Legislature(2003 - 2004)

03/31/2004 03:27 PM L&C

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
HB 391-EMPLOYER MUST LET CRIME VICTIM OFF WORK                                                                                
                                                                                                                                
Number 0108                                                                                                                     
                                                                                                                                
JOHN  BITTNER, Staff  to  Representative  Cheryll Heinze,  Alaska                                                               
State Legislature,  presented HB 391 on  behalf of Representative                                                               
Heinze, sponsor  of the  bill.   He explained  that HB  391 gives                                                               
statutory penalties  for employers  who prevent  their employees,                                                               
who have been  victims of felonious crimes, from  leaving work to                                                               
attend  the court  proceeding for  which they  are involved.   It                                                               
does have exemptions for small businesses, he added.                                                                            
                                                                                                                                
CHAIR ANDERSON  asked Mr. Bittner  to provide an example  of what                                                               
this bill might do.                                                                                                             
                                                                                                                                
MR. BITTNER replied that the  employer cannot prevent an employer                                                               
from attending  a criminal  proceeding relating  to the  crime at                                                               
which  the victim  has a  right to  be present,  unless it  would                                                               
cause the  employer undue hardship  to the business or  they fall                                                               
into the small business category.                                                                                               
                                                                                                                                
CHAIR  ANDERSON gave  an  example of  a person  who  wants to  be                                                               
present  at his  sister's DUI  hearing.   He suggested  that this                                                               
bill does not apply in that case.                                                                                               
                                                                                                                                
MR.  BITTNER replied  that the  only exceptions  would be  if the                                                               
victim was  a minor or  mentally impaired,  then a person  who is                                                               
not the victim could attend the court proceeding.                                                                               
                                                                                                                                
CHAIR ANDERSON said that it applies just to victims themselves.                                                                 
                                                                                                                                
Number 0344                                                                                                                     
                                                                                                                                
REPRESENTATIVE  DAHLSTROM asked  Mr. Bittner  to talk  more about                                                               
the employee being penalized by not being paid for the time off.                                                                
                                                                                                                                
MR.  BITTNER stated  that they  would not  receive pay,  just the                                                               
time off.                                                                                                                       
                                                                                                                                
REPRESENTATIVE GATTO asked  about page 2, line 8 of  HB 391, "has                                                               
suffered personal  injury".  He  wondered if mental  injury would                                                               
also apply.                                                                                                                     
                                                                                                                                
MR.  BITTNER said  it would  depend on  whether or  not it  was a                                                               
felony, and he offered to find out more information about it.                                                                   
                                                                                                                                
CHAIR ANDERSON  said he thought  that personal injury  meant just                                                               
that.                                                                                                                           
                                                                                                                                
REPRESENTATIVE  DAHLSTROM asked  Mr. Bittner  to point  out where                                                               
the bill  addresses the responsibility  that the employer  has to                                                               
share  with the  employer, proof  that  they need  to attend  the                                                               
court hearings.                                                                                                                 
                                                                                                                                
MR. BITTNER  replied that in  the case  of this bill,  a subpoena                                                               
would not be necessary.                                                                                                         
                                                                                                                                
REPRESENTATIVE DAHLSTROM  asked if  the House  Judiciary Standing                                                               
Committee would be  the appropriate place to  address that issue.                                                               
She said  that she could  see it as a  problem if left  wide open                                                               
for that "one bad apple in the bushel" to abuse the situation.                                                                  
                                                                                                                                
MR. BITTNER said he would be  happy to have language drafted that                                                               
would cover that issue.                                                                                                         
                                                                                                                                
CHAIR  ANDERSON referred  to  page 2,  subsection  (c), where  it                                                               
defines  "penalize" as  it applies  to  affecting the  employment                                                               
status,  wages,  and  benefits   payable  to  the  victim,  which                                                               
includes demotion,  dismissal and  loss of pay  or benefits.   He                                                               
asked  if Mr.  Bittner  interprets  that as,  "I'm  not going  to                                                               
terminate you, or  dismiss you, or suspend you, but  I am going -                                                               
if you're going to  take two weeks off as a victim  of a felony -                                                               
I am going to take all of your leave time."                                                                                     
                                                                                                                                
