MINUTES OF THE

      ASSEMBLY COMMITTEE ON LABOR AND MANAGEMENT

 

      Sixty-seventh Session

      June 10, 1993

 

The Assembly Committee on Labor and Management was called to order by Vice Chairman Bernie Anderson, at 3:40 p.m., on Tuesday, June 10, 25, 1993, in Room 119 of the Legislative Building, Carson City, Nevada.  Exhibit A is the Meeting Agenda.  Exhibit B is the Attendance Roster.

 

COMMITTEE MEMBERS PRESENT:

 

      Ms. Christina R. Giunchigliani, Chairman    Late/Excused

      Mr. Bernie Anderson, Vice Chairman

      Mr. Douglas A. Bache

      Mr. John C. Bonaventura

      Mr. John C. Carpenter  

      Mr. Tom Collins, Jr.

      Mr. Peter G. Ernaut

      Mr. Lynn Hettrick

      Ms. Erin Kenny                                        Absent/Excused

      Mr. John B. Regan

      Mr. Michael A. Schneider

 

STAFF MEMBERS PRESENT:

 

      Don Williams, Legislative Counsel Bureau Research

 

 

Following roll call, Vice Chairman Anderson opened the hearing on AB 700.  He announced Chairman Giunchigliani was testifying in another committee but would be present when that was finished.

 

ASSEMBLY BILL 700 -     Prohibits certain employers from requesting applicants to submit to testing for presence of drug or alcohol and limits circumstances under which employees may be requested to submit to such testing.

 

Opening testimony in opposition to AB 700 was offered by Bob Ostrovsky, representing the Nevada Resort Association.  He indicated the Association had been consistently conducting drug testing at most of the major properties for the past two years.  In reference to federal contracting which now called for compliance with the drug-free workplace, Mr. Ostrovsky said he thought the way AB 700 was drafted it would interfere with the ability of a Nevada employer to have any federal contracts.

 

Mr. Ostrovsky cited problems in the language which would serve to create two standards:  1) whether the employee was under the influence; and 2) whether the employee was impaired.  Mr. Ostrovsky believed it was unreasonable for an employer to have to prove both points.  Although they opposed the bill, Mr. Ostrovsky said if the proponents of the bill perceived there to be problems, his Association was willing to work with them to address those problems.

 

Mr. Anderson recalled one of the criticisms the legislators had heard regarding the established drug programs dealt with discrimination against people taking medication for legitimate medical problems.  Based on a showing of drugs in the system, the individual would not be offered employment.  Mr. Ostrovsky said in his experience the drug test came after the job offer, principally because the drug test was expensive.  He believed the notion of an employer withholding a job offer because someone was taking prescribed medication was always a possibility, but he did not think it was likely.

 

Bill Champion, representing Nevada Unified, also spoke in opposition to AB 700.  He submitted Exhibit C, a document entitled "Does Drug Testing Work?"  (Exhibit C has not been included with this set of minutes but may be viewed in the Legislative Counsel Bureau Research Library.)  Mr. Champion stated he was opposed to the prohibition of screening of new employees.  He believed it was necessary to dispel the notion that drug testing was somehow an invasion of privacy.  Neither the public nor employees saw drug testing as a problem -- only approximately 10 percent of those surveyed believed it should not be done at all.  Mr. Champion then reviewed the material in Exhibit C.

 

Mr. Anderson asked if there was any advantage in Nevada codifying the President's (President Clinton) executive order so there was a uniformity of standards.  Mr. Champion believed this would be meritorious, and thought there was a bill in the House of Representatives to do this.  Mr. Champion also said he did not believe there should be a proscription against testing employees who had accidents requiring medical treatment.  There were a number of properties which had started doing this, Mr. Champion said, and there had been a dramatic reduction in workers' compensation injuries.

 

Opposing testimony was also heard from the following:

 

-     Keith Ashworth, Nevada Power Company; and Fred Horbath, Manager Labor Relations and Employment Practices at Nevada Power Company, testified the Nevada Power Company already had a drug testing program.  They were particularly opposed to Section 1, subsection (a), stating the employer was prohibited from asking the applicant to submit to a screening test.

 

-     Debbie McKeel, Human Resources Dept., Sierra Pacific Power Company, submitted Exhibit D, her prepared testimony in opposition.  Discussion followed regarding the testing program used by Sierra Pacific Power.

 

-     Thomas Riffel, Plant Manager for B & J Machine and Tool, Inc., related work experiences before and after his company's drug testing program was initiated.  After two serious accidents the company's SIIS levy increased, and the employees who had lost fingers in the accidents quit their jobs after they received their SIIS awards.  This led the company to initiating a drug program which resulted in a dramatic improvement in employee morale and productivity.

