Legislature(1999 - 2000)

03/10/1999 03:20 PM L&C

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
                                                                                                                                
HB 123 - EXEMPT VOL. SKI PATROL FROM MINIMUM WAGE                                                                               
                                                                                                                                
Number 0074                                                                                                                     
                                                                                                                                
CHAIRMAN ROKEBERG announced the committee would hear HB 123, "An                                                                
Act exempting individuals who provide ski patrol services on a                                                                  
voluntary basis from the requirement for payment of minimum wage                                                                
and overtime compensation; and providing for an effective date."                                                                
He stated the legislation was brought to the committee by the                                                                   
Alaska Division of the National Ski Patrol (NSP) asking for an                                                                  
exemption from Alaska's minimum wage law for volunteer ski                                                                      
patrollers.  He referred to AS 23.10.055, the wage and hour                                                                     
exemptions, noting subsection (6) did not apply because ski                                                                     
patrollers work in privately-owned, commercially-operated ski                                                                   
resort areas.  AS 23.10.055(6) reads:                                                                                           
                                                                                                                                
     AS 23.10.055.  Exemptions.  The provisions of AS                                                                           
     23.10.050 - 23.10.150 do not apply to ... (6) an                                                                           
     individual engaged in the activities of a nonprofit                                                                        
     religious, charitable, cemetery, or educational                                                                            
     organization where the employer-employee relationship                                                                      
     does not, in fact, exist, and where services rendered to                                                                   
     the organization are on a voluntary basis;                                                                                 
                                                                                                                                
CHAIRMAN ROKEBERG commented material in the bill packet mentions                                                                
that there are also professional ski patrollers at these commercial                                                             
ski areas employed by the ski resort, but these paid employees are                                                              
augmented by the volunteer ski patrollers acting as agents of the                                                               
commercial operation.  The distinction here is that the volunteers                                                              
are not patrolling for a nonprofit organization.  Chairman Rokeberg                                                             
directed the committee's attention to the proposed Version G                                                                    
committee substitute (CS) [1-LS0577\G, Cramer, 3/9/99] which he                                                                 
indicated had a somewhat broader approach.                                                                                      
                                                                                                                                
Number 0265                                                                                                                     
                                                                                                                                
REPRESENTATIVE HARRIS made a motion to adopt the proposed CS for HB                                                             
123, Version G, labeled 1-LS0577\G, 3/9/99, as a work draft.  There                                                             
being no objection, it was so ordered.                                                                                          
                                                                                                                                
Number 0328                                                                                                                     
                                                                                                                                
CHRIS ROSS, Alaska Division Director, National Ski Patrol,                                                                      
testified via teleconference from Anchorage in support of HB 123.                                                               
He spoke from a prepared statement:                                                                                             
                                                                                                                                
     "Good afternoon Mr. Chairman, distinguished committee                                                                      
     members and guests.  My name is Chris Ross.  I'm employed                                                                  
     by NANA Development Corporation as the Corporate Health,                                                                   
     Safety and Environmental Manager.  I currently serve on                                                                    
     the Alaska Safety Advisory Council as an industry rep                                                                      
     [representative] and chair the Governor's Annual Safety                                                                    
     and Health Conference.  But today I am here as a member                                                                    
     of the National Ski Patrol system where I am a volunteer                                                                   
     patroller at Mt. Alyeska.                                                                                                  
                                                                                                                                
     "During the past 22 years that I've been a patroller,                                                                      
     I've served in training and testing capacities, served as                                                                  
     a Region and Division Advisor, (indisc.) served as the                                                                     
     volunteer Patrol Director for the past ten years, and                                                                      
     currently serve as the Division Director for the Alaska                                                                    
     Division.                                                                                                                  
                                                                                                                                
     "Throughout the history of NSP, its members have devoted                                                                   
     a significant part of their lives to providing the public                                                                  
     with emergency care, rescue services, and education                                                                        
     programs that promote the safety and enjoyment of                                                                          
     mountain recreation.  As a result, thousands of injured                                                                    
     people have received prompt, skillful emergency care, and                                                                  
     numerous lives have been saved.                                                                                            
                                                                                                                                
     "The history of NSP is rich and varied, reflecting the                                                                     
     dedication of members who are motivated by a love of                                                                       
     outdoor recreation and a desire to help those in need.                                                                     
     This long tradition of promoting the enjoyment and safety                                                                  
     of skiing prompted the United States Congress to grant a                                                                   
     federal charter to NSP under Public Rule 96-489.  The NSP                                                                  
     is registered under Section 501(c)(1) of the IRS Code                                                                      
     [Internal Revenue Service Code] as a nonprofit                                                                             
     association, organized and operated exclusively for                                                                        
     educational purposes.  Subordinate units are granted                                                                       
     exempt status under Section 501(c)(3).                                                                                     
                                                                                                                                
     "NSP is dedicated to providing its members with                                                                            
     educational programs and materials that will help them                                                                     
     fulfill their role within the outdoor recreation                                                                           
     community, whether in the context of skiing, snowboarding                                                                  
     or other activities.  Normally, NSP members provide this                                                                   
     service under the direction of the ski area operator, a                                                                    
     public lands administrator, military base commander, ski                                                                   
     club or municipality.  This is the important distinction,                                                                  
     as it forms the basis of the current issue."                                                                               
                                                                                                                                
Number 0482                                                                                                                     
                                                                                                                                
     "The mission of the national organization is somewhat                                                                      
     different than that of its subunits.  The mission of the                                                                   
     NSP national organization is to provide its members with                                                                   
     educational resources to help them fulfill their duties                                                                    
     required of them by area management.  The association's                                                                    
     goal is to provide high-quality training programs in                                                                       
     multiple disciplines and deliver these programs to the                                                                     
     members in a cost-effective manner.                                                                                        
                                                                                                                                
     "Nearly 30 percent of the patrollers registered in Alaska                                                                  
     are instructors.  I think that's an amazing percentage.                                                                    
     We offer Emergency Care, Avalanche Training,                                                                               
     Mountaineering, Toboggan Handling, and all the skills                                                                      
     required.  The Alaska Division of the NSP currently has                                                                    
     nearly 400 patrollers registered in eighteen patrols                                                                       
     across the state.  Each of these patrols serves a                                                                          
     different ski area or geographical area in the case of                                                                     
     the Anchorage Nordic Patrol and Pioneer Peak Ski Patrol.                                                                   
                                                                                                                                
     "Ski areas in Alaska are a bit unique in that we have                                                                      
     quite a mixture of ownership.  We have publicly-owned                                                                      
     areas such as Hilltop and Juneau which are operated by                                                                     
     the municipality; privately-owned areas such as Moose                                                                      
     Mountain, Mount Alyeska and Aurora SkiLand; military                                                                       
     areas such as Hillberg, Arctic Valley Military, Birch                                                                      
     Hill, Ravenwood and Black Rapids; and privately-owned                                                                      
     nonprofit areas such as Alpenglow and Mount Eyak.  We                                                                      
     also have the Nordic Patrol that services most all of ...                                                                  
     Southcentral Alaska on lands that are public, private,                                                                     
     municipal, state [and] federal."                                                                                           
                                                                                                                                
Number 0588                                                                                                                     
                                                                                                                                
     "It's important to note, however, that a patrol, once                                                                      
     established at a given ski area, is under the supervision                                                                  
     and direction of the ski area's manager or local public                                                                    
     lands administrator, and must abide by the policies and                                                                    
     procedures established by management.  The ski area                                                                        
     manager or public lands administrator ultimately                                                                           
     supervises and controls the patrolling activities of the                                                                   
     individual NSP members and patrols at each area.  While                                                                    
     an area's paid patrollers are employees of the area, the                                                                   
     area's volunteer patrollers are agents of the area.                                                                        
                                                                                                                                
