Alaska Employment Law

Yesterday’s Employment Law Section presentation on Kelly v. State, Dep’t of Corrections, 218 P.3d 291 (Alaska 2009), prompted me to review two related issues:

1) Whether Workers Comp immunity bars sexual harassment claims under the Human Rights Act and tort law?   Yes and No.  (Better: No and Yes.)   AS 23.05.055 (”Exclusiveness of liability”) provides, in relevant part:

The liability of an employer prescribed in AS 23.30.045 is exclusive and in place of all other liability of the employer and any fellow employee to the employee, the employee’s legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from the employer or fellow employee at law or in admiralty on account of the injury or death.

Despite the apparent breadth of this statute, the Alaska Supreme Court has held that it has no effect on claims under the state Human Rights Act, though it almost certainly does bar common law tort claims for emotional distress.  In Norcon v. Kotowski, 971 P.2d 158, 170-71 (Alaska 1999), the Court said:

In Veco v. Rosebrock, 970 P.2d 906 (Alaska 1998), we held that claims of sexual harassment under Alaska’s anti-discrimination statute may include damages for emotional distress and that such claims are not barred by the exclusive remedy provision of the Workers’ Compensation Act. Veco, at 921-22. Further, we held in Cameron v. Beard, 864 P.2d 538, 545 n. 9 (Alaska 1993), that claims for lost wages due to breach of an employment contract are not barred by the exclusivity provision.

But Kotowski’s tort claims for IIED and NIED might have been subject to that defense had the defense been timely raised. See Elliott v. Brown, 569 P.2d 1323, 1325-27 (Alaska 1977) (exclusive remedy clause bars suit against employer for intentional tort committed by co-employee, suit against co-employee not barred).

2)  Whether sexual harassment victims can recover Workers Comp benefits?  Yes, but after the 2005 amendments to the Workers Comp Act, very unlikely.  The current Alaska Statute 23.30.010(b) provides:

(b) Compensation and benefits under this chapter are not payable for mental injury caused by mental stress, unless it is established that (1) the work stress was extraordinary and unusual in comparison to pressures and tensions experienced by individuals in a comparable work environment; and (2) the work stress was the predominant cause of the mental injury. The amount of work stress shall be measured by actual events. A mental injury is not considered to arise out of and in the course of employment if it results from a disciplinary action, work evaluation, job transfer, layoff, demotion, termination, or similar action taken in good faith by the employer.

So, it would seem, an employee who suffered mental injury from sexual harassment could recover Workers Compensation benefits, but only if a) the injury didn’t result from an employer’s good faith disciplinary action, work evaluation, etc.; and b)  the workplace stress was extraordinary and unusual, and the predominant cause of the injury.  Thus, fellow-employee harassment (or supervisory harassment that didn’t amount to “tangible employment action” under Faragher/Ellerth) might qualify, if the harasser targeted the claimant (victims of “equal opportunity harassers” need not apply) and all other stressors in the victim’s life (divorce, financial problems) were less responsible than the harassment for the injury.  On the other hand, when is sexual harassment ever done “in good faith”?  (This assumes that the harasser’s mental state is attributed to the employer.)  So maybe sexual harassment always meets the first test, and should result in WC recovery if it is the “predominant” stress leading to the mental injury.

A separate issue, and perhaps more important, is what benefits, beyond medical costs and attorneys fees, would flow from a successful Workers Comp application.  Certainly not punitive damages.  I assume that resort to the Workers Comp process would bar later resort to court under the Human Rights Act.