 

-     Helen Foley, representing Psychemedics (a hair testing laboratory for drug analysis), told the committee many Nevada casinos, mining companies and other businesses used the services of Psychemedics.  She noted the bill did not ban pre-employment screening for state employees, but was directed to safety sensitive employees.  She indicated support for the concept of incorporating the federal guidelines, as mentioned by Mr. Anderson.

 

-     Mike Barrett, Director of Risk Management for Raley's Food Stores, related the numbers of applicants who had tested positive for drugs since inception of the drug testing program in 1991.  Mr. Barrett submitted Exhibit E, a drug testing policy statement given to applicants.  He said if the committee was seriously considering the establishment of drug testing or guidelines, he urged them to look at the Wilkinson v. Times Mirror decision in California (see Exhibit E-2). 

 

-     Mary Santina, Retail Association of Nevada.

 

 

Michael Rose, Vice President of the Bartenders Union Local 165, AFL/CIO, was the only person testifying in favor of the bill.  He remarked much of the language was consistent with some of the collective bargaining agreements.

 

ASSEMBLY BILL 701 -     Prohibits employer from applying any tips or gratuities bestowed upon employee as credit toward payment of wages to any employee.

 

Opening testimony in support of AB 701 was offered by Nye Allen, representing the Nevada Casino Dealers' Association.  He pointed out the state of Nevada had long ago statutorily prohibited using tip income to reduce management and supervisory costs in NRS 608.160.  AB 701 merely clarified the statute and allowed the Labor Commissioner to enforce the law.

 

Eddie Rivera, Nevada Casino Dealers' Association, also indicated support for AB 701. 

 

Van Heffner, President of the Nevada Restaurant Association, submitted his prepared testimony in opposition to AB 701, Exhibit F.

 

Jeannine Stroth, Cousins Cafe, a family dining restaurant in Las Vegas also testified in opposition to AB 701, saying that Nevada could not be competitive in the restaurant business with other states who had a tip credit policy.  She further testified loss of volume meant cutting jobs and cutting hours; and most restaurant workers were minorities, i.e., 60 percent women, 25 percent Afro-American and Hispanics.  She said the issue was protecting their business and in protecting their business they were protecting the jobs in Nevada. 

 

Thomas Kapp, owner of Tillerman Restaurant, told the committee when the restaurant was not able to take a tip credit from a waiter who made approximately $10 to $15/hour, the restaurant owners were unable to pay kitchen employees, bartenders and hostesses a higher wage.  Since these wages were low, Tillerman's could not compete with larger hotels who paid cooks a superior wage and therefore hired a superior cook.

 

In response to a question from the Chairman, Mr. Heffner explained the tip credit would allow for a credit against the minimum wage for a tip income up to 50 percent, and this was current with the 50 percent which was allowed by the federal government. 

 

Mr. Carpenter reflected he, also, had a restaurant in Elko which was, admittedly, a low profit operation.  However, in his restaurant the tips were shared with bus boys, cooks and hostesses.  Although he said he paid more than minimum wage, he could not in good conscience take part of his employees' tips to apply to what was his responsibility in paying a worker a reasonable wage. 

 

There was some apparent confusion and discussion regarding a Senate bill which would allow tip credit. 

 

Denny Weddle, Nevada Restaurant Association, agreed there was some confusion in the language and terminology.  Chairman Giunchigliani said she believed clearer language was needed and when this had been done, she would bring the bill back to the committee.

 

Responding to Mr. Carpenter's statement, Ms. Stroth said, ". . .I think there's some confusion -- he made the statement he didn't want anyone to take their tips?  Our tip credit bill does not allow anyone to take an employee's tips away from them.  All it changes is the amount that we pay in minimum wage.  They keep 100 percent of their tips."  Mr. Carpenter was not convinced. 

 

Nye Allen again spoke indicating what the Restaurant Association was proposing was in direct conflict with the statute, NRS 608.160.  The Chairman assured Mr. Allen she would confer with the Legislative Counsel to clarify the position of the committee and relieve any possible conflict with the Senate bill allowing tip credit.  Mr. Nye insisted there were two conflicting policies presented (AB 701 and a Senate bill proposed by the Restaurant Association).

 

Chairman Giunchigliani asked the committee to consider concurrence on AB 436 (Exhibit G).  Committee members indicated they had not had a chance to review the original bill or the amendment.  The Chairman agreed to ask for a vote on the floor of the Assembly the following day after committee members were able to consider the bill and proposed amendments.

 

There being no further business, the meeting was adjourned at 5:15 p.m.

 

                                          RESPECTFULLY SUBMITTED:

 

 

                                                                 

                                          Iris Bellinger

                                          Committee Secretary

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Assembly Committee on Labor and Management

Date:  June 10, 1993

Page:  1