     "By virtue of an oversight, however, the current wage and                                                                  
     hour statutes appear to make the use of volunteer patrols                                                                  
     impossible at many of our local ski areas.  Because the                                                                    
     current wording in Alaska Statutes 23.10.055 do not                                                                        
     expressly allow volunteer ski patrollers, a valid                                                                          
     interpretation of the law is that volunteer ski                                                                            
     patrollers are not legally allowed to patrol at any                                                                        
     entity not specifically excluded by exemption; although                                                                    
     there is not consensus on the status of these patrollers                                                                   
     in those areas either, and I'm referring to the municipal                                                                  
     and nonprofit patrols.  We do not believe the legislature                                                                  
     intended these results.  The exemption already lists wage                                                                  
     and hour exemptions for groups such as volunteer                                                                           
     ambulance attendants, volunteer firemen, volunteers for                                                                    
     nonprofit associations and other groups."                                                                                  
                                                                                                                                
Number 0681                                                                                                                     
                                                                                                                                
     "Because there are only two ski resorts in Alaska that                                                                     
     are nonprofit organizations - the other[s] being                                                                           
     military, municipal or for profit - these current                                                                          
     exemptions don't apply.  We're asking for legislation to                                                                   
     include the term 'volunteer ski patroller' in AS                                                                           
     23.10.055 to allow the NSP to continue in the state of                                                                     
     Alaska.  This is accomplished by the wording proposed in                                                                   
     CS House Bill 123.  The legislation will have zero fiscal                                                                  
     impact.  The legislation is fully supported by all of our                                                                  
     division ski patrol members, ski area operators and                                                                        
     public lands administrators.                                                                                               
                                                                                                                                
     "So why do we want volunteer patrollers to continue in                                                                     
     existence in Alaska?  Probably the single biggest reason                                                                   
     is that without the support of the volunteer patrollers                                                                    
     in Alaska, ski patrols would cease to exist as we know                                                                     
     them today.  As previously mentioned, nearly 30 percent                                                                    
     of the patrollers in Alaska are instructors.  Take away                                                                    
     the instructor cadre and there will be no outdoor                                                                          
     emergency care, avalanche or mountaineering training, or                                                                   
     any other NSP educational programs.  If you take away the                                                                  
     volunteer leadership and administration, there will be no                                                                  
     direction, patrol registration, newsletters, instructor                                                                    
     support group or funding to accomplish our program.                                                                        
                                                                                                                                
     "The second reason is that the organization and the                                                                        
     individuals have a long tradition of service and support                                                                   
     to the outdoor community.  The NSP has been volunteering                                                                   
     at ski areas for the past 60 years - nationally and in                                                                     
     Alaska.  NSP started in Alaska in 1939 at the ... 'third                                                                   
     hut' in Juneau, (indisc.) hut.  ... During that time, no                                                                   
     volunteer ever anticipated that they would be covered as                                                                   
     of the provisions of minimum wage or overtime laws.  This                                                                  
     legislation will have no impact on the status of paid                                                                      
     patrollers; this is only to rectify the status of                                                                          
     volunteer patrollers."                                                                                                     
                                                                                                                                
Number 0794                                                                                                                     
                                                                                                                                
     "Finally, the members of NSP are some of Alaska's most                                                                     
     generous volunteers.  In addition to volunteering their                                                                    
     time to serve the outdoor public, almost every patroller                                                                   
     is involved in additional civic, community or cultural                                                                     
     volunteer activity.  Volunteerism must be allowed to                                                                       
     flourish and grow, especially as budgets get tightened                                                                     
     and we have fewer resources available.  Alaska Division                                                                    
     NSP members ... offer the community a tremendous wealth                                                                    
     of talent, leadership, technical expertise and time.                                                                       
     You'll find our members working with mountain rescue                                                                       
     teams, Search and Rescue Dogs, American Red Cross,                                                                         
     American Heart Association, volunteer ambulance crews,                                                                     
     volunteer fire departments, local sporting events, and                                                                     
     many more activities.                                                                                                      
                                                                                                                                
     "But until a new law is enacted we may not be able to                                                                      
     volunteer our time as ski patrollers at many of Alaska's                                                                   
     resorts.                                                                                                                   
                                                                                                                                
     "NSP volunteers want to continue to ski at the mountains                                                                   
     where we have been patrolling for the past sixty years.                                                                    
     We want the opportunity to continue to offer our talents                                                                   
     to recruit and train patrollers.  And we want the                                                                          
     legislature to correct this oversight in wage and hour                                                                     
     [law] by passing House Bill 123.                                                                                           
                                                                                                                                
     "Thank you for your attention Mr. Chairman and                                                                             
     distinguished committee members, and I would be happy to                                                                   
     answer any questions you may have."                                                                                        
                                                                                                                                
Number 0869                                                                                                                     
                                                                                                                                
CHAIRMAN ROKEBERG questioned whether the lack of exemption from                                                                 
minimum wage and other wage and hour Acts is a national or local                                                                
issue, wondering why this issue is being brought before the                                                                     
legislature now.                                                                                                                
                                                                                                                                
MR. ROSS responded it was primarily a local issue because an                                                                    
attorney's letter had said they would probably not be able to                                                                   
patrol in Alaska anymore.  In response to the chairman, Mr. Ross                                                                
said this attorney is affiliated with the Alyeska patrol.                                                                       
                                                                                                                                
CHAIRMAN ROKEBERG noted, then, it was a concern of Alyeska Ski                                                                  
Resort that this might come into play.                                                                                          
                                                                                                                                
Number 0959                                                                                                                     
                                                                                                                                
GAYLE JOSEPH, National Ski Patrol, testified next via                                                                           
teleconference from Anchorage in support of HB 123.  She noted Mr.                                                              
Ross has stated the issues; she would like to speak from more of                                                                
personal level.  Ms. Joseph stated she has been patrolling since                                                                
1991.  Recently she became the patrol representative, indicating                                                                
she was responsible for meeting the volunteer force at Alyeska Ski                                                              
Resort and ensuring that the volunteer force meets the needs of                                                                 
area management.  She voiced support for HB 123 on behalf of the                                                                
their 60-plus active members.  Being on the volunteer force and                                                                 
having the opportunity to give back to the community provides a lot                                                             
of personal satisfaction.  Ms. Joseph stated ski patrolling had                                                                 
enhanced her life through numerous experiences "on the hill," and                                                               
she would be greatly saddened if this opportunity was removed                                                                   
because of the wage and hour issue.                                                                                             
                                                                                                                                
Number 1049                                                                                                                     
                                                                                                                                
SEAN EDWARDS, Southeast Region Director, Alaska Division, National                                                              
Ski Patrol, came forward in Juneau to testify in support of HB 123.                                                             
He said he has been patrolling in Juneau for approximately 15                                                                   
years.  He is speaking as a general ski patroller and also to                                                                   
assist Mr. Ross in the efforts to pass HB 123.  Mr. Edwards spoke                                                               
from a prepared statement:                                                                                                      
                                                                                                                                
     "Good afternoon Mr. Chairman, distinguished committee                                                                      
     members and guests.  My name is Sean Edwards, I'm a                                                                        
     volunteer ski patroller here in Juneau.  I've been                                                                         
     involved in the ski patrol for most of the last 15 years.                                                                  
     I've served as a patrol director, an outdoor emergency                                                                     
     care and avalanche instructor, and I'm currently the                                                                       
     Southeast Region Director for the Alaska Division.                                                                         
                                                                                                                                
     "Today I'd like to talk a little bit about the roles we                                                                    
     play as members of the National Ski Patrol and at the                                                                      
     local patrol level.  As members of the National Ski                                                                        
     Patrol, we're involved in providing our membership with                                                                    
     exceptional training programs such the outdoor emergency                                                                   
     care, avalanche, toboggan training, et cetera.  As                                                                         
     members of the local patrol, we provide the emergency                                                                      
     rescue service and emergency care to the skiing public.                                                                    
                                                                                                                                
