only verify her secretary's dates of
employment, job title, and salary. She said that if she
could have, she would have given her secretary a poor
reference. She noted the growing nationwide problem of
employers being sued by current and former employees over
negative reference information.
Number 030
MS. JERREL noted that one of NFIB's members had said that
she would love to be able to get factual information on
prospective employees because of a high turnover rate and
problems with employees stealing from the till.
Number 053
REP. DAVIDSON asked Ms. Jerrel to further explain the
situation involving the NFIB member further.
Number 062
MS. JERREL replied that the member said she spent a great
deal of time hiring and firing people who abused drugs and
alcohol and stole. The member had added that if she could
get factual information from former and current employers,
she would save a lot of time and aggravation.
Number 070
REP. DAVIDSON asked why factual information was unavailable
currently.
MS. JERREL replied that, in the case of her former
secretary, she assumed that the secretary's former employers
had been advised not to disclose factual information.
Number 075
REP. DAVIDSON asked Ms. Jerrel if she had ever confirmed
that assumption.
MS. JERREL responded that she had not.
Number 082
MIKE MCMULLEN, of the DEPARTMENT OF ADMINISTRATION,
testified in support of HB 147. He said that as a
prospective employer, the state would like to know more
about persons whom it was considering hiring. He noted that
currently, the state encountered former employers who were
reluctant to reveal much about employees. He said HB 147
would give employers more freedom to disclose information
about former employees. He said HB 147 also would allow the
state, as an employer, more freedom to disclose information
about former employees.
Number 120
REP. DAVIDSON asked if he would agree that HB 147 would
immunize employers acting in good faith from civil action
from former employees for disclosing information regarding a
former employee's job performance.
MR. MCMULLEN said he agreed with that statement.
Number 130
REP. DAVIDSON asked Mr. McMullen if he felt that it would be
difficult to prove that an employer was acting in bad faith.
Number 138
MR. MCMULLEN commented that the appropriate place to address
that issue was in court. He noted that under the bill a
former employee would have a case against a former employer
if the employer had given out incorrect information.
Number 153
REP. DAVIDSON asked whether Mr. McMullen felt that HB 147
would help or hinder an employee's attempt to prove that an
employer had acted in bad faith.
Number 166
MR. MCMULLEN replied that he did not know that HB 147 would
make any difference.
Number 170
REP. DAVIDSON asked Mr. McMullen if he believed that HB 147
would put an employee at a disadvantage, in the event that
the employee was falsely given a bad reference.
MR. MCMULLEN expressed his opinion that HB 147 would not
affect an employee's attempts to prove that an employer had
acted in bad faith.
REP. DAVIDSON gave a hypothetical example in which Mr.
McMullen had been fired from a job in Alaska and went to
Florida to look for another job. He asked Mr. McMullen if a
former supervisor gave him a false bad evaluation, would
HB 147 make it easier for him to prove that the employer had
acted in bad faith?
MR. MCMULLEN reiterated his opinion that his hypothetical
case against his former employer would remain the same,
regardless of whether or not HB 147 passed.
Number 194
REP. KOTT commented on the agreement that had been reached
between the Anchorage School Board and former District
Superintendent Thomas O'Rourke. He said part of that
agreement was that the school board would not convey any
negative information to prospective employers of Mr.
O'Rourke's.
Number 202
CHAIRMAN PORTER noted that legal agreements could always be
reached between an employer and an employee, and such
agreements would not be prohibited by HB 147.
Number 212
REP. DAVIDSON stated that such agreements would result in
prospective employers not being protected against hiring bad
employees, despite passage of HB 147.
Number 220
WILLIE ANDERSON, of the NATIONAL EDUCATION ASSOCIATION-
ALASKA (NEA-Alaska), expressed his organization's concerns
about HB 147. He questioned how an employee could prove
that an employer had given out false information.
Number 249
REP. PHILLIPS said she would have assumed that NEA-Alaska
would have taken the opposite stand on HB 147 than it had.
