Legislature(1997 - 1998)
03/24/1998 08:08 AM House STA
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE STATE AFFAIRS STANDING COMMITTEE
March 24, 1998
8:08 a.m.
MEMBERS PRESENT
Representative Jeannette James, Chair
Representative Ivan Ivan, Vice Chairman
Representative Ethan Berkowitz
Representative Joe Ryan
Representative Kim Elton
MEMBERS ABSENT
Representative Mark Hodgins
Representative Al Vezey
COMMITTEE CALENDAR
HOUSE BILL 468
"An Act relating to damages awarded in complaints before the State
Commission for Human Rights."
- HEARD AND HELD
(* First public hearing)
PREVIOUS ACTION
BILL: HB 468
SHORT TITLE: DAMAGE AWARDS HUMAN RIGHTS COMMISSION
SPONSOR(S): RULES
Jrn-Date Jrn-Page Action
3/09/98 2565 (H) READ THE FIRST TIME - REFERRAL(S)
3/09/98 2565 (H) STATE AFFAIRS
3/19/98 (H) STA AT 8:00 AM CAPITOL 102
3/19/98 (H) MINUTE(STA)
3/21/98 (H) STA AT 10:00 AM CAPITOL 102
3/21/98 (H) MINUTE(STA)
3/24/98 (H) STA AT 8:00 AM CAPITOL 102
WITNESS REGISTER
JIM CHASE, Commissioner
State Commission for Human Rights
Office of the Governor
13351 Gimple Circle
Anchorage, Alaska 99516
Telephone: (907) 428-6854
POSITION STATEMENT: Testified in opposition to HB 468
and answered questions.
REPRESENTATIVE FRED DYSON
Alaska State Legislature
Capitol Building, Room 428
Juneau, Alaska 99801
Telephone: (907) 465-2199
POSITION STATEMENT: Provided information on HB 468.
PAULA HALEY, Director
State Commission for Human Rights
Office of the Governor
800 A Street, Suite 204
Anchorage, Alaska 99501
Telephone: (907) 276-7474
POSITION STATEMENT: Provided information and answered questions
on HB 468.
FRANK ROSE, President
Alaska Lodging Management
P.O. Box 72478
Fairbanks, Alaska 99707
Telephone: (907) 474-8555
POSITION STATEMENT: Testified on HB 468.
CATHY SCHULTZ, Genal Manager
Sophie Station Hotel
1717 University Avenue
Fairbanks, Alaska 99707
Telephone: (907) 479-3650
POSITION STATEMENT: Testified on HB 468.
KAREN ROGINE, Executive Director
Alaska Hotel and Motel Association
7001 East Tree Court
Anchorage, Alaska 99516
Telephone: (907) 346=3738
POSITION STATEMENT: Testified on HB 468.
ACTION NARRATIVE
TAPE 98-41, SIDE A
Number 0001
CHAIR JEANNETTE JAMES called the House State Affairs Standing
Committee meeting to order at 8:08 a.m. Members present at the
call to order were Representatives James, Ivan, Berkowitz, and
Elton. Representative Ryan arrived at 8:11 a.m.
HB 468 - DAMAGE AWARDS HUMAN RIGHTS COMMISSION
CHAIR JAMES announced HB 468, "An Act relating to damages awarded
in complaints before the State Commission for Human Rights," is
before the committee.
Number 0006
JIM CHASE, Commissioner, State Commission for Human Rights, Office
of the Governor, testified via teleconference in opposition of HB
468. He said he was a member of the commission from 1979 until
1988, and then he left the state for five years. Mr. Chase noted
he is serving as the commissioner to the commission again.
MR. CHASE said he is concerned about HB 468 because he doesn't
think it's going to do anyone any good. He stated he believes the
business people who are trying to push this bill have not examined
the consequences of it. He does not believe that what they wish to
have happen will happen with this bill.
MR. CHASE said it takes up a lot of our time to try and correct
after the fact. So what he is trying to do is to provide
additional information so the members might reconsider this bill in
the long run. He pointed out the area that he is concerned about
is the fact that the people who are pushing this bill believe that
it will give them some relief from claims from a respondent - that
is from complainants who think they have been wronged. The problem
is that these complainants are not just citizens of the state of
Alaska. They're citizens of the United States of America. And
though we may be affecting a state law, they still have the
coverage from the federal law. We as a state agency, are in
partnership with the federal agency, the EEOC, (Equal Employment
Opportunity Commission). They review our law and they say, "Okay,
Alaska, if your law is culpable to the law of the nation, then we
will allow you to take cases for us so that we can put justice as
close to the people as possible." In doing this, they hold the
right to review our work and to make sure that we are in concert
with the federal law.
