MINUTES OF MEETING

      ASSEMBLY COMMITTEE ON LABOR AND MANAGEMENT

 

      Sixty-seventh Session

      February 23, 1993

 

 

 

The Assembly Committee on Labor and Management was called to order by Chairman Chris Giunchigliani at 3:30 p.m., Tuesday, February 23, 1993, in Room 321 of the Legislative Building, Carson City, Nevada.  Exhibit A is the Meeting Agenda, Exhibit B is the Attendance Roster.

 

 

COMMITTEE MEMBERS PRESENT:

 

      Ms. Chris Giunchigliani, Chairman

      Mr. Bernie Anderson, Vice Chairman

      Mr. Douglas A. Bache

      Mr. John C. Bonaventura

      Mrs. Erin Kenny

      Mr. John B. Regan

      Mr. Michael A. Schneider

      Mr. John C. Carpenter

      Mr. Peter G. Ernaut

      Mr. Lynn Hettrick

 

 

COMMITTEE MEMBERS ABSENT:

 

      Mr. Tom Collins, Jr. - Excused

     

 

GUEST LEGISLATORS PRESENT:

 

      None

 

 

STAFF MEMBERS PRESENT:

     

      Mr. Donald O. Williams, Principal Research Analyst, LCB

     

 

OTHERS PRESENT:

 

      Mr. Robert Ostrovsky, Nevada Resort Association

      Mr. Nile Carson, City of Reno Police Department

      Mr. Henry Etchemendy, Nevada Association of School Boards

      Mr. Richard Johnson, Nevada Association of Employers

      Mr. John Cummings, Nevada State Education Association

      Mr. Mike Johaneson, Service Employees International Union

      Mr. Sam McMullen, Barrick Goldstrike & Independence Mines

      Ms. Mary Santina, Retail Association of Nevada

      Mr. Danny Thompson, Nevada State AFL-CIO

      Ms. Susan Preator, Clark County Personnel Department

      Mr. George Cotton, Clark County Affirmative Action

      Ms. Carolyne Edwards, Clark County School District

      Mr. Ray Bacon, Nevada Manufacturers Association

      Capt. Randy Oaks, Las Vegas Metropolitan Police Department

     

Chairman Giunchigliani explained she would first utilize the sign-in sheet from a previous meeting, calling on those who had not had a chance to testify on AB 135.  She indicated her intent was to put AB 135 into a subcommittee for further work.

 

ASSEMBLY BILL 135 -     Expands right of employee to inspect record of employment.

 

Mr. Robert Ostrovsky, representing the Nevada Resort Association, testified in opposition to AB 135.  He announced the association had worked actively on the original legislation and had not resisted efforts to provide statutory authority allowing employees access to their files under certain circumstances, or the right to submit statements in opposition to materials found therewith.  He questioned the purpose of the proposed legislation claiming he knew of no instance where an employer had been unable to meet the letter of the law, or where an employee had been denied access to his personnel file under the provisions of the current statute. 

 

In detailing various problem areas of AB 135, Mr. Ostrovsky expressed concern with the broad language of Section 1, lines 14-15.  He contended employers were not sure what information this wording would allow access to.   He further questioned how the notification procedure referred to in Section 1, lines 20-25, would work if all materials added to the employment file had the potential to be used for future disciplinary action.  He contended employees would have to be notified every time a document was placed in his file, otherwise employers might forgo the right to use the file's contents for future disciplinary action.  Another area of contention was the question of investigative materials referred to in Section 1, subsection 3, which under current law was not available to employees.  Mr. Ostrovsky conveyed the gaming industry developed considerable investigative material through the Gaming Control Board or outside agencies which did not normally find its way into employee personnel records, yet might be obtained under the proposed provisions of AB 135.  The six-month time constraint placed on information to be used for disciplinary purposes was also perceived to be a problem.  Further, Mr. Ostrovsky questioned who the judge of "accurate or complete" would be under the provisions of Section 1, subsection 4.  He surmised under current law the employee believing a document to be inaccurate could submit a written statement to which the employer had an obligation to consider and either remove the document in question or include the rebuttal in the employee's personnel file.  In reference to lines 31-32 pertaining to the deletion of the 60-day probationary period, Mr. Ostrovsky explained the original intent was an employer had almost unlimited latitude in the early days of employment in which to decide whether to retain an employee or not.  He felt a person employed under 60-days did not have the right to review his personnel file.  He explained there were other laws such as the Civil Rights Act and The American's with Disabilities Act which provided employees an opportunity to challenge employer's decisions if believed to be discriminatory in nature.  In conclusion, Mr. Ostrovsky asked to be included in the workings of the subcommittee and opined this legislation was unnecessary and burdensome to employers. 

