MINUTES OF THE meeting
of the
ASSEMBLY Committee on Commerce and Labor
Seventy-Second Session
March 12, 2003
The Committee on Commerce and Laborwas called to order at 2:12 p.m., on Wednesday, March 12, 2003. Chairman David Goldwater presided in Room 4100 of the Legislative Building, Carson City, Nevada, and, via simultaneous videoconference, in Room 4401 of the Grant Sawyer State Office Building, Las Vegas, Nevada. Exhibit A is the Agenda. Exhibit B is the Guest List. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.
COMMITTEE MEMBERS PRESENT:
Mr. David Goldwater, Chairman
Mr. Morse Arberry Jr.
Mr. Bob Beers
Mr. David Brown
Mrs. Dawn Gibbons
Ms. Chris Giunchigliani
Mr. Josh Griffin
Mr. Lynn Hettrick
Mr. Ron Knecht
Ms. Sheila Leslie
Mr. John Oceguera
Mr. David Parks
Mr. Richard Perkins
COMMITTEE MEMBERS ABSENT:
Ms. Barbara Buckley, Vice Chairwoman (excused)
GUEST LEGISLATORS PRESENT:
None
STAFF MEMBERS PRESENT:
Vance Hughey, Committee Policy Analyst
Diane Thornton, Senior Research Analyst
Wil Keane, Committee Counsel
Patricia Blackburn, Committee Secretary
OTHERS PRESENT:
Dr. Morton D. Fielding, Nevada Board of Podiatry, Las Vegas
Dr. Loren Hansen, Nevada Board of Podiatry, Las Vegas
Farolyn McSweeney, O.M.D., Las Vegas
Sae E. Lee, O.M.D., Las Vegas
Hak Eun Rhee, O.M.D., Las Vegas
Michael Labrum, D.C., O.M.D.
Tom Stewart, O.M.D.
Mark Montgomery, Licensed Acupuncturist
Steve Collins, R.N.
Bruce Eichelberger, O.M.D.
Terry Johnson, State Labor Commissioner, State of Nevada
Lori Ashton, Representative, Southwest Regional Council of Carpenters
Richard Daly, Business Manager, Laborers Union 169
Robert A. Ostrovsky, Ostrovsky and Associates, representing Nevada Resort Association
Jack Jeffrey, Jack Jeffrey Consulting Services, Legislative Advocate representing Southern Nevada Building and Construction Trades Council
Garth Sevdalis, representing himself
Chairman Goldwater called the meeting to order at 2:12 p.m. A quorum was present. Assemblywoman Buckley was excused. On the agenda were four bills.
Chairman Goldwater opened the hearing on A.B. 231.
Assembly Bill 231: Authorizes State Board of Podiatry to issue limited license to practice podiatry. (BDR 54-997)
Chairman Goldwater introduced the bill and explained it was a fairly straightforward bill. This bill would allow the Board of Podiatry to issue a limited license. This was enabling legislation for the Board. The witness would explain the background behind this legislation.
Dr. Morton D. Fielding stated that he was testifying in support of A.B. 231 because of his desire to practice his profession of podiatry in the state of Nevada. He stated he was 74 years of age and had been a resident of Las Vegas for the past three years. He graduated, he noted, from Long Island University, College of Podiatry, in 1952. He joined the Army and was stationed at Walter Reed Medical Center and it was there he received three years of experience in orthopedics and podiatry. He was discharged in 1955 and opened his practice in Bethesda, Maryland, and continued to practice there until his retirement in 1999. Dr. Fielding was the consulting podiatrist for the White House; he was also the first consulting podiatrist to the National Institutes of Health. He had been president of the Maryland Podiatry Association and a delegate to the national association for 13 years. He lectured extensively throughout the United States at various meetings and wrote and edited nine books on podiatric medicine and surgery. Because he suffered from arthritis, Dr. Fielding stated, he had moved to Nevada, where the climate made him more comfortable.
Dr. Fielding explained that almost all of his retirement money had been lost in the past three years because of poor investments and the downturn in the economy. He would like to return to work and the only place he felt comfortable enough to work was in Nevada. He would like to practice his profession and would like to work under the auspices of other podiatrists presently practicing in the state of Nevada.
Chairman Goldwater stated that Dr. Fielding was a constituent of his and explained that the bill was straightforward and it was permissive of the Board of Podiatry. He stated that there was an effort to keep doctors and other medical professionals in Nevada, and there seemed to be a threat of medical professionals leaving. Clearly, Chairman Goldwater stated, someone of Dr Fielding's caliber, who wished to practice medicine in Nevada, spoke volumes. Barriers should be removed to allow such a qualified professional to practice here. Chairman Goldwater asked if there were any questions from the Committee for Dr. Fielding. There were none.
Chairman Goldwater acknowledged a speaker from Las Vegas from the State Board of Podiatry.
Dr. Loren Hansen, President, Nevada State Board of Podiatry, had been on the Board for approximately ten years. Dr. Hansen listed the members of the Board, as well as their consumer advocate. He distributed a summary of his testimony (Exhibit C). At a board meeting on December 7, 2002, Dr. Fielding had presented similar testimony and Dr. Hansen reiterated that Dr. Fielding was a well-qualified individual and it would be an honor to practice with him. Dr. Fielding's problems with regards to practicing in Nevada were that, over the years, the level of qualification had risen higher. A residency program and various examinations were needed. Dr. Fielding, of course, was highly qualified, and the Board had written to the Legislature stating their interest in learning how legislation might help this individual. They received a copy of this bill only one week ago and met just the evening before this hearing. Their consumer advocate, Dr. Hansen explained, was opposed to this bill. Since a limited license would be used, the National Federation of Podiatric Medical Boards was consulted. That Board was asked if there were similar types of legislation anywhere so they might see how successful that program was in monitoring the quality of care. The National Board stated that A.B. 231 would be new. Their concern was the lack of a track record and the absence of a pattern to follow. Dr. Hansen was concerned about the ramifications of such a law with regard to quality of care. That was not a reflection upon Dr. Fielding, Dr. Hansen explained.
Dr. Hansen's second concern had to do with the standard of care. The only requirement would be that the individual did not have serious consequences as a result of performing their medicine. The third issue, Dr. Hansen continued, was the concern about the lack of an active license. An individual could wait ten years without completing any continuing medical education. Not keeping up with the latest techniques and the latest method of practicing medicine and still qualify for a limited license.
The Board of Podiatry's consumer advocate had a problem because their mission was to serve the public. This law would allow particular individuals to practice and ignore the laws that had been passed over the years to elevate the level of care in the state of Nevada. He told the Committee he would answer any questions. Dr. Hansen reiterated that his concern was not with Dr. Fielding, but the type of control the Board would have for monitoring future applicants of a limited license. He had questions regarding the definition of what "direct supervision" meant. Would it mean just giving some directions or actual "over the shoulder" supervision.
Assemblywoman Gibbons asked about page 2, lines 15 through 18. She asked if that language did not clearly state that someone with a limited license must work under someone who had a regular license. It appeared to Mrs. Gibbons that the language was adequate.