She indicated her surprise at Mr. Anderson's comments on the
bill. She asked, in the case of an elementary school hiring
a new teacher, would it not be to the school's advantage to
know of a teacher's background of sex offenses?
Number 262
MR. ANDERSON agreed with Rep. Phillips. He clarified NEA-
Alaska's stand that they wanted to ensure that information
passed on to a prospective employer was factual. He said
that, based on some comments that had been made in today's
hearing, there was a danger of non-factual allegations being
conveyed to a prospective employer.
Number 275
CHAIRMAN PORTER asked Mr. Anderson whether or not NEA-Alaska
supported passage of HB 147.
Number 280
MR. ANDERSON noted that if HB 147 did not pass, the current
practice of a former employer conveying limited information
about an employee likely would continue. He said employers
now commonly passed on information about employees, for
which they had documentation. If an employer did not have
documentation, employers generally did not pass on
information because of fears of liability.
Number 293
CHAIRMAN PORTER asked, if the employers to whom Mr. Anderson
had referred had been advised to stop disclosing certain
information, would they be likely to alter their practices?
MR. ANDERSON replied that, in his opinion, they would likely
alter their practices.
Number 302
REP. GREEN commented that if HB 147 were to pass, and an
employer received several positive references and one
negative reference for a prospective employee, that would
indicate that a personality conflict existed between the
prospective employee and his or her one negative reference.
He said that regardless of whether HB 147 passed, it was
probably possible to take legal action against an employer
for libel or slander.
REP. GREEN noted that if he were an employer, he would want
to know if a prospective employee had performed poorly on a
previous job. He expressed his belief that HB 147 would be
of great advantage to employers, particularly school
districts.
Number 331
MR. ANDERSON stated that he agreed with Rep. Green. He said
NEA-Alaska supported an employer's divulgence of factual
information, positive or negative. However, they were
concerned that unproven allegations against an employee
might also be transmitted to a prospective employer.
Number 354
REP. DAVIDSON asked Mr. Anderson if he were aware of any
instances of Alaska school employers being sued over
employment references.
Number 360
MR. ANDERSON said he had no knowledge of any such instance.
Number 367
REP. DAVIDSON asked Mr. Anderson if he knew of any examples
in Alaska in which teachers' employment records had been
falsified.
Number 370
MR. ANDERSON replied that no Alaska school district had been
known to falsify a teacher's personnel record. However, he
said individuals had put down false information on job
applications and had been fired when the misinformation came
to light.
Number 380
REP. DAVIDSON questioned whether any employer had ever been
sued for passing on accurate factual information to another
employer.
Number 386
REP. JAMES noted her belief that Alaska already had a law
which protected people who stated their suspicions that
another person engaged in sexual abuse.
Number 395
MR. ANDERSON commented that public employee school teachers
in Alaska were required to report suspicions of child abuse.
Number 403
REP. JAMES asked, if a teacher was suspected of committing
child sexual abuse, would that information be in a teacher's
record?
Number 408
MR. ANDERSON responded that a teacher's employer would be
required to report such suspicions to the Division of Family
and Youth Services (DFYS).
REP. JAMES noted that this information might not then be
passed on to a teacher's future employer.
MR. ANDERSON indicated that it would depend on the outcome
of DFYS' investigation. He said that a suspicion did not
necessarily have basis in fact. He noted his concern that
an employer might tell another employer that an employee was
investigated for child abuse and not tell the rest of the
story: that an investigation turned up no evidence of such
conduct.
Number 427
REP. NORDLUND said he could not imagine a situation in which
information on a known child abuser was not passed on to a
prospective employer.
Number 431
REP. PHILLIPS noted that a situation like the one Rep.
Nordlund described happened just the year before.
REP. NORDLUND asked if passage of HB 147 would help to
lessen the occurrence of such situations.
REP. PHILLIPS commented on a situation in an Anchorage high
school. The outcome of that situation, she noted, was an
agreement that nothing about an alleged sexual contact with
a student would appear in the teacher's record.
