Alaska Employment Law

A Westours bus driver has lost the various wage issues that remained on remand after the Supreme Court’s earlier decision in Hallam v. Holland Am. Line, Inc., 27 P.3d 751 (Alaska 2001).

Law of the case: The Court (per C. J. Fabe) first held that Judge Michael Thompson was not obligated to follow Judge Larry Weeks’ earlier decision on pyramiding (more on that later).    While the “law of the case doctrine” is a matter of judicial policy that does not even constrain a judge to follow his or her earlier ruling, it is simply not even applicable when a new judge enters the case and re-examines a ruling by the previous judge.  Id. at 7.

Pyramiding:  If a non-exempt employee for a covered employer works a 9-8-8-8-8 workweek, is she or he entitled to two hours of OT (counting the 9th hour on the first day as 1 hour exceeding 8/day and 1 hour exceeding 40/week)?  The Corut rejected that “double counting” or “pyramiding” as contrary to the Labor Department’s longstanding interpretation, a declaration from the Alaska Legislature of its disagreement with the theory, case law elsewhere, and, most interesting, its own decision in an earlier unpublished opinion (see next).  The Court also rejected a contract claim asserting the same pyramiding theory.

Reliance on unpublished opinions: Three days before it issued this opinion, the Supreme Court issued Order No. 1654, amending Appellate Procedure Rule 214(d) to read: “[i]f a party believes . . . that an unpublished decision has persuasive value in relation to an issue in the case, and that there is no published opinion that would serve as well, the party may cite the unpublished opinion.”  See Op. at 8, n.20.

Late Payment damages:  The Court, finally, rejected Hallam’s claim for a Late Payment penalty under AS 23.05.140 because he hadn’t made a “demand.”  Rather than relying solely on AS 23.05.140(d), which expressly though left-handedly requires a demand, the Court stressed that Westours had a “regular established [and contractually spelled out] practice” of paying the missing wages (here, an end-of-season incentive bonus) on a day later than that required by the statute, and that deferment of a bonus payment “does not implicate the interests that the legislature sought to protect” in AS 23.05.140 (presumably,  keeping bread on the ex-employee’s table).

Hallam v. Holland America Line, Inc., Op. No. 6252 (Alaska Apr. 18, 2008)                                     

John Casperson and William DeVoe of Holmes Weddle in Seattle represented plaintiff Hallam.  Stephen Rummage and Eric Jenkins of Davis Wright in Anchorage represented Holland America, et al.