Legislature(2003 - 2004)

04/16/2004 03:40 PM House L&C

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= 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                                                               
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                                                               
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                                                               
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                                                               
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                                                               
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                                                               
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'                                                               
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.                                                                                                

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