 

In response, Ms. Giunchigliani reviewed Mr. Ostrovsky's concerns requesting he work with the assigned subcommittee on this bill.  She agreed that while the employee presently had the right to review his file, the bill's intent was to provide the additional right to respond to the file's contents and have this response become a part of the original file.

 

Ms. Giunchigliani inquired if the employee's file would be transferred to another employer if requested.  Mr. Ostrovsky indicated the file was not available to future employers.  He contended obtaining background information on perspective employees was a problem faced by many employers.  The standard reply when checking references was only verification of prior employment and possibly salary.  He maintained the file stayed with the employer for a period of time, his recommendation was seven years, then destroyed. 

 

Mr. Nile Carson, Jr., Deputy Chief, City of Reno Police Department, voiced his opposition to AB 135.  The Department's contention was Section 3, lines 3-4 which referred to supplying the employee a copy of his complete personnel file should an investigative disciplinary action be initiated against him.

Mr. Carson viewed this would have a chilling effect on conducting internal investigations, and might conflict with criminal investigations running concurrently.  He suggested information and/or provisions contained in NRS 289 might be of assistance in reworking this bill.  

 

Mr. Henry Etchemendy, Executive Director, Nevada Association of School Boards, indicated Mr. Gregory Betts, Nevada Rural School District Alliance was not available to testify at this meeting.  Mr. Etchemendy expressed his concerns with the bill followed previous testimony and noted his willingness to work with the subcommittee.  He suggested some light might be shed on the intent of this legislation if the proponents of the bill testified and also worked with the subcommittee.  Mr. Etchemendy expressed specific concern with the six-month time limitation noted in Section 3, line 6.

 

Mr. Richard Johnson, Nevada Association of Employers, also spoke in opposition to AB 135 noting his concerns paralleled those already mentioned.  However, he pointed out there was no law that even required employers to maintain personnel files.  A question arose pertaining to time cards, whether they were considered records relating to employment.  Mr. Johnson noted in Section 2 it became the employers burden to notify the employee whenever such a document was placed in the file.  He explained under present law employees had the right to inspect their personnel files, therefore, the burden should be the employee's to periodically check his file.  In Section 3, relating to investigative records, Mr. Johnson noted concern with regard to sexual harassment information should the employee in question be able to access reports made against him.  His concern was whether an employee taking action against another would willingly report incidents if the information was not kept confidential.  Also, Mr. Johnson indicated it might take longer than the six-month time constraint mentioned in Section 3 to put together a disciplinary case.  He determined enough material might not be collected to justify action within that time frame, however, with additional information collected over a period of eight or nine months, taken together with prior incidents, disciplinary action might be warranted.

 

Mr. John Cummings, Executive Director, Nevada State Education Association (NSEA), testified in favor of AB 135.  He did, however, commend the Chairman for putting the bill in subcommittee.  Mr. Cummings alleged the original language of lines 7-19 should be restored.  He expressed no argument with regard to whether confidential information ought to be considered by this act.  NSEA had no problem with precluding employees from having access to confidential reports.  However, he agreed with the new Section 2, which required employers notify employees of information which might pertain to possible disciplinary action.  With regard to Section 3, Mr. Cummings questioned why it would be necessary to maintain documentation for over a period of six months if no disciplinary actions were initiated.

