Vermont Bar Association Seminar Materials Labor ... Labor and Employme… · 28/09/2018  ·...

Vermont Bar Association

Seminar Materials

Labor & Employment Law:

Workforce Development in Vermont

September 28, 2018

Equinox Resort

Manchester Village, VT

Speakers:

Steve Ellis, Esq.

Heather Hammond, Esq.

Lindsay Kurrle

Mathew Barewicz

Dirk Anderson, Esq.

Donna Curtin

Vermont Bar Association Annual Meeting 2018

Assessing the Vermont WorkforceLabor and Employment Law Section

Vermont Department of Labor

Our premise . . .

• Labor and employment law should foster a healthy, productive and sustainable environment for employers and workers.

• What are we doing?• How are we doing? • Myths vs. facts . . . .

Our agenda . . .

• Legislative and regulatory initiatives• Workforce development initiatives

Our panel . . .

• Stephen D. Ellis, Ellis Boxer & Blake PLLC• Heather Rider Hammond, Gravel & Shea• Lindsay Kurrle, Commissioner VDOL• Dirk Anderson, General Counsel, VDOL• Mathew Barewicz, Chief Economist, VDOL• Donna Curtin, Field Services Manager, VABIR

Statutory and regulatory initiatives: What are the policy objectives?

• to support a broad, deep pool of qualified workers

• to support adequate compensation• to support public health• to support a healthy economy• to support quality of life away from work

Workforce development initiatives

• Support and resources for employers • Support and resources for workers

Federal initiatives

• Strengthening Career and Technical Education for the 21st Century Act (CTEA)– Reauthorizes Carl D. Perkins Career and Techical

Education Act– Provides $1billion over five years for state and local

career and tech ed programs– Seeks to target skills gaps

• Follows 6/15/2017 Executive Order re: Task Force on Apprenticeship Expansion, funded by US DOL

Gender neutral restrooms• 18 VSA § 1792 (2018): (a) Notwithstanding any other provision of

law, any single-user toilet facility in a public building or place of public accommodation shall be made available for use by persons of any gender, and designated for use by not more than one occupant at a time or for family or assisted use. A single-user toilet facility may be identified by a sign, provided that the sign marks the facility as a restroom and does not indicate any specific gender.

• 20 VSA § 2730(a)(1)(B)): (a) As used in this subchapter, “public building” means: (1) … (B) a building in which two or more persons are employed, or occasionally enter as part of their employment or are entertained, including private clubs and societies;

Marijuana

18 VSA § 4230 https://legislature.vermont.gov/statutes/section/18/084/04230

4230a (2018): possession by person 21 years of age or older shall not be penalizedhttps://legislature.vermont.gov/statutes/section/18/084/04230a

18 VSA § 4230e: cultivation by person 21 years of age or older shall not be penalized

18 V.S.A. § 4474b (2011): medicinal marijuana

http://ago.vermont.gov/wp-content/uploads/2018/06/Employer-MJ-Guidance-TOC.pdf

Credit checks21 VSA § 495i (2011): Employment based on credit information; prohibitions

(b) An employer shall not:(1) Fail or refuse to hire or recruit; discharge; or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment because of the individual's credit report or credit history.(2) Inquire about an applicant or employee's credit report or credit history.(c)(1) An employer is exempt from the provisions of subsection (b) of this section if one or more of the following conditions are met:(A) The information is required by State or federal law or regulation.(B) The position of employment involves access to confidential financial information.(C) The employer is a financial institution as defined in 8 V.S.A. § 11101(32) or a credit union as defined in 8 V.S.A. § 30101(5).

https://legislature.vermont.gov/statutes/section/21/005/00495i

Social Media21 VSA § 495 l (2018). Social Media Account Privacy; Prohibitions(b) An employer shall not require, request, or coerce an employee or applicant to do any of the following:(1) disclose a username, password, or other means of authentication, or turn over an unlocked personal electronic device for the purpose of accessing the employee's or applicant's social media account;(2) access a social media account in the presence of the employer;(3) divulge or present any content from the employee's or applicant's social media account; or(4) change the account or privacy settings of the employee's or applicant's social media account to increase third-party access to its contents.(c) An employer shall not require or coerce an employee or applicant to add anyone, including the employer, to his or her list of contacts associated with a social media account.(d) No agreement by an employee to waive his or her rights under this section shall be valid.https://legislature.vermont.gov/statutes/section/21/005/00495l

