 Second salary history, H-204, the first time I've done it is Matt Buron, is he here? Yeah, right here. Did you want to go first? No. So 275. Do you want me to go first? Why not? I can talk to you. Yeah, it doesn't matter. You guys can decide. And before we launch into this, I'd just like to remind us all that this is very similar but not equal to 275, our own bill on wage equity. And then no, no, it's fine. We want to make sure we, which is what we had our press conference on. So that's fine. Good morning. How are you? We are well. Matt Buron. You've been here before. Yes, I have. A couple of times. A couple of different things. Yeah. A minimum wage. No, I was in here for permit reform. I forget the bill number with secretary condos. That was a couple of weeks ago. Yeah. Yeah, but we've seen it with Diane, who's so proud of you. You've definitely seen me kicking around. Yeah, yeah. Good morning. Good morning. How are you? Good. Why don't you introduce yourself? Yourself? Yeah. My name is Matt Buron. I'm the owner of the three sports campaign for Gens. And I'm a board member of Main Street Alliance. Exactly. Yeah, that's the connection. Exactly. So, yeah, here to talk to you guys about the equal pay built from a business perspective. I gave testimony on this up in the house in general a couple of weeks ago as well. And I guess I'll just kind of carry what I said to them as well. From the business side of things, I mean, this is a systemic problem that we're trying to figure out solutions to. But by removing this one basic question, which can sort of be reframed in different ways. And I believe to still provide the employer with the ability to, you know, stay with them what they establish as their reasonable pay range for a job. I don't think this bill is a very big ask on small businesses or any business strategy that matter. I believe that businesses now have the ability, if this legislation was to go through, to sort of put in a range through their application process. So say you're budgeted in your business to pay between $40,000 and $50,000 for a job. You just say that up front. I think it actually would help in the screening process as well for HR departments. We'd see less people coming in with a $75,000 salary history. You know, if you're leaving that age range blank. So I see it as actually an ability for businesses to cut out sort of a swath of applicants that might be either overqualified or underqualified as well. I know that's not really where we're going with this, but it was sort of a side thought that I had to it. If I understand how it's written as well, you could also ask the applicant what their salary or pay range is for them to put it out on the table if I understand how it's written. Correct? I believe so, yes. Yeah, so that's kind of two different ways of doing it. Some of the conversations I've had with people who have had skepticism with this is it takes away a business's ability to negotiate with salary, but I think you go back to that age range conversation. So you're kind of building in your ability to negotiate with that. The business has the opportunity to establish what they are capable of paying within their payroll structure by asking the question in that way. So I guess that's kind of my overview on that and how they're working on it. Any questions? No, I agree with you. I've actually thought of this in the reverse as well. So somebody that had been making $75,000, there's a number of reasons why they don't need to make $75,000 anymore. There's a change of status. They're moving. They don't want the same responsibilities and they're willing to downsize, if you will, to a position where $45,000 is fine. Yeah, I actually never looked at it that way, but that's a fair point. Yeah. This may be a question for other witnesses, but the provision that allows after an offer of employment to ask for sound register at that point. I'm wondering if that could somehow be a loophole in the bill. So you can ask for it and it says here that the worker has to give the authority to do so. That's a quite a hire. Yes, after you've made an offer. It's addition to Section B. So they say, I want to give that to you. Is there any protection made for another witness? And I worked, the council is not here. Can the employer withdraw the offer? Yeah, that almost does sound like it's kind of a back door for the same question you built in. Yeah. So, I mean, just to that point, C bothers me a lot because it says nothing in this section shall be construed to prevent an employer from asking this question. But you ask the question and then you say, I prefer not to answer that. How does that impact an interview? So maybe we can chat about this with Kerry, but I think that is not good. No, I think that's just asking about the expectations. Yeah, not passenger. Not passenger. Oh, that's right. It's just expectations. Yeah. Okay. On the other hand. I assume that this is somehow... That also colors it. Kerry could probably answer this. I assume this is all tied into the section of 495 which has enforcement provisions that may get at this concerned subsection B. But we may want to tighten it. Yeah, because there's stuff in 270. Okay. Well, so you're speaking on behalf of Main Street Alliance or just on behalf of your own business? So I'm here as a representative of both my business and Main Street Alliance, yes. Have you had conversations with other similar businesses, your peers about this issue at all? Yeah, I have. The restaurant industry really kind of does this already. Most of your hires are pretty much minimum wage to about 15, 16, 17 bucks an hour. So when the applicants come in, you're pretty much firing out a range that you're willing to hire at. I mean, especially without employment as low as it is right now. In my industry especially, nobody's really in a position to start low-balling skilled labor. Let's put it that way. Yeah. So if anything I would say, and I know this is just specific to the labor situation right now, but the employees are definitely in the strongest marketing position. In a while. Yes. The market is making the pay level. Okay. Well, thank you very much. Thank you. Thank you for coming. You're buying on that one back here. You're wearing those. Very. No, I was reading the book. I'm reading 270 times. It's interesting that the market demand is about the same as the pay level. So we're not fighting on that. I wasn't even fighting before. I wasn't. I was just. That's worse. Good morning. Good morning. I can't believe we're taking this date house. Yes. Emily Long is also in our color. Okay. We're trying to get spring to hurry on up. We got it. Yeah. Palms Sunday comes and I'm in this jacket. All right. My name is Kerry Brown. I'm the executive director of the Vermont Commission on Women. We're giving you the opportunity to testify about this. We've done a fair amount of research on this topic at the commission. We've got some information on our website that you can read more detailed research that we've done before I start what I was going to say. May I address the question that just came up? One of the questions that just came up about the after an offer has been made. Yes. And it's specifically an offer with compensation. So you have to say I'm offering you this job at, you know, $50,000. And then the prospective employee has to give permission for you to confirm their past or current salary, which I agree could be a difficult thing to say no to. But I think that you're far enough along into the negotiation process at that point when an offer has actually been made with compensation that I'm not really worried about that being a backdoor to continuing some kind of discrimination or unethical practice. Really? Yeah. What's to prevent somebody from saying, you know, we had second thoughts and my business by controller has come back to me and said, you know, we really can't afford this at the moment. Sure. But that can happen at any point with any employer. And can you sue if you've been made an offer and they remig? I can't see the authority of that but I don't know. It's a contractual operation, I don't know. You have an interest into contractual. Yeah. The problem is... In the real world you could very easily get out of it. That's why it might be important to understand what the retaliation or, you know, the enforcement mechanism is and to protect truly trying to get around the intent of the law by offering, then finding out the salary, then renegotiating. Yeah. It may be helpful to have it tie into a provision where the employer can't do that and get out of the contract. Usually that's a broader employment question. We'll ask David. But if an employer has made an offer to somebody, why does it have any need or business to confirm a past salary history? Who cares? Why is that important? I'm not an employer so you have to ask me. You are an employer. I supervise people. Yeah. You hire them. I do hire them. Do you remember the history of this bill in the house? Was this something that was in the bill initially? That was in the bill initially. Yeah. And that's language that's been taken from other states. Okay. And it wasn't in our bill in 275. Right. I think the thinking is to give us much flexibility to employers as possible while still maintaining these constraints. But I don't know why it's necessary. I'd really loved it. Let's look at B. I don't. Allison, no matter what we put in there, okay? If I offer somebody a job, right? A, I'm offering them a job because I think that they can do the job that I need them to do. They're the most qualified person for a variety of reasons. That's the person I'm hiring. Now all of a sudden I find out that you are making $32,000 instead of $50,000. I don't really care. So then why are you asking? Well, they don't necessarily ask me. This just gives them the ability to ask. Right. I guess I would ask to what end is B. I don't understand. And if I don't want to hire someone after that, even after I've made it an offer, I'm not going to hire them and I'm going to find a reason not to. Well, you know what? It turns out we didn't have them. I think there are more important things to be adding to this bill than the, I mean, this just, this sort of bothers me. So I'm just putting it out there. This sort of bothers me. Okay. I'm going to start with Kerry. Okay. Sorry. No problem. I'll start. We can. So I want to give you just sort of from a bit of the rationale for this and that this is a admittedly imperfect tool that we have to combat the wage gap. But it, there's some, some solid, really solid reasoning to assume that it's, it may have an impact. So I'm sure you're all familiar with the wage gap in Vermont. Women are making 84% of what men are making. When we break it down by race, we see an even different picture. And so this is something that I can tell you about different races of women, but it's also true for men. Men of color are making less money. But for, just for example, in Vermont, the wage gap is 51% for black women. Men are making 49% of what men are making. And so anyway. Can I? Yeah. But so just to tease that apart a little bit. A little bit. But then you're comparing it to all men or men of color. So that one, I believe, is a comparison to white men. Yeah. Mm-hmm. Yeah. And so if we, I don't have data for black men compared to all men, but it's certainly worse than it is. Absolutely. I understand. White women are 84%. No, white women are more like 93%. All women are 84%. All women are 84%. But against disparity, it's even worse by color. Yes. I'm surprised with the lack of diversity that we have in Vermont that it drags it down that much. Well, you've got, I mean, Rutland may not be that diverse, but Raul Burrow certainly has grown a lot more diverse in the last 15, 20 years as has Burlington. So, and that's, those are population centers. So I'm looking at my bubble of Killington. Yeah. You know what I'm saying? Honey. Look at the bubble. I'll try to look at it for $25 a day. Just go ahead and carry it. That's great. So I, because I know about the economic impact on women, that's what I'm going to talk more specifically about. So for instance, the, that wage gap is something that starts right out of college. So in 2013, the AEW, American Association of University Women did a study looking at college graduates first jobs. And they found that controlling for personal demographics, occupation, college major, hours, works, location, there was still, men were still getting paid 606% more. So there's still, there's always a little bit. 6%? 6.6. Yeah. And then that just, that's what they're starting off at a deficit. And then that just widens as they, as they go. And so when you're starting off being paid less and then your future salary is based on where you were before, then it just kind of cements that disparity on an ongoing basis. And so there was a study done by Hire, which is a clearing house for tech and startups. Hire, H-I-R-E-D, it's a name of a company. In 2016, they analyzed 100,000 job offers. And they found that men got higher salary offers than women for the same job title at the same company, 69% of the time. Say that one again. So men and women were offered jobs at the same job title, same company, 69% of the time men were offered higher salary than women. So we know this is happening. This is not just about, you know, certainly it was much greater problem with over discrimination against women in the workplace in the past, but we still see that for whatever reasons this disparity continues. In 2004, there was a lawsuit against Boeing. It's a class action lawsuit on behalf of the female employees there, and they settled it for $72.5 million because they had instituted a system where they were hiring people at standard 20% more than they had been making in their previous jobs. So they just kind of put in this formula, which I think they probably thought, well, this is great, you know, people get a 20% increase when they come and work for us. But it just cemented those disparities, and they were able to document that it did. They looked at the men and the women, they could see this is different. And then when they gave them 10% raises after that, and so it just kept getting wider and wider and there was kind of no way to break out of it. So that was a really clear situation where they could see how it happened. And then there's also a difference between men and women when they are asked this question and they either answer it or they don't answer it. So generally speaking, this is from a 2016 study, this is all pretty recent stuff. Men who refused to disclose their salary histories ended up getting higher salary offers. And women who refused got lower salary offers. So there's kind of a, and this is also, we see a similar thing in negotiation where everybody who negotiates aggressively kind of risks being seen as unlikable or difficult to work with, but it's not a penalty for men. It's a penalty. But for women, it can be a penalty and it can result in lower money. All right. That's a neat good news carry. Are we less horrible than we used to be? We are less horrible. We are less horrible. We have this film. We can do something about it. Absolutely. The sort of good and bad news is that in the old days when you'd open up a newspaper and see the jobs for women and the jobs for women, we don't see that anymore. And that's good, but the bad news is that it can be kind of more subtle. At Boeing, when they were offering people 20% more than their past salaries, they were not thinking, I'm sure, that this was a great way to continue paying women less. It was just a system that they were... And they thought that was attracting people. Yeah. Well, it was. And it was. I'm sure it was. Yeah, exactly. Differential salaries. Yeah. So