Number 0033
MR. CHASE explained that, if HB 468 is put into our law, EEOC for
one thing is going to say, "You're not in concert with the federal
law, therefore, you cannot work for us any longer, you cannot
represent us." The word will get out and people who complained
will have the right to and will go directly to the EEOC. What this
does for the business community, or possible respondents, is to
lengthen everything. It lengthens the distance between the
investigator and their place of business, it lengthens the time
between contacts and it also lengthens the possible (indisc.) that
would come forth should the complaint be found with merit.
MR. CHASE stressed his concern is that we're not getting our intent
satisfied by this bill. He suggested we ought to take another look
at it from that point of view to examine exactly what we are doing
by limiting the state in doing its job which has been sort of
mandated by the federal government in the first place.
Number 0049
CHAIR JAMES noted, since her last conversation with Mr. Chase, that
she has been mulling this over to see what's wrong with this system
which is causing distress on both sides of the issue. She
indicated part of the problem that we have is, if a person lays off
or fires an employee, let's assume they had good reason, that if
that person that was fired happens to meet the criteria of a legal
discrimination, then the chances are, she believes at least 50-50,
that that person will file a claim with the Human Rights Commission
only because they qualify by their status - not necessarily because
of the way that they were discharged. She mentioned her personal
experience along that line, proves that out. However, in common
law, intent is supposed to determine - or is used to determine
guilt. Chair James asked, in the particular cases of human rights
violations, intent is never used, is it.
MR. CHASE replied that comes along with the investigation. It
cannot be determined right off the bat when the complainant is
coming in to make the complaint. The issue is, was the person
harmed. And to the complainant, it doesn't matter whether they
were intended to be harmed or whether it was unintentional - were
they harmed.
Number 0069
CHAIR JAMES asked whose fault was it that they were harmed. Was it
their work ability, or themselves as an employee, or was it because
they were intentionally disregarded because of who they were?
MR. CHASE responded what the commission does is they handle them by
case by case basis. He said he can't make a generalization like
that.
CHAIR JAMES stated she knew he couldn't, she just wanted him to
hear that concern from the other side because that seems to be the
complaint that she hears on the street and in talking to people in
her 30 years of consulting small businesses. Chair James indicated
the net result in that many times is, keeping on a person who is
not doing the job well, because of the fear of retribution if for
any reason they dispose of them, that's the serious side of this
issue. She mentioned this has nothing to do with this specific
piece of legislation, but she thought this was just a good
opportunity to put that on the record.
Number 0080
MR. CHASE remarked that if a person is not doing their job well,
and the manager says you are not performing well - and using their
own personnel rules takes that action to either suspend, layoff, or
fire the person, that's not discrimination. That is not illegal
discrimination. The investigator would initially look for
substantial evidence of discrimination, if that claim cannot be
initially made then the case is not even accepted.
CHAIR JAMES said, "I understand. And so the proof is in the
pudding, it's what do you have in your files. Over the 30 years,
I have done business for a lot of very small businesses and have
very little files and there in lies the problem I think."
Number 0090
REPRESENTATIVE KIM ELTON pointed out one of the concerns that has
been expressed to the State Affairs Committee several times is the
amount of back wages that employers are potentially liable for. He
said he would be interested in Mr. Chase addressing that issue and
what the average award has been. He said he believes, in previous
testimony, that the average award was in the neighborhood of
$4,000. Representative Elton asked Mr. Chase if he could tell us
if somebody has actually been awarded back wages in the
neighborhood of $20,000 or $30,000.
MR. CHASE replied that's correct. The average back pay award the
Alaska state commission has found necessary to issue was $4,713.
He further explained, "Now, here again, we're the hometown
commission, if you want to say so. We work in a much more informal
situation than with the more distant EEOC. And I'm not sure
whether it's because of a distance or because of a specific case,
but their average - and they're working of course across the
nation, and their average is much higher than ours. Their average
is $21,439 which is considerably different than what the state has
ever ever reached. So I think that what we have as law, is more
stringent right now than what the 'feds.' have. That's why we were
able to become what we call a '706 agency' so readily. On the tope
of that, we have another 706 agency here in Anchorage which is
under our umbrella. We have been trying over the years to get the
legislative bodies in the other population centers of Juneau and
Fairbanks to have agencies which could qualify to be 706 agencies
and do the like kind of work and get just as closer to both the
complainant and the respondent. We have not yet been successful in
doing that though."