Misclassification• Employee vs. Independent Contractorhttps://legislature.vermont.gov/bill/status/2018/S.%20141

http://labor.vermont.gov/unemployment-insurance/employers//who-is-an-employee-vs-independent-contractor/

• Exempt vs. Non-exempt (Overtime)https://www.federalregister.gov/documents/2018/08/28/2018-18649/white-collar-exemption-regulations-public-listening-sessions

https://www.dol.gov/whd/overtime/listening.htm

Minimum Wage

• https://legislature.vermont.gov/assets/Documents/2018/Docs/BILLS/S-0040/S-0040%20As%20Passed%20by%20Both%20House%20and%20Senate%20Official.pdf

Vetoed by Gov. Scott on 5/22/2018

21 VSA § 384: https://legislature.vermont.gov/statutes/section/21/005/00384

Paid Family Leave

https://legislature.vermont.gov/assets/Documents/2018/Docs/BILLS/H-0196/H-0196%20As%20Passed%20by%20Both%20House%20and%20Senate%20Official.pdf

Vetoed by Gov. Scott May 22, 2018

Vermont Bar Association Annual Meeting 2018Assessing the Vermont WorkforceLabor and Employment Law SectionVermont Department of Labor

Our premise . . .

Labor and employment law should foster a healthy, productive and sustainable environment for employers and workers.

What are we doing?

How are we doing?

Myths vs. facts . . . .

Our agenda . . .

Legislative and regulatory initiatives

Workforce development initiatives

Our panel . . .

Stephen D. Ellis, Ellis Boxer & Blake PLLC

Heather Rider Hammond, Gravel & Shea

Lindsay Kurrle, Commissioner VDOL

Dirk Anderson, General Counsel, VDOL

Mathew Barewicz, Chief Economist, VDOL

Donna Curtin, Field Services Manager, VABIR

Statutory and regulatory initiatives: What are the policy objectives? to support a broad, deep pool of qualified workers

to support adequate compensation

to support public health

to support a healthy economy

to support quality of life away from work

Workforce development initiatives Support and resources for employers

Support and resources for workers

Federal initiatives

Strengthening Career and Technical Education for the 21st Century Act (CTEA) Reauthorizes Carl D. Perkins Career and Technical

Education Act

Provides $1billion over five years for state and local career and tech ed programs

Seeks to target skills gaps

Follows 6/15/2017 Executive Order re: Task Force on Apprenticeship Expansion, funded by US DOL

Gender neutral restrooms

18 VSA § 1792 (2018): (a) Notwithstanding any other provision of law, any single-user toilet facility in a public building or place of public accommodation shall be made available for use by persons of any gender, and designated for use by not more than one occupant at a time or for family or assisted use. A single-user toilet facility may be identified by a sign, provided that the sign marks the facility as a restroom and does not indicate any specific gender.

20 VSA § 2730(a)(1)(B)): (a) As used in this subchapter, “public building” means: (1) … (B) a building in which two or more persons are employed, or occasionally enter as part of their employment or are entertained, including private clubs and societies…

Marijuana

18 VSA § 4230 https://legislature.vermont.gov/statutes/section/18/084/04230

4230a (2018): possession by person 21 years of age or older shall not be penalizedhttps://legislature.vermont.gov/statutes/section/18/084/04230a

18 VSA § 4230e: cultivation by person 21 years of age or older shall not be penalized

18 V.S.A. § 4474b (2011): medicinal marijuana

http://ago.vermont.gov/wp-content/uploads/2018/06/Employer-MJ-Guidance-TOC.pdf

Credit checks

21 VSA § 495i (2011): Employment based on credit information; prohibitions

(b) An employer shall not:

(1) Fail or refuse to hire or recruit; discharge; or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment because of the individual's credit report or credit history.

(2) Inquire about an applicant or employee's credit report or credit history.