it is an insidious reaction. And this is why a move like this is a kind of a way to sort of come in from the side at it and disrupt some of the patterns that we see in the hopes that maybe it could change the results. Do you think this is going to help move the needle a little bit? Well, I think it probably can. We don't have a lot of... We don't have any empirical data on what's happened in other states, because it's all really new. Yeah. But then we would look at kind of the... Well, a couple of things that might make us think it might work are there's this thing called the anchoring effect that I didn't know about until we did this research and I learned about this, where kind of the first number that's thrown out there as an anchor, and if it's high, then it helps pull the whole negotiation up higher. If it's low, it kind of pulls it all low. And this has been demonstrated in studies of various kinds, including specifically with salaries, as well as other kinds of things. So that if you were to go in and state that, if you know the job, pay $60,000, but you go in and you say, I want 100 to 120,000. And even if it's ridiculously high, often that can kind of, it sets the conversation up a bit higher. Or if you go in and you know it pays $60,000 and you say, well, you know, $50,000 to $60,000 would be good, then it pulls it all down. And so that's one reason to think that not forcing people to go in with that lower number, if for them it is a lower number, might influence that process. So how many states have laws like this? Well, let's see. There's Massachusetts. All right, let me see. So Massachusetts, Albany County, New Orleans, Philadelphia, Pittsburgh, New York City, California, Delaware, Oregon, Puerto Rico. And then there's a whole bunch of more states that have it introduced, that are kind of in the same place that we are, that are working on it. And so this whole issue of pay equity, I mean, I'm sure you've done all the research and stuff. So this is one tool to try and get in. Are there many others? I mean, is there any state that has any bills that have been put in that said, you know, you shall pay men and women the same amount of money? Well, so Vermont has done a lot of good stuff with legislation. We have a very strong equal pay law. And there may be a few other things that we can do, but when you look at kind of a list of recommended legislation, AEW has this whole checklist. We're really right out there. We're doing pretty well. Yeah. There's one other area that we had in 275 that would improve it even better, even more, which is the extension of wage discrimination to include all protected classes, which they didn't address here, which I'd love to have us think about, of course. Yeah. Which would be another wage protection. There are, in our research with the Change the Story Initiative that we've been doing for the past few years, we have collected, as you know, a lot of data around women's economic status. And a lot of that data was really, really hard to get. Not because it didn't exist, but because it was just not readily available. And so I've been having a lot of really good conversations with the Department of Labor about getting more of that, and they've actually kind of stepped up their data collection and reporting, so it's easier. If you can go into their website now, there's this lovely, manipulable spreadsheet that you can see by industry area around Vermont, how much women are making, how much women are making. Well, it's really helpful. What we can't see is by occupation, and that would be, again, had lots of these conversations with them, an enormous ask for them. And if you, the legislature, wanted to fund that, that would be great, but it would also be a really tremendous amount of money. So kind of more important are looking, I think, are looking at ways to make that data more accessible. And I don't know that you need legislation to do that, but I think that your committee questions to the Department of Labor about how, you know, what it's like. Occupation. Yeah, and what does it look like for men and women? Looking at workforce education and training programs, and this is also something that we should also be looking at. Yeah, looking at the workforce. To try to find out who is being trained for which jobs, how much money are they projected to make, are women tend to be trained for lower paid jobs, men prior paid jobs. We just don't really know that, and it would be helpful to get that data. That's part of the pay equity issue, but this particular bill is sort of designed to get at for the same job somebody gets paid. Yes, is that right? Yeah, yeah. Well, I mean, overall as well, because we're really concerned with the overall earnings of women in Vermont, as well as discrimination within a particular job, but then also this is where the gender pay gap is a big amorphous thorny problem in some ways, because in some cases we have really clear discrimination of two people hired for the same job with the same experience and the men getting paid more. Those are not very common. So it's more often that we see things like this bill is trying to address, where there's kind of a systemic perpetuation of a disparity. And so that's why we have to kind of nibble at it from all sides. I think the key to this bill is going to be the enforcement piece, because I think there are practicality when you're an employer employee, they'll find ways to work around this. And it's got to be clear that if you don't want this to disclose, the past history disclosed, that the employer shouldn't be going anywhere near this, formally or informally. So it's important that there be, you know, ultimately a case somewhere down the line that sort of gets publicized, or someone tried to do an end run, and it's affordable to the employee, you say, you can't do that. And there's got to be more than just a slap on the wrist. Otherwise this won't, I don't think this will work as well as it's intended to work. One of the things I'd love to ask you is what the effect on the poverty rate would be if women were paid the same? Why? It would be 57%. And what additional economic impact would it have? Three billion dollars? No, a billion dollars. About a billion. A billion dollars. It's about a billion dollar economic impact if women, if we slowly bring women to being, it's that. It's huge. I'm for the issue. I don't need to debate that. But it counts from one pocket and goes to another. Absolutely. And that's fine. I don't disagree. I think that, you know, qualified women should be paid the same as qualified men. Yeah. We'll talk about that. Yeah. Anything else? Oh, I just wanted to say that the, the questioned Senator Schrockin, that you're bringing up around enforcement, you've got someone here from the Attorney General, so we'll be able to speak to that. I think she's ready to enforce. Because we have enforcement provisions in the rest of the title. Right. I believe that are there for us to lean on. Lean on. Just a question about for the, not withstanding a four of the section, after an employee, an employer has made an offer of employment with compensation. It may confirm if he or she provides written authorization for the employer to do so. I'm just thinking about ways somebody might work the law. Would it be possible to just put out a low ball offer? You know, for the job that pays 60, we'd like to hire you and pay you 40,000. What did you make it your last job? Is that legal? It would be. It would be my understanding under this, except the employee would not be required to answer that. But I had real problems with that before you came. We applied that. I had real problems with that. I did too. But the employee isn't going to accept that offer? Well, maybe because I know. I mean, one of the things we're talking about is this a culture rated acceptance of the inequality. And, you know, so it just seems like we don't really need that, I don't think. I would agree. It wasn't an $2.75 bill. There we go. It's like the first responders. Well, it's just really, I mean, for women who aren't necessarily aware of this, I mean, this is a classic way that women are unknowingly perpetuated by inequality forever. Right. Well, I come at this from the academic world where the hiring thing that's most problematic is employers seeking to know the marital status. Usually because they want to prevent a spousal hiring situation where they offer the job. And then the person says, I need to give a job to my spouse. And so, yeah. So many of them. Advice has been going out for years and years for people not to answer those questions but to keep getting asked, even, you know, in supposedly aware job candidates. Yeah. So this strikes me as problematic. Jane wants to go forward. There are many, many questions get asked in your views. Like, do you have children? Are you planning to have children? Things like that that are not necessarily illegal to ask. But the answers are not illegal. Legal grounds for making your hiring decisions. So as an employer, it doesn't seem like a good idea to ask yourself that or open yourself up to being accused of discrimination in your hiring practice. But it still happens all the time. So how are we better educating our young women about questions that are fair and not fair in job interviews? Who's training? I mean, I know increasingly college campuses have terrific career counseling centers. But, you know, it would be great for the commissioner women to work to reach, and you may already be doing this work to do. Are you giving us work to do? Yeah, giving them all work to do. To reach out with the women's fund. To reach out to all the college career counseling centers and say, are you training women? You know, what questions are okay? What aren't? How can they be, you know, advocates for the best-paying job possible? We do have, coming up this spring, three free salary negotiation workshops. One in Newport, one in St. Albans, and one in Rutland. And so I'll make sure you know about those and you can spread the word. Yeah? No, that's great. Good. Because I think this is only as good as our educating young people about it. I think you should go to the ones in Newport, St. Albans, and I'll go to the one in Rutland. I don't think so. Thank you. Thank you very much. Oh, thank you, Karen. Oh, wait, can I just ask Karen one more question? So in 275, you know, we have this provision which amends the Fair Employment Practices Act to expand the wage discrimination provisions to extend all protected classes. And how can you give us a notion of how concerning that is? I mean, I think it just trues up our statutes and would be a good amendment to make at this point and it fits with this bill. Yeah, so I'll definitely defer the legal opinion to Emily. I don't see problems with it, but I certainly have spoken to people who feel wary of kind of watering down the intent of this, which was to eliminate the gender disparity that we have so well documented. So I think you might hear that from some other people. I don't think that it would actually have that effect on myself. So, yeah. Well, we have the attorney general here. I want to explore that question. Thank you. Yes. All right, good morning, everyone. Sorry for the delay in arriving. There is traffic all the way back up from Burlington to Milton, which is very fun. But anyway, so I'll keep this short and sweet. Thank you for the opportunity to share our thoughts on the bill. Thank you. I'm going to go back to the bill, which is a bill that was passed by the House at age 294, specifically as passed by the House. In general, the Chamber supports equal pay for equal work. We certainly support the intent of the bill to disregard an applicant's salary prior pay history when negotiating their pay for a new position, based on any of the reasons that we just heard. We often ask member employment attorneys to look at bills so if we do hear on some of the background, I will certainly follow up with you just to check on those things. The one concern we did see with the bill as passed by the House is the very first section, which says an employer shall not screen a prospective employee based on his or her wages, benefits, compensation or salary history. And our concern of this section is that if an applicant voluntarily discloses this information, then the employer would likely screen the employee based on that. And the example that we can think of is if a job applicant voluntarily discloses their current salary to a prospective employer, the employer would reasonably screen out an applicant if that salary was significantly higher than what they were currently offering or than what they were offering with the position. So we would suggest removing this section just to true up that in the case where an applicant voluntarily discloses this information and that their current wage put them out well outside of the range of the current job. But what if they offer an explanation like the one David Sussi suggested, which is somebody who's coming back into the workforce after having had been a CEO somewhere and happy to work as a kindergarten teacher. We see a couple examples of that. I've seen that in my neck of the woods where people who come out of retirement to actually do something they've always wanted to do. And I would think at that point that would not be a problem and they would explain why they were choosing it. I think with that explanation, the employer would certainly take that into account and because of that reason not screen them out of the process, but if someone was just, if they're applying for a job that pays maybe 60 to 80,000 and they disclosed that they previously were making 100,000. But then they probably wouldn't be looking at that job unless they were giving a good reason for disclosing that. Potentially, which is a good argument, but I think we think that just taking out this section would remove any confusion from employers based on that. What do you interpret screen to mean to screen out to discontinue consideration? Yes. Or make a decision based upon that? I think that's how we interpret it, yes, to pretty much to use that information to make a decision on the employee. So what if I come to you and I say, well, I really want this job over cheap. I can't tell you that. I think you certainly could and I think that would, it's not... You're not be able to use that information? I got a bargain basement person here who wants to do this and I'll save some money and he's qualified and case closed. All other applicants are out. I think that wouldn't be, would that necessarily be a problem without the language? Well, that... I don't think that language is... That's the definitive statement of the bill. As far as I can see, the others are elaborations on it. Do you read screen to mean just to basically make a decision based upon that? Yes, so in other words, disqualify from consideration. What could it mean? Or even... How about the reverse? I don't read it that way. I read it as adding into the process, adding into the calculation for hiring and for the offer. That's the way I'm seeing screen and screen isn't the most useful verb in that context. How about if we took care of it in four? So seek the salary history from a prospective employee and you can do the grammar or a comma or from his or her current or former employee. See, I would put that first. I agree with you. I think that would start with that one. That's the nuts and bolts of it. I think that's... I think we'd agree with that, that that's the main reason of this bill appears to be to prevent employers from asking an applicant their wages. And I think... Well, there's also in that first one benefits compensation. We could add that too. They would just add the number four. If we put