MR. BITTNER said he is not sure if leave falls under benefits.                                                                  
                                                                                                                                
CHAIR  ANDERSON gave  an example  where  this might  happen to  a                                                               
small employer.                                                                                                                 
                                                                                                                                
REPRESENTATIVE DAHLSTROM  asked if  there is  a precedent  in law                                                               
already  about  such  a  situation.   She  said  she  thinks  the                                                               
requirements  in the  bill regarding  the employer  are good  but                                                               
that those regarding the employee need to be tightened up.                                                                      
                                                                                                                                
Number 0794                                                                                                                     
                                                                                                                                
REPRESENTATIVE  LYNN  asked if  there  is  a limitation  for  the                                                               
length of the trial.                                                                                                            
                                                                                                                                
MR. BITTNER  replied that there  is, and  he referred to  page 1,                                                               
line 11, "an  employer may limit the amount of  leave an employee                                                               
may  take if  the employer  would  suffer undue  hardship to  the                                                               
employer's business or operations."                                                                                             
                                                                                                                                
REPRESENTATIVE LYNN remarked that that  could be a very debatable                                                               
point.                                                                                                                          
                                                                                                                                
MR. BITTNER  agreed that it could.   It would have  to be decided                                                               
in court,  he added.   He  said it was  too difficult  to include                                                               
undue hardship in the bill in a "broad blanket sense".                                                                          
                                                                                                                                
CHAIR ANDERSON gave  an example of undue hardship  where a person                                                               
is working in  an auto mechanics shop with only  two mechanics in                                                               
the peak season.                                                                                                                
                                                                                                                                
Number 0875                                                                                                                     
REPRESENTATIVE LYNN  said it would  be difficult to  challenge an                                                               
employer on this issue.                                                                                                         
                                                                                                                                
REPRESENTATIVE GATTO  said that typically, even  when an employee                                                               
is discharged, they still get  their insurance coverage until the                                                               
end of the month.                                                                                                               
                                                                                                                                
REPRESENTATIVE DAHLSTROM responded, "Not always."                                                                               
                                                                                                                                
REPRESENTATIVE GATTO said all of  the employees he has worked for                                                               
have allowed that.  He  opined that a person's insurance coverage                                                               
would  still  be  in  effect  if  they  had  to  attend  a  court                                                               
proceeding and that  it is not the  intent of the bill  to take a                                                               
person's  benefits  away.   He  wondered  if  the bill  needs  to                                                               
address some of the benefit issues.                                                                                             
                                                                                                                                
MR.  BITTNER  said  that Representative  Gatto's  question  falls                                                               
under  the  pay and  benefits  question  mentioned earlier.    He                                                               
stated that he would get a legal opinion on that issue.                                                                         
                                                                                                                                
Number 0993                                                                                                                     
                                                                                                                                
CHAIR ANDERSON  stated his  intent to  bring [HB  391] back  at a                                                               
later date with the answers to these questions included in it.                                                                  
                                                                                                                                
REPRESENTATIVE DAHLSTROM  noted that  in the  case of  jury duty,                                                               
the employee  has to  give the  employer proof  of the  jury duty                                                               
notice, for a leave request.                                                                                                    
                                                                                                                                
REPRESENTATIVE ROKEBERG  asked why  the size  of the  business is                                                               
limited to six or more employees.                                                                                               
                                                                                                                                
MR. BITTNER  replied that  it was  felt that  for a  business any                                                               
smaller than that, the loss of  one employee would cause an undue                                                               
hardship.                                                                                                                       
                                                                                                                                
REPRESENTATIVE ROKEBERG asked why the number six was used.                                                                      
                                                                                                                                