Number 0115
REPRESENTATIVE IVAN IVAN said he thought this bill was trying to
help the commission deal with its current caseload and backlog and
some limitations, such as the 90-day limitation after the complaint
was filed, and the back wages interest ringing up. He asked Mr.
Chase to again summarize why he doesn't support HB 468.
MR. CHASE replied the only way they could say that this bill would
help the commission do its job is with the accompanying fiscal
note. He said, "We believe this fiscal note is very unreasonable.
But it is the truth, it would take a whole lot of dollars to meet
the 90-day cap and do what the law requires them to do which is to
bring justice to a situation. It's an impossible situation, we
cannot get there and satisfy the intent of Alaska Statute. That's
why I say this fiscal note has an unreasonable expectation, we're
not going to get it and we know that. But it is the truth, that's
the closest thing we can get to saying how we can do the entire
law. You see, my problem is that this statute change would require
us to put on blinders and say, 'Okay, we're just going to look at
90 days and nothing more.' If we can't get it done in 90 days then
we'll forget about it because we can't do justice to either side.
A lot of times people believe that the Alaska State Commission for
Human Rights is an advocacy agency. We are not. We are a
judicatory agency, we are here to make sure that there's equality
on both sides. We're not pulling for the respondent any more than
we're pulling for the complainant."
Number 0140
REPRESENTATIVE ETHAN BERKOWITZ said he wanted to refresh his memory
on some of the numbers we've heard. He asked Mr. Chase if he
declined to pursue 90 percent of the cases that come his way - of
the 5,000 calls you had last year, you generated approximately 500
cases.
MR. CHASE replied, "Yes, but I wouldn't say that each one of those
calls was a potential case. It was clarification - what is the
law, what are my rights? We could call some potential respondent
as well as complainants. We answer their questions, anybody is not
as knowledgeable about the state law as we who work with it all the
time. So, I don't like to give you a percentage that I can't
attest to as being true."
REPRESENTATIVE BERKOWITZ asked, but after that initial screening,
then of the 500 cases you've taken, how many result in the awards
to the plaintiff?
MR. CHASE responded he can provide that later because he doesn't
have that number.
Number 0152
REPRESENTATIVE BERKOWITZ asked Mr. Chase to explain what the duty
to mitigate is for an employee who pursues an employment action and
why that would have an impact on a damage award.
MR. CHASE said he thinks he understands his question as being what
is the responsibility of the complainant party. It should attempt
to keep the damages as low as possible - and asked Representative
Berkowitz is that what you're saying.
REPRESENTATIVE BERKOWITZ said he believes that the (indisc. -
rustling of paper) of art is the duty to mitigate. They have a
responsibility to keep damages low, that means they have a
responsibility to get other employment.
MR. CHASE acknowledged, yes, that's built into our law and they
follow that very strictly.
Number 0160
REPRESENTATIVE BERKOWITZ asked, and if somebody has an opportunity
to pursue other employment, but doesn't, that failure on the
complainant's part will be reflected in the damage award.
MR. CHASE replied definitely. The commission puts a cap on at the
time that they think that they should have made a reasonable effort
and had the opportunity. He noted they do not like to be used.
REPRESENTATIVE BERKOWITZ said, so that means essentially, I can't
get canned for discriminatory reason and go out and celebrate until
you hand out an award.
MR. CHASE responded definitely not.
CHAIR JAMES announced for the record that Representatives Joe Ryan
is replacing Representative Dyson. However, Representative Dyson
is here because he has an interest in this piece of legislation.
Number 0173
CHAIR JAMES asked, what if - instead 90 days, we had 180 days.
That's six months.
MR. CHASE replied, "That still puts a cap - we would have to change
the fiscal note of course. But it still wouldn't be reasonable to
(indisc.) fiscal note."
CHAIR JAMES asked how much more additional funds did the commission
get last year to reduce the backlog by 24 percent.
MR. CHASE said they got two fully qualified investigators.
CHAIR JAMES asked if it's safe to assume that if two investigators,
over a year, reduced the backlog by 24 percent could it be said
then that this next year another 24 percent will be lobbed off.
MR. CHASE replied, "The problem with people in mass -- they don't
work together like that. We were just happy to be able to report
the fact. I could not extrapolate that into the future because
cases have densities, if you can understand that term. They're all
different. So, our reporting is historical basically in nature -
we do have (indisc.) for good business practices - some way to go
forward and say, based upon this history, how well we think we're
going to do in the future. But, I wouldn't want to hang my hat on
that."
Number 0188
CHAIR JAMES asked what is the average length of time per case, the
actual time that was spent on the case.