four as one and added all the other stuff, to me, they're redundant slightly. I mean, maybe I'm wrong, but those strike me as redundant. Seek is better than screen. Yes. Because, you know, there aren't that many jobs. So there are certain jobs like in state government where you're working in a fairly transparent fashion, where your salaries are fairly transparent, because you're working at X level and so they have a notion of where you're... What? What would be the correct grammar on that? Well, I think that's good. Professor Peruth. Oh, it's all perspective. And I would add the other things. The salary history benefits. But we have to make sure, because right now I read that that it doesn't include the perspective employee. Right. Right. So we want to add the phrase about that. From a perspective employee... From his... From a... Instead of of from... From his... From a perspective employee... Of... Or from his or her current or former employer. We don't have to draft right here. Right. Well, Damien will do that. He's on this bill. Because he's on the... He's on $2.35. So that is not having sought it if it's offered. But I think that was the main concern we had. That seemed to kind of miss the mark of what the intent of the bill is, which we certainly agree with, which is that an employer should not be asking an applicant for the salary history. Now, if the applicant disclosed that information, it's hard for an employer to act like they didn't hear that and not screen the perspective employee on the information they were just given. So it might hit the mark if, like you were just saying to have it, that they simply could not ask for some information. I think it's redundant. I've been bothered by number one. Can I throw in a rakehold? So my salary is available on the Internet. Anybody at UVM or many public institutions are available. Right. So this would prevent an employer from going on the Internet to the person I'm finding there. Do we want to speak to that? No. You could say see or screen. I think that gets... Of course. I think that gets too broad. Because mine asks you, so now we're telling people that they can't go to public records. On the Internet. On the Internet. Or go to the town report of Killington to see how much it takes. Well, can you say that first one, as it stands, would... Yes, it would. It would cover that situation. Right, which it was. Trying to say it was stayed in place where it's the same thing. I never went on a website looking at who's salary. Did you go on the website to look and see what legislators are paid before you said yes? No, because I'm not in there for the money. Why not, sir? Why not? It's like you're a fireman. I like to take your screen. Okay, we'll work on it with our legislative council. Can we get rid of one? We want to take care of the situation that you raised about voluntary. We want to make sure we don't inadvertently allow people from looking up things that are public knowledge. Okay. Okay. Thank you. Thank you. Thanks for joining us. Thank you. Good morning. I'm Emily Adams, assistant attorney general in the civil rights unit. It's my first time here in front of you. I'm new to the offices of January, but I work with Julio Thompson, who I believe you've seen many times. And just a little bit about me. While I'm new to the office, I've spent the past four and a half years practicing labor and employment law in Burlington. So I do have a background in this area. The chair is going to love you. Which room? You see big time. He might not love me so much anymore. Paul Frank and Collins. Paul Frank. That's Collins. Right. Exactly. Labor plus employment. Yes. Anyways. A little legal humor here. Yes. No, no. Right. And a good graphic image for what that meant. What it means, in fact. It's a great picture. So our office is obviously very supportive of remedying the underlying issue that this bill is intending to fix in terms of the wage gap. I do have some specifics I want to talk about about this law and other jurisdictions, but I want to go first back to that question you were just looking at with screen. And I just want to put something in front of you to consider and take it as you will, that there are other laws that we enforce regarding hiring where someone may choose to disclose something such as a disability or that's still an impermissible characteristic to make a determination on. So in how you choose to afford this, I think you need to just think about what the intent is because if someone discloses, you could still choose to have it be unlawful to base your decision on that and it would just be a matter of the parties being put to approval on that. Well then that would argue for including the, all further protecting or protected classes in this bill because what you just referenced actually goes beyond the scope of just men and women. Well, I was just looking at an analogy situation. I can talk about protected classes and I will talk about protected classes at the end if we'd like to know that. So I think that's an interesting comment. So in the example that I was giving where somebody really wants a job and is willing to work for less and wants to disclose that information to the employer on the past history or whatever, maybe they made less, maybe they just want to work for less. You're basically saying this law should prevent that employee and employer reaching an arrangement based upon. I'm not saying it should. I'm saying, you know, we undermine the goal of this bill by allowing those two parties to reach that agreement. Potentially. I mean, I read the word screen as to make a determination as to applicants. And so if you're making a determination based on their salary history, but your situation where you're saying, I'll work for cheap, I don't know that that's wages, benefits, compensation or salary history. That's what you're, that's really more in the lines of what you're offering to work for, which is actually authorized by this bill, which is, you know, I believe it's, let's see. Expectation. Expectations. And you can always voluntarily disclose whatever information you want in an interview. It's just what we're seeking to ensure is that it's not, that you aren't divulging stuff that puts you at an unfair advantage in. So are you saying that the first thing is referencing past wages, not future? That's my understanding of the intent based on his wages, benefits, compensation or salary history. This bill specifically says you can ask about expectations. So I take that to mean past or current if they're in a position at that time. It has to be past or current because otherwise it wouldn't be, these are her wages. Right, it's past times. Right. Or current. And just to speak to the chair's question, the fact that somebody voluntarily encourages an employer to an impermissible act or discussion doesn't negate the law or the larger principle. Right. So I think what the chair is saying is could somebody to make themselves seem more attractive, sort of illegally encourage a discussion that would cut against their rights. And I think they could in the same way that, you know, any of the other situations we talked about, you could disclose your marital status and say, I don't find out any kids, you might hire me, but that wouldn't change the idea that that's an impermissible conversation according to the law. Or an impermissible factor to base your decision on. Right. Not necessarily an impermissible conversation. Well for the employer to initiate. Right. So do you find out kids is that? Right. I mean, I don't think that per se would be a violation of any law, but then acting upon that statement would certainly wouldn't be. So I would agree with that. And I just wanted to point that out, because again, it's a decision of where you want to go with the law, but I do think that that word screen does have a purpose in the way it's written. I think it's a lot easier to prevent employers from asking these questions and having them on applications than it will be to say, well, why didn't you hire, you know, because that becomes subjective. These are at least. Yeah. But you are trying to change the culture, right? Right. So I suppose I'm arguing myself back around to supporting the screen as well as seek. So that's one and four. If we put them together, I want to retain both those ideas. Yeah. But they can't seek it and they can't screen for as they're decision making. Right. We want this to be as fulsome as possible. Fulsome, exactly. Fulsome. And I stand by it. So let's just finish this part of the conversation. Going back to Senator Bruce's example that his salary is public, his public knowledge. So somebody under this first sentence, without asking, you just know what the person's making. And you have, you know, maybe judge for that that he or she is more likely to take the job because this is a big pay raise from what they were getting on. I don't think that the, having that knowledge, would that be in violation of subsection one? I don't think it would be. I think it would be making the decision based on that. It's the same, again, to use an analogy, it's the same as Facebook being out there and you may look at your list of applicants and, you know... I thought what we were saying, that screening means making a decision. So you have that knowledge from the public record and that knowledge that they may be more apt to take the job and you're saying, so therefore you would offer it to them as opposed to someone else because it's a big pay jump for them? No, because they're more likely to view a low-ball offer on your part as being an increase for them. I think you mostly use it. I don't worry as much that it would determine the higher is that it would be offered. Yeah, yeah, right. So, you know, somebody's making $50 and you were going to offer $75, but having seen that on the Internet, you'd like to offer them $60. Right. Because... You can. You can and you'll look better to your boss than you've got. Right. And if this is an equal pay bill designed at least as part to improve the pay of women, then if that woman's salary is public knowledge, somehow you've got to figure out how to make it not public knowledge or a factor in the decision making even though they know the information. I mean, I think it's the same as any other public knowledge you can find out there about an applicant at the end of the day. You know, you're not to use it to make your decision even if you have that knowledge. And that's a tough area to suss out if you're being held to your proof on this in a case or what the deciding factor is worth. But, you know, I see it the same as anything else you can find on the Internet about a person that may relate to a protected class or any other impermissible category for hiring. Right. Somebody's religion. Sure. You know they're a member of a church just because they're on Facebook. Related to that church. Well, there was one. Okay, went to a school. Well, I was going to say there was a case not at our university but at one in Boston that I know about where they were hiring when online found out that somebody was a fundamentalist Christian. They didn't want that, you know, person at their department and so they but there were emails disclosed where they discussed the person's religion. And so that was all found on the Internet because the person was politically active. So, yeah, I mean the Internet complicates everything. It does. I can't believe it. I'm coming back around to Allison's point to fun on B in that one is how often would somebody make an offer? Okay, I want to pay you $60,000 a year. Right? And then go to her former employee and say, how much did she make? I don't see them doing that. All the way. An offer is an offer and, you know, this is this position I have $60,000. That's what it's worth, this job. And that's what I've budgeted for. Now you go back to the employer or her former employer and what was she making and then go, oh, wait a minute. You know, I don't second thought I can only pay you 45. So, Allison's point was to get rid of that. Yeah. Yeah. I agree. You checked your seat. Bye, bye, Mr. B. So, I do want to speak to one thing that may affect that. It may not. And to be honest, I don't know exactly why this provision was put in, but I have a suspicion based on another issue. So, Carrie spoke to the other states and cities that have... She said some have had this section. Right, exactly. And so there is, though, one city of Philadelphia is facing a lawsuit based on their law that was similar to this from the Chamber of Commerce. That lawsuit is based, it's a constitutional challenge based on this being an impermissible restriction of speech under the First Amendment. It's still pending. It's been pending for about a year. We spoke about this, Julia spoke about this to House General, but because there's not a lot of empirical data out there, because this is such a new trend, a new idea in the law, to support this type of law, the Chamber's argument is that there's not enough justification to... Are centuries of justification. You are kidding. So, it's out there. It's a 37-page amended complaint. So, you're saying that this mitigates the potential constitutional issue because it allows speech to happen. Potentially. So, there's one aspect. The second aspect of that case is also that there was a vagueness issue with regards to they had it in their law in the Philadelphia law, a provision asked to an employer could use salary info that was gained knowingly and willingly. And the Chamber said, well, how do we know what knowingly and willingly is? That's too vague. And so, it may be that the jurisdiction that legislature took this from, and again, I don't know, this is probably maybe a Damian question, was trying to be more concrete in when an employer could choose to use that issue based on some of that pending, in that particular pending case. I'm not aware of any other pending litigation regarding this issue, and there are other states and cities that have recently, most of these laws were passed in 2016 and 17, and so, the dates that they were enacted came into effect, the effective date was all in the past couple of months, but I'm not aware of any other litigation, but the Philadelphia case is subject. So, the Philadelphia, basically, it was B that we're talking about in, but in that language had knowingly and willingly? No, the primary issue in Philadelphia was the First Amendment issue, where they were restricting an employer's speech with their argument by saying you can't ask this question. A secondary issue was that knowingly and willingly language was vague, and so, again, I don't know that this is, was intended to be a solution to that, but it's possible that this was intended to be more concrete than something like knowingly and willingly. I'd be willing to take that lawsuit on. I think that is the most absurd lawsuit ever, restricting free speech on this issue. It's still pending. Last I knew the parties were asking for it, or rather the city was asking for an evidentiary hearing to put on evidence as to why this law actually did have support. The chamber must be desperate. Sorry, Ashley. On that section, well, I'm, you know, inclined also to be, I'm wondering if the potential is put in sort of in response to the ability of an employer to ask about the employee's salary expectations or requirements. So I'm standing across the table from a prospective employer. So what do you expect to make from a person's volunteer as well? I was making $75,000 at this company, you know, that's my lifestyle. I need to make that amount of money. So they make the job offer and then the employer says, I want to double check if that was accurate and finds out it wasn't accurate. Is that perhaps why that section