03/01/2005 01:30 PM Senate LABOR & COMMERCE
| Audio | Topic |
|---|---|
| Start | |
| SB105 | |
| SB67 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 105 | TELECONFERENCED | |
| += | SB 67 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
SENATE LABOR AND COMMERCE STANDING COMMITTEE
March 1, 2005
1:33 p.m.
MEMBERS PRESENT
Senator Con Bunde, Chair
Senator Ralph Seekins, Vice Chair
Senator Ben Stevens
Senator Johnny Ellis
MEMBERS ABSENT
Senator Bettye Davis
COMMITTEE CALENDAR
SENATE BILL NO. 105
"An Act relating to the retrospective application and
applicability of the overtime compensation exemption for flight
crew members; and providing for an effective date."
MOVED CSSB 105(L&C) OUT OF COMMITTEE
SENATE BILL NO. 67
"An Act relating to claims for personal injury or wrongful death
against health care providers; and providing for an effective
date."
MOVED SB 67 OUT OF COMMITTEE
PREVIOUS COMMITTEE ACTION
BILL: SB 105
SHORT TITLE: OVERTIME WAGES FOR FLIGHT CREW
SPONSOR(s): SENATOR(s) SEEKINS
02/14/05 (S) READ THE FIRST TIME - REFERRALS
02/14/05 (S) L&C, JUD
02/22/05 (S) L&C AT 1:30 PM BELTZ 211
02/22/05 (S) Heard & Held
02/22/05 (S) MINUTE(L&C)
03/01/05 (S) L&C AT 1:30 PM BELTZ 211
BILL: SB 67
SHORT TITLE: CLAIMS AGAINST HEALTH CARE PROVIDERS
SPONSOR(s): SENATOR(s) SEEKINS
01/21/05 (S) READ THE FIRST TIME - REFERRALS
01/21/05 (S) L&C, JUD
02/08/05 (S) L&C AT 1:30 PM BELTZ 211
02/08/05 (S) Heard & Held
02/08/05 (S) MINUTE(L&C)
03/01/05 (S) L&C AT 1:30 PM BELTZ 211
WITNESS REGISTER
Peter Nosek
Birch, Horton, Bittner and Cherot
Representing Hageland Pilots
Anchorage AK
POSITION STATEMENT: Commented on SB 105.
Grey Mitchell, Director
Labor Standards and Safety
Department of Labor & Workforce
Development
PO Box 21149
Juneau, AK 99802-1149
POSITION STATEMENT: Commented on SB 105.
Tom Daniel, Atty.
Hageland Aviation
Anchorage AK
POSITION STATEMENT: Commented on SB 105.
Donna McCrady
Alaska Academy of Travel Lawyers
Anchorage AK
POSITION STATEMENT: Opposed SB 67.
Pat Luby, Advocacy Director
AARP
Anchorage AK
POSITION STATEMENT: Opposed SB 67.
ACTION NARRATIVE
CHAIR CON BUNDE called the Senate Labor and Commerce Standing
Committee meeting to order at 1:33:33 PM. Senators Ben Stevens,
Seekins, Ellis and Chair Bunde were present.
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.
SB 67-CLAIMS AGAINST HEALTH CARE PROVIDERS
CHAIR BUNDE announced SB 67 to be up for consideration.
SENATOR SEEKINS said there is some concern about whom the bill
covers and that it is intended to cover a broad scope of health
care providers including nurse practitioners, physician
assistants and doctors.
DONNA MCCRADY, Alaska Academy of Travel Lawyers, opposed SB 67,
but she immediately dispelled the idea that this is a case of
lawyers against doctors. She is a consumer of health care and a
citizen in this state and cares about physicians who are working
here. She is against the bill because it is a solution in search
of a problem. The state already has a damage cap of $400,000 for
physical injury and $1 million cap for serious permanent
physical injury or severe disfigurement. She understands the
lower figure has been proposed because of concerns about the low
number of physicians practicing in the state. But, Alaska has
always had a low number of physicians and data shows that it is
increasing.
She has found anecdotally no link between the number of doctors
in the state and the amount of the non-economic damage cap.
However, there is an issue with the lack of a residency program.
Data shows that any problems doctors are having with insurance
premiums have to do with the stock market and nothing to do with
medical malpractice payout.
Particularly in this state, we don't have a crisis in
this state with medical malpractice - in premiums or
with payments or settlements.... Again, we have
damages capped in this state.... Let me explain from a
practical matter...there really aren't that many
lawyers in Alaska practicing in the area of medical
malpractice and the reason why is it's a very
technical area and it's very expensive to bring these
cases.