     "As the skiing industry's evolved it became necessary to                                                                   
     define the roles of the National Ski Patrol, its members                                                                   
     and ski area management.  Out of that, the Joint                                                                           
     Statement of Understanding was issued between the                                                                          
     National Ski Patrol and the National Ski Areas                                                                             
     Association [NSAA].  ... I've got a copy of that and I'll                                                                  
     give that to the committee.  ... That really defines our                                                                   
     working relationship and what type of activities we                                                                        
     conduct ... under the national umbrella and what                                                                           
     activities we conduct under the auspices of the local                                                                      
     patrol."                                                                                                                   
                                                                                                                                
Number 1166                                                                                                                     
                                                                                                                                
CHAIRMAN ROKEBERG apologized for interrupting, obtaining a copy of                                                              
the joint statement of understanding from Mr. Edwards for                                                                       
legislative counsel's [Terry Cramer] immediate review.                                                                          
                                                                                                                                
Number 1176                                                                                                                     
                                                                                                                                
MR. EDWARDS continued his testimony:                                                                                            
                                                                                                                                
     "In a nutshell, when we're providing our members with the                                                                  
     National Ski Patrol training programs we're involved in                                                                    
     a nonprofit educational organization which, at least                                                                       
     according to my interpretation, exempts us from the                                                                        
     current minimum wage and hour laws.  But when we're                                                                        
     providing our local patrol services we're acting as                                                                        
     agents of ski area management or the public lands                                                                          
     administrator, and this is where the situation becomes                                                                     
     less clear because of the variety of entities responsible                                                                  
     for ski area operations, such as private companies,                                                                        
     [public] lands administrators, military commanders' ski                                                                    
     clubs and municipalities."                                                                                                 
                                                                                                                                
     "Most of the ski areas in the state are not run by                                                                         
     nonprofit organizations and this is where the potential                                                                    
     conflict lies.  Without a specific exemption, many                                                                         
     volunteer patrollers may be subject to the wage and hour                                                                   
     laws, which would end volunteer ski patrolling in Alaska.                                                                  
                                                                                                                                
     "And as volunteer patroller, I would ask that you pass                                                                     
     House Bill 123 which will allow myself and other 400 or                                                                    
     so members of the National Ski Patrol in Alaska to                                                                         
     continue volunteering and spending our time.  And I thank                                                                  
     you for your attention."                                                                                                   
                                                                                                                                
Number 1237                                                                                                                     
                                                                                                                                
CHAIRMAN ROKEBERG asked if the committee had any questions of Mr.                                                               
Edwards.                                                                                                                        
                                                                                                                                
REPRESENTATIVE MURKOWSKI sought clarification as to the problem,                                                                
and why amendments to current statute were being brought forward in                                                             
two different areas.  She commented on operating under the umbrella                                                             
of the National Ski Patrol's 501(3)(c) protection and the resulting                                                             
exemption from wage and hour issues, and then operating under a                                                                 
different umbrella on the local level which somehow gave exposure.                                                              
Representative Murkowski asked Mr. Edwards what he is doing                                                                     
differently when he is acting at the local level as opposed to when                                                             
he is volunteering for the National Ski Patrol.                                                                                 
                                                                                                                                
Number 1294                                                                                                                     
                                                                                                                                
MR. EDWARDS replied when the volunteers actually perform the patrol                                                             
and rescue services they are acting under the sole guidance and                                                                 
direction of that particular ski area's management.                                                                             
                                                                                                                                
REPRESENTATIVE MURKOWSKI confirmed they were being directed in                                                                  
Juneau, then, by the manager of Eaglecrest Ski Area (Eaglecrest).                                                               
                                                                                                                                
MR. EDWARDS agreed, adding that the management determines all the                                                               
policies and procedures used at the local level.  There is a                                                                    
definite distinction between the nationally-organized training                                                                  
programs and the actual provision of rescue services and emergency                                                              
care to the skiing public.  To Mr. Edwards' understanding, this has                                                             
developed out of managing liability and risk for the ski areas.  In                                                             
response to Representative Murkowski's additional question                                                                      
regarding whether volunteer ski patrollers had any kind of                                                                      
insurance through the National Ski Patrol, Mr. Edwards stated it                                                                
depends on the patrollers' activities.  National Ski Patrol has an                                                              
umbrella liability policy covering training under the                                                                           
nationally-approved and supervised programs.  All other insurance                                                               
provided is provided through the area and ski area management.                                                                  
When they are performing patrol duties on the ski slopes, they are                                                              
entirely covered under ski area management.                                                                                     
                                                                                                                                
Number 1389                                                                                                                     
                                                                                                                                
CHAIRMAN ROKEBERG clarified that Eaglecrest is a publicly-owned                                                                 
facility, not a for-profit, which is one of the dilemmas here.                                                                  
                                                                                                                                
MR. EDWARDS agreed one of the problems is that there are multiple                                                               
entities running ski areas:  military bases, the City and Borough                                                               
of Juneau, the Municipality of Anchorage, and a couple of nonprofit                                                             
groups.                                                                                                                         
                                                                                                                                
CHAIRMAN ROKEBERG indicated the for-profit entities are the                                                                     
problem, noting a witness from Alyeska Ski Resort (Alyeska) would                                                               
be testifying.                                                                                                                  
                                                                                                                                
Number 1467                                                                                                                     
                                                                                                                                
REPRESENTATIVE HALCRO asked the chairman what the difference is                                                                 
between volunteering to pick up trash in a park for the                                                                         
Municipality of Anchorage and volunteering to patrol a ski area.                                                                
                                                                                                                                
CHAIRMAN ROKEBERG responded that is a defect of the current                                                                     
statute.  Referring again to AS 23.10.055(6), he noted there are 16                                                             
exemptions [AS 23.10.055(1) through (16)].  None of these                                                                       
exemptions allow volunteering for a commercial or profit-making                                                                 
organization.  He indicated subsection (6) allows volunteering for                                                              
nonprofits.                                                                                                                     
                                                                                                                                
REPRESENTATIVE HALCRO commented, then, he guesses he is not                                                                     
understanding the bigger picture:  if he is a volunteer, he is a                                                                
volunteer no matter who it is for.  There is no contract, no wage                                                               
set.                                                                                                                            
                                                                                                                                
CHAIRMAN ROKEBERG responded there is no exception or exemption in                                                               
the statute for a volunteer operating under the supervision of a                                                                
profit-making organization.  The chairman indicated the "litany of                                                              
organizations" under the existing statute's subsection (6) allowed                                                              
to have volunteers is not clear.  He noted the similarity between                                                               
subsection (6) and subsection (15) [AS 23.10.055(15)].  Subsection                                                              
(15) is basically the same except it is under "ATPA" [ATAP, Alaska                                                              
Temporary Assistance Program] type activities, referring to welfare                                                             
recipients.  The hope is that, with the participation of the bill                                                               
drafter [Terry Cramer], Mr. Carr from the department [Department of                                                             
Labor (DOL)], et cetera, this situation can be resolved with                                                                    
minimal impact.  AS 23.10.055(15) reads:                                                                                        
                                                                                                                                
     (15) an individual engaged in activities for a nonprofit                                                                   
     religious, charitable, civic, cemetery, recreational, or                                                                   
     educational organization where the employer-employee                                                                       
     relationship does not, in fact, exist, and where services                                                                  
     are rendered to the organization under a work activity                                                                     
     requirement of AS 47.27 (Alaska temporary assistance                                                                       
     program); or                                                                                                               
                                                                                                                                
Number 1550                                                                                                                     
                                                                                                                                
REPRESENTATIVE HARRIS confirmed that AS 23.10.055(5) allows                                                                     
volunteering for a political subdivision of the state.                                                                          
                                                                                                                                
REPRESENTATIVE HALCRO reiterated his belief that if someone is                                                                  
volunteering they are naturally exempt because they are not getting                                                             
paid.                                                                                                                           
                                                                                                                                
