Legislature(2003 - 2004)
04/16/2004 03:40 PM House L&C
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HB 539-UNIV. STUDENT PRACTICUM LIABILITY/WAGES TAPE 04-43, SIDE B CHAIR ANDERSON announced that the next order of business would be HOUSE BILL NO. 539, "An Act exempting a person who allows a student of the University of Alaska to gain practical work experience with the person while participating in a practicum from vicarious liability as an employer, and exempting the student participating in a practicum from the Alaska Wage and Hour Act and workers' compensation coverage." Number 2316 REPRESENTATIVE LYNN moved to adopt CSHB 539, Version 23- LS1837\D, Craver, 4/16/04, as the working document. There being no objection, Version D was before the committee. HEATH HILYARD, Staff to Representative Lesil McGuire, Alaska State Legislature, informed the committee that there are two substantial differences between Version A and Version D. In Section 1 of Version D, lines 11-13 were inserted in order to clarify that university interns aren't paid for their services. With regard to workers' compensation claims, the language on page 4, line 5-31, of Version A was deleted per conversations with the university. Mr. Hilyard related that in general this legislation limits vicarious liability for the employers of university practicum students. The university feels the aforementioned is necessary. Furthermore, Representative McGuire decided to sponsor this legislation on behalf of the House Judiciary Standing Committee because university practicum programs are valuable in gaining on-the-job work experience. The university practicum programs are particularly [useful] in the construction- and health-related industries. This legislation clarifies that the employer of these students is responsible for its liability, the university for its, and the intern is responsible for any liability as a result of the practicum. There is no desire to extend the liability for the intern's actions to the employer or the university, which this legislation clarifies. Number 2179 DON ETHERIDGE, Lobbyist for the Alaska State American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), related that he has been working with the university on this legislation. He explained that both are trying to determine the best way to exempt the student from being allowed the minimum wage. A concern regarding workers' compensation remains. The concern is in regard to what happens if a student intern is hurt on the job because when exempted from the minimum wage, there is no employer-employee relationship. Therefore, he didn't believe the student intern would be covered under workers' compensation. REPRESENTATIVE CRAWFORD inquired as to what would happen if a student intern was injured due to negligence. MR. ETHERIDGE related his understanding that if a student intern is injured due to negligence on behalf of the employer, the student intern would be allowed to sue the employer. However, if the injury is due to the student intern's own negligence the student intern couldn't bring forth a lawsuit. REPRESENTATIVE GATTO inquired as to where the burden of proof lays in the situation mentioned by Mr. Etheridge. MR. ETHERIDGE said that he didn't know and deferred to an attorney. Number 2067 JAKE POOLE, Director, Tanana Valley Campus, University of Alaska - Fairbanks, related that a number of programs at the Tanana Valley Campus require students to participate in practicum programs as part of the degree program. The Tanana Valley Campus averages about 50-75 students each semester that look to complete such training. The practicum programs range from the allied health arena to early childhood [development], culinary arts, and to the trades. The key point is that this legislation will allow the students to be placed in a practicum setting that is the best for the students while ensuring that the practicum providers and students are in the best position with regard to workers' compensation and any liability. REPRESENTATIVE GUTTENBERG noted that some legislative offices have university interns, who receive a stipend to cover some of their costs and expenses while in Juneau. He asked if other programs pay stipends. MR. POOLE specified that those individuals involved in a practicum aren't paid and students in a paid position are in an internship. In further response to Representative Guttenberg, Mr. Poole related that at the Tanana Valley Campus there are practicum programs for dental assisting, medical assisting, phlebotomy, culinary arts, early childhood [development], some trades, and the paralegal program. Number 1934 JAN GEHLER, University of Alaska - Anchorage, said she would like to echo Mr. Poole's comments. She highlighted that the employer partners are critical to student success. She related that there are practicum programs established for the allied health programs, radiographic technology, a series of medical and clinical laboratory instruction, dental assisting, and medical assisting. There are also [practicum programs] for transportation power or automotive and diesel technology programs as well as the culinary arts, occupational safety and health technology, and a suite of aviation programs. Ms. Gehler mentioned that [the university] does distinguish between internships of which some are paid and some are not and practicums, which are usually driven by some program accreditation standards that require no pay be received. She explained that those students in a field-based learning experience have a structured program of study that's overseen by a faculty member and collaborated with someone on site. Up to this point, developing the memorandum of agreements (MOAs) have been fairly straightforward. However, in this era it's a fairly laborious process negotiating with risk management personnel from employers, who are understandably concerned about their exposures. Ms. Gehler opined that this legislation will go a long way to help the faculty and support staff return to the business of instruction rather than negotiating language in MOAs. She characterized the legislation as a step in the right direction. REPRESENTATIVE ROKEBERG said that he didn't see the workers' compensation language in Version D. He asked if the university is in agreement with the exclusion of workers' compensation requirements. Number 1779 JAMO PARRISH, University of Alaska, informed the committee that the legislation was originally drafted to cover vicarious liability, minimum wage, and workers' compensation. However, there was an objection to workers' compensation by organized labor, AFL-CIO. He expressed hope that practicum sites would be attracted without the workers' compensation provision. REPRESENTATIVE ROKEBERG asked if traditionally the practicum programs provide workers' compensation. MR. PARRISH related that among the complaints from practicum sites is that they would be responsible for workers' compensation. However, under Alaska law it's not clear how it would work. Therefore, Mr. Parrish would let it "ride" on the basis of whatever the court would decide. He related that there are cases outside of Alaska that have held that the benefit the student receives from the practicum site and the education is sufficient consideration for an employment relationship such that workers' compensation would apply. The aforementioned was of concern for the practicum sites as well as [minimum wage] and vicarious liability. Therefore, the hope is that addressing two of the three issues would allow [the legislation] to go forward. REPRESENTATIVE ROKEBERG expressed concern because it sounds as if the university wants to gamble and allow those employers participating in the practicum program to make their own judgment and allow the courts to make a decision. However, Representative Rokeberg viewed this as a matter of public policy. Representative Rokeberg opined that the students should either have workers' compensation or not have it. He predicted that he would probably side with the university because he believes [requiring workers' compensation] may be a deterrent to the successful continuation of these practicum programs if additional burdens are placed on the employers. However, the participants should have coverage if injured, he said. REPRESENTATIVE GUTTENBERG indicated concern with placing a student in a vulnerable situation in which the remedy after being injured is to go to court. Number 1635 REPRESENTATIVE ROKEBERG reminded the committee that the growing workers' compensation claims are accelerating health care costs and health care insurance costs. He suggested that perhaps one way to address this is to require that a student in one of these programs have basic health care coverage, which would be the primary coverage for any injury. REPRESENTATIVE GATTO posed a scenario in which a student is injured and the student applies for his or her insurance, which says that the claim sounds like a workers' compensation claim. In such a situation the student would be abandoned unless he or she obtained representation, which is often difficult. Representative Gatto inquired as to how that would be resolved. REPRESENTATIVE ROKEBERG suggested that the legislature make the policy. MR. PARRISH said that he would agree with everything related to protecting the student if it didn't result in losing practicum sites. He opined that the university is trying to get good jobs for Alaskans. To the extent that the university is impeded from good practicum sites, the students aren't going to be educated. Mr. Parrish highlighted that the difference between the student and the employee is that the student isn't doing the job for the employer, and thus it's not fair to saddle the practicum sites with workers' compensation. Although it would be best to resolve the issue via statute, for the university it would be best to eliminate workers' compensation. He noted that although the university has some health insurance that it offers students in most practicums, it's not very generous insurance. Furthermore, students