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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 [email protected]
Mathew BarewiczEconomic & Labor Market Information Division
Vermont Department of Labor802.828.4153
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.
Questions, Contact & Thank you!
Lindsay KurrleCommissionerVermont Department of [email protected]
Mathew BarewiczEconomic & Labor Market Information Division
Vermont Department of Labor802.828.4153
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