CHAIRMAN ROKEBERG indicated the law requires minimum wage pay for                                                               
work unless one of the exemptions is met.  He noted it hasn't been                                                              
enforced before because it is an unclear area; the committee wants                                                              
to make it clear, and that is what the ski patrollers are                                                                       
requesting.  Chairman Rokeberg confirmed Mr. Edwards thought this                                                               
is probably a fair assessment.                                                                                                  
                                                                                                                                
Number 1630                                                                                                                     
                                                                                                                                
LARRY DANIELS, Ski Area General Manager, Alyeska Ski Resort,                                                                    
testified next via teleconference from Anchorage in support of HB                                                               
123.  He asked that the committee recognize the statute and the                                                                 
National Ski Patrol's 60 years of service [in Alaska].  This                                                                    
legislation does not change the operational status quo in Alaska or                                                             
at hundreds of ski areas nationwide where voluntary ski patrollers                                                              
have been serving for many years.  Alyeska currently has nearly 60                                                              
voluntary patrollers and approximately 20 professional patrollers.                                                              
A fairly recent review of Alaska Statutes brought forward this                                                                  
question of whether volunteers could provide this service at                                                                    
for-profit organizations like Alyeska and other ski areas not                                                                   
specifically exempted.  House Bill 123 allows the 39-year-old                                                                   
relationship at Alyeska to continue.  Mr. Daniels said they hoped                                                               
the committee would view the legislation favorably and pass it on                                                               
to the full body.                                                                                                               
                                                                                                                                
CHAIRMAN ROKEBERG confirmed that Alyeska's legal advisor had                                                                    
brought this question to Alyeska's attention.  He asked if Alyeska                                                              
is concerned, both as an employer and a major ski resort operator,                                                              
that its operations may be detrimentally impacted if its attorney's                                                             
interpretation of the existing wage and hour laws is enforced.                                                                  
                                                                                                                                
Number 1737                                                                                                                     
                                                                                                                                
MR. DANIELS agreed losing the majority of those 60 volunteers would                                                             
be a concern, but he indicated it is also a concern that those                                                                  
individuals would be losing an avenue of voluntary and community                                                                
service they want.                                                                                                              
                                                                                                                                
CHAIRMAN ROKEBERG asked if Alyeska could, even under ideal                                                                      
conditions, open all its trails without those 60 patrollers.                                                                    
                                                                                                                                
MR. DANIELS clarified the volunteers worked on a rotational basis;                                                              
all 60 are not there at one time.                                                                                               
                                                                                                                                
CHAIRMAN ROKEBERG questioned if having to replace those volunteers                                                              
with employees being paid at least minimum wage wouldn't impact                                                                 
Alyeska's ability to maintain all its areas and affect its                                                                      
financial bottom line.                                                                                                          
                                                                                                                                
MR. DANIELS confirmed it would affect the bottom line, but noted                                                                
what would be lost is the training and years of service the                                                                     
volunteers bring to the organization.  If it came down to it, ten                                                               
professional patrollers could be hired; that would displace those                                                               
60 people and eliminate their avenue for providing services to the                                                              
skiing public.                                                                                                                  
                                                                                                                                
CHAIRMAN ROKEBERG confirmed Mr. Daniels is familiar with the Joint                                                              
Statement of Understanding Between the National Ski Patrol and the                                                              
National Ski Areas Association, revised July 1993, provided to the                                                              
committee by Mr. Edwards, and that it is in effect at Alyeska under                                                             
Mr. Daniel's operations.                                                                                                        
                                                                                                                                
Number 1849                                                                                                                     
                                                                                                                                
REPRESENTATIVE HARRIS asked for clarification on why the                                                                        
legislation is being brought forward.  He wondered if there is a                                                                
serious problem, if it is just for protection, or if it is for some                                                             
other reason.                                                                                                                   
                                                                                                                                
MR. DANIELS replied one approach is to wait for a problem to arise.                                                             
He noted one hasn't in the last 39 years and there is some fair                                                                 
likelihood it might never, since most of this statute has probably                                                              
been in effect for a long time.  On other hand, if a problem did                                                                
arise, they might be dealing with all of the patrollers as a group,                                                             
whether the patrollers want that or not.  This could potentially be                                                             
a very large problem.  Mr. Daniels indicated he is unsure how the                                                               
Department of Labor would approach the situation.                                                                               
                                                                                                                                
Number 1920                                                                                                                     
                                                                                                                                
MR. ROSS asked to share some possibly explanatory history with the                                                              
committee.  He thinks they all understand the history of the                                                                    
National Ski Patrol and can envision people skiing around in the                                                                
mountains for the past 60 years.  Mr. Ross noted that about 20                                                                  
years ago, no ski patroller anywhere would have imagined another                                                                
volunteer ski patroller filing a worker's compensation claim.                                                                   
About 15 years ago, that happened for the first time.  About 10                                                                 
years ago, no one would have ever thought a ski patroller would                                                                 
have sued a ski resort or the National Ski Patrol system; it would                                                              
have been unthinkable.  However, 3 years ago that happened and                                                                  
there was a $1.6 million judgement against the NSP.  This judgement                                                             
has caused even more delineation between the actions of the NSP as                                                              
a national organization and the actions of the patrollers on the                                                                
local level.  Mr. Ross indicated he and Mr. Daniels first thought,                                                              
when faced with the attorney opinion, that no patroller would ever                                                              
act on this, but they reconsidered and decided that might not be                                                                
the right approach.  He confirmed for the chairman that this is                                                                 
preventive legislation, and, for Representative Harris, that all                                                                
the situations he (Mr. Ross) had just described involved                                                                        
volunteers.                                                                                                                     
                                                                                                                                
CHAIRMAN ROKEBERG stated the committee would next hear from Randy                                                               
Carr with the Department of Labor, indicating he thought Mr. Carr                                                               
would help them "straighten this mess out."                                                                                     
                                                                                                                                
Number 2000                                                                                                                     
                                                                                                                                
RANDY CARR, Chief of Labor Standards and Safety, Wage and                                                                       
Hour/Mechanical Inspection, Division of Labor Standards and Safety,                                                             
Department of Labor, testified next via teleconference from                                                                     
Anchorage.  He stated to the chairman that he would certainly try                                                               
but he doesn't know if this mess has an easy solution.  Mr. Carr                                                                
said he would like to break the proposed CS into its two elements,                                                              
hopefully clarifying the history, application, and why it presents                                                              
a problem.  Referring to Section 1 of Version G, Mr. Carr noted he                                                              
thinks the statute being amended [AS 23.10.055(6)] has been in                                                                  
existence since the 1949 territorial legislature.  This language                                                                
carved out a group of nonprofit organizations that could accept                                                                 
volunteer service without being subject to Alaska's minimum wage                                                                
and overtime laws.  This was modeled after a standard set in the                                                                
federal Fair Labor Standards Act (FLSA) which allowed any nonprofit                                                             
group to accept volunteer services.  There is no history regarding                                                              
why the 1949 legislature limited Alaska's law to four types of                                                                  
nonprofit groups:  religious, charitable, cemetery, educational.                                                                
This means that unless a nonprofit is organized for one of those                                                                
four purposes, and the group's bylaws and original paperwork filed                                                              
with the IRS indicate that is the group's purpose, that nonprofit                                                               
group cannot legally avail itself of the services of volunteers.                                                                
                                                                                                                                