Dr. Hansen acknowledged Mrs. Gibbons' point; however, he felt "direct supervision" was not that well defined. He explained that during his residency program, he was supposed to be under the direct supervision of a physician, who generally pointed in a direction and said, "go do it." He did not feel that this was "direct supervision." If, for instance, a licensed podiatrist should go on vacation, could he turn to his limited licensed podiatrist and say "cover the patients while I am gone."
Chairman Goldwater spoke to Dr. Hansen and stated that every concern he had raised was covered with A.B. 231. On Section 1, line 3, on page 1, it stated the Board "may" issue a license; it did not "have" to issue one. Secondly, Chairman Goldwater stated, on page 2, line 26, paragraph 5, subsection (b), the Board "can adopt regulations to carry out the provisions" of that section. Every concern Dr. Hansen noted could be addressed through regulation, Chairman Goldwater noted. Opposition to this bill, Chairman Goldwater stated, was disingenuous in a climate where physicians and podiatrists were fleeing the state. This was clearly an example where accommodation could be made through the Board's expertise to allow someone of Dr. Fielding's character to practice in Nevada. Chairman Goldwater explained that if Dr. Hansen were sincere in his desire to accept Dr. Fielding into the practice in this state, he should take A.B. 231 on as a challenge. Dr. Hansen could issue a license to Dr. Fielding and draft regulations that would address his concerns and those of the consumer advocate.
Dr. Hansen acknowledged Chairman Goldwater had made some good points, but he still had questions in regards to other individuals who might qualify as outlined in this bill. He felt the Board would have no way to deny licenses. Dr. Hansen also asked how the consumer would be informed that some doctors were "limited," and others were fully licensed doctors. He felt the consumer should have those rights.
Chairman Goldwater stated that the Board would certainly have the ability to regulate those concerns. He explained that doctors and osteopaths had the ability to issue limited licenses. Why, Chairman Goldwater asked, should podiatrists, particularly, be protected from the ability of the Board to issue limited licenses.
Dr. Hansen stated he could not answer that question, but could only tell the Committee what had been done nationally.
Chairman Goldwater asked if there were other questions or anyone else who wished to testify on A.B. 231. There were none and the hearing was closed on this bill. Chairman Goldwater thanked the speakers and scheduled a work session to further discuss this bill.
Chairman Goldwater opened the hearing on A.B. 21.
Assembly Bill 21: Makes changes related to practice of Oriental medicine. (BDR 54-226)
Assemblywoman Chris Giunchigliani, Clark County District No. 9, and Assemblywoman Dawn Gibbons, Washoe County District No. 25, introduced this bill. Ms. Giunchigliani distributed three documents. One exhibit was an enlarged copy of A.B. 21, (Exhibit D). Ms. Gibbons expressed her support of A.B. 21 and explained that Ms. Giunchigliani would present some amendments.
Ms. Giunchigliani explained there was a single-page amendment, as well as a reprinted bill with the areas highlighted (Exhibit E). The third document contained background information regarding what other licensing boards did (Exhibit F). Basically, Ms. Giunchigliani explained, A.B. 21 had been introduced in order to clean up some areas from last session's legislation. The intent was to state an amount of time that a person needed to reside in Nevada in order to be appointed to the Board. All other boards, she noted, had a residency requirement. The Cosmetology Board, The Medical Examiners Board, and the Board of Homeopathic Medicine all required a five-year time period; the Nursing Board required a two-year time period. In A.B. 21, it requested one year; however, an amendment was requested to make it two years.
The second area inserted the length of time that an individual had to practice before being considered for an appointment on the Board. There should be a standard for the length of time of practice before an individual could make decisions on other people's licenses. Experience, she noted, was important. She stated the time period required for the Cosmetology Board was three years, the Medical Examiners Board required five years, the Homeopathic Board required two years, the Dental Board required five years, the Nursing Board required five years, the Osteopathic Board required five years, the Chiropractic Board required three years, the Dispensing Opticians Board required three years, the Veterinarians Board required five years, the Board of Occupational Therapy required five years, and the Barbers' Health and Sanitation Board required five years. The five-year requirement was recommended for the Podiatry Board because it was common throughout the statutes regulating other regulatory Boards.
The other area that needed clarification, Assemblywoman Giunchigliani stated, concerned what should be on the state examination. She explained that the Board of Medical Examiners had requested information about the intent of that bill. The intention had been that the exam included questions covering basic science laws, including health, safety and clinical knowledge. That intent was substantiated by the minutes of last session, both by the Assembly Commerce and Labor Committee as well as the Senate Commerce and Labor Committee. There still appeared to be misunderstanding concerning what a practical exam meant and that, Ms. Giunchigliani explained, was what this language intended to clarify.
There were no other changes, Assemblywoman Giunchigliani stated, the terminology of "accreditation" should be deleted and she believed this bill would clean up some matters that had been questioned. She also wished to note, for the record, that there had been questions regarding page 4, which listed current law. One of the Board members questioned whether or not individuals who had graduated from foreign schools would be permitted to be licensed in Nevada, and she stated her belief that they would be allowed. Subsection 2, line 9, stated the Board might establish any school or college from another state or foreign country that was approved. If a person applied for their license who had graduated in that approved foreign country, then they should be granted a license. Assemblywoman Giunchigliani stated it was quite clear already in statute that individuals from foreign countries would be accepted for licensure, unlike many other Boards. Because the practice of Oriental medicine started in a foreign country, she remarked, it had been the intent of that legislation to include foreign graduates.
Assemblywoman Giunchigliani went on to note that 19 individuals had been licensed since the initial legislation had been passed last session. There were now 36 licensed doctors of Oriental medicine (O.M.D.); 11 more were pending. 24 of those licensed were of Caucasian ethnicity, 12 were approved, none were denied, there were 8 pending, and 4 had withdrawn. There were 6 Asians who had applied, and of those, 1 was denied, 3 were pending, and 1 had withdrawn. The door had been opened with the legislation previously passed, she noted, and that was the reason no major changes were being addressed in A.B. 21. The bill was an attempt to clarify, for some members of the Board, what the intent had been and to allow the Governor, when considering appointments, to have experienced individuals who would make those decisions.
The final amendment change, Assemblywoman Giunchigliani stated, was in order to keep a medical doctor on the Board. In Section 3, there would be three members with a background in Oriental medicine. Subsection 2 would delete "a," which was written in the bill, and insert "an individual licensed by the Board of Medical Examiners." The other member could be a public person. She asked if there were any questions.
Assemblyman Beers stated he was confused about the reason they wished to remove the accreditation by the Commission for Acupuncture and Oriental Medicine. Assemblywoman Giunchigliani stated she was requested to change the language by the Nevada Oriental Medical Association, as well as Mr. Stewart, one of the Board members and some other individuals, who felt that language would be too limiting. Mr. Beers asked if that would return accreditation to the Board. Ms. Giunchigliani stated it did not give the accreditation back to the Board. Mr. Beers asked about the testing area, and if there was any inclination to include the national standard test. Ms. Giunchigliani explained that the national test, as well as the state examination, was required. All other boards in the state of Nevada wrote their own examinations. The last legislation took away that requirement and stated that the Board would have to hire someone to write the exam. The debate, she informed the Committee, came down to whether "basic science" could be included in the exam and that had been the intent. This new language only outlined what the exam should or might include, so that the contractor who actually constructed the exam knew what areas to cover. This was the only Board, Ms. Giunchigliani stated, that would not be allowed to write their own examination. The members of the Chiropractic, Podiatry, and Optometry Boards all took a national exam as well as a state exam, which was prepared by those Boards. A.B. 21 only clarified what should be included in the state examination.