was in there? It may be. I don't actually know why it's in there. Damien used the example of when I think he was here during the walkthrough of something similar to that. Someone saying, I really need $75,000 and the employer being able to go and confirm that. But, you know, I can't answer as to why it was put in here. You did ask the question earlier about retaliation provisions. And because this is part of section 495, you're correct that the fair employment practice is 495 and it would, the retaliation provisions from that would be incorporated. And what are the refreshment memory are there damages and attorney's fees what's involved in that? So the retaliation provisions would include there with me for a second. An employer would not be able to discharge or take any other discrimination against an employee because they oppose any acts that's prohibited under the chapter. They've lodged a complaint or they've known that they're about to lodge a complaint. And so it would protect anyone, I think, from here, in this case from saying, no, I'm not going to offer you my salary history and then them, you know, I'm not hiring them because of that reason. In terms of damages, I'm just trying to see if damages would be in 495. Believe that. Enforcement, your question. Right, enforcement, attorney's fees may come in under each individual's section. Penalties and enforcement. So it would be the AG's office, they can seek civil penalties, attain insurance of discontinuance, conduct civil investigations, any person agreed can bring an action superior court, compensatory and punitive damages, equitable relief, including attorney's fees and costs. The standard 495 language. So an individual who's been violated under this section can bring a private right of action? Under 495, yes. Damages would be, how would you calculate damages? So, you know, I think if the argument would have to be for damages, that I was the most qualified except that they chose not to hire me because I'm trying to play this out a little bit. Because I found out I was earning X amount less. Yeah, I don't see many private right of actions on this. I see potentially, you know, the AG's claims to try to suss out, using us as the enforcement mechanism to suss out whether an employer is unlawfully asking this question more so than I would see someone in the viability of a private right of action. So that's a public right of action when the AG acts for a class of people on behalf of a public body? It's an enforcement mechanism. So we have the ability under the laws we currently enforce if an employee comes to us with a belief that there's a violation of one of the laws we enforce, we can, if we also believe there's potentially a violation issue in charge of discrimination to that employer and investigate the scenario. So it's like ban the box, which passed a couple of years ago. You know, I'm not aware there's been any private right of actions based on ban the box. We've seen a couple cases where potential employees have just come to us and said this was on the application. I think I didn't get the job yet, and we've then looked into that to see whether there was anything that was not supposed to be on the application. Well, right, and so that's why they reported that for aspirant enforcement. I mean, you know, we've... It's good they were aware enough to do that. Right, and so I see this more along the lines of that, I would see it harder, but there may be cases where there would be... Yeah, I think that's going to hurt in the sense that the employee complains they asked him about past salary history. You know, at that point, there's probably not going to be an employment relationship in the future at that point, so... The question is, how much food damage is that they weren't gotten a job and they lost wages, et cetera, et cetera. But you, it's a practice that you want to see, you are now required to see enforced, so you may go after this employer to get some assurance of this continuance, stuff like that. Can you get back to us with examples where you've effectively done that under this law in other areas of the past? Examples of where we've stopped to practice or... Yeah, well, you're on after the point. We've got all these employment laws and we have this... Oh, I mean, we do it. We have 70, approximately 70 pending charges right now all based on laws essentially all under 495 and most of our... We do settle a case that involves an assurance of discontinuance essentially that they will no longer agree that they act in compliance with. Well, I guess I'd just like to hear some of the examples of where you successfully gotten... Stories. You like stories. Sure, sure. Yeah, okay. Yeah, absolutely. I can come up with some of those for my group. Have you finished your initial comments on this bill because I have a question for you on the wage discrimination piece? Sure, my only other piece I was going to speak to was other protected categories. Why don't we go to your question first? No, in our pay equity bill 275 we include amending the Fair Employment Practices Act to expand the wage discrimination which we're addressing here to all protected prices. So I would just like your... You know, to me that is one of the last fixes we need to make to this section of law and so I was just curious what your... So our office is concerned with that. We are supportive of pay equity with regards to sex and race. We do have some concerns... But this doesn't address race. It should if it's all protected categories. Well, all protected is due if we included that but it doesn't with this bill. So you know, I'm speaking to your... Yeah, to that. Right, the other bill. We do have some concerns when it comes to more non-visible protected categories because employers may not know if someone has a disability or someone's country of origin and to have an affirmative law that they provide equal pay for that work based on something that may not be ascertainable may provide an incentive for employers to start to more actively classify their employees or take note of those things. But it's not allowed to ask about it. So it's not allowed to ask about it. Right, which is what we're getting at here. Then how can they know that they're... Because you might know if somebody came to an interview in a wheelchair. Well, right, but how can you know if someone has a hidden disability? How can you know then that you are in compliance with that law if you don't even know they have a disability? But you can't ask about it. I mean, the whole point is to protect them by not asking what's not evident you can't ask further. So do you have some unknown or non-visible disability that we haven't addressed? I mean, it's like, you're not going to do that. But you might if it is a visible disability. I mean, the unseen things you're never going to know people's mental health you're not going to know necessarily when you hire them. Right, and I think that... You don't know if they're... There are all sorts of things you aren't going to know until you work with them. Although some of these are apparent. That's true happily. Some of us wear ourselves off. Sometimes more freely. Right. So I mean, I think you're providing support for the concern I'm trying to explain which is that right now companies are equal pay audits where they already know the sex of their employees and they're comparing, okay, I'm making sure my men and my women are aligned do I need to fix anyone here? To then add in categories that you're not supposed to ask about you don't know about. Or that you may know about that you can't discriminate with wage discrimination about. To then do those same balancing when you don't know the full scope of who you're balancing or you're not supposed to know the full scope is a slippery slope. And that's just something, if you choose to add that back in, you know, Julio and I can give you further testimony on that but right now, you know, pay and raise are things that employers generally... There's no raise here. In 294 as it is now, there is no... I'm talking about 275. Right, 275. Race is an apparent one. Sometimes. Sometimes, not always. Like, you know, there might be discrimination about Hungarian. You're not going to listen to that when you first interview section. But you will know if somebody comes with a physical handicap or with some other protected, some obvious way they present or they dress or they whatever. You do not want to have wage discrimination based on that. And I think that that's also already protected under a current employment law that you're not going to discriminate against someone based on their handicap. But I... We don't evidently have it, which is why we have included it to include all protected classes. We don't currently have that law. Or we wouldn't be asking for it. No, David. That's why we don't have protected classes. Damien says we don't. I will tell you, we would take the case if we had a person who had a physical disability that came to our office and said, I believe my employer chose to pay me less because I'm an individual with a disability. We would take that as a violation of current employment law. And similarly, you would take it as a violation of current employment law if they said, based upon my sex, okay, you paid less. Right. Have you had cases like that? Yes. Have they resolved favorably to the complainant? I mean, we've had numerous cases like that and some have resolved, some have gone on to go to suit. That's a very frequent claim that we've seen. Onerous. That's a burden to put on people that have to take action. I'd rather protect them up front and prevent it. Right. But even with the protection up front, they still might have to... Right. I understand. I understand. But if we're protected, anyway. I'm not arguing against the bill. Go on. This is one level of protection, but we can assume that people are still going to have to follow it. And be vigilant. And educate the people. Right. Absolutely. Those kids and all those. We are not going to be able to make this all encompassing. I know that's what you want to do, but you know, this is a good start and let's make sure that we, you know, get this right. Without saying you can't do anything. Or we could add time's infinity at the end. Time's infinity. Wow. That's just... That's how it's said at my house with my son. Mine did. Any other questions for me? No. Are you enjoying it? Are you enjoying working with it? I assume that your views are those of the administration. Yes. Yes. Beth Facigee, the commissioner of human resources. And overall it looks like, you know, first I looked at it from the perspective of an employer, because we're the largest employer in the state of Vermont. And from that perspective, we really don't have any issue with that. With anything in this proposed legislation. Did you testify in the house? Yes. Yeah. We testified. And Doug Pine, the director, deputy director of recruitment, testified that, you know, talked about our employment practices and what we go through. And so it seemed to be an issue for us. We should be able to conform to any of those. And overall, it seems like I can't really speak for other businesses because I think you heard from some process of business organizations, but we were just having a little side discussion about salary history and who asks for, you know, and who asks for salary history. And actually I was just told that the folks at the commission of women were actually offered, were actually, were part of the salaries histories when they were getting their job offer, which was surprising to both Doug and I. So we were trying to figure that out and figure out what happened there and why that was happening. It's a different hiring process probably because they're out of board, but I want to make sure that, you know, if we, as the Department of Human Resources, we don't do all the recruitment and screening for everybody across state government. So if this law is an active instance place, we'll have to make sure that we put that information out there so that hiring managers understand what is legal and what's not legal. So I think that would be our biggest issue in implementation is just making sure that, especially when, if DHR is not in control of that process, that people who are doing the hiring are aware of the laws. Would you be willing to talk with your prior life's hat on as a larger employer in Vermont, whether either your company or other companies you knew didn't do this as a practice and whether you found it valuable or losing this would be a concern? I think as a large employer, this, for most large employers, this wouldn't be an issue. I don't think that's something that I don't know when people ask for salary histories. I think it can inform what you can offer and what you think that employee will take. And I can understand based on some other testimony that I've heard why that could potentially have women or people that weren't making a higher salary previously and a previous job, keep them at a lower salary. And obviously, as an employer, you might want to, it's kind of a competitive market out there. You want to pay people what's, you want to pay people what will make them happy and what they will accept the job for but you don't want to pay them more than you need to. So I don't know how other employers negotiate salaries. Typically there's a salary range and that's the negotiation once the job is offered, not usually before the offer. I think you don't usually go up to an interview saying I'm only going to take this job if you pay me so much and the employer doesn't say. I think that's, people generally talk about salary after a job offer is made. So I don't see this as an issue in particularly larger companies. In smaller companies, I think anytime small businesses do have more of a challenge in that there are a lot of laws and there are a lot of things that they're supposed to follow and do that they're not necessarily aware of and it could be a one-person shop that is just trying to. Well they're going to offer what they can offer so I mean, they don't need to find out what somebody's salary industry is. They can offer what they can afford. Or it could be a conversation of where I meet you out to dinner or whatever and you're talking about someone where they work and they're saying, oh I don't really like where I work or I don't make this money and they find out a little bit more about this person. I'm like, oh well maybe you want to come to work for me. You know already knowing the salary history. I think I do. But that's, you know. There's nothing that stops an employer from asking. It just gives the, you know, the person should ask. But there's nothing that prevents a prospective employee from divulging. It just prevents the future employer from asking. But they may have maybe already asked out in the bar like, hey, what do you make of your job now? I can pay you more over here. But there it is. That's happening. I don't think that does anything to do with this. In small business, I think that type of thing happens more often than not. So I mean, my perspective is we want to be careful about all the little things that we impose kind of on small businesses that make it more difficult to operate in Vermont. I don't see this in particular as being something that. This is onerous. It doesn't seem to be onerous. It's in the category of one more thing. But I think it's for good reason. I think that we have a good reason to do it. And it's important that women are paid the same as men. And you can see after years and years and years you look at the disparity and pay is still there. So I don't know if this is going to do the trick or not. Got a twang good tool. Seems like a good tool. And I think it's it's the