MR. CHASE replied the actual time spent on a case is an ambiguous
thing as we discussed. If an investigator gets a case on the first
of April, one of the things that investigator has to do is gather
information, one of the ways to gather information would be to put
together an interrogatory to send to the respondent to find out
what are the facts on their side. They put out this interrogatory
and then they say, "Okay, you have 30 days, respondent, to answer
this." He said this is a reasonable time to expect for the biggest
business to the smallest business to be able to get information
together. If we're working in isolation, what is that investigator
now doing on that case. You can say, well, they're waiting.
They're not really waiting, they need to be doing other things like
gathering witnesses, finding witnesses that the complainant has put
together. But that doesn't take that whole 30 days, so they're
doing something with some other case. They don't have a credit --
that initial case, with time used, unless we stop the clock every
time the investigator is not doing something on that case.
Number 0202
CHAIR JAMES said she understood his rational response. She stated,
"We've heard testimony from you that you hold the cases, and other
new cases - and this is a quote from a letter, 'that the inventory
of cases has grown at a disproportionate rate to the number of
investigators available, and to manage our inventory, withhold this
case and other new cases in a suspense cabinet, we'll assign held
cases in order of receipt as investigator's caseload allows."
Chair James asked Mr. Chase if he knows what the time frame is for
the holding in the cabinet while you're waiting for staff to
address it. She indicated the committee was told the average
length of time for a case is now approximately 11 months.
MR. CHASE replied he doesn't remember saying that, but the time of
wait is between nine months to a year.
CHAIR JAMES noted someone else from the commission that gave us
that information. She asked about how much of that 11 months, that
these cases are in the cabinet.
MR. CHASE remarked that they're in the cabinet nine months to a
year before they can be assigned to an investigator. He asked if
that's what she is asking.
CHAIR JAMES replied yes, she wanted to know long it sits there with
nothing being done on it.
Number 0216
MR. CHASE said he thinks he's answered that, from nine months to a
year. He explained the problem is, of the caseload of their
investigators is between 40 and 50 cases, and that's about all they
can humanly expect them to handle. Mr. Chase said they don't
assign them another 30 just to get them out of the cabinet, it's
not realistic. So, as these investigators finalize a case and get
it off their desk, then they are assigned additional cases out of
the cabinet. He further explained, "And I can tell you now, that
the average wait in the cabinet is maybe up to a year."
Number 0223
REPRESENTATIVE FRED DYSON, Alaska State Legislature, responded to
Chair James' question. He first noted that he served on the Human
Rights Commission until December 1997. Representative Dyson said
the caseload tracks a couple of things, the filings, because of
discriminatory employment often have to do quite a bit with what's
going on with the economy. It was a big bump in it with the
downturn of the economy in the late 80's. And then the American
Disabilities Act also produced a significant bump in the number of
filings.
REPRESENTATIVE DYSON pointed out during the last year he was on the
commission, they did something fairly radical - one of the first
three states in the nation to do it, and that was a decision to use
exercise and triage on the complaints and classify them by how
reasonable it seemed that there would be a case that could be taken
through to a hearing. He noted that has helped in working down the
backlog.
REPRESENTATIVE DYSON said he also believes the legislature pushed
through legislation last year that changed the law because it had
said that the hearings had to take place where the offense was. If
the offense had taken place in the summer in a canary, in a remote
location, both employee that filed and the employer weren't on that
location during the rest of the year. We changed the law so that
the hearing could take place where it was most convenient for the
folks and that saved quite a bit of money and time. The commission
also made a huge effort to automate more of the functions there.
Several of those things have combined to bring down the backlog -
the 24 percent.
Number 0242
REPRESENTATIVE DYSON concluded that by just adding more staff
wouldn't necessarily - because we did some things that brought down
the backlog, there were several of them, like the hearing location
triage and the computerization were one-time benefits. So it's not
logically necessarily to assume that they'll get another 24 percent
reduction in the backlog next year because some of those were one-
time events. He noted the Human Rights Commission cannot control
the front door, people coming in and filing complaints are beyond
their control. The commission can only respond to them and try to
respond to them efficiently.
CHAIR JAMES asked Mr. Chase if he is still doing the same triage
that Representative Dyson mentioned.
MR. CHASE replied that he wasn't on the scene when that happened,
he doesn't know the details of that.
Number 0253
CHAIR JAMES asked again, are you currently doing triage to classify
the cases as they come in as to different levels of potential
cases.
