Alaska Employment Law

Overtime settlement:  The parties to Borge v. Getronics have settled the overtime claims after mediation by former Anchorage Superior Court Judge Eric Sanders.  U. S. District Judge Timothy Burgess had stayed pending motions on the impact of the 2004 FLSA amendments (and thus the 2005 AWHA amendments) on the burden of proof under the Alaska Wage and Hour Act.  Andrew Lebo and Tim Seaver represented the employees.  Gregory Fisher and Jennifer Alexander represented the employer. 

The Collaborative Process:  Anchorage attorney Peggy Roston blawgs on this litigation alternative at Alaska Divorce Law.

Occupational licensing:  The Alaska Board of Nursing has adopted ALJ Rebecca Pauli’s recommendation to deny the re-application of a former employee of the Yukon-Kuskowkim Health Corporation who had surrendered his earlier license following the death of a patient.  The Board rejected the applicant’s argument that it should disregard his earlier conduct and instead focus on his current abilities. 

The Board stated:

The crux of Mr. Herwick’s argument is that his application should be approved because the Board should focus on the present, not the events of the past — specifically whether the evidence presented regarding his present skills and abilities demonstrates that he is competent to resume nursing. He believes people can change; his actions in the past do not define his present ability to perform the duties of an registered nurse; and that a preponderance of the evidence establishes that he is competent to resume to the practice of nursing in Alaska with skill and safety.

Mr. Herwick’s closing statement argues that the division has “failed to provide any evidence that Herwick does not currently possess the skills, knowledge and awareness of limits of practice necessary to be professionally competent as a nurse.” [] This statement misses the mark. Mr. Herwick has the burden of proving that it is more likely than not that he is competent to resume practice, and is able to do so with skill and safety. The burden does not “shift” to the division to prove the negative. Mr. Herwick must prove the positive. Therefore, Mr. Herwick’s argument that the division has failed to provide any evidence that he does not presently possess the skills, etc. to practice nursing in Alaska is unpersuasive.

Similarly unpersuasive is Mr. Herwick’s argument regarding the Board’s ability to rely upon the events of the past as a valid concern in the future. The Board does not need to resolve the details of what happened in 2003. What is significant is that he surrendered his license under justifiable suspicion, and he admits that his practice was substandard. It is Mr. Herwick’s burden to establish that it is more likely than not that the grounds raised by the division do not exist today and that they will not impact his ability to presently practice nursing with skill and safety. He may do this by placing evidence in the record or pointing to evidence in the record that establish it is more likely than not that he can resume the practice of nursing in Alaska with skill and safety. In Mr. Herwick’s case, this means that he must persuade the Board that he understands his scope of competence, that he no longer engages in conduct that places clients at risk, and that he is professionally competent.

In the Matter of Thomas Herwick, OAH No. 08-0244-NUR (Jan. 23, 2009)(footnote omitted)