Alaska Employment Law

In last Friday’s opinion, Deptula v. Simpson, 2007 WL 2143018 (Alaska July 27, 2007), the Alaska Supreme Court offered some clues about how it will resolve the waiver issues raised, but left open in Hammond v. State, DOTPF, 107 P.3d 871 (Alaska 2005), and Barnica v. Kenai Penin. Bor. Sch. Dist., 46 P.3d 974 (Alaska 2002).  Justice Carpeneti, the author of the 3-person majority opinion in Hammond (with Justices Bryner and Fabe), wrote the unanimous opinion in Deptula.  In Deptula, the issue was whether real estate buyers had waived their statutorily-granted right to a disclosure of defective conditions. 

Justice Carpeneti wrote:

To be enforceable, a waiver must meet certain requirements.  The waiver must be knowing and voluntary. []  Although statutorily created rights can generally be waived, parties may not waive statutory rights “[where] a question of public policy is involved, or where rights of third parties, which the statute was intended to protect, are involved.” []

Knowing and voluntary waiver: The Deptula court found that the waiver language in the real estate contract was “unambiguous,” and that the buyers “understood they could walk away from the transaction if they were unwilling to waive their right to receive disclosure.” 

Question of public policy: The court noted that AS 34.70.110 expressly permits waivers.

Rights of third parties: The Deptula court noted that “third party rights are not affected because the terms of the real estate disclosure statutes protect only the purchaser, not the public at large.”

Thus, the Deptula court enforced the contractual waiver of the statutory right to disclosures.

The languge of Deptula does not bode well for contractual waiver of statutory rights under either the Human Rights Act or the Wage and Hour Act.  While an employer may meet the first criterion (knowing and voluntary waiver) through careful drafting, the last two criteria are set by the legislature.  If express legislative approval of contractual waiver is necessary (as Deptula suggests), neither statutory scheme passes muster.  Justice Matthews’ dissent in Hammond suggests that he will find legislative approval of a waiver if the legislature has not disapproved it.  107 P.3d at 883.  Justice Carpeneti’s opinion for the Court in Deptula, however, relies on express legislative approval of waiver, leaving unclear what he would do if the legislature had failed to address the waiver issue.

Furthermore, both statutory schemes are premised on a legislative intent to benefit the public (or the class of employees) as a whole, and not only the individual who has momentarily asserted those rights.  For instance, the Human Rights Act provides: 

It is determined and declared as a matter of legislative finding that discrimination against an inhabitant of the state . . . is a matter of public concern, and that this discrimination not only threatens the rights and privileges of the inhabitants of the state but also menaces the institutions of the state and threatens peace, order, health, safety, and general welfare of the state and its inhabitants.

AS 18.80.200(a). 

Similarly, the legislature intended the Wage and Hour Act, in part, to “promot[e] the spreading of employment,” a goal that obviously looks beyond the immediate plaintiff.    Dresser Ind., Inc. v. Alaska, DOL, 633 P.2d 998, 1005 & n.15 (Alaska 1981).  The “strong public interest” in deterring overtime violations is also reflected in the statutory limitation on compromises of liquidated damages claims, found at AS 23.10.110(i)-(j).  See McKeown v. Kinney Shoes,  820 P.2d 1068 (Alaska 1991). 

Further indicia of the broader public interest furthered by the AWHA are found in  AS 23.10.060(c)(anti-waiver provision: “This [overtime] section is considered included in all contracts of employment.”); AS 23.10.110(j)(another anti-waiver provision: “A waiver of liquidated damages may not be a condition of employment.”); and AS 23.10.110(c)-(f)(quasi-public interest attorney fees for prevailing plaintiff).