Number 438
REP. NORDLUND noted that the individual about whom Rep.
Phillips was speaking had not been convicted of a crime. He
stated that an allegation, later proven to be true, had been
made.
Number 445
REP. PHILLIPS stated that when the teacher was no longer
hired by the school district, an agreement was made whereby
the teacher was not prohibited from taking a job in another
school district.
REP. NORDLUND stated that there could be situations in which
a person was falsely accused. An employer who falsely
believed accusations to be true could pass on that
information to a prospective employer, who would then
discriminate against the employee.
Number 453
REP. DAVIDSON explained his proposed amendment, which would
insert on page 1, line 12, after the word "given":
"negligently, recklessly, or". He said that adding this
language was the least that the committee could do to
protect against individuals who would maliciously go after
other individuals. He noted that the sponsor of HB 147 did
not object to his amendment. He moved the amendment.
Number 474
GAYLE HORETSKI, COMMITTEE COUNSEL TO THE HOUSE JUDICIARY
COMMITTEE, stated that it appeared that the language in HB
147 was taken from a Florida law. She called the members'
attention to page 1, lines 10-14. She said the bill was
awkwardly written so as to indicate that information had a
"culpable mental state." She suggested rewriting the bill
so as to indicate that the mental states referred to in the
bill belonged to the employer.
Number 504
CHAIRMAN PORTER suggested that HB 147 be held in committee,
and a committee substitute drafted to incorporate Rep.
Davidson's amendment and to clarify the "mental state"
language. Hearing no objection, it was so ordered.
Number 513
REP. DAVIDSON asked that the committee be given more
information on lawsuits that made HB 147 necessary in the
first place. Also, he said he would like to know if Alaska
had a complementary law which penalized employers for giving
false reference information.
Number 529
CHAIRMAN PORTER indicated that there was a wealth of
information from representatives of employers that showed
that HB 147 was necessary.
Number 545
REP. DAVIDSON said he understood that a problem existed.
However, he said that he wanted to know where it had been
demonstrated, through the legal process, that a bill like
HB 147 was needed.
Number 551
CHAIRMAN PORTER announced that HB 147 would be brought
before the committee again at the next available meeting.
HB 62 - EMPLOYEE'S RIGHT TO USE LAWFUL PRODUCTS
CHAIRMAN PORTER stated that the committee would again take
up HB 62. He called the committee members' attention to
Rep. Phillips' proposed amendment.
REP. PHILLIPS stated that the amendment would go on page 2,
after line 20. She explained that it would clarify the
definitions of a work site and the premises of an employer.
She moved the amendment, but said that she would rather not
act on the bill itself until she had heard from the sponsor
of HB 62.
REP. DAVIDSON objected for purposes of discussion. He said
that perhaps Mr. Doug Rickey, staff to the sponsor of HB 62,
could address the amendment.
CHAIRMAN PORTER commented that he did not believe that the
sponsor would object to Rep. Phillips' amendment.
Number 578
DOUG RICKEY, LEGISLATIVE AIDE TO REP. BEN GRUSSENDORF, said
that the only possible problem with the amendment might be
that the definition of "work site" might not be what Rep.
Phillips had intended.
Number 594
REP. PHILLIPS stated that the definition reflected her
intention exactly. She said she was referring to mining
camps, logging camps, and North Slope employment where
everyone lived in one facility.
Number 600
REP. DAVIDSON stated that his understanding was that if an
individual lived in housing in Juneau, owned by the Greens
Creek Mine, that person could not drink in his or her own
home if it were against the company's policy.
Number 609
REP. PHILLIPS withdrew her motion to move the amendment.
She said she would discuss her amendment with the bill's
sponsor. She asked that Ms. Horetski work on the amendment.
Number 615
CHAIRMAN PORTER commented that it was his impression that if
he were an employer, and provided housing for his employees,
whether on the work site or not, he could set rules for
behavior in the housing.
Number 629
REP. KOTT asked Mr. Rickey if he knew of specific cases that
demonstrated the need for HB 62.