notification to employers and how they're going to how they know that they should follow this. I think it's it's more about that. So you said something that raises this cripply subsection B here. You said that in most instances the job is offered and then salary is discussed afterwards. So if that's the case if I read subsection B it does say it has made an offer appointment with compensation. So what are you saying that in most cases the job is offered with a figure and then there's a negotiation in place afterwards. Just as a job is offered and then we'll discuss compensation. Well how we do it at the state of Vermont usually a job offer doesn't come without a salary associated with it. And that's the time when someone says well I really can't work for that much or I'm going to need to make this much or in my past job I made this much or I think that I should make this. So that's usually once the job offered it's usually offered with it tends to be offered with a salary unless you're just going to say how would you like to work here what salary do you require. So that depends on the employer and how they do it it's very easy at the state of Vermont because we have a lot of different employee pay plans and we're very structured on the salaries and what we offer so it makes it very easy for us to make it relatively easy for us to conform to this law more than it might for an employer that's not so structured and especially not so structured than their salaries. I'll just be I'm concerned with that section in a sense if you could meet that section by saying we're offering you a job what compensation would you like and then they tell them what they would like and then they say okay we want to check with your former employer see if this is an information would you previously make whether they could do an end run around this because then if the person says no it's not going to lead to a really good employment relationship the person probably said yes and then I mean I think that and at that point if you were able if an employee is going to disclose something and they're actually lying to you you would want to be able to if they're going to say I made this in my last job versus this is what I think that I should make for this or this is what I want this is the salary that would take that would take me to maybe change careers and come to work for you you might need to make more because you might like your old job they might have to pay you X amount more money to hire you but if I think that if somebody is saying that this is what I used to make and they're lying to an employer about that you probably don't want to hire somebody that's being dishonest I mean that's you know it's not it's not the reason that they make and that's not just about this section but if we struck subsection B do you see that in any way being problematic struck subsection B we're just struggling with the why that's we don't think it's really necessary and I have concerns about it because it would be an easy backdoor to getting saying oh you know the controller is said we can't really afford this but even without that things that can do that the controller is going to afford it anyway maybe not not if they've offered a job already with a set salary who would offer a job with a salary that wasn't approved by the fine you know I'm just saying that's what this allows that's what this allows this allows a person to offer a job with a set salary and then really got it they can do that at any time I know but this gives them the green light to do that I mean this gives them the green light to do that well this does is give them the green light if someone lied and said I was making 75,000 balls of this so I need to make at least 80,000 balls and then it turns out that they were making 40,000 balls then do you want somebody that's lying to work for you anyway although you figured that in the you can make a bad hire through a very thorough interview process and don't find it out till later it's very possible and it's very you know it depends on who the interviewer and how you're doing it so I would kind of I mean I think that the section is good it gives people if they want to confirm the wages and someone's certainly disclosed that I think I don't think this is community without that there how often would you confirm someone's salary history saying I'm going to you know 65,000 dollars and you agree on the job and then you go back to confirm how much they mean prior to that I would think that you're going to focus your efforts under the reference checks rather than salary confirmation we don't go back and you don't confirm other people's salaries work publicly before and their salaries online I mean you can go to the state of Vermont website and see what people are making but that's not you can't normally do that you're referenced you normally do references well before you make an offer I think I've gone back the other way and correct me if I'm looking at this from a perspective employer so that if someone uses their 60 to 75,000 and you say in my previous job without him asking I made 75,000 so I need to make at least that in order to make the move so then if we remove being they don't have the ability to confirm how much she made in your previous job you could it's silent you could there's nothing that prevents you from there's nothing in law that prevents you from doing that seek the salary history maybe that's not there's nothing that prevents you it says you can't seek the salary on form seek the salary history of a prospective employee it says a former employer so with a throughout the whole process that's you're right okay thank you thank you do we see you have something to add Doug or in our hiring process I think this would have very little impact yeah we don't ask for previous salary in any of our applications in our as Beth said we have a fairly structured salary plan so they know up front what the starting salary is going to be there are any time that we might inquire what the salary would be if we did a higher range as there was some negotiation but that's a post conditional offer so that would be fine the way this law is okay thank you you really didn't realize though we've been looking at this is that all do include you know your job history of previous pay on all the applications oh really yeah wow and I don't really look at that or nor do I care if you're qualified to you know just have to update them see how you get some time yeah this should have been a hundred years ago I don't know if you I look to entertain that's very true really do I I don't like to far as that oh wow I'm a theater producer that's what I'm saying okay thank you good morning rest of you for minimum wage I just said I was in the middle of some scintillating economic testimony and I was I was loath to leave but when I heard it was this bill yeah yeah so excited I'm trying to channel Tucker here and I'm just not oh this is Tucker's no no no just Tucker's Tucker's kind of humor yes so I'm not very successful at that I'm better if I just play this straight you know that's what Tucker's great gift is to it's true it's true and he's he's interested in it's yes so I actually have the the marked up version from the house with the exception of slight change in the section numbering because we continue to add to our 21 VSA 495 this is a yeah we we squeezed the Fair Employment Practices Act into two small areas that we're having the letters and we're up to this one and with another bill we might even be up to this year but the only thing that was added in this house apart from that was that nothing in this section shall be construed to prevent an employer from subsection C at the bottom there what you would inquire about expectations or requirements or provide information about compensation that's offered with the position that was updated because this bill was introduced last year to the discussion that was going on as I walked in the room here about inquiring about about subsection B of the bill I might just note that in Senator Clarkson's bill there's a slightly different wording about that may also get at the same same sort of goal it would be great to use that and it basically so what it says in that bill which is S275 it's interesting how you pivoted on that the section which you said was awful it's like very Asian it's kind of great we use the drafter of that one I was hoping you'd appreciate that so we can get a little bit better on her version when we were this one is that the solution we're looking for so as a proud father to all my bills no bill is better than any other they're just different and unique daughters who you want to have to be paid accurately alright what is okay what did you say so you're trying to get me to say things that could be seen as advocating so which is not your job so what that bill says it's on page 6 and it says the operative language is if a prospective employee voluntarily discloses information about his or her current or past compensation the employer may seek to confirm or request that the prospective employee confirm that information yes which is why I misspoke actually a little bit ago I said oh but they have the opportunity this doesn't prevent from voluntarily disclosing it this just confirms that they have the ability to voluntarily disclose it I sort of get antsy around the word voluntarily because it's like when we were looking at whether an employer could make you give up your passwords for your social media which has become a big issue the employers were saying they're doing it voluntarily the applicants were saying I'm getting the signals that I'm not going to get the job if I'm voluntarily do this from here you could say you know the other people we've been seeing earlier this week we're all willing to take 75 and under right and then so what did you make you know what you're supposed to do at that point so one way to address that may be to blend the two and I'm just offering options here and it would basically be to say leave in that initial language that an employer has made an offer of employment with compensation to a prospective employee if the employee voluntarily disclosed information about his or her current or past compensation the employer may seek to confirm or request that the prospective employee confirm that information because they still are at that prospective employee stage at that point but if you add in the language after the employment with compensation and then the clarifying if the employee had disclosed information about their current or past wages so this way it doesn't necessarily impact the offer but it gives the employer the ability to check if they feel like it's so yeah and if the employee prospective employees made the choice to disclose that information to the employer I assume it would be during the interview process where they say you know $10 is great I'd like to make $11 and the employer says okay I'll offer you $11 can you just provide me with confirmation that you're currently making $11 right so you can draft that up that way and I want to talk just a little bit more because I'd like to do like if people are amenable or they take a lot of I'm going to want to take I feel the move isn't long I want to take a bunch of straw votes but because there's so many moving parts I'm not comfortable with bringing girls up yet to the calendar but I'd like to at least get people semi locked in to forget not people think they're semi-locked into the final version that reached the floor for strategic purposes of others we'll have them ready to go yes so and then I guess to the committee but also to Damien when I look at this it doesn't say that an employer can't ask somebody what they mean it says that you can't screen a perspective I guess it depends on what your definition of screen is a prospective employee it just doesn't say that you can't unless we it says seek also seek the salary history of a prospective employee why don't they just use the word arts no it says it says seek the salary history of a prospective employee from his or her current or former employee we had some language in there to say seek the future I just wanted to make sure that was in there so what I was thinking was of a prospective employee from a prospective employee and then see the war from his or her current or former okay so seek the seek salary history or information from a prospective employee or his or her current or former correct okay and when we talked about that Damien we talked about that possibly went back and forth in lieu of number one but there may be a reason to keep number one as well so just want your thoughts on that but now we're saying you can't ask the person what collected from his former employer do we need number one or is number one essentially the heart of the intense section of the bill so I see number one as a closing potential loopholes if you're saying you can't seek salary history from a prospective employee or from his or her current employer you know what one is basically doing is if the employee says during the interview you know basically voluntarily reveals salary information you can't screen them out just based on that but you could say screen them out screen them out from a job offer or screen in terms of what you offer yeah it's so it just says screen a prospective employee based on his or her wages it's not it's ambiguous about what screening would would necessarily entail to me it would be screen based for an offer could we combine they seem a little redundant so why couldn't we ask I mean we're trying to see for a screen pass salary history has no relationship to the job offer in which you're offered what would just say that say I look at the screen as an interview choosing to have an interview choosing to continue the interview yeah you know you know so there in interviewing you may have you know questions where you divert to the end if the answer is not what you're looking for and that could be you know something about their qualification something about you know there are a number of things that an employer may be looking for and an employee and when they see the employee the prospective employee lacks a certain qualification you know or maybe comes off badly in their interview they may just cut to the end or interviewing the individual could we so that could also be covered by screenings can you put can you combine them because I do see we're done and also quite honestly I'd love to see whatever we decide I'd love to see number four first because to me that's the big shall not I believe with our top our top top choice do you have that got my point so the gas right up front I think we can probably do was this borrowed from another state lost the word screen because I think we're all interpreting screened in different yeah there is there is ambiguity I think it shows some lack of clarity so for after saying you know you can't the interview can't go in a certain direction because of the or the job offer can't be based upon past history or the amount of the offer can't be based why can't we say all three of those as opposed to the word screen mm-hmm that's what that's what this bill is about we should say no job offer or the amount of the offer or the conduct of the interview shall be based upon the past history well you can't ask for it either I mean can't be based on it well that's four before you can't ask for it one is going to intent on the decision making right you can't be put in another pile because so you would want to say screen screen a prospective employee or basically determine whether or not to condition the offer or the nature of the offer based upon past history and that that's in that's really covered by three I guess so you're saying condition and