Number 2077                                                                                                                     
                                                                                                                                
MR. CARR commented everyone present knows that every nonprofit                                                                  
group in the state functions out of the good services of volunteer                                                              
labor.  The Department of Labor does not make an issue of actively                                                              
enforcing this by investigating nonprofit groups for illegal                                                                    
volunteers, nor is the department interested in doing so.  However,                                                             
these statutory rights exist.  Mr. Carr noted in the last few years                                                             
the department has seen individuals coming forward asserting claims                                                             
for minimum wage or overtime under this statute because of services                                                             
the individuals were providing to a nonprofit group that did not                                                                
fit the exemption.  Mr. Carr indicated there are numerous                                                                       
non-exempt nonprofit organizations in Alaska.  In response to                                                                   
comments from the chairman, Mr. Carr confirmed that the Iditarod                                                                
dog sled race is not exempt and he indicated there is a large                                                                   
problem with Alaska's future hosting of the 2001 Special Olympics                                                               
World Winter Games.  He said he has been told about 3,000 people                                                                
will be involved in the Special Olympics group; that group is not                                                               
exempt under statute.  Mr. Carr explained that the Department of                                                                
Labor saw the NSP bill as an opportunity to address an urgent                                                                   
problem, and wanted to bring forward the language in the proposed                                                               
CS to expand the existing language in exemption (6) to incorporate                                                              
any type of nonprofit organization functioning in the context of                                                                
that organization's nonprofit activities.  The DOL's intent with                                                                
the language of the proposed CS's Section 1 is to allow any                                                                     
nonprofit organization to legitimately accept the services of                                                                   
volunteer labor in its nonprofit activity.  If an organization has                                                              
a for-profit arm, that for-profit arm should still be subject to                                                                
the Alaska Wage and Hour Act; an unfair competitive advantage                                                                   
should not be allowed.                                                                                                          
                                                                                                                                
Number 2168                                                                                                                     
                                                                                                                                
MR. CARR indicated the DOL believes the language in Section 1 of                                                                
Version G would address the current disparity between the state's                                                               
nonprofit groups.  Mr. Carr indicated federal law already                                                                       
recognizes these other nonprofit organizations.  The change in                                                                  
Section 1 would essentially allow the state to take the same                                                                    
posture towards nonprofits as the Fair Labor Standards Act does.                                                                
Section 1 of Version G reads:                                                                                                   
                                                                                                                                
     * Section 1.  AS 23.10.055(6) is amended to read:                                                                          
          (6) an individual engaged in the nonprofit                                                                            
     activities of a nonprofit religious, charitable,                                                                           
     cemetery, or educational organization or other nonprofit                                                                   
     organization where the employer-employee relationship                                                                      
     does not, in fact, exist, and where services rendered to                                                                   
     the organization are on a voluntary basis and are related                                                                  
     only to the organization's nonprofit activities;                                                                           
                                                                                                                                
MR. CARR referred to the main language of the original HB 123, now                                                              
found in Section 2 of Version G.  Section 2 of Version G reads:                                                                 
                                                                                                                                
     * Sec. 2.  AS 23.10.055 is amended by adding a new                                                                         
     paragraph to read:                                                                                                         
          (17) an individual who provides ski patrol services                                                                   
     on a voluntary basis.                                                                                                      
                                                                                                                                
MR. CARR noted the previous testimony has shown that many different                                                             
kinds of organizations benefit from the services of volunteer ski                                                               
patrollers.  He expressed the desire to examine how these different                                                             
organizations are currently addressed in state and federal law and                                                              
how they would be addressed if this legislation passes.  The                                                                    
federal organizations like the National Park Service and the                                                                    
military are exempt from FLSA and, by the state's exemptions [AS                                                                
23.10.055(5)], are exempt from the Alaska Wage and Hour Act.                                                                    
Overtime is not a problem for these groups and they can accept                                                                  
volunteers.  Municipalities and other public entities/political                                                                 
subdivisions are exempt from the Alaska Wage and Hour Act, but not                                                              
from FLSA.  These groups must pay minimum wage and overtime to                                                                  
their employees but FLSA allows political subdivisions to accept                                                                
volunteer services.  Nonprofit groups are completely exempt under                                                               
FLSA and would be completely exempt if the state law is amended.                                                                
Regarding private for-profit businesses, the suggested language                                                                 
would exempt private for-profit businesses from the obligation                                                                  
under state law to pay minimum wage and overtime for any ski                                                                    
patroller volunteering his or her services.  However, those private                                                             
for-profit businesses would still be subject to FLSA.  The current                                                              
proposed CS for HB 123 cannot address that; it will not give any                                                                
relief from FLSA liability.                                                                                                     
                                                                                                                                
Number 2289                                                                                                                     
                                                                                                                                
CHAIRMAN ROKEBERG confirmed Mr. Carr's point is that they can                                                                   
exempt it from state law, but not from federal.                                                                                 
                                                                                                                                
MR. CARR agreed.  The federal exposure will still be out there for                                                              
private for-profit businesses and, potentially, municipalities.                                                                 
The current form of HB 123 would only take the state out of the                                                                 
concern and make a federal case out of any case that might come                                                                 
forward.                                                                                                                        
                                                                                                                                
CHAIRMAN ROKEBERG commented that Mr. Carr's comments were germane                                                               
and appreciated, noting all the committee can do is what can be                                                                 
done in the state of Alaska.  The chairman indicated he feels it is                                                             
still a valuable exercise in going forward with what can be done in                                                             
this state.                                                                                                                     
                                                                                                                                
Number 2319                                                                                                                     
                                                                                                                                
MR. CARR agreed, but noted the point is that it would be important                                                              
for any entity operating under the exemption as proposed to                                                                     
understand it still has the same obligation at the federal level.                                                               
These entities will still have the same exposure regarding                                                                      
volunteer labor if this legislation passes.                                                                                     
                                                                                                                                
CHAIRMAN ROKEBERG asked if the state DOL had any jurisdiction in                                                                
enforcing the federal wage and hour [Act].                                                                                      
                                                                                                                                
MR. CARR said absolutely not; a matter not within the state's                                                                   
jurisdiction is referred to the United States Department of Labor                                                               
(USDOL).                                                                                                                        
                                                                                                                                
CHAIRMAN ROKEBERG confirmed with Mr. Carr that it is the duties of                                                              
the state Department of Labor to follow the public policies of the                                                              
state of Alaska as articulated by the legislature.                                                                              
                                                                                                                                
Number 2356                                                                                                                     
                                                                                                                                
MR. CARR said the department has an additional concern with regards                                                             
to the legislation.  This bill takes a very small group of people                                                               
who are employees under the law, volunteer ski patrollers working                                                               
for a private sector employer, and makes this group exempt.  Once                                                               
these people are exempted, they don't have to be paid, they don't                                                               
have to be treated as employees.  The department feels that sets a                                                              
very dangerous precedent.  Mr. Carr indicated HB 123 sets a                                                                     
precedent that some employees could be considered volunteers,                                                                   
noting the possibility future legislation might be brought forward                                                              
requesting additional exemptions for other groups willing to                                                                    
volunteers in exchange for tips, like counter help or bellhops.  He                                                             
indicated that concluded his testimony and he was willing to answer                                                             
any questions with regards to the juxtaposition of the state and                                                                
federal laws, or the state's position regarding volunteers as a                                                                 
whole.                                                                                                                          
                                                                                                                                
CHAIRMAN ROKEBERG said he understood the department's feeling that,                                                             
as a departmental policy, it is a dangerous precedent to have an                                                                
exemption for a small group of people, but asked where the                                                                      
exemption for volunteers under a commercial activity is in the                                                                  
proposed CS.                                                                                                                    
                                                                                                                                
MR. CARR said they are not suggesting in the proposed CS that                                                                   
volunteers working under commercial activity be exempt.  The last                                                               
portion of Version G's Section 1 would exclude anyone who is                                                                    
working in a commercial activity for a nonprofit organization from                                                              
the modified exemption, with minimum wage and overtime still                                                                    
required under the [state's] wage and hour Act.                                                                                 
                                                                                                                                