Number 640
MR. RICKEY noted that several cases had received national
television coverage. He called the members' attention to an
editorial in their packets which cited a New York Times
report of 6,000 companies which refused to hire smokers.
Number 645
REP. KOTT asked if there was a problem in Alaska that
merited passage of HB 62.
Number 654
MR. RICKEY replied that HB 62 was prophylactic in nature,
intended to prevent problems in other areas of the nation
from appearing in Alaska.
TAPE 93-29, SIDE A
Number 003
CHAIRMAN PORTER announced that HB 62 would be held to a time
uncertain.
HB 181 - APPEALS IN CRIMINAL CASES
CHAIRMAN PORTER stated that HB 181 was the next item of
business before the committee.
Number 020
MARGOT KNUTH, ASSISTANT ATTORNEY GENERAL, stated that HB 181
would allow the state the same right to appeal from adverse
decisions in criminal cases that the federal government had.
She said that this right would stop at the point of double
jeopardy. She noted that if a criminal defendant was
acquitted, that was the end of the case.
Number 030
MS. KNUTH said, currently, the state was allowed to obtain
review from the Court of Appeals on adverse evidentiary
rulings by filing a "petition for review." She noted that
80 to 90 percent of those petitions were granted. She said
the current procedure was two-fold and inefficient. She
commented that HB 181 would allow the state to "appeal"
those evidentiary rulings. She noted that only about twelve
petitions for review were filed statewide per year.
MS. KNUTH said the state wanted to be able to use the same
procedure that defendants used when they were on the losing
end of similar rulings. She noted that HB 181 was more of
a cost-saving measure than a substantial change in policy
for the state.
Number 107
REP. PHILLIPS asked if other states had laws similar to
HB 181.
Number 111
MS. KNUTH replied that she had not researched the laws of
other states, but some states probably have laws which
restricted the state's right to appeal beyond the
requirements of the federal constitution.
Number 121
REP. DAVIDSON asked Ms. Knuth if she had said that HB 181
would only impact about twelve cases per year.
Number 125
MS. KNUTH indicated that Rep. Davidson was correct. She
said the workload of those twelve cases constituted half of
one appellate attorney's workload in a year.
Number 145
REP. DAVIDSON commented that it seemed as if HB 181 was
allowing the state the same opportunities that an individual
defendant had. He said he liked the idea of giving an
individual some advantage over the resources of the state.
Number 161
CHAIRMAN PORTER noted that HB 181 did not change the burden
of proof, nor any of the other "heavy-duty" requirements
that the state had in a criminal case. He commented that HB
181 would give the state the same privilege that defendants
have. He stated that defendants have 30 days from the date
of a decision in which to file an appeal. However, under
existing law, the state only has ten days. Additionally, he
said, the state has several other hoops to jump through.
Number 161
REP. DAVIDSON asked if it was possible for the state to
receive an extension of the ten-day limit.
Number 195
MS. KNUTH responded that a defendant's appeal could be
accomplished with one sheet of paper which stated an
individual's intention to broach certain issues. However,
she said, the state's petition for review required an entire
analysis of the issues.
MS. KNUTH noted that either side could file a petition for
review in the middle of a criminal trial. But, she said,
HB 181 would not affect those mid-trial petitions. She
noted that the bill would affect evidentiary rulings which
resulted in the dismissal of a case.
MS. KNUTH said HB 181 would change the amount of energy
required to get certain issues addressed by the appellate
courts.
Number 255
REP. DAVIDSON said he was not convinced that hurried justice
was fair justice. He said he was not certain that HB 181
was necessary.
Number 266
REP. NORDLUND asked Ms. Knuth to comment on the twelve
rulings regarding which petitions for review were filed in
1992.
MS. KNUTH replied that ten petitions for review were filed,
eight of which were granted, and two of which were denied.
Two of the rulings were not petitioned.
Number 286
REP. NORDLUND asked why HB 181 did not result in a fiscal
impact to the state.