offer of employment or an interview on no I see I think Senator Susie's point comes up in three again it says it says that a prospective employee disclose I mean this bill in addition to limiting access to the information is if you do have the information from one source or another you still can't consider that information and the Attorney General told us that that's the business they're in looking at intent in those kinds of situations so we don't really have in other than the word screen the basic intent of the bill that you can't deny a person a job based upon past history or low ball their offer based upon past history yeah I think you could rewrite this to say you cannot you know seek the salary history of a prospective seek a prospective employee's salary history from him or her or from his or her former current or former employer request or you know require let me think here or condition an interview condition an interview or an offer of employment or anything like that based on salary information from an employer or consider an employee's salary history or information determining whether to grant an interview make an offer of employment and then finally require that a prospective employee's prior wages satisfy minimum or maximum criteria and I think you would get everything in there but in three sections okay so let me let me ask this one question because it's still a little nagging for me I wonder what the committee feels that's then you can go back and write this up it'll be a fairly tight bill I'm still concerned with the person who you haven't heard this before person who you want who where the salary is not as big a deal as getting in terms of getting the job and wants to say either this is what I made and I only need to make $5 more and I'll be happy and I know you were offering more than that but I really want this job does that matter to you can they reach that agreement I don't want to prohibit that scenario from happening because basically I think if we tighten this bill enough then basically saying you can never consider past salary or or maybe it's different past salary versus what the person's you're basically saying if an employee says I'm willing to take less than anyone else because I want to work for you so badly right there's nothing that perhaps that yeah there's I mean I think that's covered by C which says inquiring about prospective employees salary expectations are requiring or requirements or providing information about the wages and compensation we could say inquiring or about or discussing okay so essentially we were talking about up until this point about not having access to wage history and not using wage history in any kind of decision making would still allow for this scenario that I was just talking about yeah we know wage history it's a patient saying someone coming in saying I'll I'll voluntarily take less yeah I mean in that case it would basically be the person saying I don't need 65,000 I'm happy with 60,000 and they're not saying you know it's not a question of the employer saying well I know you've only got 45,000 now it's be willing to take less than everyone else and then I can offer this to you it's instead the employee would be the one that's saying do you think you have enough to be ready at this point? I think so when do you need the draft back let's give it a timeline whenever you can get it to us but I just wanted to know the convenience I sort of pushed the direction a little bit here it's just moving along people pretty much okay with that direction obviously something to see if it works yeah so change change subsection A and B yeah so A and B and so do it as a strike all sure okay and I today is a little bit tight but I should be able to have it for you for tomorrow or Friday great okay I'll just send it to you when it's ready okay great thank you so do we have any can I just ask any one more question about the protective classes sure so you had pointed out to me initially which is one of the reasons we included it in 275 that all protected classes were not subject to the same wage salary history stuff right they weren't subject to the same protections so do you still feel that that's an additional that's needed in this section or the AG's office didn't seem to feel the imperative the way I think so I think to go back to our conversations when we were working on on your bill the true of I think is not necessarily that the law doesn't protect people because you're already protected from discrimination based on all of these things the equal pay law provides a little bit more specificities specifically related to discrimination and to pay on the basis of gender so by adding all the protected classes I think you add some clarity that it applies to everyone but I think that the anti-discrimination laws already cover you if you're saying I pay less to people of national origin acts because they're of national origin acts you're already discriminating on the basis of national origin or if I pay less to people of a certain religion you're already discriminating on the basis of that religion there were concerns expressed about this when the house looked at your bill in that it might be just muddying the waters when we already have discrimination protections in place for them so are you saying this wouldn't substantively add to protections for some people yeah I don't think it would add to the protections and I think if I understood the attorney general's office's concerns that was part of it there is that it's not really adding anything but it can muddy the waters right so yeah it was a true up that other states thought was important to make but I think our discrimination protections are already there right okay we'll get to work on that we'll come back when you guys take up seven or seven in a little bit if you're joining us on short notice we had a little 20 minute break and I know you've approached me before and other people have said you had a message to deliver on this bill yes so why don't you look for more Representative Sarah Cuffin hands us for the record thank you so much for making a little bit of time for me this morning I appreciate being getting into the gap in your schedule I did want to talk a little bit about the bill and just kind of frame up the rationale for why the components you see in front of you are in here and also talk a little bit about a few things that were either removed or hadn't quite hadn't quite fully baked before the bill left the house that you might consider in your deliberations on the bill you have had a walkthrough of the bill and I gather that you've gotten all the way through so you understand what each of the components are although my report was that you had been asked for the walkthrough of the bill so feel free to ask me questions if you don't understand some component of the bill that I'm talking about I think in doing the research and talking to the broad range of people who contributed to this bill I think what has become really clear to me is that cultural change is needed that there are given the number of people who report having been sexually harassed in the workplace we still are not doing a very good job of figuring out how to put an end to that there's a number of different things that we could do to try to respond to this illegal behavior in the workplace but the components that you see before you are really the ones that a broad group of us felt were not going to swing the pendulum in the other direction not change the definition of what constitutes harassment or change the way that you prove harassment but really just try to remove some of the barriers that people who've been harassed have in terms of being able to put an end to that harassment and my hope is and I think the hope of a lot of us who've been really thinking deeply about this is to you know in this era where people are now willing to talk openly about harassment in the workplace to try to move that timeline back to a point before the harassment becomes pervasive and and something that might be subject to a lawsuit or or a sexual harassment settlement in the workplace but do some things that really you know kind of level the playing field and encourage people to make that report earlier and encourage employers to try to change the culture within the workplace that might allow harassment behavior to happen nobody wants to bring a lawsuit or a claim you know through a private attorney and seek a settlement it really is only the cases I think where there's something out of balance and so that's part of the reason why this seeks to bring things more into balance. I wanted to talk a little bit about a couple of spots in the bill that I think are particularly important the pre-employment agreements I think you are familiar with the rationale for making sure that pre-employment agreements don't prohibit somebody from being able to seek remedies in the event that they are sexually harassed in the workplace there are questions around whether binding arbitration is appropriate in those cases and there are other there are other solutions to the binding arbitration question that are being worked on in the legislature this year so I think that's kind of a keep a note in the back of your mind but with respect to sexual harassment settlement agreements so this is the point in the work relationship where the harassment has gotten pervasive enough that the employee has made a complaint the employer for a variety of reasons agrees to enter into settlement with that employee and then what is contained in that settlement contract is really what's that issue and I think it's really important to make sure that things that are contained in those settlement agreements are not allowing the employer to pass along the harasser and allow the harasser to continue their behavior and right now the pendulum is really kind of in the other direction in a couple of places that really actually disadvantages the person who has reported the illegal behavior the victim of harassment as opposed to the person who's doing the harassment what does the settlement agreement look like have you seen them what are the major components of the typical settlement I am not a lawyer so I haven't seen them but I understand from the lawyers that I've talked to that they can cover they can be very simple and straightforward no admission of somebody's culpability or guilt is necessary typically the settlement agreement would contain some sort of a monetary payout and would require the person who brought that complaint to agree that we're settled and done this incident is over and most times they do have nondisclosure agreements and some people and indeed some states are looking at eliminating nondisclosure agreements making them illegal and against public policy we did not do that in this bill because we really felt that there are times when it benefits both the person who's been harassed and the employer and the person who's done the harassing to keep it quiet and move on and that's where my question comes in so this is page 3 and it says near the bottom agreement to settle sexual harassment complaint shall expressly state that it does not prevent or otherwise restrict the employee from doing either the following the first of which is lodging a complaint with the attorney general of the state's attorney so I'm wondering is the purpose to allow a settlement that will in effect settle civil claims but nothing beyond that so in other words if I'm the company operating on behalf of an employee or the employee who's accused of harassment my motivation for a settlement is to settle right to as you said to be done with this but it seems like that's prohibited here so there would be no no settlement if you passed this where you could truble in front of it because the person would they would take the money and then they would still have the option of bringing a criminal this is actually really just putting in plain language in this bill what is already a truth in law which is that you cannot be required to sign a contract that says you can't call the cops essentially you can't be prohibited from calling the attorney general or lodging a complaint what this does though is it specifies that you can't double dip I can't enter into a sexual harassment settlement with my employer and get a monetary settlement and then go to the AG's office and get another monetary settlement but I might have reasons to go to the AG's office if what I have seen or experienced constitutes more than a simple harassment goes into sexual assault or in the case of some of the things about if the victim of sexual harassment sees her harasser continuing to prey on other victims and that's really an important thing I'm confused about there are settlements going on all the time like this so all of those settlements still allow the person who sells and signs and even signs non-disclosure to go to the Human Rights Commission the AG to on the initiative forward which they settled about doesn't seem like there's any impetus to settle them so the settlement agreements typically waive your remedies so once you've settled you say I'm waiving all my rights to seek a remedy for you know and often the settlement agreements is going to say my claim of sexual harassment claims of sexual harassment and this and this and this and this so anything that might be related that occurred at any time from the beginning of time until the date of the settlement when you say remedies so remedies so personally under Vermont statute if I was sexually harassed I could seek a variety of damages potentially lost wages attorney's fees court costs I could seek injunctive relief some order from the court that the employer stop doing something or do something take an affirmative action to remedy the situation and when I sign a settlement agreement when I'm waiving is my right to pursue my own remedies this state has a separate remedy that the state can pursue on behalf of the public generally but if they need you to make a complaint would the non-disclosure agreement for instance well the attorney general's office could subpoena somebody in the event that there was a future claim by someone else so the the basic question is now where are you this is having to do with page 3 near the bottom now if I'm a determined settler can I write a contract that prevents the harassed person who's settling with me from going say to the human rights commission or assuming that they voluntarily sign as a matter of public policy there are settlement agreements that seem to report to do that as a matter of public policy the courts have routinely struck down those agreements so I might things that I'm getting that protection but then the person should litigate it so what's typically in the cases I've read on this I haven't seen one from our circuit the second circuit but there was a case recently the first circuit that I've read on this is the employer signed settlement agreements with a number of employees who experienced a hostile working environment a future employee sought to bring a case basically a complaint based on their experience and was aware that other individuals in the office suffered harassment and basically told the enforcement agency about them the enforcement agency sought them out and they said yes this was supposed to stop we want to testify and the employer tried to prevent them from testifying and participating in the investigation sought to enforce their non-disclosure agreement to prevent them from talking to the enforcement agency it went up to the first circuit court of appeals which said no it was a matter of public policy you can't contract away to enforce the law but again that's indirectly somebody hears maybe then they're subpoenaed I