 

Mr. Mike Johaneson, Service Employees International Union, expressed favor of AB 135.  Secret files used to intimidate employees was an issue he observed would be addressed by this bill.  Mr. Johaneson requested the subcommittee work together to find language everyone could agree upon.

 

Mr. Sam McMullen, representing Barrick Goldstrike and Independence Mines, offered additional concerns for subcommittee review.  He believed Section l, lines 20-25, needed further definition to clarify exactly what documentation might refer to corrective action.  In reference to subsection 3, Mr. McMullen felt the proposed language could, in effect, force disclosure of information beyond the facts relied upon in a disciplinary case.  He opined information in any investigative file ranged from fact, to rumor, to rank speculation.  The key issue was facts should be made available that were relied upon for disciplinary action.  He advised the committee of his wish to participate in the subcommittee.

 

Ms. Mary Santina, Executive Director, Retail Association of Nevada, expressed total opposition to this piece of legislation. (Exhibit C). 

 

Ms. Santina, in response to questioning by Mr. Anderson, denied normal everyday correspondence, consideration, communication, or time keeping functions would cause problems without the adoption of this bill.  She emphasized employers used progressive disciplinary action. 

 

In reference to Section 1, subsection 3, Mr. Anderson inquired what time frame Ms. Santina would deem acceptable.  Ms. Santina observed the cyclical nature of investigations could continue over a long period of time.  Her feeling was problems such as drug abuse or shoplifting could continue undetected for some time.  An investigation might be started yet dropped when results were inconclusive.  However, later the investigation might be reopened with further investigative materials.  Ms. Santina noted it occasionally took years to gather information for a valid disciplinary case.  Mr. Anderson rephrased his question.  He theorized the investigation in question was over, for whatever reason it was a blind alley and the initial allegation was improper.  He then questioned whether the investigative material in the person's file should be removed after a six-month period.  Ms. Santina rationalized the case might appear to be solved, however, the original case might only have been a small segment of the overall problem.  The original investigative information might be necessary to pursue a secondary case.  Her final determination for an acceptable time frame in this section was seven years for "paperwork validity."  This, she noted, paralleled Mr. Ostrovsky's opinion.

 

Chairman Giunchigliani believed Mr. Anderson and Ms. Santina were arguing two separate issues.  She explained one was referring to the concept of regular progressive discipline whereas the other was speaking of criminal investigation.  Ms. Giunchigliani requested the subcommittee work on language to delineate the actual work employment factors versus potential criminal investigative activities.

 

Mr. Danny Thompson, Nevada State AFL-CIO, expressed support of the concept of AB 135, noting his willingness to work along with the subcommittee.

 

Ms. Susan Preator, Clark County Personnel Department, voiced strong opposition to AB 135 testifying from a prepared paper (Exhibit D).  Of particular concern were incident files which she explained contained supervisory notes for utilization in evaluation/disciplinary reviews.  Ms. Preator maintained it was "unconstitutional to restrict an individual from keeping notes."  A short discussion ensued on the subject of "incident files" referenced by Ms. Preator verses "personnel files" indicated by the proposed legislation.  Ms. Giunchigliani pointed out the definition of "personnel file" referenced in this legislation needed to be clarified.  

 

Ms. Preator noted another problem in Section 1, subsection 3, was Clark County's 12-month appraisal period for employees.  She concluded it would be necessary to review an entire year's performance at one time, hence, the 6-month verbiage would be inadequate.