MS. KNUTH explained that the person who prepared the fiscal
note probably addressed the issue of whether or not the bill
would result in more appeals. Because it would not result
in more appeals, the preparer of the fiscal note probably
assumed that it would not have a fiscal impact, she said.
She stated that the fiscal note did not take into
consideration the increased efficiency HB 181 would provide.
Number 324
CHAIRMAN PORTER called the members' attention to a
memorandum in their packets from CYNTHIA HORA of the
DEPARTMENT OF LAW. He said the memorandum indicated that HB
181 would result in a smoother, more timely process for
petitioning. He said he was under the impression that the
Department of Law sometimes did not file petitions, simply
due to a lack of time. However, with HB 181, time would be
saved, and therefore more cases could be appealed. That
circumstance would probably result in a change in the type
of work to be performed, but with a zero fiscal impact to
the state.
Number 345
MS. HORETSKI commented that HB 181 was identical to the
previous year's HB 303, which unanimously passed the House
before dying in the Senate Rules Committee. She noted that
up until a 1983 Alaska Supreme Court decision, the language
of Alaska's law was interpreted to be the same as federal
law on that issue. Now, Alaska's law was interpreted to be
more narrow.
Number 373
REP. DAVIDSON asked Ms. Knuth how a decision was made
regarding whether or not an appeal violated double jeopardy
principles.
Number 379
MS. KNUTH responded that judges made that decision through
the adversarial process.
Number 404
CHAIRMAN PORTER stated that varying states said that double
jeopardy attached at varying points. He noted that HB 181
would only apply to those motions that occurred prior to a
trial or dismissal.
Number 418
MS. KNUTH gave an example of a man who had been stopped for
a traffic violation and threw bags of cocaine out the window
of his car. In that case, she said, the judge suppressed
the evidence because he ruled that the traffic stop was
illegal. The state wanted to appeal that ruling, she noted,
because without that evidence the state had no case against
the man. She said that a petition for review was now the
state's way of asking the court to review its ruling. If HB
181 were to be enacted, she said, the state could file an
appeal on the dismissal of the case that followed that
ruling.
Number 448
REP. DAVIDSON commented that Ms. Knuth's example showed a
clear need for HB 181. He asked her to provide an example
in which the need was less clear, in which an individual
lost a certain advantage over the state.
Number 455
MS. KNUTH cited an example of a presumptive sentencing
situation in which it was questioned whether a defendant's
prior convictions should be taken into account. If the
court ruled that the prior convictions should not be
considered, the defendant would not receive a presumptive
sentence. A petition for review by the state might or might
not be granted, she said. If, however, the state had the
right to appeal a ruling, the state would definitely be able
to address that issue with the Court of Appeals.
Number 482
CHAIRMAN PORTER noted that HB 181 did not tamper with the
state's requirement to prove its case beyond a reasonable
doubt. He said he saw the bill as a means to save the state
time.
Number 495
REP. DAVIDSON commented that the committee had only heard
one side of the issue. He said he would like to hear from
the Public Defender Agency and criminal attorneys.
Number 504
CHAIRMAN PORTER noted that the Public Defender Agency and
the Office of Public Advocacy had been notified that HB 181
was before the committee and had elected not to testify.
Number 511
REP. PHILLIPS made a motion to pass HB 181 out of committee
with individual recommendations and a zero fiscal note.
REP. DAVIDSON objected.
CHAIRMAN PORTER called for a roll call vote.
Representatives Phillips, Green, Kott, Nordlund, James, and
Porter voted "yea." Representative Davidson voted "nay."
And so, the motion carried.
CHAIRMAN PORTER noted that the committee would reschedule
HB 62 and HB 147 as soon as possible.
Number 532
REP. JAMES asked if the Legislative Affairs Legal Services
Division had reviewed HB 147 for compliance with federal
civil rights laws.
Number 537
MS. HORETSKI responded that she was unaware of any legal
analysis of HB 147.
Number 540
REP. JAMES requested that a legal analysis be performed.
CHAIRMAN PORTER adjourned the meeting at 3:01 p.m.
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