CHAIRMAN ROKEBERG pointed out, then, that ski patrollers working at                                                             
Alyeska would not be exempt.  The chairman indicated this is the                                                                
reason why both Mr. Carr and the bill drafter, Ms. Cramer, have                                                                 
been asked to participate, and that the chairman also shares a                                                                  
concern about adding another exempt group to the statute.  He posed                                                             
the question to Mr. Carr and Ms. Cramer, "Is there a way we can                                                                 
delete number 17 [subsection (17) of Version G] and put into the                                                                
subsection (6) in Section 1 of the CS, provisions for exemption for                                                             
volunteers ... under a commercial operation, ... without doing to                                                               
much damage to this thing.  And then also using..." [TESTIMONY                                                                  
INTERRUPTED BY TAPE CHANGE]                                                                                                     
                                                                                                                                
[From tape log notes:  "Also using 'term of art' ... so we can                                                                  
stipulate ski patrollers ..."]                                                                                                  
                                                                                                                                
TAPE 99-22, SIDE B                                                                                                              
Number 0001                                                                                                                     
                                                                                                                                
CHAIRMAN ROKEBERG continued, "... we can delete 17 as another                                                                   
exemption and overcome your fears, but you seemed to have expressed                                                             
some concern about having a - any kind of volunteerism under the                                                                
guise of commercial operation.  So, there we have what I'd like --                                                              
that is the proposition before the committee."                                                                                  
                                                                                                                                
Number 0020                                                                                                                     
                                                                                                                                
MR. CARR indicated agreement, adding, "And that is the crux of the                                                              
dilemma.  When we first saw HB 123, I had not yet talked with Chris                                                             
[Mr. Ross] and I was not as educated on the background of National                                                              
Ski Patrol in Alaska, and how many different organizations it                                                                   
serviced, as I am now.  But we saw this as an opportunity to                                                                    
perhaps take a (indisc.) which we thought addressed at the time                                                                 
only ski patrol services to nonprofits, and expand that so that we                                                              
could address the other nonprofit problems that existed out there."                                                             
Mr. Carr noted since that time it has become evident that the                                                                   
nonprofit side of the ski patrol in Alaska is a very, very small                                                                
aspect of the ski patrol's problem.   The federal agencies don't                                                                
have a problem; the state/municipal agencies probably don't have a                                                              
problem because they can accept volunteers.  The problem is with                                                                
the for-profit businesses.  Mr. Carr noted he doesn't know how many                                                             
people or ski operations this involves.  The existing law with the                                                              
suggested minor modifications in Section 1 of the proposed CS                                                                   
pretty well address everyone else, but the CS's Section 1 does not,                                                             
and was not intended to, address a for-profit operation.                                                                        
                                                                                                                                
CHAIRMAN ROKEBERG indicated his understanding.  He recognized that                                                              
Dwight Perkins, Deputy Commissioner, Department of Labor, wished to                                                             
comment.                                                                                                                        
                                                                                                                                
Number 0083                                                                                                                     
                                                                                                                                
DWIGHT PERKINS, Deputy Commissioner, Department of Labor, came                                                                  
forward.  He stated for the committee, for example, that Alyeska                                                                
has paid ski patrol staff and also the National Ski Patrol.  The                                                                
National Ski Patrol is a national umbrella, as Representative                                                                   
Murkowski touched on, using its [IRS] 501(c)(1) status as a                                                                     
nonprofit.  The National Ski Patrol is keeping that nonprofit                                                                   
distinction, but because it is taking direction from Alyeska, an                                                                
employee-employer relationship exists.  Mr. Perkins questioned Mr.                                                              
Carr, "And if not, shouldn't we be okay with the language that we                                                               
suggested as the change in the CS?"                                                                                             
                                                                                                                                
MR. CARR replied the likelihood is that the relationship would be                                                               
one of a joint employer.  Using the example of Alyeska:  Alyeska is                                                             
going to manage and control the duties and pursuits of the ski                                                                  
patrol on its grounds.  The case law indicates that there is most                                                               
likely going to be a joint employer relationship, with Alyeska                                                                  
being the employer on the private side and the nonprofit group                                                                  
being the employer accepting volunteer services on the other side.                                                              
Mr. Carr stated, "So I think that's where the exposure arises - is                                                              
the control asserted by the ski operation puts them into a position                                                             
... in the eyes of the state and federal laws, and the courts'                                                                  
interpretation of them, of a joint employer.  Thus they suffer the                                                              
exposure."                                                                                                                      
                                                                                                                                
Number 0193                                                                                                                     
                                                                                                                                
REPRESENTATIVE MURKOWSKI noted she has reviewed the Joint Statement                                                             
of Understanding between the National Ski Patrol and the National                                                               
Ski Areas Association.  In her reading, the individual ski areas                                                                
have the right to approve selection of volunteer patrols, the right                                                             
to dismiss, et cetera.  However, Representative Murkowski said the                                                              
joint statement goes on to say that, notwithstanding, "'There is                                                                
nothing that shall vary the very clear non-employee status of                                                                   
individual volunteer patrollers.  Volunteer patrollers are not, and                                                             
have not, been employees, but agents ... when acting within the                                                                 
scope of their assigned duties in view of the voluntary nature of                                                               
their patrolling services.'"  She noted it seems clear that the                                                                 
volunteer patrollers are not treated as employees, there isn't a                                                                
joint employer type of relationship or an employee-employer                                                                     
relationship; it is a clear separation based their volunteer                                                                    
responsibilities.  The paraphrased section of the joint statement                                                               
of understanding reads:                                                                                                         
                                                                                                                                
     "7. It is specifically understood between the parties to                                                                   
     this Agreement that nothing herein, and nothing contained                                                                  
     in any individual agreement between the NSP and                                                                            
     individual ski areas based on the Joint Statement of                                                                       
     Understanding, shall in any way vary the clear,                                                                            
     non-employee status of individual volunteer patrollers.                                                                    
     In fact, it is expressly understood between the NSP and                                                                    
     the NSAA, as well as the membership of both                                                                                
     organizations, that the volunteer patrollers are not and                                                                   
     have not been employees, but agents when acting within                                                                     
     the scope of their assigned duties, in view of the                                                                         
     voluntary nature of their patrolling services."                                                                            
                                                                                                                                
MR. PERKINS noted that was kind of what he had been driving at.  He                                                             
stated, "I didn't see the tie there, and because they are truly a                                                               
nonprofit and they do have the ... 501(c) exemption, I thought we                                                               
could draw that distinction between the lodge, if you will, the                                                                 
employee, as the employer and the employee relationship, which                                                                  
would  ... -- and then we could use the language that we suggested                                                              
as a blanket for all the nonprofits, because they're still acting                                                               
in the nonprofit capacity as ski patrollers, ... honestly I'm                                                                   
confused too.  ... I want to think there's a way that we can craft                                                              
this to where, without putting in an exemption just specifically                                                                
for ski patrollers, but what the language that Mr. Carr had                                                                     
suggested to me for this amendment ..."                                                                                         
                                                                                                                                
CHAIRMAN ROKEBERG noted Mr. Ross in Anchorage had wished to make a                                                              
comment.                                                                                                                        
                                                                                                                                
Number 0285                                                                                                                     
                                                                                                                                
MR. ROSS clarified that all patrollers at Alyeska, both paid and                                                                
volunteer, are members of the National Ski Patrol; all patrollers                                                               
in the state of Alaska, both paid and volunteer, are NSP members.                                                               
The National Ski Patrol is an educational organization, not a                                                                   
mountain operations organization.  Mr. Ross commented this is                                                                   
confusing even within their own ranks because of the changes that                                                               
have taken place.  The National Ski Patrol is not an employer and                                                               
has no employer liability "for any number of different reasons."                                                                
He indicated the NSP/NSAA joint statement of understanding was                                                                  
crafted to guide that relationship when patrollers are on the                                                                   
mountain but state law seems to supersede this.  For example,                                                                   
Alyeska volunteer patrollers are clearly covered under worker's                                                                 
compensation even though they are agents, not employees.  Under                                                                 
current state law, a volunteer patroller could file a valid wage                                                                
and hour claim with the state.  Mr. Ross pointed out the language                                                               
in the proposed CS that exempts commercial operations would take                                                                
patrollers away from Alyeska, "Moose Mountain," "SkiLand," and some                                                             
of the other smaller areas.  This is about three-quarters of the                                                                
patrollers in the [NSP's] Alaska Division.  This would additionally                                                             
remove the division director, trainers, and volunteer support.                                                                  
Alyeska would have paid patrollers but no one to train them.                                                                    
Eaglecrest would have patrollers but without all the division and                                                               
national support.  Mr. Ross indicated the issue goes beyond simply                                                              
requiring commercial operations to replace volunteers with paid                                                                 
staff.                                                                                                                          
                                                                                                                                