(c)(1) An employer is exempt from the provisions of subsection (b) of this section if one or more of the following conditions are met:

(A) The information is required by State or federal law or regulation.

(B) The position of employment involves access to confidential financial information.

(C) The employer is a financial institution as defined in 8 V.S.A. § 11101(32) or a credit union as defined in 8 V.S.A. § 30101(5).

https://legislature.vermont.gov/statutes/section/21/005/00495i

Social Media

21 VSA § 495 l (2018). Social Media Account Privacy; Prohibitions(b) An employer shall not require, request, or coerce an employee or applicant to do any of the following:

(1) disclose a username, password, or other means of authentication, or turn over an unlocked personal electronic device for the purpose of accessing the employee's or applicant's social media account;

(2) access a social media account in the presence of the employer;

(3) divulge or present any content from the employee's or applicant's social media account; or

(4) change the account or privacy settings of the employee's or applicant's social media account to increase third-party access to its contents.

(c) An employer shall not require or coerce an employee or applicant to add anyone, including the employer, to his or her list of contacts associated with a social media account.

(d) No agreement by an employee to waive his or her rights under this section shall be valid.

https://legislature.vermont.gov/statutes/section/21/005/00495l

Misclassification

Employee vs. Independent Contractor

https://legislature.vermont.gov/bill/status/2018/S.%20141

http://labor.vermont.gov/unemployment-insurance/employers//who-is-an-employee-vs-independent-contractor/

Exempt vs. Non-exempt (Overtime)

https://www.federalregister.gov/documents/2018/08/28/2018-18649/white-collar-exemption-regulations-public-listening-sessions

https://www.dol.gov/whd/overtime/listening.htm

Minimum Wage

https://legislature.vermont.gov/assets/Documents/2018/Docs/BILLS/S-0040/S-0040%20As%20Passed%20by%20Both%20House%20and%20Senate%20Official.pdf

Vetoed by Gov. Scott on 5/22/2018

21 VSA § 384: https://legislature.vermont.gov/statutes/section/21/005/00384

Paid Family Leave

https://legislature.vermont.gov/assets/Documents/2018/Docs/BILLS/H-0196/H-0196%20As%20Passed%20by%20Both%20House%20and%20Senate%20Official.pdf

Vetoed by Gov. Scott May 22, 2018

“Ban the Box”

21 VSA § 495j (2017).

Unless certain narrow criteria are met, employers may not include questions about a job applicant’s criminal history or criminal record on an initial job application.

An employer can still inquire about the applicant’s criminal history/record during an interview or once the applicant has been deemed otherwise qualified for the position.

$100 civil penalty for each violation.

https://legislature.vermont.gov/statutes/section/21/005/00495j

Earned Sick Time

21 VSA §§ 481-486 (2015).

All Vermont employers (other than federal government) must provide paid sick time to employees working more than 18 hours per week for at least 20 weeks per year.

Minimum accrual is 1 hour for every 52 hours worked, with a maximum of 24 hours (will change to a maximum of 40 hours on January 1, 2019).

Can be used for employee’s own illness or injury, or that of a family member. Can also be used for medical treatment (including routine health treatment), accompanying older family member to appointments related to long-term care, arranging for legal services/medical care for employee or family member who is the victim of stalking, or caring for a family member when his or her care facility is closed.

Earned Sick Time

Penalties include a $5,000 penalty for violations of the law.

Individual liability for officers of the company who have “control of the payment operations of the corporation.” These officers can be individually liable for actual wages due.

Anti-retaliation provisions: employers shall not discharge or retaliate against employees who have lodged a complaint of a violation of the law, or who have cooperated in a DOL investigation of a violation.

Employee can bring suit in Superior Court seeking compensatory and punitive damages or equitable relief, including restraint of prohibited acts, restitution of wages or benefits, reinstatement, costs and attorney’s fees.

Salary History

21 VSA § 495m (2018).

Prohibits employers from inquiring about or seeking information about job seeker’s current or past compensation, or using that information as a basis for deciding whether to interview that person.

An employer can still ask about salary expectations or requirements or provide information about the company’s wages, benefits or compensation.

Effective July 1, 2018.