Chairman Goldwater asked if there were other questions of Ms. Giunchigliani or Ms. Gibbons and there were none. They stated there were individuals who wished to speak in favor of A.B. 21.
Farolyn McSweeney, O.M.D., testified from Las Vegas. She noted she had been licensed since November 2001. She was in favor of A.B. 21. In 2001, she explained, she had been involved in the outer workings on the same issue and she had been in opposition to the same people she was now supporting. Last session, she explained, everyone had come together to create an outstanding bill, A.B. 302 of the Seventy-First Session. One of the highlights had been the requirement of a four-year undergraduate degree. Dr. McSweeney agreed with the changes proposed.
Chairman Goldwater asked if there were questions and there were none.
Sae Lee, O.M.D., testified in favor of A.B. 21. He stated he had been a Board member in the past and was currently president of the Society of Oriental medicine. He stated he had been practicing Oriental medicine for more than 25 years. Dr. Lee noted that Assemblywoman Giunchigliani had explained the purpose of the bill and he had nothing to add. He would like to emphasize that since A.B. 302 of the Seventy-First Session passed, the state Board had experienced many disagreements and felt A.B. 21 would clarify the definitions. This bill would strengthen qualifications needed by the Board members. He felt that the legislation would be good for the Board members, and would insure that the Governor would appoint qualified persons.
Hak Eun Rhee, O.M.D., next testified in support of this bill. He noted he was a former president of the State Board of Oriental medicine. He had seen the confusion with regard to the language in the past legislation. A.B. 21, he stated, would clarify the intent of the legislators. Dr. Rhee noted he also agreed with the provision changing the qualifications to become a board member. He explained that one board member had resided outside of Nevada and had needed to be reimbursed for travel expenses.
Chairman Goldwater asked if there were any other questions, and there were none. He asked if anyone would like to speak in opposition to A.B. 21.
Michael Labrum, D.C., O.M.D., wanted to restrict his comments particularly to Section 3. He explained he had not had an opportunity to review the amendments to the bill and a copy was provided to him. He wished to testify in regard to the Governor's ability to appoint members to the board, specifically in Section 3, subsection 1, paragraphs b, c, d, and e.
Dr. Labrum explained that he had attended Board meetings for the last four or five years. It took him four years to be licensed under the Board of Oriental Medicine, even though he had been a licensed physician in the state of Nevada since 1983. One of the premises that the Board had considered was the fact that since they issued a license, that would mean that individual would have a higher education. As such, they should have a more extensive medical background. Dr. Labrum stated he was confused why it would be so important to have a more extensive medical background to get a license so that one could have a doctorate, but when it came time to be appointed to the Board, if one had a license in another healing art besides Oriental medicine, that would be a factor. He asked why it would be a detriment, if one had a greater qualification, to being appointed to the Board.
Paragraph "d," he stated, was a misnomer. At that time, there were 44 accredited schools in the United States. Of those, 90 percent were issuing master of science degrees in traditional Chinese medicine. When the Legislature inserted "received the degree of doctor of Oriental medicine," they precluded all those individuals educated in the United States, all the people educated in China, and all those educated in Vietnam and Taiwan. The only country that issued an O.M.D. was Korea. Eliminating people with no other licenses who held doctorate degrees meant deleting 60 to 80 percent of the professionals in the state of Nevada. Also, he noted, the bill required five years' experience before appointment to the Board. He reminded the Committee that before the last session, no one had been licensed in the state for six years. After that legislative session, when the law had been passed, 9 new people had been licensed. Allowing people to sit on the Board who had less than five year's experience brought new ideas into the state; this profession was evolving and should not be restricted. He stated there had been 9 people licensed in the past two years. The Chiropractic Board, he noted, licensed 40 people, each in the last two years. The Pharmacy Board, he continued, had licensed 250 people. Dr. Labrum explained that Nevada was the fastest-growing state in the country and more doctors of Oriental medicine were needed.
Chairman Goldwater asked for questions. He stated that the "Oriental medicine" degree from most schools in the United States was a master's. The sponsor could work on the language in the bill.
Dr. Labrum explained that the education in this country was evolving. There were, he noted, only two or three schools that were in their first year of initiating doctoral programs in the United States. He stated that on one hand, the Legislature stated they would look at accredited schools and on the other hand, they wanted doctorate degrees; it would turn away many valuable people.
Assemblyman Beers asked Dr. Labrum if he knew how many other states had a doctor of Oriental medicine or if there was another term in recognition that the majority of graduates held master's degrees. Dr. Labrum explained he was not an authority but knew that in California one would be considered a licensed acupuncturist, even though the state exam tested all the areas, including herbal medicine, acupuncture techniques, clean needle techniques, safety, and health. Every state had a different terminology. Possibly, he believed, one other state used the term "doctor."
Assemblywoman Giunchigliani stated the term "doctor of Oriental medicine" was used because Nevada had been the first state to create the acupuncture statute. That wording was what the Legislature chose to name and call individuals. It was based, she noted, on the higher level of education. Two years ago, she explained, they were called "Oriental medicine doctors." She requested the Committee and staff to check if the terminology had been changed and research if there had been a change in requirement, other than in the title.
Dr. Labrum asked Ms. Giunchigliani if she meant the title the graduate had been granted from school was "doctor of Oriental medicine." Ms. Giunchigliani stated that from their survey two years ago, the terminology used was similar to "doctor of Oriental medicine." The title, she stated, was because of how the Legislature first created the term. She explained if the schools were now calling it a master's, they needed to review that part.
Dr. Labrum stated there were only two or three schools that had a doctoral program in the United States. The issue, Ms. Giunchigliani stated, was not the doctoral program; the issue was the title. She would do the research and relay it to the Committee.
Assemblyman Brown thought Assemblywoman Giunchigliani had probably answered his questions. He noted the four-year program listed would be a B.A. or B.S. degree and asked if that requirement would be satisfied with a three-year master's program or its equivalent. He was unsure who should answer.
Dr. Labrum asked Mr. Brown to restate his question. Assemblyman Brown explained that the testimony was that the typical degree was a three-year master's degree. Current statute was written and stated an "accredited four- year program." Would a three-year master's program be deemed, under the statute, Mr. Brown asked, to be an equivalent.
Those schools, Dr. Labrum answered, or at least the majority of them, offered either a three-year or four-year program; they were the same program but one was accelerated. Some of the schools required a bachelor's degree, as a prerequisite, in order to be in that program.
Assemblyman Brown asked if the term "doctor of Oriental medicine" was granted upon licensure under the statutes and if the term was not related to a degree from a college. Dr. Labrum stated it was "legislated," not "educated." The schools, he explained, were in the process of extending their hours and creating a doctoral program.