MR. CHASE responded they do their normal intake to determine
whether the complainant has standing, whether there is
jurisdiction, whether it's covered by our law. If that's triage,
then yes, that's the standard operating procedure.
Number 0258
CHAIR JAMES stated, "I don't think that's exactly what we were
intending it to mean. ... Representative Dyson, how much of the 24
percent reduction was the result of triage because I would think
that the change in the law is a different issue and is a continuing
advantage, and the two full-time people is a continuing advantage.
It appears to me, if we're catching up with two extra people - my
own sense would say, unless we have a rash of new cases, that some
time you'll be caught up. Eventually you'll be caught up and then
maybe you don't need but maybe one of them after that. And so
that's my concern."
REPRESENTATIVE DYSON said his point was that the catching up had to
do also with more computerized records and some more intensive
screening on the front end - which he was calling triage, and some
streamlining having to do with the possibility of not having the
hearings in the place of the offense. So, another year, we can get
an idea of what part of the catching up had to do with the
additional staff and what part of it had to do with those one-time
things. He said Ms. Haley is probably more qualified to answer
that question.
Number 0274
PAULA HALEY, Director, State Commission for Human Rights, Office of
the Governor, responded to Representative Dyson's statement. She
said she thinks the exact reasons we saw a 24 percent decrease in
the backlog last year is hard to pinpoint because the commission
did so many things. They changed some of their internal procedures
to streamline -- Representative Dyson correctly points out that
there was a statutory change that they are just seeing the savings
from now.
MS. HALEY stated, "We had a regulatory change to provide fewer days
for potential complainants to file and so we're seeing filings
beginning to go down, which we expect to help us catch up. And we
had two additional staff people who came in around August and we're
starting to see some productivity from them. So it's very hard for
me to say, if we had 24 percent, which pieces caused that. I think
he is correct, Madam Chairman and committee members, in saying that
it's probably too early to tell what the full impact of all of
those fixes is because we haven't had even a full year to watch
them. And for example, the regulatory change is not fully
effective until June because we couldn't make it retroactive so it
had to be phased in. And as of June we'll start to see that nobody
will be able to file a case unless it's within 180 days. We expect
that will have a significant reduction in our filings."
Number 0285
CHAIR JAMES said the 180-day limit isn't on getting the case
settled. If we changed from 90 to 180-limit that is the most back
pay you could get.
MS. HALEY remarked that she was referring to the changes that they
made as a commission to try to handle their back log (indisc. -
noise) included reducing the amount of time that a person has to
come to them in the first place. It used to be 300 days, the
commission decided that they could decide themselves within six
months whether or not they wanted to use the alternative forum of
the administrative process. If they can to go to court, they have
a full two years.
CHAIR JAMES asked if you didn't have any cases in the cabinet, just
at the current rate of filing, what is an average length of time,
from the beginning to the end of a case?
Number 0294
MS. HALEY explained, "If we had nothing in the cabinet, and
assuming that we had say 450 to 500 cases filed per year, which is
what we're seeing now, and we were all caught up and we had at
least the current staff, maybe two additional staff for
investigations, we should be able to complete the investigative
stage, which is just the first piece, in 300 days, and that I can
only conclude from looking at the days when we were caught up.
That would be the average time."
MS. HALEY stated, "But it is the second piece that is much more
difficult to address. And I apologize that I don't have numbers
for you yet, but our data system is basically made up of surplus
computers and an old DisplayWrite and we're trying to upgrade but
it costs us money which we don't have, and so we're having trouble
getting all the data. But it's the second phase which is hard to
pinpoint because that's the phase for going to hearing, that's the
phase that involves not only our presenting the case at public
hearing but the respondents often hiring attorneys, making requests
for continuances so they can have more time, and that's the piece
I don't have."
MS. HALEY continued. "We always look at our process as two parts,
the investigation, in which many of the cases will fall out, about
62 percent of the cases will fall out as 'no substantial evidence
of discrimination,' and others will fall out for settlements and
withdrawals. And it's probably a fairly small percentage, say 10
to 15 percent at the most that we would ever take forward for a
substantial evidence finding or onto hearing. So that's the piece
of the process, I'm having trouble getting numbers for."
Number 308
CHAIR JAMES said she is frustrated in trying to understand exactly
how this process is working and finds it very difficult to believe
that it would take 300 days to do an investigation, it just seems
like a long time.
REPRESENTATIVE BERKOWITZ said let me explore the alternatives to
pursuing a case to the Human Rights Commission. He said someone
could go to court, is that right, federal or state.
MS. HALEY replied yes, many people choose to go to court. She said
she believes the vast majority right now are using their agency,
the Human Rights Commission.
