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.