If you put a cap of $250,000 on non-economic damages,
I can tell you right now that medical malpractice
claims lawyers are not going to be able bring cases on
behalf of children, on behalf of people who are
retired, on behalf of stay-at-home spouses. The reason
why is people who are victims of medical errors or
medical malpractice that fall into those categories -
those are folks whose damages are going to be mainly
non-economic value. Unfortunately the court doesn't
put a lot of economic value on the lives of children,
stay-at-home spouses or retired folks. It just doesn't
and sometimes just the cost - it's not the fees - can
be over $200,000. So, no practitioner is going bring a
case on behalf of somebody in one of those categories
who is a victim of malpractice because they're not
going to be able to afford to do it. It's not going to
make any economic sense. So, you're going to be
cutting out three categories of Alaskan citizens that
I can think of from even having access to the court
system if they were to be victims of malpractice.
Further there is already standards of proof for
bringing malpractice cases, more so than other kinds
of negligence cases. For instance, if I bring a
negligence case, I have to hire experts and just by a
practical matter, I'm going to have hire experts who
are in the Lower 48 in order to bring a case forward.
That can be quite costly.
She was also concerned that she didn't see an exemption for
gross negligence or reckless behavior in the bill.
2:01:38 PM
PAT LUBY, Advocacy Director, AARP, believes that accidents do
happen - even to skilled health professionals. AARP believes the
Legislature should focus on prevention, not on damages.
The tort system encourages providers to cover up
mistakes to avoid lawsuits rather than report errors
and learn how to prevent them.... If someone is hurt
by a medical mistake, they are entitled to some fair
compensation. What is more important is to make sure
errors are reported so that we can learn how to
prevent them in the future. AARP thinks that $250,000
damages would be too low for non-economic damages.
Older people who have limited income potential based
on life expectancy will get less in economic damages
than younger persons who are victims of a similar
error.
The Institute of Medicine (IOM) has proposed testing non-
judicial no-fault alternatives to the tort system for medical
errors. It might foster fair compensation and error reduction
and that should be the real goal of consumer-oriented reform.
Under the IOM approach, compensation would be based on
avoidability of errors rather than negligence. It recommends
preset schedules for compensation with reasonable limits that
may help stabilize malpractice premiums. Providers would be
required to report errors and make prompt compensation payments.
Mandated reporting of errors would help experts in finding
system-wide ways to prevent them in the future. The system would
continually improve patient safety; with fewer errors, the cost
of compensating injured people would eventually decline.
2:03:14 PM
CATHY GIESSEL, Nurse Practitioners' Association, said she had no
further comments.
2:04:00 PM
SENATOR ELLIS moved Amendment 1.
24-LS0393\A.1
Bullock
6/10/05
A M E N D M E N T 1
OFFERED IN THE SENATE BY SENATOR ELLIS
TO: SB 67
Page 3, line 1:
Delete "$250,000"
Insert "$850,000"
Page 3, line 17:
Delete "$250,000"
Insert "$850,000"
CHAIR BUNDE objected for explanation.
SENATOR ELLIS explained when people from other states have used
California as an example of how good a cap works, they have been
laughed out of the building. He changed the amount of the cap to
reflect a reasonable CPI since 1975 in Alaska and in today's
dollars to $850,000. Indiana and Virginia have a current cap of
$1 million; Maryland has an $805,000 cap.
Industry players have said that caps don't help doctors'
premiums go lower. That led him to think, if there was going to
be a cap, that it should reasonable reflect the cost of living
and economic circumstances over the many years. His main concern
was that a lower cap would limit access to counsel for
legitimate cases.
SENATOR SEEKINS asked what the California cap is today.
SENATOR ELLIS didn't know, but if left at the 1975 standard, it
would be woefully out of date.
SENATOR SEEKINS reflected that many states, as well as the
federal government, are considering a $250,000 cap on non-
economic damages. The bill deals with non-economic damages in
two sections. The first cap is at $250,000; if it's severe, it
goes to $1 million. Alaska doesn't have a definition of "severe"
in its statutes, so the court in one of its cases imposed the
definition - if it embarrasses someone, it's a severe damage.
This is the first step, but it does not say that's all that can
happen. If the accident gets to a certain threshold of severity,
it immediately goes to the $1 million cap. If three quarters of
all Alaska citizens will not be able to bring a case if the
first step of liability is reduced to $250,000 (from $400,000)
the problem is worse than he thought it was.
CHAIR BUNDE noted there was no further discussion on the
amendment. Senators Ben Stevens, Seekins and Chair Bunde voted
nay; Senator Ellis yea; and Amendment 1 failed.
SENATOR BEN STEVENS moved to pass SB 67 from committee with
individual recommendations. Senators Seekins, Ben Stevens and
Chair Bunde voted yea; Senator Ellis voted nay; and SB 67 moved
from committee.
There being no further business to come before the committee,
CHAIR BUNDE adjourned the meeting at 2:13:26 PM.
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