Assemblyman Brown stated he understood that, but the Board requirement of being a "doctor of Oriental medicine" only meant in Nevada that one had been licensed to practice by the state; it did not require an O.M.D. Dr. Labrum stated he thought the verbiage was strange. He felt work should be done on the language.
Assemblyman Beers stated the bill had retained the language that required the Board to approve colleges. He asked if there had been progress in approving more schools. Mr. Beers noted there had been three schools.
Tom Stewart answered there were 9 schools approved. He explained that he was a small health store owner and also on the State Board of Oriental medicine. Assemblyman Beers asked if there had been 9 schools two years ago and Mr. Stewart stated there was not a list. How many schools, Mr. Beers asked, offered those degrees in the United States. Dr. Labrum answered that the Accreditation Commission for Acupuncture and Oriental Medicine (ACAOM), which was an accreditation agency, had recognized 44 schools. There were, Dr. Labrum stated, more schools, but their standards were not up to ACAOM's standards.
Assemblyman Beers asked Dr. Labrum if he was in support of deleting the accreditation language. Dr. Labrum stated he was not sure what the criteria had been for deleting that language. He understood they were looking at an ACAOM school and then the Board would determine whether the school met the state's standards. That was what had historically happened. He explained what had happened when he applied for licensure. The school Dr. Labrum had graduated from was not recognized in Nevada. The next step was the proof that ACAOM had accredited his school, then they presented the school catalog and they went through the process of the state Board, examining those documents and then approving that school. Some standard was necessary. ACAOM was not perfect, but it was recognized by the State Board of Education and was a standard.
Assemblyman Beers explained that two years ago there had been few states that had put the accreditation responsibility onto the boards. The vast majority of states, Mr. Beers stated, relied solely on ACAOM. Dr. Labrum agreed.
Mark Montgomery stated he was a licensed acupuncturist in the state of Maryland and a former instructor and clinical supervisor at the Traditional Acupuncture Institute in Maryland. He had moved to Las Vegas in August and attended the first meeting of the Acupuncture Board in October and had requested information and clarification as to the criteria according to which schools were included in the list. He had learned at that time, Mr. Montgomery explained, that one of the schools on the list no longer existed and the Board failed to state any criteria for inclusion on that list or how a school could be included. In answer to Assemblyman Beers' previous question, Mr. Montgomery stated that New Mexico was the only other state that accorded a degree of "doctor of Oriental medicine." Rhode Island, he noted, accorded a degree "doctor of acupuncture." Thirty-five of the 39 states that regulated acupuncture gave a degree of "licensed acupuncturist." Nevada, Maryland, and Oregon all began regulating acupuncture in 1973. Both Maryland and Oregon used the term "licensed acupuncturist."
Chairman Goldwater asked for further questions.
Assemblywoman Gibbons asked what the difference was in Maryland as opposed to Nevada. She noted that doctor of Oriental medicine encompassed more than just acupuncture. Mr. Montgomery stated he was not a doctor of Oriental medicine, but rather a licensed acupuncturist. Mrs. Gibbons asked what he was able to do under that license in Maryland. Mr. Montgomery stated that he was allowed to practice with herbs or with acupuncture. There was no separate regulation for herbs and acupuncture. He stated he was not allowed to practice in Nevada for a variety of reasons and the purpose of his testimony was to express to the Committee that the system as it worked in Nevada was severely flawed. In spite of the progress made by the Legislature in the last session, there were still tremendous obstacles. The Board appeared to be attempting to undo the progress the Legislature previously had made. His request, Mr. Montgomery stated, was that members of the Committee consider the problems. In Maryland, he stated, they had licensed 1,200 acupuncturists, and Nevada had licensed approximately 40 since 1973. The per capita population of acupuncturists in Nevada was much lower than almost any other state in the United States. The Board, he pointed out, had just instituted a $1,000 fee for its state exam. This made licensing in Nevada the most expensive process in the United States. The average fee was $350. In his own experience, Mr. Montgomery stated, it had cost him $450. Another obstacle the Nevada Board had was a six-month waiting period, which also posed a serious obstacle.
Chairman Goldwater noted that even though he had difficulty following the testimony, the Board had a number of challenges between the Board and its licensees. Those needed to be addressed. A.B. 21, Chairman Goldwater stated, dealt with a more limited scope and he would appreciate it if Mr. Montgomery could return to that subject. The difficulty, Mr. Montgomery explained, was that the current bill addressed none of the problems with regards to the barriers to licensure.
Assemblywoman Gibbons stated that she had recently read a study that acupuncture, or Oriental medicine, was the most lucrative practice in the United States. One problem she saw was that so many people wished to practice this profession. It was important, she noted, to retain a high level of expertise. Mr. Montgomery acknowledged that was a valid complaint and one that had been considered by acupuncture boards across the country. However, he noted, if one examined the records of other states, there was an extremely low rate of complaints, lawsuits, or reported medical problems associated with acupuncture. Mr. Montgomery felt it was not a matter of quality. Dr. Labrum added that acupuncture malpractice was the only one that had decreased. There was, he noted, a good safety record.
Assemblywoman Giunchigliani explained that when the statute was first put into place, acupuncturists or doctors of Oriental medicine were to be paid and the insurance should be covered exactly the same as any other insurance in the state of Nevada. That might not be true in Maryland. She asked Mr. Montgomery to work with them to make sure that the insurance companies properly paid claims. Most patients, she noted, had to pay out of pocket and had denial of the coverage. That lack of payment broke the law in Nevada.
Assemblywoman Giunchigliani asked Mr. Montgomery what the population of Maryland was. He responded about 4.5 million. She explained that increases had been made in Nevada. Ms. Giunchigliani said that changes were exhilarating when done by a person and frightening when it was done to a person. As Nevada moved forward, she explained, it needed to protect the patient and that still had to be the ultimate goal. Some of Mr. Montgomery's arguments, she stated, had nothing to do with this bill. Mr. Montgomery responded that in the Board meeting he had attended, he had seen highly qualified applicants turned down. Ms. Giunchigliani stated she appreciated that, but she could not debate that point at this time.
Chairman Goldwater asked if there were further questions or comments.
Tom Stewart stated he would like to address the exam. The state exam that was being proposed would be very expensive to develop and administer, he noted. It was unnecessary, he stated, to develop a state exam because the national exam was mandatory and it was very complete. Different modalities and concepts were dealt with in the national exam. It was likely, Mr. Stewart stated, that one could get a person espousing one concept who disagreed with the exam because it was so integrated. The national exam was the standard for all states that licensed acupuncturists and it was effective.
Assemblywoman Giunchigliani stated that had been debated last session. Basically, it had been determined that the Board should not write its own exam. The legislation approved both a national as well as a state exam. A.B. 21 was an attempt to clarify what a practical exam was. It could be oral, written, demonstration, or a combination thereof.
Mr. Stewart stated that in the law, it appeared that the intent would be to require jurisprudence exams. It was difficult to understand that the intent of the Legislature was to build a state exam.
Chairman Goldwater asked if the Committee could work toward crafting a decent bill and not engage in philosophical debates.
Assemblyman Beers asked if it were true that only 2 states had their Boards develop their exams. Only 1, stated Mr. Stewart, out of 39 states. Two, including Nevada, stated Mr. Beers. Mr. Stewart corrected himself and stated that there were 3 altogether of the 39 states. Mr. Stewart stated Nevada had a jurisprudence exam but not a full state exam in acupuncture and Oriental medicine.