Flexible Working Arrangements

21 VSA § 309 (2013).

If an employee makes a request for a flexible working arrangement, employers must engage in a good faith conversation to determine if the arrangement can be implemented in a manner consistent with business operations.

Request can be made twice per year.

A “flexible working arrangement” is an intermediate or long-term change in the employee’s regular working arrangements, which may include changes in the number of days or hours worked, changes in the time the employee arrives or departs from work, work from home, or job-sharing.

https://legislature.vermont.gov/statutes/section/21/005/00309

Equal Pay

21 VSA § 495(a)(7) (2013). An employer must be able to show that differential

wages: (i) do not perpetuate a sex-based differential in compensation; (ii) are job-related with respect to the position in question; and (iii) are based upon a legitimate business consideration

Employers may not prohibit their employees from voluntarily disclosing their wages to other employees, or from inquiring about or discussing the wages of other employees. Employers are also prohibited from requiring employees to sign contracts agreeing to refrain from discussing salaries.

https://legislature.vermont.gov/statutes/section/21/005/00495

Pregnancy Accommodation

21 VSA § 495k (2017).

A pregnant woman seeking an accommodation for a pregnancy-related condition must be treated the same way an employer would treat a qualified individual with a disability. In other words, the employer should be prepared to engage with the employee to make accommodations to the workplace that allow the employee to do the essential functions of her job, unless the accommodations impose an “undue hardship” on the employer.

https://legislature.vermont.gov/statutes/section/21/005/00495k

Crime Victims Protection

Requires employers to provide crime victims with job-protected, unpaid leave to attend proceedings relating to the crime.

No time limit on the leave, and employees must continue to receive employment benefits while on leave.

Protects crime victims from harassment and discrimination by employers under FEPA structure.

Effective July 1, 2018.

Economic Trends & Strategic Initiatives

Lindsay KurrleCommissionerVermont Department of Labor802.828.4301Lindsay.Kurrle@vermont.gov

Mathew BarewiczEconomic & Labor Market Information Division

Vermont Department of Labor802.828.4153

Mathew.Barewicz@vermont.gov

Introduction

• Status of the Vermont Economy

• Projects in the Works

The Economic & Labor Market Information Division

• Housed in the Vermont Department of Labor• State partner to the Federal Government• 100% federally funded

• Thank you to the USDOL Employment & Training Administration!

Purpose: to produce, explain and disseminate economic data for the benefit of the State of Vermont, educational institutes, employers, students, job-seekers, researchers, and the general public.

The “Warm-Up”

What do we “know” to be true?(i.e. What is the public perception about living in VT?)

Why start here?• Traditional Engines of Economic Growth

Where are we in the business cycle?• Status of the Vermont Economy

The “Great Recession” of 2007

The Great Recession: US & VT

Sub-State Employment Changes

Employment Change by Industry2016 - 2026

The General Trend

Not just gender, but age…

IMPACTS ON THE LABOR MARKET

• Declining labor force (2 factors)• Declining number of unemployed

• = Tight labor market• Jobs are available

• Opportunities for entrepreneurs!

E&LMI’S CONCERNS…

• Declining labor force participation among young people

• “The Public Narrative”• So how do we help ALL Vermonters think about jobs,

skills and employment?

MASLOW’S HIERARCHY OF NEEDS

EMPLOYERS’ HIERARCHY OF NEEDS ™

EMPLOYERS’ HIERARCHY OF NEEDS ™

EMPLOYERS’ HIERARCHY OF NEEDS ™• As skill rises, so do wages

• Technology has disrupted the “original” linear pathway• Start at the bottom and work your way up

• This heightens the importance of individual solutions• Multiple pathways to success

• Can’t limit or define someone else’s “ceiling”