Number 0400                                                                                                                     
                                                                                                                                
REPRESENTATIVE HALCRO asked Mr. Ross if the NSP is doing anything                                                               
on the federal level to get this addressed in the Fair Labor                                                                    
Standards Act.                                                                                                                  
                                                                                                                                
MR. ROSS noted Mr. Carr had suggested it that day.                                                                              
                                                                                                                                
REPRESENTATIVE HALCRO indicated he thinks an additional exemption                                                               
for an individual providing the valuable service of volunteer ski                                                               
patrolling is not too much to ask for, and he is opposed to the                                                                 
deletion of subsection (17), the proposed ski patroller exemption.                                                              
Representative Halcro compared this to some of the other exemptions                                                             
in existing statute, specifically naming the exemption for an                                                                   
individual employed in the handpicking of shrimp [AS 23.10.055(3)].                                                             
Representative Halcro said it begs a question about the larger                                                                  
picture, asking if volunteer course marshals at golf courses are                                                                
exposed.                                                                                                                        
                                                                                                                                
Number 0478                                                                                                                     
                                                                                                                                
REPRESENTATIVE SANDERS asked for clarification, questioning whether                                                             
there are paid volunteers and nonpaid volunteers.                                                                               
                                                                                                                                
MR. ROSS replied the specific distinction would be paid ski                                                                     
patrollers and volunteer ski patrollers.                                                                                        
                                                                                                                                
REPRESENTATIVE SANDERS asked for clarification on the problem                                                                   
before the committee.                                                                                                           
                                                                                                                                
Number 0513                                                                                                                     
                                                                                                                                
MR. CARR replied the difficulty is that it is illegal for a                                                                     
for-profit business to have volunteers; it's considered an unfair                                                               
competitive advantage.  In the ski patrol issue context, Alyeska                                                                
has a certain number of paid ski patrollers augmented by volunteers                                                             
providing the services necessary to cover the entire mountain.  The                                                             
Department of Labor has not gone out and told Alyeska that it                                                                   
cannot have volunteers.  The problem is that there is legal                                                                     
exposure.  These volunteers have an entitlement to minimum wage and                                                             
overtime.  If any of these volunteers, either in the ski patrol or                                                              
in any of the nonprofits not covered by the exemption [in AS                                                                    
23.10.055(6)], decide they wish to be paid, they have a valid claim                                                             
and would be able to collect.  Mr. Carr indicated there is no doubt                                                             
or defense regarding the ability to collect.  He commented he                                                                   
thinks that is the problem presenting itself here:  Alyeska is                                                                  
concerned that it has exposure, as it should be.  If someone                                                                    
decided they wanted to be paid for all his or her previous                                                                      
volunteer services and has time records, this person could get an                                                               
attorney, file a minimum wage and/or overtime complaint, and would                                                              
be paid.                                                                                                                        
                                                                                                                                
REPRESENTATIVE SANDERS said that seemed to him, then, to be the                                                                 
problem.  He asked if they couldn't write something disallowing                                                                 
payment to those people for past services.  He questioned if that                                                               
covered the problem, noting then there is no problem if the people                                                              
wanted to be paid for future services.                                                                                          
                                                                                                                                
Number 0600                                                                                                                     
                                                                                                                                
MR. CARR replied he didn't know if that could be written and would                                                              
have to think about it, commenting, "Because ... you would be                                                                   
essentially sacrificing their rights retroactively."                                                                            
                                                                                                                                
REPRESENTATIVE SANDERS commented the people in question did that                                                                
when they volunteered, adding, "Now ... they don't want to                                                                      
volunteer so they don't have any more rights now."                                                                              
                                                                                                                                
MR. CARR indicated the state has a lot of volunteers who don't                                                                  
understand they even have these rights.  He commented this might be                                                             
part of the reason the issue is coming forward.  More and more                                                                  
people are becoming aware that they may have a legal entitlement to                                                             
something and when things get tough, they decide they want those                                                                
wages.                                                                                                                          
                                                                                                                                
REPRESENTATIVE SANDERS indicated his concern is that if this                                                                    
enacted this year to protect volunteer ski patrollers, Alyeska                                                                  
might decide it needs volunteer kitchen help next year.                                                                         
                                                                                                                                
CHAIRMAN ROKEBERG indicated volunteer ski patrollers have been                                                                  
serving for 30 years.                                                                                                           
                                                                                                                                
Number 0660                                                                                                                     
                                                                                                                                
REPRESENTATIVE HALCRO questioned whether Mr. Carr's testimony                                                                   
regarding the existing exposure hadn't made the case for exempting                                                              
these people.                                                                                                                   
                                                                                                                                
MR. CARR replied that could be argued both ways.  The patrollers                                                                
have noted they haven't had a problem in 39 years and the law has                                                               
been in existence that entire time.                                                                                             
                                                                                                                                
REPRESENTATIVE HALCRO said he could understand "the fear that the                                                               
camel's getting his nose under the tent here," but indicated he                                                                 
doesn't think a large shift to volunteerism for commercial entities                                                             
is likely.                                                                                                                      
                                                                                                                                
MR. CARR was not in agreement, stating, "Every (indisc.) getting                                                                
tighter, suppose this bill is passed and two years from now a ...                                                               
new manager at Alyeska says, '... I've got three paid ski patrol                                                                
people and I got a budget cut - I don't need them, I can replace                                                                
them with volunteers.  So they're out the door and I'm gonna use                                                                
all volunteers.'  And this would allow that."                                                                                   
                                                                                                                                
Number 0709                                                                                                                     
                                                                                                                                
REPRESENTATIVE MURKOWSKI asked Mr. Ross if voluntary ski patrollers                                                             
receive any form of compensation, such as free lift tickets.                                                                    
                                                                                                                                
MR. ROSS responded they receive a ticket for a day of skiing.                                                                   
                                                                                                                                
CHAIRMAN ROKEBERG asked Mr. Perkins if a ski lift ticket would be                                                               
considered taxable compensation under Alaska law.                                                                               
                                                                                                                                
Mr. Perkins referred that issue to the Department of Revenue and                                                                
the IRS.                                                                                                                        
                                                                                                                                
Number 0769                                                                                                                     
                                                                                                                                
REPRESENTATIVE CISSNA asked if the concern was that they would wind                                                             
up with slave labor - people willing to work for food and shelter                                                               
if times became very tough.                                                                                                     
                                                                                                                                
MR. CARR answered in the negative, although he supposed that was an                                                             
ultimate potential.  The reason why commercial businesses cannot                                                                
have volunteer labor is because some commercial businesses are                                                                  
well-equipped to accept volunteer labor but their competitor(s) may                                                             
not be able to get or keep volunteers.  An unfair competitive                                                                   
advantage is created in this situation.  Mr. Carr indicated this                                                                
has been a constant enforcement problem at the federal level                                                                    
although there haven't been a lot of problems at the state level.                                                               
At the federal level there have been numerous situations where a                                                                
business, for religious purposes, sets up a religious nonprofit                                                                 
organization with volunteers, and that religious organization sets                                                              
up a for-profit business enterprise.  This situation occurred in                                                                
Alaska regarding a gas station; all the church volunteers operated                                                              
the gas station and no one was paid.  The other three gas stations                                                              
in that town complained to their legislators because they were                                                                  
being put out of business.  Mr. Carr stated this is trying to keep                                                              
the playing field level so there is no opportunity for abuse.  He                                                               
noted that is not the problem with the ski resorts, but said that                                                               
is the overall reasoning behind the law.  Mr. Carr commented he                                                                 
realizes how they balance that with the problem before them today                                                               
is a very difficult question.                                                                                                   
                                                                                                                                