MR. BITTNER  responded that that  was a number determined  by the                                                               
Legislative  Legal  and   Research  Services  and  Representative                                                               
Heinze's office.                                                                                                                
                                                                                                                                
REPRESENTATIVE  ROKEBERG,  looking  at the  Legislative  Research                                                               
Report, pointed  out that it  indicates that the  Arizona statute                                                               
defines [and  applies to]  an employer with  50 or  more workers.                                                               
He noted that  50 or more workers is a  typical federal, standard                                                               
size of a  large business versus a small business  with less than                                                               
50 workers.   He inquired of Mr. Bittner whether  that number was                                                               
considered.                                                                                                                     
                                                                                                                                
MR.  BITTNER  replied that  while  the  language in  the  Arizona                                                               
statute is similar to the  bill, [Representative Heinze's office]                                                               
felt  that  the  actual,   practical  business  concerns  between                                                               
Arizona  and Alaska  are  somewhat different.    Alaska has  more                                                               
rural  areas  and  smaller  businesses   than  Arizona  does,  he                                                               
explained.                                                                                                                      
                                                                                                                                
REPRESENTATIVE ROKEBERG  asked if there  is a rational  basis for                                                               
the "six figure" other than what has been said.                                                                                 
                                                                                                                                
MR. BITTNER answered,  "Other than trying to  protect the largest                                                               
number of  victims and  the largest  number of  small businesses.                                                               
That was the happy  medium we were going for and  that is what we                                                               
felt this number would do."                                                                                                     
                                                                                                                                
Number 1116                                                                                                                     
                                                                                                                                
CHAIR ANDERSON asked what the  [Alaska State Chamber of Commerce]                                                               
thinks of this bill.                                                                                                            
                                                                                                                                
MR. BITTNER said that it had not weighed in yet.                                                                                
                                                                                                                                
REPRESENTATIVE  ROKEBERG  referred  to  page  2,  [line  9],  and                                                               
questioned  the meaning  of "who  is a  victim by  reason of  the                                                               
person's relationship  to a minor, incompetent,  or incapacitated                                                               
person who has suffered personal  injury or death from a felony".                                                               
He asked  if the person is  a victim because the  injury or death                                                               
was to a family  member and was caused by a  felony.  He wondered                                                               
if the intention in the drafting  is that the personal injury was                                                               
also caused by a felony.                                                                                                        
                                                                                                                                
MR. BITTNER said yes.                                                                                                           
                                                                                                                                
CHAIR  ANDERSON responded  that it  would drastically  reduce the                                                               
number of  employees who would  apply for leave because  the bill                                                               
addresses felonious cases only.                                                                                                 
                                                                                                                                
Number 1229                                                                                                                     
                                                                                                                                
REPRESENTATIVE  ROKEBERG  remarked that  what  the  bill does  is                                                               
takes the  current statute that sets  up a recourse for  a victim                                                               
who has  requested to participate  in [court] proceedings  or who                                                               
has been  subpoenaed for  the purpose  for giving  testimony, and                                                               
expands it to  include the victim's right to  no retaliation from                                                               
an employer for taking the needed time  off of work.  He asked if                                                               
that is the intention of the bill.                                                                                              
                                                                                                                                
MR. BITTNER answered  that that is part of the  intention and the                                                               
other part  is that the bill  insures that the victim  can attend                                                               
the whole  proceeding, not just  the part that they  are required                                                               
or subpoenaed to attend.                                                                                                        
                                                                                                                                
REPRESENTATIVE  ROKEBERG,  referring to  page  1,  line 10,  "the                                                               
victim  has the  right to  be present",  asked if  that right  is                                                               
found in the constitution and in Alaska's statutes.                                                                             
                                                                                                                                