JUST RELEASED:Data By CTE

• A Partnership with Agency of Education’s Career Technical Education Centers

• Adding Greater Regional Detail

Change % Change %1

Age 2016 2015 2010 2015-16 2015-16 2010-16 2010-16 2016 2010

Windham County0-4 Years 1,997 2,029 2,148 -32 -1.6% -30 -1.4% 4.6% 4.8%

5-14 Years 4,407 4,487 4,971 -80 -1.8% -113 -2.4% 10.2% 11.2%15-19 Years 2,502 2,581 2,839 -79 -3.1% -67 -2.5% 5.8% 6.4%20-34 Years 7,247 7,241 7,149 6 0.1% 20 0.3% 16.8% 16.1%35-54 Years 10,410 10,775 12,880 -365 -3.4% -494 -4.2% 24.1% 28.9%55-64 Years 7,562 7,596 7,359 -34 -0.4% 41 0.5% 17.5% 16.5%65+ Years 9,020 8,677 7,167 343 4.0% 371 4.7% 20.9% 16.1%

Total 43,145 43,386 44,513 -241 -0.6% -274 -0.6% 100.0% 100.0%

Table 18 continued

Average AnnualPopulation Age Distribution

Population Changes by Age Cohort

Demographics of Windham County Workers(2015, Data Based on Place of Work)

21.90%

51.30%

26.80%

0.00%

10.00%

20.00%

30.00%

40.00%

50.00%

60.00%

Age 29 oryounger

Age 30 to 54 Age 55 or older

Age Distribution of Workers

Vermont Chittenden Washington

Windsor Bennington Addison

Caledonia Essex Orleans

*Industries published together to protect employer confidentiality

COMING UP NEXT:New Brochure (gen3)

A Continued Partnership with the McClure FoundationHighlighting E&LMI Data

*Version 2*• Longer list of occupations• More detail on education• Improved grouping

JUST BEGINNING:Expanding Direct Service

•A Partnership with Recovery Centers and Workforce Development Division

•Providing Re-Employment Services on Site

UNDERWAY:Greater Public Outreach

• A Partnership with Vermont State Libraries• Creating new E&LMI Resources

NEARLY COMPLETE:Update to 2015 VT Technology Study

• 2014 data updated for 2017• As part of 2018 summer E&LMI Internship Program

Increasing the Labor Force & Strengthening the Workforce

Challenge at Hand: Since 2010, Vermont’s labor force has been shrinking by 6 workers each day. While demographic shifts are largely to blame, it’s more crucial than ever that our workforce development system prioritizes efforts to recruit new workers into our labor market.

Five Phases of Workforce Development

The process of developing and maintaining a robust and adaptable workforce is divided into five phases that exist along a continuum:

• Labor Force Recruitment• Workforce Education & Training • Employment Services • Upskilling & Retraining• Labor Force Retention

Target Populations Seniors 55+ At-risk youth (16-24) Recent college graduates Vermonters in recovery Unemployed (over 4 weeks) Veterans Ex-offenders

Out-of-state Previous Vermonters Tourists

Increasing Labor Force:Strategic Considerations

Out-of-State EffortsColleges & University Career Centers Hospitality and Tourism Resources New American and Refugee Populations Sector-Specific Recruitment Talented Partner (or “Trailing Spouse”) SupportsDetached Military Personal

Increasing Labor Force:Initiatives

Sloped RetirementSummer Youth Jobs ProgramSSDI/SSI Benefit Counseling Offender Training and Re-Entry Out-of-School Youth (<25)Adult CTE and Training College Graduate Retention Strategies Individuals in Recovery Veterans Apprenticeships

Priorities, Sectors & DemandWorking to fill employers’ job openings can sometimes be in conflict efforts to prioritize resources and attention to strengthening the state’s priority sectors:

1. Manufacturing2. Health Care, 3. Construction, and 4. Tourism.

Priorities, Sectors & Demand

Vermont’s labor force shortage is forcing conversations about wherethe state should be investing.

• Should we prioritize basic employment – even if low-skilled or low-wage – because demand is high?

• Or do we invest in longer-term efforts to upskill and educate incumbent and future workers – because employers cite this need also?

Conclusions

• There are lots of opportunities in the Vermont economy for workers of all educational backgrounds

• More skills leads to more “wages”• VTLMI.info has a wealth of free information• More information leads to better decisions

Conclusions (cont.)