REPRESENTATIVE BERKOWITZ asked, they choose to use your agency for
which reasons.
Number 0316
MS. HALEY said she thinks there are any number of reasons. One of
the reasons is it's a less formal forum, it's a place where they
can often resolve their situations without going into court and
making a big public stink about it. It's a confidential process
for everybody unless and until we find discrimination. For some,
certainly, it's a cost factor, but they are finding more private
attorneys willing to take cases into court. She said she thinks
that with the federal laws, which allow for punitive and
compensatory damages, and attorney fee awards, they're going to see
the possibility, particularly if they have a 90-day cap that more
of these people would go into court than come to them.
REPRESENTATIVE BERKOWITZ asked, "Assuming you put a 90-day cap on,
and someone's awarded, or entitled to damages in excess of 90 days
in court, would you think it likely that people whose damages have
been limited by this proposal would pursue an action in court?"
Number 0323
MS. HALEY replied, "I think they would go to court, and even more
importantly the EEOC has told us that, if they did not terminate
their contract - which is very possible, they would look at all of
those cases where we found substantial evidence of discrimination,
and they would value the case to include punitive and compensatory
damages."
MS. HALEY further explained, so where an employer now comes before
the Human Rights Commission, if they find substantial evidence of
discrimination, for example the case where it was a $2,400 back pay
award, the EEOC might add punitive damages or any special damages
to that award. Where they don't look over the Human Rights
Commission's shoulders now, she said they have told her in writing
that they will look over her shoulder in the future if this 90-day
cap occurs.
REPRESENTATIVE BERKOWITZ said would it be fair to say that passage
of this bill would expose defendants to greater potential liability
than they currently face under the current circumstances.
MS. HALEY responded that she thinks that is absolutely true, not
only because of the federal agency, but as was mentioned before,
people will choose to go to court.
Number 0337
FRANK ROSE, President, Alaska Lodging Management, testified via
teleconference on HB 468. He said, "The first thing that I'd like
to point out is that I certainly see the need for the role and
function that the Human Rights Commission play, I think we've all,
if we've been around any length of time, have seen some employers
that have done some things that probably they shouldn't have done
and deserve to be held to task for some of those things. However,
the issue at hand today, I think is a little simpler than looking
at the case load of the Human Rights Commission and dealing with
that. We're not looking for relief from the complainant, as was
previously mentioned, and we're not dealing with trying to get rid
of the back log, though that would be a wonderful thing to try to
accomplish. We're not limiting the state in trying to do its job,
and we're certainly not trying to put blinders, or limit penalties,
other than the one issue that's at hand here today which is the
limitation of a liability on back wages that might be paid to a
complainant. And that is the issue. And Representative James, I
think you stated it very clearly that that does not mean that other
penalties might not be accessed."
MR. ROSE continued. "Our point is, I believe that 90 days is
adequate time for the complainant to go out and find another job,
and that to me seems like a reasonable amount of time that the
employer should be held liable for back wages that might be paid.
Again, that seems to be the issue here. It would be great to be
able to solve the back log of the Human Rights Commission, but I'm
not sure that's what this particular bill is meant to do. Again,
the issue is one of back wages and trying to limit the liability
from that perspective in thinking that that's ample time for an
employee to go out and find another position."
Number 0353
REPRESENTATIVE BERKOWITZ said, if I understand you correctly,
you're saying that the 90-day provision is really an incentive for
the complainant to go get a new job.
MR. ROSE replied that's correct, and a limitation on the part of
the employer to be responsible for anything past that.
REPRESENTATIVE BERKOWITZ asked Mr. Rose if he understood the duty
to mitigate that's currently part of statute.
MR. ROSE replied he does. He said the problem is that there are no
guarantees and indicated that he feels that the employer some times
is forced to settle a case because of the potential liability out
there - even though the employer can be told that the employee, or
the former employee has the duty to go out and find additional
employment. Mr. Rose said the threat is still there, the
possibility of tremendous back wage settlement is still there. The
determination of whether or not that employee has done a good job
in going out and trying to find new employment is not up to the
employer, it's up to the Human Rights Commission.
Number 0362
REPRESENTATIVE BERKOWITZ asked if he knows of any instances where
wages in the amount of tens of thousands of dollars, not could
accrue, but did accrue.
MR. ROSE responded wages would have accrued, as to whether or not
they were paid, he said he doesn't know. Mr. Rose pointed out that
these examples were given to me by other hoteliers. He said, "I
can also tell you though, that from my own personal experience, the
case that I was involved in and that I ended up settling, the
reason that I settled was directly related to the concern and the
potential liability associated with back wages."