MR. BITTNER  replied yes.   The current statute  AS12.61.010 says                                                               
that  the  victim  has  the   right  to  be  present  during  any                                                               
proceeding in  the prosecution and  sentencing of  the defendant,                                                               
if the  defendant has  the right to  be present,  including being                                                               
present during  testimony, even  if they are  going to  be giving                                                               
testimony at  a later date.   "The problem with that  is that the                                                               
coverage  for employers  of  victims only  applies  to a  certain                                                               
small aspect of this," he said.   "There is no statutory language                                                               
that gives teeth to the earlier statute," he explained.                                                                         
                                                                                                                                
REPRESENTATIVE  ROKEBERG said  he  is confused  about whether  it                                                               
covers both criminal and civil actions.                                                                                         
                                                                                                                                
Number 1361                                                                                                                     
                                                                                                                                
MR.  BITTNER  replied  that  it  covers  all  felonious  personal                                                               
injury.                                                                                                                         
                                                                                                                                
REPRESENTATIVE  ROKEBERG  said  that  the  victim  would  be  the                                                               
subject of  a felonious injury.   It says "court  proceedings" so                                                               
there could be  an issue if the victim was  a witness, whether he                                                               
or she could participate in the court proceedings.                                                                              
                                                                                                                                
MR. BITTNER  replied that Alaska  is one  of the few  states that                                                               
allows for that.                                                                                                                
                                                                                                                                
REPRESENTATIVE ROKEBERG said,  "So they can sit  in the courtroom                                                               
and watch the trail even though they're going to testify?"                                                                      
                                                                                                                                
MR. BITTNER said yes.                                                                                                           
                                                                                                                                
REPRESENTATIVE  ROKEBERG  asked  Mr.  Bittner  if  his  testimony                                                               
stated that  [HB 391] is  a follow-up  civil cause of  action for                                                               
personal injury.                                                                                                                
                                                                                                                                
MR. BITTNER said he does not understand the question.                                                                           
                                                                                                                                
REPRESENTATIVE ROKEBERG clarified  that if it was  a civil action                                                               
they  would be  a party  to  the case  and  would want  to be  in                                                               
attendance.                                                                                                                     
                                                                                                                                
MR.  BITTNER replied  that he  does  believe that  they would  be                                                               
covered under this law.                                                                                                         
                                                                                                                                
Number 1428                                                                                                                     
                                                                                                                                
CHAIR  ANDERSON explained  that what  Representative Rokeberg  is                                                               
saying is  in a case  where someone is  robbed and had  their arm                                                               
broken, the defendant would be charged  for a felony by the state                                                               
and then  the victim would sue  for injury, so it  would become a                                                               
trial where it has dual purposes.                                                                                               
                                                                                                                                
REPRESENTATIVE ROKEBERG  replied that  is right.   It would  be a                                                               
civil case rather than a criminal case, he added.                                                                               
                                                                                                                                
REPRESENTATIVE  GUTTENBERG   discussed  insurance   coverage  and                                                               
explained  how it  is based  on how  many hours  are worked  in a                                                               
month.   In  a situation  where the  victim is  required to  miss                                                               
work, he  wondered if there  is anything  in the bill  that could                                                               
address this issue.                                                                                                             
                                                                                                                                
CHAIR  ANDERSON said  that Mr.  Bittner  plans to  check on  this                                                               
issue.    He  summarized  the  issues that  still  needed  to  be                                                               
addressed  regarding HB  391:   leave time,  insurance, benefits,                                                               
the number  six for  business size, and  support by  other groups                                                               
such as the Chamber of Commerce.                                                                                                
                                                                                                                                
REPRESENTATIVE  GUTTENBERG suggested  that the  various types  of                                                               
leave that  an employer  could require needs  to be  checked out,                                                               
also.                                                                                                                           
                                                                                                                                
CHAIR ANDERSON  asked Mr.  Bittner to  bring the  bill back  at a                                                               
future date with those questions answered.                                                                                      
                                                                                                                                
[HB 391 was held over.]                                                                                                         
                                                                                                                                

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