 

Mr. George Cotton, Clark County Affirmative Action Manager, echoed some of Ms. Preator's testimony.  He also expressed concern about the area which removes the requirement records be made available, not including confidential reports, from previous employers or investigative agencies.  He noted there were statutory provisions prohibiting release of some of those documents which could expose employers to lawsuits.  Mr. Cotton called attention to the Nevada Equal Rights Commission which could not release its investigative reports unless a public hearing had been set.   Further he determined investigative files in the area of disability discrimination might reveal records of the AIDS virus.  Release of such information would be in direct violation of the Americans with Disabilities Act.

 

Mr. Cotton felt the subcommittee needed to address areas in which employers could be exposed.  He noted Clark County had a strong sexual harassment policy which could be hindered by fear of confidential discussions being disclosed.  He predicted employers would spend vast amounts of money defending claims which could be handled in-house, if employees took their complaints to the Nevada Equal Rights Commission or the Equal Employment Opportunity Commission where they would be guaranteed protection.

 

Mr. Cotton called attention to the 6-month time limit referred to in Section 1, subsection 3.  He maintained patterns often did not develop within a 6-month window.  Also the Equal Employment Opportunity Commission had a 300-day statute of limitations which conflicted with the 6-month language of this bill.

 

Ms. Carolyne Edwards, Clark County School District, wished to be on record as opposing AB 135.  Of particular interest was Section 1, lines 7-19.  Ms. Edwards explained the District had a pre-employment confidentiality issue which she wanted to cover with the subcommittee regarding the hiring of employees working with children.  For the record, the District's negotiated agreements with its employee groups cover the subject matter of this bill.  The District has and maintains an open file policy upon notification.  Ms. Edwards identified Section 1, subsection 3, as an area of contention noting her willingness to work with the subcommittee assigned to this bill.

 

Mr. Ray Bacon, Nevada Manufacturers Association, testified in opposition to AB 135.  He reported one case of employee theft continued for six years before finalization.  The case was closed, then reopened three times and the amount involved was approximately $250 million.  Therefore, Mr. Bacon expressed strong opposition to the six-month investigative provision of AB 135.

 

Capt. Randy Oaks, Las Vegas Metropolitan Police Department, announced opposition to AB 135 and provided for the record memorandums by the Internal Affairs Bureau and Personnel Department (Exhibit E).

 

In the absence of Mr. Donald Klasic, General Counsel, University and Community College System of Nevada, documentation expressing concern with various sections of AB 135 was presented for the record (Exhibit F). 

 

In conclusion, Chairman Giunchigliani explained the subcommittee should be able to deal with many of the expressed concerns.  The subcommittee on AB 135 was named as D. Bache, J. Carpenter and E. Kenny.

 

Ms. Giunchigliani assigned another subcommittee to deal with OSHA standards.  This committee was comprised of B. Anderson, L. Hettrick and T. Collins. 

 

Mr. Regan inquired if in the interest of time it would expedite the matter to indefinitely postpone AB 135, inserting the language into a new bill.  The Chairman disagreed noting the assigned subcommittee would work out details of the bill before presenting it again to the committee for further action.

 

Chairman Giunchigliani stated Don Jayne, State Industrial Insurance System, would spend the first part of Thursday's meeting explaining the System, then he would respond to the committee regarding the implementation of the Coopers Lybrand Study which resulted from AB 388 of the 1991 legislative session.  She explained the second part of the meeting would deal with the impact of self-insureds leaving the State Industrial Insurance System.

 

There being no further business to come before committee, the meeting was adjourned at 4:50 p.m.

 

Although AB 134 was not heard, testimony was presented by the City of Henderson (Exhibit G) and the Service Employees Int4rnational Union (Exhibit H).

 

The committee was also provided a memo from Don Williams, Principal Research Analyst, pertaining to AB 134, Access to Personnel Records of Public Employees (Exhibit I).

 

 

      RESPECTFULLY SUBMITTED:

 

 

                             

      BARBARA DOKE

      Committee Secretary

   

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Assembly Committee on Labor and Management

February 23, 1993

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