REPRESENTATIVE BERKOWITZ asked what is the amount that you settled
for.
MR. ROSE replied that's the case that Ms. Haley was referring to.
He said he believes they ended up settling for twenty-four, twenty-
five hundred dollars.
Number 0370
CATHY SCHULTZ, General Manager, Sophie Station Hotel, testified via
teleconference on HB 468. She said, "I'd like to reiterate and
echo and number of things Mr. Rose mentioned this morning. First
of all, when we started to consider bringing this issue to your
attention a couple years ago, one of our primary concerns was that
it would not be implied or misunderstood as a statement against the
commission in how they handled the case loads and how they worked.
I want to compliment them on their ability to thoroughly
investigate circumstances."
MS. SCHULTZ stated, "What we want to look at, separate from how an
office, which is very subject to public whim and public
circumstance - their case load increases and decreases as a matter
of circumstance beyond their control, we as employers, don't want
to be held a part of that increase or decrease in case load. We
simply ask for - not that the penalty phase be removed, not that
employers seek a relief from a penalty. We're very concerned that
employers who wrongfully terminate individuals are taken to task
and feel a penalty for that. But the penalty should be defined in
such a way that is fair and reasonable - that it benefits the
injured party and still injures the offending employer."
MS. SCHULTZ continued, "We're simply looking for a definition to
the limit of penalty, we're not looking for changing how quickly
the employee applies for relief, we're not looking for changing how
quickly the employer responds to inquires from the commission. You
might start the penalty phase from date of termination which would
give it a clear starting phase. So, just to be very clear and to
reiterate, we don't feel that we're in a position to pass judgement
or draw assumptions about the case load or the work quality of the
commission. We simply want to not be held responsible as case
loads increase and decrease. We carry the burden of a liability
because there is no ending point to the liability that might be
imposed or suggested."
Number 0396
KAREN ROGINE, Executive Director, Alaska Hotel and Motel
Association, testified via teleconference on HB 468. She said, "I
think, building on the testimony of Mr. Rose and Ms. Schultz in
Fairbanks, I think the difficulty that we're having here is that we
have married the concept of employee compensation and case
resolution. And we see the issues of compensation and case
resolution really to be mutually exclusive. Our goal with this
bill is to answer the question of what is a reasonable amount of
time to expect someone to obtain a job of comparable status and
compensation. And if you look to job recruiters and placement
firms across the country, they have rock solid statistics of how
long it..."
TAPE 98-41, SIDE B
Number 001
MS. ROGINE continued, "...to aggressively seek this kind of
employment. And we also heard today that - definitely this isn't
a celebratory thing that experience shows that people do go out and
pursue employment, however, we've all hired people that were trying
to allegedly seek employment and they're clearly not trying to get
the job in many cases, they're just trying to fill out a form that
says they applied for a job. So, what we need is more teeth - more
of a 'tough love approach,' if you will, to really (indisc. -
coughing) these people to go out and get a job and provide a cap on
the reasonable amount of time that it should take them to
reestablish themselves in the manner that they had once enjoyed."
REPRESENTATIVE BERKOWITZ said he is intrigued with the use of the
term "tough love approach" because he thinks that's what we've got
going here with employers is a tough love approach - is we want
employers to engage in a reasonable type of behavior.
Representative Berkowitz said Ms. Rogine's suggestion essentially
implies that employers who come in with dirty hands - that is
they've violated some provision of an employment statute, somehow
can expect employees to go out and reasonably get a job. He said
he senses somewhat of a disparity between what she is saying the
responsibilities of the employer are as opposed to what the
responsibilities of the employee are.
Number 0015
MS. ROGINE replied, "I think the employer is still responsible for
their actions because what we're saying is that, if it takes longer
to address this case, and if it takes longer to investigate the
case, that that should be acceptable and that it should take
longer. But what we're saying is that, if this employee indeed is
a star performer and was wrongfully terminated, or if they have the
qualifications for a promotion and were for whatever reason
wrongfully turned down, that there should be a reasonable amount of
time in which they should get employment just by virtue of their
status of being a star performer or being eligible for a higher
paying - or promotion status. So, this approach really gives
(indisc.) an incentive to somebody that should go out and get a
job. In the meantime, the case should be investigated and everyone
should be granted due process for as long as it takes to determine
if the employer was not following scrupulous employment
activities."