can see how the subpoena would these were individuals who wanted to voluntarily testify but could they forget the future could they sign the agreement and then the next day the human rights commission lodged a public complaint against the person that they just signed so what they could do is make the human rights commission aware of basically complaining about the behavior they can't pursue the human rights commission will typically pursue remedies on your behalf as well as potentially the civil penalties and statute same as the attorney general they can pursue you know a standard penalty for doing an unlawful act as well as other remedies for the person whose lodged the complaint what a settlement is going to say is that you can't you're you're waiving all your rights to pursue any other penalties through any other forum but that you're not you can't weigh if the state's right to pursue a penalty or to seek a insurance discontinuance which is usually permissive to you it sells it does not prohibit a settlement it should not prohibit a larger complaint of sexual harassment so after you settle things you get your remedy for yourself can you go ahead and file a complaint with these entities and the exact same is that you just settle them as I understand the current law you're not prevented from basically notifying the attorney general that this behavior has been going on but you, they would ask you know as part of their intake as I understand that they ask and say well I've signed a settlement agreement but I wanted you to know that sort of thing and that's what this is designed to prevent is to prevent people from feeling that their settlement agreement is barring them because when you have a non-disclosure agreement depending on how it's worded you know it may seem like oh my gosh if I talk to anyone under any circumstance I'm facing significant contractual damages and I'm afraid of those damages so it chills my ability to notify public law enforcement that there's a bad situation in this case law enforcement being to enforce the civil law you know we're not talking about criminal sexual assault which again you can't get someone to sign a contract which says I'm not going to report a criminal action to the police and in the same way it's against public policy if you have a right for the state to enforce to prevent someone from notifying them in this case if the behavior has stopped I mean you'd want to ask the Attorney General's office about what their practice would be but my expectation or understanding would be that if the behavior stopped then that's where it stops they file away if the behavior is ongoing with other people and they've got other complaints from that office then they may seek to have that person come in as a witness in another case and you're saying that's existing law right now you're packing it up here a little bit this is just basically making a statement of existing law being included in settlement agreements so people know that I've waived my rights to seek a remedy for myself but I'm not prevented from talking to the Attorney General I'm not prevented from talking to the Human Rights Commission if the offending employer is the state and or I'm not prevented from you know if I'm within and it's probably unlikely if you're at the settlement agreement stage that you're within the 180 day filing period for the EEOC but it's more likely that it's going to be at the state level but in either event I'm not prevented if it's there are sometimes contract rules around this so there may be a different federal agency that's reviewing the contract and compliance with requirements and federal executive orders and that sort of thing and so that might be another instance of this so I'm just curious and maybe Sarah's going to get to this because I know Sarah has asked for us in addition to what was passed yes you haven't gotten to that yet I apologize my parents are called and so that's what I'm going to have to take but on this you know what these non-disclosure agreements where is the protocol that in those agreements that the other half does the harasser have to promise or does the harasser agree anywhere in these agreements to not do this again I mean who's monitoring their behavior to make sure it's not happening again or is it constantly have to be a complaint driven system or is there like parole somebody who's actually checking in to make sure that scene isn't duplicated again and again and again so what's the positive prevention going forward from situations it's under the current system prevention is deterrence so it's the deterrent effect of the laws prohibiting it it's the deterrent effect of if you've been uh if you've signed one expensive settlement agreement it's the deterrent effect of wanting to avoid that situation again in the future you know or if you're you know for I think many employers it's the you know just the goal of creating a good workplace they want to have a good workplace for their employees and so forth so they're proactively trying to avoid having an environment where something like this would ever happen but I think you know as far as the legal remedies go to your settlement agreement doesn't say individual doesn't have promises from both sides one promises okay I won't pursue this you know or I settle on one side but there's no agreement on the other side I will be a better actor okay I won't pursue this in return for following acts and maybe one of those acts is updating the sexual harassment policy but it's not necessarily saying as usually there's usually there's no admission of wrongdoing in a settlement agreement so you're not so how do we get it so nasty yeah so it's like you're in a different I'm sorry in a different area if we're not talking about sexual harassment at all if you're settling like a civil dispute like your dispute over a contract besides may not agree that there was a breach of contract but they may say you know the side that's accused breaching the contract is not going to say oh yeah and I'm going to agree to do that they may say that you know we're just going to acknowledge that you believe that you are harmed and we think that harm is reasonable like this is a reason for the evaluation of that harm and we'll agree to make this go away for that rather than pursuing the risk and difficulty of litigation you know so in a lot of these cases it's the same thing we're not going to necessarily be able to agree so they're not admitting guilt necessarily but they are agreeing to compensation or to whatever to make it go away to make it go away that's why attention to the settlement agreements is important in terms of the playing field because if you are aware that your harasser is continuing to harass and you feel like you have been bound from being able to speak to anybody about that then then it allows this culture to persist that allows sexual harassers to continue. If anybody questioning that I think the question was more of the one incident that was settled not that you couldn't go forward and complain about future things and I understand the reason for it and it's existing law that I think we should I just don't understand why anybody settles if it's still it probably has a chilling effect on settlements but I don't know I don't understand why why you settle if you know it was ongoing. Well we keep saying because the company wants to make it go away but if current law is that it doesn't go away they can just take the money and go I mean don't get me wrong I'd like to get rid of the idea of settling them all together before I'd like to get rid of them occurring all together. I just don't understand the psychology of giving a hundred thousand dollars knowing that he or she could go the next day to the AG or the Human Rights Commission and be perfectly within their rights to both keep a hundred thousand dollars and lodge that's a presidential level settlement most settlements here are twenty thousand. But until you're going to get the actor to agree to not do it again you have to preserve that ability because otherwise you're going to harass everybody out. I'm just talking about why. But if there's no crime what is the Human Rights Commission going to do that someone keeps sexually harassing someone. So if they settle so there's no actual crime so there's nothing that they can move forward with. I can say they haven't corrected their behavior. So the state has remedies that it can pursue and if it thinks that there is a reason to them it can pursue an assurance of discontinuance which is basically an agreement with the employer that the behavior is going to stop and usually has you know like well the Attorney General's office can speak more to this but my understanding is often it will be like we're going to do some mandatory training for our supervisors and we agree to stop the behavior or you know we're going to update our harassment policy something like that they can pursue a monetary penalty but my understanding is often they'll they may settle it for less than the penalty they can pursue in court or they may settle for the agreement to make the behavior stop because what they're looking for is compliance rather than necessarily I mean they have two attorneys rather than compensation. Yeah there are two attorneys in the civil rights unit so they don't necessarily have the resources to every person who violates the law and try to seek a maximum penalty what they're looking for is folks to comply with the law so that they won't I mean their goal is is that people abide by the law rather than that they punish people for That's the way most of our laws and where as the civil suit is more seeking your compensation and recovery for the harm you've received which can be more than that civil penalty you could be looking for definitive damages and compensatory damages and attorney's fees which could dwarf the actual recovery for the other damages you know I mean attorney's fees for a case could easily go 20, 30, 40, $50,000 if you go on appeal and that sort of thing and so that's what you know that's the incentive for an employer and also for an employee it's a long painful process for both sides both in terms of cost and you know just an emotional and psychological energy so forgive me we're walking through the bill and were you yeah I was going to say should we get to your ass yeah because Sarah hasn't asked to depend on what's so the landscape around kind of leveling the playing field for the victim of harassment in the settlement agreement area really needs I think and there are others who will come here and testify that we believe it's important to be a bit more explicit with respect to the circumstances under which who has signed a settlement agreement can share the information of their case with a future victim and so I understand the interest in having bumpers put around that because I you know I don't think that we want to completely blow open the landscape around settlements to the extent as Damien just walked us through the settlement is a tool that can be beneficial to all three parties the employer the offending employee and the victim but it is particularly painful for a victim of sexual harassment who has gone through the all of the ups and downs and turmoil of achieving a settlement to then become aware that there are future victims and none of us in this climate where we are becoming aware of how the face of sexual harassment is none of us wants to continue to be a part of the problem that you know I've heard people say you know that they're likening this to you know passing on an abusing priest none of us wants to be the Boston Archdiocese in this okay we want to make sure that we are making a change at this moment that makes it clear that we want to put an end to harassment and so the poll that we need to work on and I had a long conference call with Julio Thompson who's the Civil Rights Division attorney at the AG's office what we're trying to figure out is how to propose some language that would in some way allow somebody with a sexual harassment settlement and an NDA to be able to assist a future victim of the same harasser and I understand the problem is in keeping that narrow and so that's why it's taken us a while to really figure out a way to do that so and that goes back to my concern which is why in these cases is the future harasser not promising or not making explicit that they are not doing this again I mean you know that's the problem you mean in the disclosure in the nondisclosure yeah exactly in this settlement and I understand Damien's point about them not being willing to settle a case but not promise to correct the behavior and Sarah's point is so you have this agreement but there's been no agreement to prevent future of victims or there's been no agreement to not go forward harassing people and if we can't get it that in a settlement well we don't know whether that is since we haven't really seen settlements and haven't spoke to an attorney who's drafted settlements we don't know whether that's in there or not is that correct Damien? we've looked at some so an agreement that the abuser or the perpetrator can't sexually harass other people so you know I think one thing that my expectation is that that's probably not in many if any I would certainly encourage the committee to talk to both some employer side attorneys and some plaintiff side attorneys on this issue I know that just from my own experience before I came to a legislature where I need to be clear I didn't work on employment litigation and certainly never worked on sexual harassment case but in the settlements that I drafted and related to the work I did they tended to vary with the case and there might be some sort of boilerplate language that you insert but it's going to vary based on the facts of the claims who's involved and the nature of does the other side have a strong case or a weak case and why is it that we're pursuing a settlement so there's a lot of factors and so I think even if you looked at one or two settlements I think drawing the conclusion that it's representative is pretty risky but I would certainly encourage the committee more testimony from attorneys who are drafting or working on this litigation on a regular basis there's definitely in the AG's office there were a couple of employer side attorneys that spoke in House General that you may want to hear from and there may be others that you know or other folks in the building so if you want to drill down on this issue a little bit more I would recommend that you talk to an attorney named Beth Danon and I can get you her contact I can get Kayla her contact information if you don't have it she tends to be perfect she tends to she's one of the few attorneys that I've talked to and I've talked to a lot of attorneys about this legislation because I really wanted to get a 360 degree view unfortunately what I have found in a lot of the conversations that I've had with attorneys is that you know the bread and butter in this scenario is not the random worker who has been sexually harassed who has a strong enough case and a strong enough willpower to go out and seek an attorney to help them with the settlement the bread and butter of these cases is on the employer side and so a lot of the attorneys that you talk to will really make a strong case for the status quo and for not changing anything with respect to either pre-employment or settlement agreements because the system is working I know that Beth has much more of a balance in her experience and she has represented harassed employees much more heavily than some of the other attorneys have in addition I would recommend that you have some time with Lisa Seneca who has experience with a sexual harassment couple of sexual