Mr. Beers asked Mr. Stewart if the way this bill was proposed would create a state Oriental medicine exam. Dr. Labrum stated that California had been in court almost every time an exam had been given over the last 10 to 15 years. He told the Committee they were buying into those challenges with A.B. 21. The Board, he noted, barely supported itself financially and it would be a burden on the state once the exams were challenged.
Tom Stewart stated he could offer some amendments that would solve quite a few of the problems. That would be to stick with the national exam and offer an entry level with a three-year master's degree. He believed there should be a tiered system. Mr. Stewart stated that things were changing so quickly that a tiered system would assist them.
Steve Collins, R.N., a licensed acupuncturist in the state of Minnesota, introduced himself to the Committee. He had been Director of Continuing Education for Emergency Medicine at Valencia College in Orlando, Florida. He was also the Director of Education for Highlands Hospital in North Carolina. His concern was the exodus of health care professionals from the state of Nevada. Practitioners of Oriental medicine had an opportunity to provide the citizens of the state with exceptional care. The fact that the state designated practitioners as "doctors of Oriental medicine" meant that they had the title of "doctor." In the other 39 states that legislated practitioners of Oriental medicine, the vast majority called themselves "licensed acupuncturist." There were some that had some form of "doctor." The important point was that whatever the title, the abilities and the functions of all those practitioners were the same. The title did not give those practitioners a wider scope of practice. In Nevada, Mr. Collins noted, practitioners could order radiographic exams and lab tests. Once ordered, that practitioner was now practicing medicine and stepped outside the scope of Oriental medicine. Since most states recognized the national exam as the standard, passage of that test indicated that they had graduated from an accredited school and had passed a national exam. The states that gave their own exams, only duplicated questions already covered in the national exam. Mr. Collins asked the Committee to delete the necessity of a state exam.
Bruce Eichelberger, O.M.D., licensed in the state of Nevada, stated he had been licensed in February 2002. He wished to support Dr. Labrum's testimony concerning Board members. He reiterated that paragraph "d," which spoke of having a "degree" of "doctor of Oriental medicine," should be addressed. Dr. Eichelberger went on to express that in paragraph "e" it stated "currently engaged in the practice of Oriental medicine in the state and have engaged in the practice of Oriental medicine in this state for at least five years." Practitioners from other states might have been practicing for much longer than five years and might be very familiar with the laws but might not have been practicing in the state of Nevada for five years. He suggested eliminating the phrase "in this state."
Chairman Goldwater asked if there were other questions or comments and there were none. He asked the sponsors of the bill to modify that section so that the Committee could vote on it. Assemblywomen Gibbons and Giunchigliani stated they would. Chairman Goldwater asked the speakers to communicate with the sponsors of this measure and address their concerns to them. He closed the hearing on A.B. 21.
Chairman Goldwater opened the hearing on A.B. 141.
Assembly Bill 141: Makes various changes concerning enforcement of provisions requiring payment of prevailing rate of wages on public works. (BDR 28-464)
Terry Johnson, State of Nevada Labor Commissioner, explained that A.B. 141 and A.B. 143 comprised the legislative package this session for the Labor Commissioner's office and told the Committee he would explain, briefly, what the intent of that legislation was.
Both of those bills, Mr. Johnson explained, were an effort to streamline the operations of the office of the Labor Commissioner, so that it would be more effective and leaner. A.B. 141, he noted, pertained to Chapter 338 of Nevada Revised Statutes (NRS), the public works and prevailing wage statutes. The first proposed change could be found in Section 1, which would provide that "if after an opportunity for a hearing" as opposed to "if after a hearing." The purpose of this change, Mr. Johnson stated, was not to be precluded from assessing a penalty because a hearing had not been held. In a number of instances the Office was able to resolve those types of matters without going on to a hearing, but wanted to maintain their right to have an opportunity for a hearing and to expressly state so in the statute.
Section 2, subsection 2(b), was the next proposed change, Mr. Johnson noted. It would read, "any person may submit information to the Labor Commissioner that would substantiate a change in the prevailing wage." The intent was to make the Labor Commissioner's role and responsibilities and duties more consistent across the statutes and make the statutes more harmonious amongst themselves wherein they pertained to the office of the Labor Commissioner. He noted in Section 2(a), it provided that a person might submit evidence to substantiate that a different wage prevailed. In the section that followed, they proposed it should read, "any person may submit information to the Labor Commissioner that would substantiate a change in the prevailing wage." Mr. Johnson stated he had always interpreted and enforced that statute to be one and the same in terms of thresholds that persons must meet, but he thought it should be expressly stated.
Section 2, subsection 5, would insert proposed language "and any matters officially noticed." That would pertain to the hearings that the Labor Commissioner would conduct and to the trier of fact. The administrative proceeding had the ability to take official notice of matters, but for the purposes of expressly stating such, Mr. Johnson felt it might be helpful.
Section 3, subsection 5, represented the proposal to increase the time to 15 days after the end of the month. That would be the time in which the contractor engaged on a public works project would have to file certified payroll reports. Each business, Mr. Johnson explained, had their payroll time periods set up differently. Some stretched into the last week of a month and maybe the first few days of the following month. This would give those companies a few more days to get the certified payroll reports filed on time.
Section 4, subsection 2(a), again provided for proposed language to insert "after an opportunity for a hearing" as opposed to "after a hearing." In some instances, Mr. Johnson stated, a matter could be resolved without going to a hearing but this would still maintain their rights to have an opportunity for a hearing.
Lastly, Mr. Johnson stated, Section 5, subsection 4, had proposed changes. The language currently read that if the Labor Commissioner had reason to believe that an employee had "a valid and enforceable claim for wages," then the Labor Commissioner could require the public body to withhold those funds. What he would like to see clarified and had proposed was to change the wording to if the Labor Commissioner had reason to believe that an employee "is owed wages by" a contractor that the Labor Commissioner might require the public body to withhold those funds. Mr. Johnson's example was an employee who claimed he was owed $50,000, so the Commissioner withheld that amount from the contractor. After inquiries and investigation, it turned out the person was owed $250. This change would state what the person was actually owed, as opposed to what they claimed was owed. Mr. Johnson stated there were some people who felt that if a claim had not been filed with the Labor Commissioner then the Commissioner could not assert any jurisdiction over the matter. That, he explained, was not true, but the proposed language change would clarify that point.
Mr. Johnson concluded his presentation on A.B. 141 and offered to answer any questions.
Chairman Goldwater thanked Mr. Johnson and asked the Committee if there were any questions.
Assemblyman Brown asked Mr. Johnson what the purpose was for the change in language to Section 5. Mr. Brown stated he appreciated Mr. Johnson's explanation, but he understood that section to mean it was incumbent upon the Labor Commissioner to first see that there was a valid claim. Mr. Brown noted that he preferred the former language rather than this change. He asked Mr. Johnson to explain further, concerning the level of validity found prior to the withholding of funds.