1. Vermont must expand efforts to increase our labor force, everywhere.

2. Employers can partner with Dept. of Labor to access a more diverse labor pool.

3. Guidance and support are available for jobseekers looking to enter or advance down a career pathway.

Dedicated Recruitment Contact Information

Call:888-807-7072

OR

Email: Labor.VTJobs@vermont.gov

Questions, Contact & Thank you!

Lindsay KurrleCommissionerVermont Department of Labor802.828.4301Lindsay.Kurrle@vermont.gov

Mathew BarewiczEconomic & Labor Market Information Division

Vermont Department of Labor802.828.4153

Mathew.Barewicz@vermont.gov

Vermont Vocational Rehabilitation

Department of Labor Workers’ Compensation&

Division of Vocational Rehabilitation

Department of Labor VR Expectations

• Refer at 90 days for a screening or Entitlement Assessment to determine eligibility

• Once work capacity or projected work capacity available, discuss RTW options with employers

• If unable to RTW with employer, complete Entitlement Assessment within 30 days of referral or after an approved extension

• Eligible if due to work capacity, labor market, AWW and transferrable skills results in an inability to return to Suitable Wage

• Complete a RTWP within 45 days of completing the EA• Follow the RTW Hierarchy when choosing the Job Goal • Adjusters/Employers/Attorneys must collaborate on RTWP Development• Closures: after 60 days RTW, settlement, IW request, removed from

workforce

VR Benefits a Workers’ Compensation Claim

• Early Referral: Select a trusted counselor • Initial Meeting: Face to face with IW to focus discussion on RTW• Communication with Employers: discuss modified duty, RTW• Communicate with Medical Providers: obtain work release/projected

work release• Communicate with Medical Case Managers: understand treatment

process and timeframes to expedite recovery to RTW• Collaborate with Adjusters and Attorneys: Resolve claims through

RTW

State of Vermont Division of VocRehab

• Mission: to help Vermonters with disabilities prepare for, obtain, and maintain meaningful employment and to help employers recruit, train and retain employees with disabilities.

• Vision Statement: The customer will be the first priority for VocRehab Vermont staff and community partners.

• Customers will have the opportunity to earn a livable wage.• Staff will be valued and empowered.• Have the resources to meet the needs of all Vermonters with disabilities and

employers who seek our services.• Public Agency: Free, flexible services in collaboration with human

service providers and employers.

VocRehab Vermont Process

• Orientation• Application • Determine Eligibility• Assessment• Vocational Evaluation • Plan• Action• Employment • Follow-up

VocRehab Vermont Considerations

• Voluntary Program• Services are to support towards jobs or expand careers• No income eligibility requirements• Services are based on needs and interests • Services continued until employed

VocRehab Vermont800-866-VRWORKS

866 -879-6757 (Voice/TTY)802-241-1455 (TTY Next Talk)

Vocrehab.Vermont.gov

Governor’s Committee on the Employment of People with Disabilities

Spirit of the ADA Employer Awards GCEPD Awards are given to employers who reflect the spirit of the Americans with Disabilities Act through:• Recruitment outreach and equal accessibility in the application,

interviewing, and hiring procedures for people with disabilities.• Use of on-the-job accommodations, modifications, progressive

employment methods, and/or creative solutions for successful training and employment of people with disabilities.

• Accessible physical structures, buildings, work stations and equipment, and services.

• Support for the employment of a person(s) with a disability as an overall employment strategy.

2018 Winners of the Spirit of the ADA• C&C Supermarket, Barton JBM Sherman Carmel, Inc., Bennington• Brattleboro Memorial Hospital, Brattleboro The EDGE Sports & Fitness, Burlington• McMahon Chevrolet Buick, Hyde Park The Residence at Otter Creek, Middlebury• Gifford Healthcare, Randolph McDonald’s, Rutland• Northwestern Medical Center, St. Albans Northeast Kingdom Online, St Johnsbury• Trapp Family Lodge, Stowe Allen Brothers Farm Market, Westminster• White River Junction VA Medical Center American Consulting Engineers & Surveyors,

Williamstown• Woodstock Inn & Resort, Woodstock • State of Vermont Agency Award: Vermont Veterans Home• GCEPD Partner Awards: Project Search• Employee Retention Award: General Electric Aviation• Legislator of the Year Award: Representative William Botzow