harassment incidents but also a settlement agreement but now she has a company which helps to advise people on how to move through this system she's got a wealth of knowledge about this landscape and Kerry Brown who is with the women's commission can give you a number of different kinds of examples of places now we're all talking about you know a victim who has the knowledge and the education level and the economic stability and the fortitude to go out and seek a remedy for sexual harassment the vast majority of sexual harassment are working paycheck to paycheck they can't afford to piss off their boss by making trouble and by reporting illegal activities and so by and large they tend to either put up with it and in which case that is a very hostile work environment or they leave and they'll take whatever job they can get to go to even if it pays less because they just need to get out of that harassment environment so I want us to be aware as we're moving this legislation through that we're not just talking about you and me people who are not empowered versus we're talking about the weight server we're talking about the factory line worker we're talking about the store clerk at Hannaford and so and so you know I think I can kind of finish what I have on the whole sexual harassment settlement section of it because I would like to talk to you a little bit about some of the other provisions of it the last thing that I want to say about sexual harassment settlements are this Don't Darken My Door provision and I know that the committee had some questions about that last time you know about wondering why that's necessary first and foremost it's necessary because we're fresh by memory what that is Don't Darken My Door means we're going to pay you for this sexual harassment claim you will agree never to work for us or any of our affiliate organizations again at a level that is revictimizing the victim that is taking away a job opportunity currently and forever in the future to somebody who reported illegal behavior companies ought to be applauding that kind of bravery not punishing that kind of bravery and the state of Vermont I understand is one of the biggest offenders with respect to this settlement agreements that are made with the state of Vermont typically will include that now the state of Vermont is one of our largest employers is our largest employer if you were sexually harassed working as a clerk at the Department of Motor Vehicles and what you'd like to do is you know at some point in the future you know apply for a job in a satellite office with DCF and White River Junction you're prohibited from doing that with your sexual harassment settlement agreement if you're a nurse it is in there right now yes and I'm just making a case for why it's important that it stay you know if you're a nurse at UVM Medical Center that's a big system and it's getting bigger all the time and so you know this is really a provision of fairness that prohibiting somebody from coming back to work for your organization is very kind of against the cultural change that we're trying to establish here and put underway so just recommending Beth Dan and Kerry Brown, Lisa Seneca for testimony right and I think the other thing that's particularly important in this bill is the ability for the Attorney General's Office to do inspection of a workplace in the same way that you know that OSHA comes in and inspects compliance for workplace safety the Attorney General's Office is the place where we can go to inspect for compliance in terms of employment discrimination and hostile work environment and so just granting that inspection right as Damien said a few minutes ago they only have two attorneys they're not running around inspecting all over the place but being able to inspect what an employer's policies are what is their reporting procedure ask an employee if you were sexually harassed who would you report to maybe that person knows maybe they don't know that could indicate that the employer isn't doing a good enough job of educating employees and I know that you all had some questions about prevention training but before I talk about that did you have any other questions for me the inspection power is new in this bill yes and is it other provisions for unannounced inspections I think what ended up was 48 hours notice and that the AG's office will go through rulemaking is the rulemaking with respect to the inspection procedures with respect to the whole sexual harassment section but I think the primary reason for putting in rule what their inspection procedures are and it's just since the attorney general is heavily involved in some of the other pieces throughout here it made sense to just extend it to the whole section was this ultimately that the came out of committee was it controversial in the committee on the floor not on the floor it passed I didn't even have to stand and speak on the floor I mean there was no debate it passed with only two no votes and in the committee I think I remember I should have a committee vote here I think it passed without a no vote yeah and the the change in the sort of auditing our inspection provisions was out of 48 hour notice for the employers so that they know so it's not like a spot you know I'm from the attorney general's office I'm here to look at your records and talk to your HR personally all of that it's basically saying we'd like to come by on Tuesday it's a good time for you we'll be in the area between one and five so so did you see in committee or do you know whether the committee saw a copy of a non-disclosure sorry I do not darken my door provisions within the non-disclosure did you see an example of that I don't think they did I don't think they looked through those kind of things I'm just wondering how are we verifying that that in fact is an aspect of how Vermont as an employer is conducting business that's a good question so there were I believe there was a testimony about that from how you thought I can't remember I believe there was some testimony there was certainly the committee did not look at any examples of settlement agreements I think part of it is is that an executed settlement agreement is usually private or redacted or something like that and so those are usually available to the public and an un-executed settlement agreement isn't very valuable for the reasons I mentioned earlier I know that there I think that there may have also been testimony from some attorneys saying that they don't typically include that provision in their settlement agreements that they do for the employers they represent if the state's attorneys are drafting these we should be able to contact those attorneys and say we are also the state you'd like to know what format you use have you ever generated these kinds of you could get you know so Julio Thompson doesn't represent the state in those cases that's a different branch of the AG's office you can either ask them or you may just want to contact the human resources since her department would be the one that's sort of overseeing these grievances that result in the settlement we just had her in here it's too bad she didn't stick around yeah so I mean a huge part of this for me and that's if that is in fact the case we need to confirm that I've heard anecdotally the stories of certainly that by state employees not by state employees I'm talking about the biggest employer in the state so I'd like to go back to your you mentioned something about pre-employment agreements so I'm curious about that can we are there pre-employment agreements like pre-neutral agreements but I promise not to harass I promise you know I mean I kind of get it more prevention rather than having to to go after somebody again so yeah I appreciate where you're coming from and in general we tried not to put extra burdens or requirements on employers in this bill instead just removing the barriers for people who have been harassed so the pre-employment agreements again we didn't review a number of them but just in talking with attorneys who have seen them we wanted to make sure that it was explicit that in a pre-employment agreement you can't be asked to waive your rights and remedies so I flip that and actually say particularly following people who have had who have been the actor the harasser in settlements again to go back to your spotlight you're not wanting to perpetuate this behavior wherever they go is it would be great for them to have to certify that or say I won't be doing this I will not be discussing that that's really interesting because it is really so difficult to it's such a gray line between what is harassment and what isn't let's say Senator Sussi and I went to college together we're old buddies we've been friends forever he and I might have a very different sort of relationship from an outside observer standpoint because we've known each other for 30 years he might come up and give me a hug and ask me how my date was over the weekend and that might be completely normal because he and I have known each other for 30 years if another person did similar behavior perhaps with the intent of instigating a romantic involvement that might be really offensive to me and somebody looking from the outside might say well you know she just said the same thing that he said so like what's the difference and so you can't really ask somebody to how do you ask somebody to agree not to sexually harass someone because somebody has been part of a settlement agreement they where does that show up on their work record it doesn't okay so that's the problem is how do we for me this is an issue that you know what's the consequence to the harasser it's got to show up somewhere so that then they either have to for their next job say I'm I won't you know somewhere it would be great to get at a preventive way for them to re they're gonna there was one you trying to give me something the governor wants to do something there was one component of the bill that I intentionally left in through this 360 degree vetting process that I knew was gonna need to be taken out and it really was trying to get it I think what you're getting at and that was to require the parties to a sexual harassment settlement to be sent notified to the attorney general's office for confidential non-disclosable non-searchable just a log of you know party a party B employer and then and then employer could call the average and then if the attorney general's office five years down the road got a call and said you know from party a you know at least you would have a log of the fact that party a or party B or that employer were involved in previous sexual harassment settlements now the rationale for not collecting that information was very understandable you don't want the implication being that there actually was illegal behavior because that settlement agreement does not require people to agree that they engaged in illegal behavior and you know so there's a lot of concern on the part of employers and alleged harassers that having their name on a list somewhere at the attorney general's office would be a disadvantage to them would be a disincentive to enter into a settlement agreement I happen to think that as a matter of public good and as a matter of public interest knowing the extent to which we have claims either at a particular employer maybe that's where the attorney general would decide to use their you know two or three audits that they have time to do this month you know maybe they would look at a place that had a number of sexual harassment in South America the AG's office doesn't want to collect that information and I understand the rationale for for why but I just think that there is a missing link here in terms of how do we make sure that we're actually getting at the problem when we don't know the extent we don't know how many sexual harassment settlements happen out there exactly I think that we yeah so that's right so you fully support this bill you'd like to see go further on the non-disclosure further on right and you have language that you work at the AG's office has been very helpful in trying to figure out I don't know if he's communicated his ideas to you yet because we just talked about it on Monday so basically it's that a victim can share information with another victim with a future victim despite an NDA or you know the concept is we've signed an agreement what's in the past is in the past but if there is future instances of sexual harassment it seems unfair to disallow somebody from helping a future victim I think it would be difficult to watch it going on or hearing that it's going saying you know what happened to me too and this is what he did I just wish we could get the prevention piece more fully well you know you're in a situation where this is the law is improving and we're making progress hopefully I think you want sounds to me like they almost want to go to the point where this is the same level of like child abuse or all those criminal registries where you're on a list and you can't move to a place like that if you want that to be out there in the public I'm not sure we're ready so the reason we're not ready for that is because there has traditionally been such a stigma for women to come forward and say I'm being harassed because it's hard to say to somebody you know who has just watched me and my pal who I happen to work with and has said something similar it's hard for me to say to that next person what you said crossed the line you know you and I don't have that kind of relationship that's not an easy conversation and the stigma of coming forward and complaining and the risk of retaliation to people who have seen others retaliated against for coming forward and complaining means that something has to get really awful before people are willing to step up and what I want to do is figure out how you know these are first steps but how can we lower the bar open up the line of communication so that it becomes easier just to say you know no thanks that's in the stupid zone remember when we had our prevention training you weren't here for that that's in our stupid zone that's in the stupid zone do we have at the beginning of this year so if you remember the stupid zone you know there ought to be a code word that we can use to oh right we had it with all of you coming and chatting with us we did miss out on the Cameron Starr so we're all remember sorry and so this is a first step there's been a lot of talk about whether we should require sexual harassment for prevention training in workplaces and what that would look like and the fact of the matter is most sexual harassment training out there in workplaces is being done with the intent of protecting the company and ensuring compliance with the law for the company not necessarily in changing the culture we don't have a I won't do it again in the legislative sexual harassment policies do it that's what I'd like you'd have to what you did first was was illegal behavior in order to be asked if you have to go to the committee what is the panel so if you went before the panel there isn't a requirement that you say you know what I won't do it again that would mean you were agreeing that you've done it as opposed to just saying okay I'm going to pay you this to shut up that's the problem for me is if we don't go forward fixing this is any kind of sexual harassment as we tried to define it in this context is it ever criminal behavior or does it have to be a level of assault okay yeah and so there are a thousand shades of grey between you know incidental inappropriate touching comments through to inappropriate touching through to assault thank you very much I appreciate your time come up with it two minutes or you can wait thank you very much