Mr. Johnson explained that the language of the current statute inferred the discretion of the Labor Commissioner; it did not presume that a hearing had been held or that there had been formal findings of fact. If, Mr. Johnson stated, the Labor Commissioner had "reason to believe that an employee had a valid and enforceable claim for wages," that might be concluded before the formal fact-finding that would take place. It was also, he noted, twofold that some persons believed that if one had not filed a claim, there were no grounds for the Labor Commissioner to assert jurisdiction in the matter. Mr. Johnson believed that modifying that language would satisfy both of those notions. A contractor would rather have, in the case of retention or withholding of funds, that decision based on what the person was owed as opposed to what that person had claimed. Claims, Mr. Johnson explained, frequently were for greater amounts than what was actually owed to the person.
Assemblyman Brown stated he believed Mr. Johnson's original testimony had been that typically there would be a complaint, but that it would not be necessary under the statutory scheme for the Labor Commissioner to make that directive, so the proposed language would more accurately reflect that. Mr. Johnson agreed.
Chairman Goldwater asked if there were further questions and there were none. He asked if anyone wished to speak concerning A.B. 141.
Lori Ashton, a representative for the Southwest Regional Council of Carpenters, Las Vegas, explained to the Committee that at times there were no claims and those wages were determined by an audit, which at the beginning would only concern one claim but after an audit would encompass 40 or 50 claimants. The Council of Carpenters was generally in support of A.B. 141, but had two concerns. The change in Section 2, subsection 2(b), where the words "support" would be changed to "substantiate." She stated the correct grammatical language should be "support" not "substantiate."
The second concern they had was in Section 2, subsection 5, which added, "any matters officially noticed." She had, she explained, spoken to the Labor Commissioner. That change, she remarked, would allow latitude to look at worker's compensation records or unemployment records. Those records could not be properly investigated or verified. If Mr. Johnson would state, on the record, that those other "matters officially noticed" were wage surveys received pertinent to the prevailing wage determination and not that of other entities that he might have at his access, the Council of Carpenters could concur with the change; otherwise, they would like to see it omitted.
Assemblyman Beers asked Ms. Ashton to clarify her second objection. Ms. Ashton responded that she had heard Mr. Johnson speak on those issues in other Committee hearings. Where it said, "from the evidence presented in any matters officially noticed," their concern was that in determining the prevailing wage, the Labor Commissioner might take that to mean that he could go to worker's compensation records and unemployment records as a means of determining that wage. The Council of Carpenters was concerned that records that had not been turned in would be used to determine the prevailing wage. They wanted to be assured that the Labor Commissioner would only use those surveys that had been turned in as a challenge. Ms. Ashton explained that if Mr. Johnson were speaking of going outside of those surveys for his determinations, they were opposed to that.
Assemblyman Hettrick stated he disagreed with Ms. Ashton on both of her issues. He thought that Section 2, subsection 2(b) needed to be changed to "substantiate." Mr. Hettrick explained that in terms of "the matters officially noticed," the idea would be to determine the actual prevailing wage and that should be done using all the evidence that could be obtained, not just by who turned in a survey. He preferred that A.B. 141 be adopted.
Chairman Goldwater asked Mr. Johnson if he had more to add. Mr. Johnson responded that, regarding subsection 2, paragraphs "a" and "b," he thought it appropriate to have those subsections be consistent with each other. With regards to "any matters officially noticed" language, he noted that it was unnecessary. The trier of fact, he stated, was entitled to take official notice of whatever that person wished. This authority could be found in NRS 233B.121, subsection 6(c), which addressed the administrative record consisting of matters officially noticed. The Labor Commissioner's own Rules of Practice, found currently at Nevada Administrative Code (NAC) 607.460, gave the Labor Commissioner that authority.
Chairman Goldwater asked why it was in A.B. 141 if it were unnecessary. Mr. Johnson stated it was more of a notice issue, so that persons coming before the Commission would be put on notice with regards to the proceedings. That provision in the Labor Commissioner Rules of Practice was found in NAC Chapter 607 and was also in Chapter 338. While he believed NAC Chapter 607 applied to all of the Labor Commissioner's responsibilities, it would be helpful to put people on notice when hearing matters under Chapter 338, so they knew this would also apply.
Chairman Goldwater asked if there were more questions. He asked if there were further testifiers on A.B. 141.
Richard Daly, Business Manager, Laborers Union 169, spoke in opposition to A.B. 141. He wished to address some experiences he had with the Labor Commissioner. With regard to the first change in Section 1, where it said "after an opportunity for," he explained that Mr. Johnson spoke of people not showing up for hearings and that he would like to be able to go forward since that person had the opportunity to have a hearing. The same language change had been requested in Section 4, subsection 2(a). Mr. Daly explained it was a matter of due process and he believed in that premise.
In Section 2, subsection 2(b), Mr. Daly continued, where the change of word to "substantiate" was proposed, he felt that "support" should be retained. The substantiation would come during and after the hearing, not before.
Mr. Daly spoke of the last part, "and any matters officially noticed." The law now stated, "from the evidence presented." That was the standard with unemployment offices and the courts; it was the standard across the board in due process in the United States. Determinations were made from the evidence as presented on the record. Mr. Daly stated he had never heard of a situation where a contractor, an awarding body, or anyone else had asked for a hearing and not received one. Mr. Johnson, in previous testimony in another Committee meeting, stated that he had held more hearings on prevailing wage determinations than all the other Labor Commissioners combined. Mr. Daly stated his experience had been that the one time he requested a hearing it had been denied. Mr. Daly concluded by saying the changes requested with A.B. 141 were unwarranted and unfair to the process. Mr. Daly had no problem with changing the 10 days to 15 days for filing certified payroll reports.
Chairman Goldwater asked for questions of Mr. Daly. He also noted, for the record, a disclosure that he worked for Marco Consulting Group, which consulted with Taft-Hartley pension plans. Mr. Daly's Local Union 169 was currently a client of Marco Consulting Group. For that reason, Chairman Goldwater explained, both A.B. 141 and A.B. 143 would be put together for a subcommittee to make sure there was no appearance of any conflict of interest.
Assemblyman Brown also disclosed that he represented contractors and that on perhaps two occasions he had dealt with the Labor Commissioner's office, some of which concerned those particular sections. Mr. Brown stated he doubted there was any serious difference between "support" and "substantiate" but that he preferred "substantiate" because it implied that there was something of substance.
Assemblyman Brown asked if that particular section was not really establishing, on an annual basis, the prevailing wage for the community, and not really talking about hearings for individual employers. He asked if he were incorrect in his assumptions. Mr. Johnson stated that his understanding was correct; after the prevailing wage rates had been established, within 30 days thereafter, there was a period for filing objections with information that would substantiate that a different wage prevailed than what the Labor Commissioner filed.
Assemblyman Brown commented in regards to Mr. Daly's remarks, he did somewhat disagree with the notice issue. Courts, he explained, frequently took notice of certain things that had not been presented as evidence.
Jack Jeffrey, representing Southern Nevada Building and Construction Trades Council, spoke of his concerns regarding the change from "support" to "substantiate." In the original drafting of the statute, he explained the standard for public bodies was that substantial information be submitted. For others it was supporting information. His opinion was that there was a lower standard for the general public. The Labor Commissioner, Mr. Jeffrey noted, would still have to make the determination as to whether there was sufficient evidence to call a hearing. The terms, he explained, were close. Generally, Mr. Jeffrey testified, he was in support of A.B. 141.