Number 0905                                                                                                                     
                                                                                                                                
CHAIRMAN ROKEBERG noted the presence of Terry Cramer, Legislative                                                               
Counsel, at the meeting by the chairman's request.  He asked Ms.                                                                
Cramer if it is possible, from a drafting standpoint, to include                                                                
the volunteers under a commercial entity by redrafting subsection                                                               
(6) [Section 1, Version G].  He expressed some concern about the                                                                
gas station analogy.                                                                                                            
                                                                                                                                
Number 0954                                                                                                                     
                                                                                                                                
TERRY CRAMER, Legislative Counsel, Legislative Legal and Research                                                               
Services, came forward.  She stated she has come up with some                                                                   
language but is not sure it would preclude the gas station example.                                                             
It would include the National Ski Patrol.  Ms. Cramer indicated the                                                             
proposed CS contains the tightest language, where both the National                                                             
Ski Patrol issue and the broadening of the nonprofit organization                                                               
are specifically addressed without attempts to blend the two                                                                    
together.  Ms. Cramer provided her possible language to the                                                                     
committee, adding to the end of the proposed CS's Section 1 after                                                               
"and are related only to the organization's nonprofit activities",                                                              
the wording, "whether or not the activities of the individual are                                                               
performed under the direction of another for-profit organization".                                                              
Ms. Cramer commented it might be possible to omit the word                                                                      
"another"; she additionally said it could be a for-profit or                                                                    
nonprofit organization.                                                                                                         
                                                                                                                                
CHAIRMAN ROKEBERG stated, "under the direction of a for-profit                                                                  
organization".                                                                                                                  
                                                                                                                                
MR. PERKINS asked if just using "organization" would be inclusive                                                               
of for-profit.                                                                                                                  
                                                                                                                                
Number 1045                                                                                                                     
                                                                                                                                
MS. CRAMER indicated her concern about using only the word                                                                      
"organization" in her suggested language is because the previous                                                                
use of "organization" in subsection (6) refers to nonprofit                                                                     
organizations.  She mentioned the language, "another for-profit or                                                              
nonprofit organization".                                                                                                        
                                                                                                                                
CHAIRMAN ROKEBERG asked if they could refer to business, as under                                                               
the business code.  He noted the legislature had redefined                                                                      
"business" last year to include nonprofits, indicating it is                                                                    
applicable.                                                                                                                     
                                                                                                                                
MS. CRAMER said she would have examine that definition.                                                                         
                                                                                                                                
CHAIRMAN ROKEBERG indicated the legislature had revised the                                                                     
definition of business under the business license.  Chairman                                                                    
Rokeberg commented he guesses this goes back to the point:  the                                                                 
department opposes the addition of further exemptions.  Noting Mr.                                                              
Carr's testimony and the gas station scenario, the chairman                                                                     
questioned Mr. Perkins whether it wasn't better to have the tighter                                                             
language.  He indicated he meant the current language in Version G.                                                             
                                                                                                                                
Number 1126                                                                                                                     
                                                                                                                                
MR. PERKINS asked if Mr. Carr had understood Ms. Cramer's comments                                                              
regarding the possible amendment.                                                                                               
                                                                                                                                
MR. CARR answered in the affirmative.  He indicated he agreed that                                                              
probably the best way to do it would be to leave the proposed CS in                                                             
its current form; that would be the "tightest language" discussed                                                               
so far.                                                                                                                         
                                                                                                                                
CHAIRMAN ROKEBERG noted this would require the department to accept                                                             
subsection (17).  The chairman indicated he thinks the proposed CS                                                              
corrects a serious, long-overdue problem in the existing statute's                                                              
subsection (6), and a that very unique set of circumstances exist                                                               
with the National Ski Patrol.  The volunteer patrollers try to                                                                  
posit themselves as agents on a volunteer basis of a for-profit                                                                 
investor-owned corporation.  The chairman commented on the hybrid                                                               
nature of the relationship.  However, he noted, as Ms. Cramer                                                                   
indicated, attempting to "open up" the statute on a more generic                                                                
basis allows possible abuse such as the previously-mentioned gas                                                                
station situation.  The committee is trying to accommodate the                                                                  
Department of Labor and organized labor's antipathy toward                                                                      
additional exemptions, but the chairman said he doesn't think it                                                                
works.  He asked if Mr. Perkins had an opinion.                                                                                 
                                                                                                                                
Number 1221                                                                                                                     
                                                                                                                                
MR. PERKINS said he certainly understood the chairman's comments,                                                               
noting it appears both he (Mr. Perkins) and Representative                                                                      
Murkowski agreed regarding the "arm's length, if you will," and it                                                              
not being arm's length far enough according to Mr. Carr.  Mr.                                                                   
Perkins indicated he would defer to Mr. Carr's knowledge regarding                                                              
what other groups might request exemptions if subsection (17) is                                                                
added to current statute.                                                                                                       
                                                                                                                                
CHAIRMAN ROKEBERG said he isn't concerned about that if the groups                                                              
can make their case and the process is followed.  The chairman                                                                  
noted they had exposed a major defect in subsection (6) [in current                                                             
statute], with a lot of benefit to that.  Nevertheless, the                                                                     
volunteer ski patrollers have a legitimate request.  The chairman                                                               
commented his position is that the policy of the department and of                                                              
organized labor in Alaska needs to bend a bit when it is doing the                                                              
right thing.  He said he was willing to allow the department more                                                               
time if it thought it could come up with a "wordsmithing fix,"                                                                  
expressing his own scepticism and deferring to Mr. Carr.                                                                        
                                                                                                                                
MR. PERKINS said he would like to review this with the                                                                          
commissioner.  He indicated the department would be present if the                                                              
chairman would hold the bill until the next committee meeting.                                                                  
                                                                                                                                
Number 1337                                                                                                                     
                                                                                                                                
REPRESENTATIVE MURKOWSKI inferred that by amending subsection (6)                                                               
they would solve a lot of potential problems, and therefore perhaps                                                             
would not see requests in the immediate future for the possible                                                                 
additional exemptions Mr. Perkins is concerned about.                                                                           
                                                                                                                                
REPRESENTATIVE HALCRO stated there are exemptions because there                                                                 
need to be, indicating he agreed with the chairman's previous                                                                   
comment.  Laws are obvious designed to protect some, and in this                                                                
case he feels the ski patrol needs to be protected against unfair                                                               
claims.  Representative Halcro said he sees no problem adding                                                                   
subsection (17) for ski patrol services on a voluntary basis,                                                                   
indicating some of the current exemptions, like the handpicking of                                                              
shrimp [AS 23.10.055(3)], are for commercial operations.  He                                                                    
doesn't see the argument and thinks the committee should add the                                                                
exemption.                                                                                                                      
                                                                                                                                
Number 1448                                                                                                                     
                                                                                                                                
CHAIRMAN ROKEBERG strongly agreed.  Without the National Ski                                                                    
Patrol, there would be no avalanche or mountain rescue teams in                                                                 
Alaska, or in the nation.  He asked if there were further comments                                                              
or discussion, announcing that HB 123 would be held till the next                                                               
meeting at the request of Mr. Perkins, Deputy Commissioner of the                                                               
Department of Labor.  However, the chairman's intention is to move                                                              
the legislation out of committee at that time unless the department                                                             
or another party can provide a solution.                                                                                        

Document Name Date/Time Subjects