Number 0029
REPRESENTATIVE BERKOWITZ stated, "That's one of my concerns, is
that you put an arbitrary cap on time, and you're violating due
process. It seems, that when you have a duty to mitigate, which
you're able to do - is evaluate each case based on its individual
circumstances, some days 90 days might be appropriate, some days 45
days might be appropriate, but some days a year might be
appropriate. And I think the duty to mitigate covers those
distinctions. And when you put an individual cap on it, you're
putting everyone under the same umbrella. And that to me, doesn't
arrive at necessarily a fair solution to every situation."
MS. ROGINE said, "What we're really going after here though is
divorcing the whole idea of the investigation process with the
compensation process. And that if it takes a year to investigate
and resolve this case then it should take that long and there
should not be a cap on it. The case load of the Human Rights
Commission should be peeled out of this bill so that they can
follow the course of action that they deem necessary to resolve the
case." Ms. Rogine reiterated, but in the mean time, this employee
should seek employment of equal status and compensation. There
should be a reasonable amount of time, backed up by statistics, on
how long it takes a person on an average to get that - 90 days, 180
days. She said, "If you look at the statistics of job placement
and job recruitment, you'll find that that is absolutely,
nationwide, statistically, a very reasonable amount of time for
people of all - the spectrum of compensation to be seeking
comparable employment."
Number 0048
REPRESENTATIVE BERKOWITZ said he agrees that it might well be a
reasonable amount of time and when you have the duty to mitigate,
you can present that evidence and suggest that anyone who has
exceeded that period of time is not entitled to extra benefits.
REPRESENTATIVE BERKOWITZ indicated the concern he has with this
proposed solution is that it's not particularly good for business
because what it does is open businesses, including hotels and
motels, to the exposure that happens when you reduce the Human
Rights Commission to essentially a special master. And once the
determination has been made ... then you go into the court system
where, instead of having final resolution in the Human Rights
Commission, all you have is a finding of essentially guilt or
innocence. And then you go to court, in which case the business is
exposed to potentially punitive and more compensatory damages.
Representative Berkowitz said he understands what seems to be
driving this bill, but thinks it's counterproductive to that end.
Number 0059
CHAIR JAMES stated we have on here a suggestion to extend that to
180 days, she asked Ms. Rogine what her feeling on that.
MS. ROGINE replied that she thinks the 180 days is excessive, in
terms of the reasonable amount of time it takes somebody to obtain
comparable employment, 90 days is statistically, nationwide, more
along the lines.
CHAIR JAMES gave an example. She said what if someone gets
discharged and you had a valid reason for discharging him, and
you've given them all of the warnings and you've done all the
paperwork to establish that, and they still think they have a case.
So, the first thing they have to do then, under this law, would be
to try to find another job. She asked Ms. Rogine to tell her what
happens if they go to another hotel or motel and apply for work, do
you have to put down references, do you have to put down where you
worked before. When they call for the references, what kind of a
reference is that person going to get.
Number 0079
MS. ROGINE replied she thinks that legally references can only be
given to include dates of employment and whether they are eligible
for rehire. If somebody gets another job at another hotel, and
they become a star performer, and they're always on time, everyone
loves them, and they're a team builder, and gets a job of higher
status, that strengthens their case. So it really can only help
the employee to go out and seek the best possible job as quickly as
possible to add credence and momentum to the case that they already
have in place.
CHAIR JAMES asked, if they're not eligible for rehire, do you think
another hotel or motel would hire them.
MS. ROGINE responded that it really depends on the amount of
reference that that person would have and how the employee handles
questions.
CHAIR JAMES remarked in an interview, you're right. She asked what
if we live in a place where there's only two hotels, do you think
there's a chance for that person to get another job.
Number 0099
MS. ROGINE replied, certainly there are lots of different
situations. She pointed out that when they say comparable
employment, it doesn't necessarily mean the exact same job.
Comparable employment of status and compensation can mean many
different kinds of industries and many different kinds of jobs.
CHAIR JAMES said we thought about putting a condition on the 90
days due to extenuating circumstances. If the employer didn't
respond quickly so that there was a stalling of things going on,
and if it's very difficult for the employee to find another job,
would those circumstances be able to extend the time.
MS. ROGINE replied yes. She said she thinks there could be a
provision where they could cite extenuating circumstances and have
a way for them to extend the time.
CHAIR JAMES stated she honestly sympathizes with Ms. Rogine's
issue, however, she is not convinced that this piece of legislation
says that. Chair James said she doesn't think they are ready to go
forward with this bill, she indicated she would take it under
advisement with the sponsor.
ADJOURNMENT
CHAIR JAMES adjourned the House State Affairs Standing Committee at
9:07 a.m.
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