Mr. Richard Daly commented that they were still attempting to discover when a person could file an objection under subsection 2(a) or 2(b). When an objection was submitted with evidence to "substantiate" it, what would that evidence be and where was the threshold, Mr. Daly inquired. The Labor Commissioner, he noted, would need some latitude. The second threshold, he believed, was that any individual might submit information to "support." He reiterated the process he had followed in 2001 when the Labor Commissioner denied his request for a hearing and again disagreed with the Labor Commissioner's determination.
The Labor Commissioner also, Mr. Daly remarked, said he believed NAC Chapter 607 and his administrative process applied to NRS 338. Mr. Daly stated those chapters were separate and should not be used together. The law stated that the Labor Commissioner "shall" hold a hearing if he received an objection and that he "shall" make a decision and determination based on the information at the hearing. He understood the Labor Commissioner's desire to make his office more efficient, but the importance of prevailing wage determinations should have hearings.
Terry Johnson wished to briefly clarify some items he heard. With regard to whether the Labor Commissioner's authority extended to Chapter 338 to take notice, he explained that the Administrative Procedures Act, in general, already covered that, but the Labor Commissioner's Rules of Practice provided that that regulation governed all practice and procedure before the Commissioner whenever he adopted regulations or to determine contested cases. The Nevada Supreme Court, Mr. Johnson continued, had determined that prevailing wage determinations were contested cases subject to the Administrative Procedures Act. Now they were also subject to the Labor Commissioner's Rules of Practice.
Mr. Johnson addressed Mr. Daly's complaints and stated that Mr. Daly's rights had not stopped when the Labor Commissioner denied his hearing. Mr. Daly, he explained, filed a writ of mandamus to compel the Labor Commissioner to hold a hearing based on his information. The District Court dismissed that litigation, agreed with the Labor Commissioner's determination that the information submitted did not support or substantiate a hearing. Mr. Johnson stated that people should be heard if warranted. He explained that the Labor Commissioner already had the general authority to consider any other information supplied by federal or state agencies.
Chairman Goldwater stated that the reason the Committee had questioned whether that language was needed in A.B. 141 was because people would tell them "we will just put this in the law." Usually, they found that there was some other reason they wanted it inserted into the law. If it did not need to be there, then it would not have been included.
Mr. Johnson responded that he had no problem with the Committee's concerns.
Chairman Goldwater asked for further questions and there were none. He closed the hearing on A.B. 141.
Chairman Goldwater opened the hearing on A.B. 143.
Assembly Bill 143: Makes various changes to labor laws and powers and duties of Labor Commissioner. (BDR 53-465)
Terry Johnson, Labor Commissioner, State of Nevada, explained to the Committee that this bill tended to harmonize the responsibilities and duties of the Labor Commissioner particularly across the different chapters of statutes that the Labor Commissioner was responsible for enforcing. The bill, he explained, contained a number of instances where, in the process of drafting the bill, the bill drafters saw fit to delete some language that might be outdated or unnecessary. In other instances, the drafters inserted information that they thought might be helpful. Mr. Johnson stated he would do his best to explain their intent.
Mr. Johnson noted that one of the major provisions seen throughout A.B. 143 would allow the Labor Commissioner to impose an administrative penalty for a violation of the state's employment laws. Currently, he noted, almost all employment laws provided for a misdemeanor and a fine of $1,000 or six months in jail. The Labor Commissioner would like to see their ability to handle some matters on an administrative level. The Commission did not have the resources or the legal resources through the Attorney General's office to prosecute every violation in court that might be a misdemeanor. The bill addressed giving the Labor Commissioner the authority to impose an administrative penalty. The major item in Section 2, subsection 2, was if the Labor Commissioner had reason to believe a person had violated a labor law or regulation, the Labor Commissioner could take appropriate action against the person to enforce the labor law or regulation whether or not a claim or complaint had been made to the Labor Commissioner concerning the violation. Although that portion was clear, Mr. Johnson noted, it reinforced the concept that the Labor Commissioner did not have to wait for someone to file a claim. If, as a result of an audit or information received from the employees or employer, the Labor Commissioner could look into that matter and determine whether or not the law had been complied with.
Section 3 stated that before the Labor Commissioner could impose an administrative penalty against a person who had violated the law, the Labor Commissioner must provide the person with notice and an opportunity for a hearing. Again, Mr. Johnson stated, that was self-explanatory. Their preference had been to state, "before the Labor Commissioner may enforce an administrative penalty." Mr. Johnson stated that regardless of the language, the Labor Commissioner's office would give persons an opportunity for a hearing before enforcing the penalty. He conceded that because of some legal or constitutional reasons the determination had been made to use "impose."
Section 3, subsection 4, addressed the Labor Commissioner giving consideration to a person's previous record. Subsection 5 addressed the issue of where money collected from those administrative penalties had to be deposited into the General Fund. Subsection 6 stated that those penalties were cumulative remedies and that they still could be subjected to other penalties for violation of the state's law and employment laws. Subsection 7, Mr. Johnson stated, was more housekeeping, with regards to the role of the Labor Commissioner reporting information to the Attorney General. The Commissioner's office had proposed deletions of items "a" through "i." The Commissioner's office did not want to be limited to just submitting that information, but wanted to make it a point they would submit the information they felt was necessary for the Attorney General to determine whether or not to prosecute the case.
Another substantive change, Mr. Johnson stated, could be found in Section 6, subsection 2, where it stated, "After an employer establishes regular paydays and the place of payment," they would not change it unless they gave the employee seven days' notice. The reason for this change was the fact that there were employers already required to post the paydays and the place of payment, but sometimes that became a "moving target." Employers should not be restricted by not being able to move those dates in accordance with their own business practices; all this subsection did was require the employer to notify those employees. Section 7, Mr. Johnson explained, was further housekeeping. In Section 7, subsection 3, there was a substantive change, which made it unlawful for an employer who had the legal authority to decrease salaries to do so unless, within a reasonable time period, they gave a written notice of their intent. Again, Mr. Johnson stated, their intent was not to restrict employers, only to be sure those employers gave notice to those employees.
Section 9, Mr. Johnson stated, added some language concerning "any regulation adopted pursuant thereto." This, Mr. Johnson explained, was part of their effort that had been undertaken to make the Labor Commissioner's statutes read harmoniously across the board. Similar language had already been adopted in the 2001 Legislative Session with regards to the administrative regulations. Also in Section 9, subsection 2, there was reference to the administrative penalty being imposed. Sometimes, Mr. Johnson explained, there were employment law violations and they did not have the resources to criminally prosecute those matters but it could be significant enough that an employee filed a complaint, and this would give the Labor Commissioner the latitude to level an administrative penalty against that employer as opposed to seeking criminal prosecution. Even if administrative penalties were imposed, the employer's due process rights would be preserved and protected under these proposals.
In Section 10, subsection 9, through Section 11, were all the different statutes that the Labor Commissioner had enforcement jurisdiction over and the language was replicated throughout those various statutes. In Section 14, Mr. Johnson explained, the penalty that was in place, such as the $2,500 penalty for such violation, was consistent with the existing law.