make the decision to attend school and choose programs that require practicums and thus students can make the decision regarding whether they want to learn. Mr. Parrish concluded by saying that he believes the student should be provided the opportunity, and the responsibility should lay with each individual for his or her own fault. REPRESENTATIVE LYNN related his understanding from Mr. Parrish that the intern doesn't provide any benefit to the site. If that's the case, he questioned why anyone would host an intern program. MR. PARRISH indicated that there is a misunderstanding between a practicum student and an intern. Practicum students aren't doing work like interns do and practicum students aren't paid as interns usually are. Basically, practicum students follow the worker and occasionally are involved in the tasks of the worker, but only if the worker is with the practicum student. The benefit these [host] sites receive is by contributing to the education of people such that they can work in the industry. Students aren't sent out to advance the labor interests of employers, rather they are sent out to learn. The aforementioned is carefully monitored. Number 1337 REPRESENTATIVE CRAWFORD related that his wife did a practicum when she was obtaining her degree as a mental health counselor. Sometimes counselors are injured by their patients. Had his wife been injured during the practicum, it seems that her recourse would've been through workers' compensation with either the university or the clinic. Representative Crawford expressed the need for there to be a policy regarding who is actually liable. MR. PARRISH opined, "I almost think we'd be better off without a bill than imposing workers' comp liability on the practicum site." He predicted that imposing workers' compensation liability on the practicum sites would damage the program. He noted the possibility that "they" could obtain workers' compensation. CHAIR ANDERSON, noting that he is also the chair of the Labor & Workforce Development Committee for National Conference of State Legislatures, said that he understands the concerns on both sides. He added that he isn't particularly concerned. Chair Anderson related his understanding that the next committee of referral for HB 539 is the House Judiciary Standing Committee. He further related that he wanted to forward this legislation, although he didn't want to kill the legislation with a vote. REPRESENTATIVE ROKEBERG said that he shared Chair Anderson's concerns. He noted that the original HB 539 included the workers' compensation exclusion language, which he preferred so that the university could continue to operate. Representative Rokeberg related that although he is willing to forward the legislation, he suggested that for this legislation to have any success it would need to encompass [the workers' compensation exclusion language] in the next committee of referral. Although he indicated that this committee should do the aforementioned, time is getting short. He offered to make a conceptual amendment. Representative Rokeberg said that his intention would be to statutorily allow the university to have a practicum and allow the employers to not have workers' compensation coverage on those practicum students. Number 1118 PETE KELLY, University of Alaska, said that he believes adding Section 3 in HB 539 to Version D would be Representative Rokeberg's conceptual amendment. REPRESENTATIVE GUTTENBERG said he wasn't sure of the effect of such a conceptual amendment. Therefore, he indicated his preference for [forwarding] the legislation without the conceptual amendment. He pointed out that students in practicum situations are often in high risk situations and should be afforded some coverage whether from the [host] employer or the practicum [program] itself. REPRESENTATIVE ROKEBERG questioned why an employer would host a practicum student, if the employer would face an increased rate [in workers' compensation]. CHAIR ANDERSON inquired as to Mr. Kelly's preference in regard to forwarding the legislation to the next committee of referral or adopting the conceptual amendment. MR. KELLY related that the university would prefer the [conceptual] amendment as described earlier. However, discussions had led to [Section 3 of the original legislation] being eliminated in Version D. He said he would rather return to discussions with organized labor before reinserting [Section 3 of the original legislation]. Mr. Kelly also agreed with Representative Rokeberg's earlier mention regarding time growing short. Mr. Kelly committed to the committee that he would get back with it regarding the language and if it's a problem, the university will have to go without the legislation this year. Number 0950 REPRESENTATIVE DAHLSTROM moved to report CSHB 539, Version 23- LS1837\D, Craver, 4/16/04, out of committee with individual recommendations and the accompanying fiscal notes. There being no objection, CSHB 539(L&C) was reported from the House Labor and Commerce Standing Committee.