The remainder of the sections, Mr. Johnson stated, appeared to be replicating the language with regard to the administrative penalties, continuing to report violations to the Attorney General, and so forth. Mr. Johnson remarked he would answer any questions.
Chairman Goldwater stated he liked the idea of the Labor Commissioner being able to impose administrative penalties, but he asked Mr. Johnson to clarify that he was not planning to do that in lieu of criminal prosecution. What the Committee would be concerned with, Chairman Goldwater continued, was that there would only be an administrative penalty instead of criminal prosecution. Chairman Goldwater explained that employers might be more willing to violate the law if it would only be a financial penalty. An employer might be willing to break the law and save $10,000 because the most it would cost them was $5,000.
Mr. Johnson stated those remedies were cumulative. If there was a need to pursue the matter further beyond the administrative penalty, if the violation were so egregious that it would merit criminal prosecution, they would still have that ability under the law to pursue criminal charges.
Assemblyman Beers asked which section concerned the notice of decrease in wages. Mr. Johnson stated it was Section 7, subsection 3. Mr. Beers noted that "reasonable time" seemed vague. He asked if the Legislature should not specify the meaning of a reasonable time to avoid disagreement later.
Chairman Goldwater directed the Committee members to a letter addressed to Vance Hughey, Committee Policy Analyst, from the Labor Commissioner (Exhibit G), who had some suggested amendments and some clarification for A.B. 143. Chairman Goldwater asked if there were other questions for Mr. Johnson. There were none.
Robert A. Ostrovsky, Ostrovsky and Associates, representing Nevada Resort Association, had a suggestion regarding Section 7. They had no concerns with the concept of cleaning up the statute and allowing the discretion of the Labor Commissioner to take action as necessary. They were concerned, however, about Section 7, subsections 3(a) and 3(b); those subsections would require an employer to give written notice when an employee received a wage decrease or was assigned to a job that had a lower wage rate. Their problem, Mr. Ostrovsky continued, was with the word "and" between 3(a) and 3(b). He believed the proper word should be "or." It should state "(a) within a reasonable time before the employee performs any work at a decreased wage . . ." the employee would be given written notice or "(b) The employer complies with the requirements relating to the decrease that are imposed on the employer pursuant to the provisions of any collective bargaining agreement . . ." Mr. Ostrovsky questioned why one should go through a two-step process of having to comply with the collective bargaining agreement and comply with the statute. If there was a dispute, he stated, there was a grievance procedure within the collective bargaining agreement. One would always look to the collective bargaining agreement to resolve disputes between employees and employers. Mr. Ostrovsky gave as an example a baggage handler who made $10 per hour, and his supervisor came to him and told him to work as a bellman. The bellman received a lower wage rate but was able to receive gratuity income. A collective bargaining agreement would address those issues.
Chairman Goldwater explained to Mr. Ostrovsky that not everyone was covered under a collective bargaining agreement; there were some employees who received the benefits of the collective bargaining agreement but were not members of the organizations that had negotiated those agreements. How would those employees be handled, Chairman Goldwater wondered. Mr. Ostrovsky stated they would be handled under subsection 3(a); they would fall within the reasonable time required to give written notice.
Chairman Goldwater asked if the employer would know who would be covered by the collective bargaining agreement and who would not. Mr. Ostrovsky assured the Committee that the employer would know to whom they would have to give written notice and who would be covered under the collective bargaining agreement.
Jack Jeffrey, Jack Jeffrey Consulting Services, Legislative Advocate, representing Southern Nevada Building and Construction Trades Council, stated that A.B. 143 had little or nothing to do with the building trades. However, in the past, he had represented the Central Labor Council and they represented various other trades that dealt more with service organizations. He believed this bill addressed them. The first part of Section 7 spoke to those employees who were not covered under a collective bargaining agreement. If there was a collective bargaining agreement, and the employee chose not to be a member of the union that represented them, they should still be covered under subsection 3(b). Those employees, even though they did not pay dues, had the same benefits as those who paid dues and would be covered under the collective bargaining agreement, the same as a dues-paying member. Mr. Jeffrey stated that he and Mr. Ostrovsky had spoken about it and he had also spoken to the Labor Commissioner and felt the change to "or" would be acceptable. He stated that both subsections were not necessary.
Terry Johnson, Labor Commissioner, concurred with Mr. Jeffrey's statement.
Assemblyman Brown asked Mr. Johnson if an employer apportioned the time an employee spent and the wages related to those activities. For instance, Mr. Brown noted, there might be a steelworker who, for six hours of the day did steel work and for two hours during the day he did laborer work. Mr. Brown asked Mr. Johnson if that would be acceptable to apportion those wages. Mr. Johnson explained that, in that example, it would be a better example of where the specific provisions of NRS Chapter 338, which pertained to prevailing wages, superseded the generic provisions of Chapter 607 or 608 of NRS, where those provisions were found. Under the prevailing wage statutes, Mr. Johnson continued, the contractor was obligated to pay the worker based on the type of work performed. He was comfortable with the current scheme that would protect the employee without burdening the employer to have to give written notice each time a person performed work at a lower salary. It could apply, Mr. Johnson noted, but in keeping with the intent, it would be more in line with people in private employment who needed to be notified of what their salary would be. The public works regulations already required payment to be based on work actually performed.
Assemblyman Brown asked for clarification that no notice would be required under that statute. Mr. Johnson stated that in his view, that was correct.
Chairman Goldwater asked if there were any further questions or testimony on A.B. 143.
Garth Sevdalis, a citizen of Reno, requested a language change to Section 16 of NRS 613.200, subsection 1, to include language that would change the meaning to include existing employees and/or prospective employees.
Chairman Goldwater asked Mr. Sevdalis to put into written form the changes he would like and submit that document to the subcommittee, and it would be dealt with there. Mr. Sevdalis asked who would be on the subcommittee and Chairman Goldwater explained the subcommittee would be appointed shortly. Mr. Sevdalis should contact Chairman Goldwater's office for that information.
Lori Ashton, representative of the Southwest Regional Council of Carpenters, had concerns with Section 7, subsection 3. Their concern had been that prevailing wage was not affected by those changes, but felt Mr. Johnson had clarified that for her.
Chairman Goldwater asked if there was any other testimony, and there was none. He closed the hearing on A.B. 143.
Chairman Goldwater appointed a subcommittee that consisted of Assemblymen Oceguera, Parks, and Beers, to deal with both A.B. 141 and A.B. 143 and report back to the Committee any legislative changes.
Chairman Goldwater stated there was a work session scheduled for Friday, March 14, 2003, which would commence upon adjournment of the Floor Session. Additionally, Chairman Goldwater stated that the agendas were starting to fill up and that Monday there would be a dual Floor Session, so if the Committee meeting on Monday had not been completed by 5 p.m., it would be interrupted.
Chairman Goldwater adjourned the meeting at 4:20 p.m.
RESPECTFULLY SUBMITTED:
Patricia Blackburn
Committee Secretary
APPROVED BY:
Assemblyman David Goldwater, Chairman
DATE: