 So Yes Okay, and so Dan what yeah, why don't we go with with why don't we go with 294 so Emily doesn't feel Are you Yeah, okay, so we are being applicant salary history and inquiries I think he'll be free at night, but Good morning committee for the record Dan Barlow public policy manager with Vermont businesses for social responsibility We testified in support of this bill When it was in the house general housing and military affairs committee and you know, I'll be honest before I saw the bill back in January this wasn't an issue that you know my policy committee or my board really discussed too much so In anticipation that this would be Bill the legislation was interested in I turned to my board and my policy committee and said can you tell me about your hiring practices? And you know what you currently do and I was actually kind of surprised by that this was on the radar For a lot of our employers and they already they already recognize the intersection of asking about salary history And how that can compound prior biased Salaries in the past So I was actually kind of pleasantly surprised that this was something that they were as employers that they were already thinking about and for The most part if they were in a long established business, they had already stopped to using salary history as a And for new and emerging businesses this had never been part of their their hiring practices So essentially, you know two issues rose to the top when we were talking about this is Number one our employers found that salary history provides no useful information To them concerning the candidates qualifications for a job and again They recognize that can adversely impact candidates who have experienced pay gaps related to gender or race by compounding and repeating that pay gap and If I can I'd like to read a few quick remarks from members and of BBSR about how they handled this So first is yes I'm going to clean up my copy and I'll set it right over I'm done here. So The first is from Markey Reed She's the founder of career networks and corporate in Williston and she's the chair of the BBSR board And she said men are statistically more likely to see their monetary value as higher than women And they are more likely to risk the potentially awkward negotiation Conversation this often results in hundreds of thousands of dollars of lost income for women over the professional lifetimes With more and more women being the primary wage earners for families This is a great disservice to everyone and puts more and more families under stress Additionally also spoke to Dwayne Peterson the co-founder of Sun Common and Waterbury And he said we state salary range and benefits and don't ask about pay history This leads out people who need more Having learned the lesson the hard way getting deep into the process exciting us about a prospective employee Only then to discuss compensation and find that everyone's time has been wasted Transparency early is fair to all involved and avoids the discrimination that focusing on pay history can perpetuate Additionally also talked to Heather Wright who's the co-founder of Wright Jones employment law firm up in Burlington I think the committee might remember her when she came in and talked about ban the box two years ago And you know I'll be honest Heather is sometimes made a little more conservative on employment issues than the rest of my My policy committee at times, so I was really interested to hear what she had to say And she said I've been advising clients to drop this practice for years Employees approach compensation in many different ways Asking for salary history is just one piece of the puzzle and leaves the new employer to make significant decisions on incomplete information This does generally speaking impact women more than men as women traditionally move towards jobs that compensate them in ways other than wages Over time this creates a compounding system where each successive wage is determined on the reduced wage that came before it So this really we as we see is a no-brainer a lot of employers have already started doing this and making this you know A state law would expand that to the rest of the economy So we really see this as an effective way to address Gender and race inequality and pay You know the one thing that came up is one other Employment attorney had mentioned that the only benefit that he sees sometimes for his clients is that larger corporations that have Competitors in the region as well will sometimes use the salary history question as a way to find out what their competitors are paying for equivalent positions But no one felt that that was that you know that benefit had any you know outweigh the the negative consequences of this practice So that was the single moment that you know An employer found a way to have this benefit them Everyone else was like you know, even that employment attorney was like that was that's a slim You know benefit for a bit some very negative consequences Great. Thank you. Thank you. Thank you committee We discussed this and made a few tweaks to it Copy So then we'll switch back and David comes Okay, so we're moving Yes, we're going Yeah, everybody's got foreign issues and needs to be two places at once So I'll pass out and this is it's not sort of a traditional finished amendment because we were figuring out Just before came in here what what might want to be in it So it's got some notes on there, but I'll walk you through sort of explain What it all refers to Maybe I'll start out with the most significant thing which is and I think I briefly mentioned this last time I was in here that After the house passed this bill it came to their attention that there's an issue wherein Vermont has adopted the international plumbing code and that assigns or requires certain numbers of toilets and sinks and urinals Based on gender and requires separate bathrooms and requires that they be labeled for men and women And so a workaround for that was requested And so that you'll see on page two What I just handed out yes The proposal would be to add a new section 1793 which is starts on line for of page two of what I handed out and that in a It explains that notwithstanding what's in any plumbing code Vermont has adopted a Toilet facility can be designated for peer persons of any gender And so it's saying you know even though the plumbing code might make it look like you have to make it for men or women You're allowed to designate it for persons of any gender That no separate male and female facilities are required if the total number of required toilets in the building under the plumbing code is made up of ones that are designated for people of any gender and Yeah, so that's the first part that's in a and then in B So there's you get into some second-order issues when you do this because let's say you have four bathrooms in a building and Some of them are single-stall bathrooms, they make them gender-free that then can throw off So let's say the building requires X number of toilets for women X number of toilets for men Now some of the toilets are designated for people of any gender that throws off the calculation in the plumbing Commer's code saying there need to be you know three for one three for men But now how do we count these that are for people of any gender? And so and also for example if you've got a men's bathroom What was a men's bathroom and it has a urine on it? does that Does that get counted as a toilet for the for the total number for our pictures or not So you get into these sort of second-order issues, which probably we don't want to hash out all the Details of necessarily in statute and so two options here that we've come up with and That is to say that when the total number of plumbing fixtures, which is toilet sinks urinals Sorry Yeah, I got lost when the total number of required fixtures is Fixed separately for men and women in whatever plumbing code we've adopted as it currently is There's two options option one would just be asked the plumber's examining board to make rules Governory governing how we're going to count those Facilities for people of any gender towards those totals option two would be to give a little bit more guidance and sort of set up a principle that the fixtures Designated for use of by people of any gender Will contribute to the required totals sort of in proportion to so if it's two-thirds for women to In some kinds of buildings, for example, there are more Facilities required for women that for men under the plumbing code So So this would be saying we're gonna if there's a certain number of single salt bathrooms We're gonna count them proportionally, you know, if it's two-thirds two-thirds a minute One-third demand then we'll count them proportionally to those So we're willing to dive deeper. Yeah The So what's happening here is we're about to pass a law that was in good shape and now The feds have come up with some requirements that the state Has adopted but didn't have to adopt we're not in a preemption We can do more than the feds we can do slightly different It's not actually the feds. It's you know, it's just that yeah, okay. Yeah, okay, so and this has come Since the house has passed. They became aware of it It was they would these rules had already been adopted They just no one had realized it was a sort of a potential problem. These weren't alternative to Take our bill and just say that the plumbing board shall Change the rules to accommodate the statute. Yeah, and I think that's what's intended in Option two it does give a little bit more saying we want you to do it proportionally in option one It's just saying you should make rules It says the partners examining board shall make rules to govern how plumbing fixtures in both facilities Shall contribute to the total numbers And I guess as you say you could pull back even farther and just say you'll make rules to Say at the end of option one consistent with this act Clear that Is that doing I think so, I mean I've been referred to my my legal counsel here But I think we are in agreement all the people who are really committed to getting this bill through we want it to be as Simple of fixed as we can. We don't want it to get bogged down in a lot of details. It's not a huge It's yes And so we want to make sure that we keep it as simple as possible But acknowledge the fact that there does need to be some rulemaking That's done around so that would be my preference Yeah, and I think that the only concern is just That the plumbing board will sort of get what the issue is and right do it. We do it. Well, you know Right. Yeah. Yeah I'm Fabulous Yeah, okay, so there were a few other things and you may not want to get into them, but I'll just quickly Line well page one line 12 so this is so the definition of single user toilet facility in the As past is a toilet facility with no more than one water closet and one urinal with a locking mechanism controlled by the user As we look back at this, we had a concern that it could be read to mean a Room with just a urinal in it Because it says no more than one water closet and one urinal And I'm sorry, and this is gonna be confusing because I this isn't a normal Amendment that I handed you what I handed you has an all has our alternative that we proposed if you want to look at the the current Definition that's in the the bill as past The single user toilet facility means a toilet facility with no more than one that one. Yes, no more than one Yeah, so are you trying to do avoid is if it just has a urinal and not a water closet, right then that's Bathroom they get stood so that was the main concern there and so the proposed one in what I handed out is taking language from 2011 act 40, which is where we required single occupancy restrooms in building zone by the state To do this to become And so we sort of borrowed from that language in this proposed change definition And so that's that's why we not become aware of the international plumbers requirements then we did this like four years ago Jason Lorbert. This was Jason's big issue Did you have an issue? I was gonna say I like alternative three better because The one above it that was in the house past Let's hope it's I'm sorry, what the effect is by changing it So it would Just clarify that when we say single user toilet facility We're not talking about Like just a room with a urinal in it And we're also it also would clarify that we're not talking about a single toilet stall because you could also read that original definition It says a toilet facility with a locking mechanism controlled by the user Could read that to me just a toilet stall and so this was just attempting to Make the idea is you wouldn't or I wouldn't want to go to a toilet marked You know gender-free toilet and finally urinal in there Yes, it would be disconcerting. Yeah Good Yeah And then very quickly, there's just a few sort of little sort of conforming things that as we were looking through the code some more We saw potential conflicts. So there's a there would be an addition on line 16 of page one There's a suggested addition of saying notwithstanding any other provision of law Just because as we were looking through the code we found some other places that gave for example, municipalities the right to regulate bathrooms in some situations, so we just want to say No, this is trumping all that And then on line three of page two Where he talks about the giving the commissioner public safety the right to inspect for compliance in the house best version it just references 2731 B, which is Basically the fire fire safety inspections And so we're proposing to include the the statutes which talk about plumbing inspections And we already talked about Page two On page three in line 14 And Where this is where the plumbing board is given the power to adopt those rules, which is what they did when they adopted the plumbing code And so this is just To clarify that to the extent a rule of the board conflicts with this subsection and you're just add or with 40 a chapter 40 title 18, which is this new rule Requiring the single occupancy bathrooms to be gender-free so just adding that in there Yeah, yeah, then on page four Which is where it gives municipalities the power to do these inspections in some cases And it gives municipalities the part we were concerned about was it gives municipalities the right to set standards Which can exceed state standards? And it just wasn't clear to us what exceed Would mean in this context And so just would clarify that municipal standards won't prohibit this rule as well And then finally I didn't know if you wanted to Change the effective date, which is in the house pass version July 1st 2017 So just update that 2018 Will get pushed back on the floor if we Plans and places do I mean Plus it's amazing how many bathrooms I've started to notice of course Ever since Jason's bill because I've noticed it in say billions, but yeah a ton of places are really rolling out Yes, every bathroom I use yeah, when I was at Harvard So in Damian we started with Dan And then because that one wasn't ready we've been doing this dance, but I think we'd love to hear from David I see to recall and also I think Harry. We have something Yes Oh Could we just have an update to the city updates later this morning We finished the city We finished our work on the city Jim Deverey's Was told to pass it to David Hall. So I think he's putting it in the draft There's some CT people here today with the regional economic development people who are here and if we're back to work You saw their letter the CTE director crowd that a bunch of people had been in touch. Yeah, and I lean obviously And I think we took a lot of Ilead suggestions about And you should have draft 1.1 David 328 18 at 2 36 p.m. Which is the amendment draft right So let me walk you through the amendment. Now, if you'll remember the house bill had Four things that an employer should not do or one of the things that we discussed doing was condensing it to three and Clarifying that language so the new language provides an employer shall not Inquire about or seek information regarding a prospective employees current or past compensation from either the prospective employee or a current or former employer of the prospective employee I ran out of breath there The second one is require that a prospective employees current or past compensation Satisfying minimum or maximum criteria And the third is determine whether to interview or make an offer of employment to a prospective employee based on the employees current or past compensation So There are those three there the Next section here, we've renumbered to say notwithstanding subdivision a1 and then We've clarified this language a bit here So now it provides that if a prospective employee has voluntarily disclosed information About his or her current or past compensation An employer may after making an offer of employment with compensation to the prospective employee Seek to confirm or request that the prospective employee confirm that information and that marries up The section from the bill has asked the house with s275 right kind of combining aspects of both of them And then the next section here Remains Unchanged from the house Nothing in the section shall prevent be construed to prevent an employer from inquiring about our prospective employees salary expectations or requirements Or providing information about wages benefits compensation or salary And then the last piece here that we added in was a definition of what Compensation is because we use the word compensation alone Above and so compensation includes wages salary bonuses benefits Fringe benefits and equity based compensation in something like a stock option So I'm a little concerned about C on line three because If an employer inquires about with a prospective employee about what their salary expectations are They may not be an employee with all the confidence in the world and they sort of be basing their you know their Notion of What they happen being paid it's a it's sadly a way that What they haven't been Continue to inform what they asked for Do you understand what I'm saying right but that's and then that you know that might limit them And they might be surprised But that the job they're looking for is actually you know, let's say five or ten thousand dollars more than they might have expected and and therefore by inquiring about Employees salary expectation that may be For non courageous non self-esteem people may be stuck in where they what they were learning right, but I think What we're getting out here is that you know, this is a question where it Puts the ball in the respective employees court to say this is what I'd like to make this is what This is what my requirements are and it takes away from saying You know, tell me what you're currently making where they have no control over that conversation So does give them agency there. Yeah, I get that. I also get that when you're inquiring about someone's expectations That those may not Be as bold I mean they may be smired in their salary history Sorry jump in We can't get into Individual negotiations on a job where we're getting too much into detail here. We're stopping them from going to We're inquiring about previous salary and one thing so when it comes down to it now What are you looking to make a lot of businesses already do put salary ranges? That's true Okay, so it's up. It's up to the perspective employee to say this is what I'm looking for I Agree, I also would say that this is one of the insidious ways that we continue to perpetuate salary and equity I'm just flagging it as a Because of you know, not all women are going to be Anyway, I just don't flag me as a conservative. So I agree with Damian I think this shifts the balance so that I don't think we can prevent any conversation about salary because That's what's that issue. Just give you an example from UVM so I've been on hiring committees and the way it works in academic hiring is there's one conference a year Where you interview people and then following that everybody Makes their offers to those people So after you pick your list of the top three people for the post We call it the first one The clock is running at that point other people are Are hiring your best candidates away and you're not gonna have another chance for another year So in that interview one of the things that you say is how much do you need to make? If they say twice is the maximum we can offer We know that's important for us to know because if we make them one of our top three candidates Let's say our first one. They may take three weeks to decide on the offer Even though it's they can't take it because it's not going to pay them near what they need to make So we should eliminate them based on they need twice what we can pay And if we're not allowed to ask that We're disadvantaged With every other candidate time wise So I would just say that I think this is absolutely right You should be able to ask what do you make now? But you need to be able to mask what what do you expect to make I'm just It's a flag I have a question on line 16 On which page page 16 is the senator I Think the committee got to this point And this language without questioning So if in the course of the conversation the employee voluntarily offers past history How and is it wise at that point to Say to the employer That you have to somehow shut that information out from your mind as to whether you interview or offer this person a job Great, it goes to senator Bruce point in a way that if you if they if they voluntarily Contribute to the conversation that they're going to need you know $100,000 more than it was being offered like of course you're going to take that into account Like we can't all view the job. We don't have that money Or I'm gonna I'll offer you the job but or I'll interview you but I'm feeling really bad because you're gonna be really Disappointed, you know, even though you say you want the job, you're gonna be disappointed if I know that you worked at $100,000 more So I'm just wondering how that's enforced and whether it's a valuable Information from how the house So the house dealt with this issue To The house is basically there There number one is screener perspective employee based on his or her wages benefits compensation or salary history Or request to require as a condition of being considered for an offer of employment that you disclose that salary history, which is a less I Would say that this is a Policy decision for the committee here Whether you think this is a wise direction to go in with senator peruse example One difference that I would point out is that in that case he asked for what their salary requirements are Now that the potential Sticking point I could see is if someone said well I make a hundred and fifty thousand now and The cost of living is higher here So I need to make at least a hundred and sixty five thousand But that goes to that part of the back where if they voluntarily disclose, right? You can seek to Compensation I don't think the legislation Can protect every individual from themselves like some people are just not good negotiators They're they're going to inadvertently submarine themselves in ways that are legal And and in a sense that's what an interview is designed to do is figure out who you are Which are capabilities are one of those is how well you can sell yourself an interview I Conversely if you're a good negotiator and you're confident, right then I'm making a hundred thousand dollars currently So I would love to go to work for your company. I need to make one twenty five And let me tell you how would you get there and that would be one approach to the legal Right, but this is all men, you know when I would say I I'd respond by saying I actually one of the problems here is that women aren't always this confident women aren't always as Self-promoting as men are sorry guys, but you tend to be more self-promoting and self-confident and One of the challenges here, which is what raises my concerns about the other thing on the second page is It's exactly that I mean, you know women are not in until women aren't equal negotiating Positions, which is another issue. I know but Would you say then that to compensate for that situation we forbid all discussion of money. I Difficult to I'm saying I think you know you guys say well, you're good to go to you could do this Yeah, that's one approach he went with one and I went to the other one Yeah, but it's voluntary. You don't have to discuss your your salary history I don't want to lose the forest for the trees here The most important thing is we don't want employers right to make you disclosed And that's a report one and it would be a huge step forward And so I don't agree with you Allison You're bringing up parts of this conversation that are very important to me personally You know seeing how negotiations often play out with differently with men and women. I get that I just want to make sure don't lose an opportunity here to make a giant step forward in Unmediate the kind of discussions that can happen. We can't plan for every Eventuality, I agree. I just have to bring that up exchange If I'm back to the senator Serafkin's point on that so this is it is a somewhat different issue and It may be that the committee here Wants to consider Instead of saying determine whether to interview or make an offer of employment To a prospective employee based on their current or past compensation just say determine whether to interview a prospective employee based on their current past compensation given that during the negotiation process someone they say you know I Don't know I have to make a hundred and fifty thousand because I make a hundred and forty five now But that is a policy decision that that you'll want to Consider but this is I mean just to go back to the senator's point, which is away from Can you discuss what are my requirements? And I think what senator Baruth highlighted? There's a possibility That in discussing the requirements you may Also include a disclosure of your current salary and then the employer may say well, I can't satisfy their requirements But now they're stuck in a position where Was it because of the disclosure of the prior salary or was it because of? I Your suggested change Is in accord with the other pieces of the bill because Otherwise the bill is saying you can voluntarily disclose If if we're saying you can voluntarily disclose then we shouldn't say right that that can't be part of the decision So I would go to any and suggestion to change three Yes, yeah, I agree. I mean I would be gentle. I was giving To make it real Let's assume you're a state employee and your salary your past hours posted and everybody knows it's not a question of disclosure You're a lot of three or whatever you're applying for a job. That is a much higher level job in that case Let's say you're for a low-pay job, but you want okay in that case we're really not protecting the basic goal here, but Unless the person gets into the office to explain why yeah, they may lose that opportunity to get that job Whereas the next step If the employer's money has this information not in violation here her has this not in violation of this law They just happen to have the information in their mind You know the person may convince them in an interview But if they don't convince them in an interview they may feel this is such a drop in pay This person I don't want to have to be keep thinking of that and that's they're right to say that so so I agree that would be a good compromise just leave it to the interview sort of how you don't force it, but I Don't see the harm So what's the proposal moment to get rid of to interview? So to determine whether to interview a prospective employee based on the prospective employees current or past compensation Sort of like being in the box and so yeah, yeah Okay Any other changes if that's the only one I can have on an update throughout Oh I'll move It'll be draft 1.2. It'll be draft 1.2. Thank you. Okay, I got two votes. I got four votes. I got five votes. Okay, as the sponsors of the first senate version of this, we're thrilled. I would be delighted. Okay. All right. What's it, what are they calling it, age? We're getting no dancing. No dancing? No dancing? No? No dancing? That's what I did then, but I'm like, Abe, come on. Excuse me. Okay. I'm on agenda. We'll move on to the next bill, which I think is sexual harassment, correct? Yes. Yes, yes. And so, I know Lisa Centiple is coming. Obviously, she is not in the room yet. So I don't know if we want to start with the folks who are in the room. 707. Right. Probably anger thing. You're working so hard right now. Thank you. I'll be right back. Yeah. Okay. 707. I don't know. Come on. Okay. Probably anger. Come here. Come on. Come on. Come on. Come on. Come on. Come on. Come on. Come on. Come on. Come on. Come on, come on. Come on. Come on. Come on. Come on. Come on. Come on. Come on. Come on. Come on. Come on. Morale is working. The Marle board was up against the UN commission and for the You know, you don't know how I signed, if I signed well. Mr. Chair, is it all right if Terry takes it? The guy that, you know, universally they said he wasn't even close to be sure of yet. He used to bring stuff up. Yeah. And the person who was at the podium was like, just assuming. Oh, yes, yes. You know, it's like the RNC convention. Yes, it was the RNC convention. He didn't know sign language at all. He had trump up there speaking. I don't know what the speech was. Thank you so much for coming in. Thank you, Mr. Chair. Long time no see. Thanks for that vote you just did on the last one. Yeah, yeah. Well, you stood with us when we had our press conference. Yeah, that seems like a long time ago. But actually it was just, I was wearing the same outfit. Hey, how perfect is this? We voted out of me on the day. We're wearing the same outfit. So speaking of what I have to say about this. I have a story. You have an outfit story? I have an outfit story. Okay. Does it involve your green jacket? Close. All right. So I was, after South Fest, I was, she won the Curtis Award. So I had this speech. Oh, right. I was there. I was there. I was there. It wasn't a speech, but it was for 900 people. It was there. He was packed that year. Yeah, it was really packed. And they sat me at the head table. Yeah. And at the head table was Elizabeth Warren. That's right. Oh, that's right. She got my picture taken with Elizabeth Warren. She was wearing this red land, Schmata. She had a Schmata. She had a really boring outfit. Very good. And then a couple of them. Yes, we are. Yeah. It drew me on the space. Translated roughly into red. Yeah. Yeah. Schmata. I taste full of chocolate. It's better than the English version. Fast forward two years. She's on the stage in the Democratic National Theater. And I started writing to my brother. I said, I have my picture taken with her. I'll send it to you. And I look at the picture. And she's wearing the exact same outfit. She may have several. Maybe a jump gold balloon in the flying can. Oh. He had only one suit in his whole closet. You passed me your thing. All right. Oh, oh, oh, Oh. Yeah. Yeah, right. All right. Thank you. They're both loaded in the car. I thought it was all over. But I came back here. Oh, no, thank you. Okay. No talking. All right. Yeah. It's a nice. Patrick? Oh, no, thank you. I weren't talking, I would say. All right, so thank you very much for letting me speak. I'm Carrie Brown. I'm the executive director of the Vermont Commission on Women. And we are, of course, very concerned with the prevalence of sexual harassment in the workplace in Vermont. For us, it's one of the things in economic equity issue, because we know that there are a lot of women who are leaving jobs or working different jobs or making employment decisions based on conditions related to sexual harassment, which are not necessarily the factors that they would ideally be making their decisions with. So I am not an attorney, so I may or may not be able to get into some of the real nitty gritty about this law. But I know you'll have other witnesses who can do that. What I would like to share with you is a little bit about what we see at the Vermont Commission on Women, how this is impacting Vermont women, and some of the thoughts that we have about how this bill might be able to address some of that. So we are, as you may know, one of our functions is an information referral service. So we have people call us or email us, we get in touch with us when they're looking for help. And we also have people go to our website and make use of the resources that we have there. We have a very comprehensive document called sexual harassment in the workplace or something like that. And it's pretty old, but so far it's still current. It's really old actually. It's like 10 or 12 years old. We're just updating our policies as soon as possible. Yeah, and feel free to. Well, and so it explains what the current law is to people. And it's a wonderful document. And if you pass this bill, it will be out of date. And we'll have to figure out some way to update that. Currently, we have a lot of people referencing that. We have people who will call us and say, I read your materials, I looked at your website, I have this question in follow up. So we're hitting a lot of people that people used to call us and we would have these long conversations with them, not nearly as many do. However, plenty do. And so I have some stories that I can share with you and I have some perspective that would be helpful to you on that. So we're seeing mostly women contact us, but not always. Sometimes men are experiencing this as well and contact us. But it's a vast majority of them are women. So in the most recent data from the Equal Employment Opportunity Commission in 2016, there were about 16% of the complainants were men. So it's Wednesday. What year? That was 2016. We don't know who was harassing them, whether it was women or other men. They also, in that same year, did a comprehensive study of workplace harassment overall. And they found that when employees were asked if they experienced sexual harassment without defining the term, that about one in four women said, yes, I've experienced that. Then when they described more specifically what that would mean and asked again, it was more like 40% of women. Oh, things that they had necessarily thought of as being sexual harassment, things that were unwanted sexual attention or sexual coercion, that number jumped a lot. As I said, this is an economic security issue for women. If there's about 80% of women who've been harassed end up leaving their jobs within two years. And oftentimes, we hear all the time from women who, when you tell them the remedies that are available to them, they say, well, I don't really want to go through with that. It's not worth that. I don't want to get that guy in trouble. It wasn't that big a deal. Or everyone's going to know it was me who filed a complaint at work. And I don't have the money for a lawsuit. They have many, many reasons for not pursuing it all. And so for many of them, the option is I'll just find another job and I'll just leave. But unfortunately, a lot of them end up going to lesser paying jobs or reduced work hours. And so it can have that economic impact on them. Women who are harassed are about six and a half times more likely than those who are not to change jobs. That really has a significant effect. And of course, in Vermont, we're concerned about women's ability to support themselves and their families already. And we know that it's not unique to women that there are a large percentage of them having a hard time making ends meet. But our most recent analysis was about 43% of women working full time in Vermont are not meeting their basic needs as the JFO defined. And as I say, it's not unique, but it's worse for women than it is for men. And so that's sort of our underlying concern about that. And so we find that this affects women from all different kinds of industries. So in the news, with the Me Too movement, we've been hearing a lot about high-profile industries, about high-paying situations. And that certainly is a problem, but it's a problem everywhere. And the restaurant industry, for instance, is just rife with it. And oftentimes, women will just kind of accept it as this is just how it is to work here well. And then just deal with it and try not to wet it too much. And when you look at the overall, this is nationally, where the complaints come from, the industries that they come from, about over 50% of them are coming from accommodation and food service, from retail, from health care and social assistance. And then some of them are also coming from manufacturing, which is what we don't see a lot of women, but it can be a particularly difficult environment for women oftentimes. And yes, I'll just go back to it. Just because, as you know, we've dealt with women in the wage this year, at least we're trying to and still is house. And we, as you know, in the course of that, bills were dealt with tipped wage. And tipped wages exacerbates this problem for women in these industries, in exactly the same industries. Not in retail so much, but in accommodation and in restaurant work. And you didn't testify to this, but as I listen more and more to the tipped wage challenge as this bill progresses through the building, might me in the future consider getting rid of the tipped wage. We talked about it, but this is an ongoing concern. It raises its ugly head again here in this bill. I mean, I just hope that you can think about that. Yeah, so that's actually a topic that's kind of on our radar, but that we haven't really done any research on our work. And I think it's actually a very broad cultural change that you're talking about when you want to get rid of tipped employment. And I'm not asking to do it tomorrow. Yeah, I'm just asking to think about it, because if it's such an exacerbating piece of sexual harassment in these specific industries, we can do something about it. So I read an article recently, and maybe you all saw this, because it was floating around, I don't know where it was from, maybe the New York Times, about a restaurant owner, a woman who talked about how she combated sexual harassment in her restaurant. And it was with servers in particular. And it was from customers, so the kind of thing that you're talking about. And they developed sort of a code where the server could say to the manager, whoever was on duty, they've got a yellow table or a red. And they had color coding. And the lowest level was something like the manager would come over and check in or keep an eye out if it was a higher level. The manager might take over completely. And if it was a red, they might actually just ask the person to leave. And they didn't have to get into, let me explain to you the details of what happened. They just could sort of all agree on what the standards were. And so they were looking out for each other. And I was very encouraged to read something like that as a way to address sexual harassment directly. Because I'm just not as confident that getting rid of the tip aspect would necessarily serve that same purpose. Yeah, that's a great idea. Would be great to broadcast that on your website under the sexual harassment. The ideas are changed. You too could broadcast that as a method for change. In fact, we just finished developing a new document that was about bystanders and what to do when you witness sexual harassment. And it could definitely include something like that down there. Go for it. Great idea, I'm making a note. Okay, so I wanna tell you a little bit about some of the stories that we've gotten from Vermonters. And these are, I have to kind of make them general because they're anonymous and they're confidential. Have you set this electron for the kale? No, I don't know what that I have. But yeah, I can come up with a version that I can send. Great. All right, so we've got a couple that are really firsthand experiences. So here's somebody who worked at a security company who was verbally and physically sexual harassed by a co-worker. She resigned because the branch manager wasn't doing anything. And then the complaint to corporate and investigation was done and she was asked to return to work but at a different site with lesser pay than before and gave it up and found it for employment at a much lesser pay. Because she felt like she was treated like she was the one who did something wrong and she was penalized with lower pay for the complaint. Another one comes from someone who works in IT and has been working there for a very long time and has had lots of experiences being bullied, being harassed, pulled off projects when she complains, reprimanded for things that male colleagues aren't. She told us that she used to work in construction and she said the environment in IT was much, much worse for a woman than being a woman in construction. Being a woman in construction is a technique in many cases. So she's been doing this for many years and she's older and she's kind of, you know, tucking it out but she said she's seen many, many younger women come through and just say this is for the birds and leaf. And so she's worried about kind of the future of the industry. We've had some calls from men as well as women. So a man who works in a grocery store and there's somebody in management who has been sleeping with many of the female coworkers, bragging about it, speaking disrespectfully about them to other coworkers at work because they know what to do about it. He's gone to HR and his company and nothing has happened. Somebody else who was with his girlfriend in a car dealership and witnessed employees making numerous inappropriate remarks and gestures towards her of the sexual nature and filed this, they filed a report with the Vermont Attorney General. So, and we have no way to, with all of these, almost 100% of the time when people call us, we have no way of following up because they don't tell us who they are and they don't leave contact information so we just have to sort of hope for the best. So this is a story about someone who had some difficulty with the procedures that we were starting to call. Your call ID will tell you who called. Not always. On your phone. They do. It often does. It often does, but it's... Sometimes it says unknown. We don't, we will ask people if they want to share their contact information with us but we don't record that and we don't. But it is confidential. It's confidential. I mean, people need to be able to call us in confidence. So this is someone who worked at a produce market and she had a coworker ask for Beyonce for pictures of her breasts. Did she say she was going to be a girlfriend? Yeah. Went to her boyfriend and said, can you give me pictures of your girlfriend, please? Who also worked there. You know, actually I'm not going to read some of the next things that are showing up in here because it's probably not really, but made some really graphic, really overt sexual comments to her in front of other employees on multiple occasions. And she went to the manager who said, I don't believe you and asked her to leave. And she's called the Department of Labor Unemployment, the AG's office, didn't really know where to go. So this is, and then when she called the AG's office, there's a standard practice that, procedure you can follow to report a complaint like this and involves a very, very long form that's used, if I understand it correctly, and someone from the AG's office could speak more specifically to this, covers a variety of kinds of discrimination complaints, the influenza discrimination complaints that you might experience. And it takes a while to get to sexual harassment in this long form. And this is an example of somebody who just felt completely overwhelmed and couldn't really move along. Yeah, and so our staff kind of talked her through it and helped her fill that out and just kind of facilitated that. And that's the kind of thing that we have a ton of experience doing. We also have, we don't get calls like this one every single day, so we have time to do this. One of the things that this bill does is it enhances that reporting procedure in a way that I think could be, that we could be able to offer some expertise and counsel about because we often will get people who just wanna, they don't know where to start and they need to process their experience for a little bit. And we have the time and the expertise to talk to them about what kind of employee are you, what kind of complaint this might be, and to send them to the right place and to help them navigate that. And so if the AG's office or whoever's doing this enhanced reporting had additional resources to be able to offer that kind of support, it could make a tremendous difference. It could really be the difference for a lot of people between filing a complaint and not. So that's one of the things that I'm really pleased about in this bill. We've also gotten calls from people who are just kind of looking for information, a new business that wants to know what are the laws, how can I get it to speed. We can send them all kinds of resources for that. And so we're able to provide support in a lot of different, a lot of different ways. And one of the things that this bill includes is an education and outreach piece that's assigned to us. Oh, right. And this is something that, again, we have a lot of experience doing. We feel very comfortable being able to do a version of this in collaboration with other state agencies, which again we have many, many examples of publications that we've done and campaigns that we've done we're working right now on a public education campaign around the law providing reasonable accommodations for writing employees, working with the Department of Health, General's Office of Human Rights Commission to do a kind of a joint campaign on that. So an ACCD, we're not working with them on that, but she did one. Given that it's a workplace issue, it should be with DOL and ACCD. Yeah, DOL, we've been talking to DOL. Yeah, but ACCD is a piece of this too. Every training program, I mean, they had such impact on our workplace big time, just like DOL. Yep, absolutely. I will say that we have absolutely no budget whatsoever for any kind of materials, or I mean, we wanted to have, you know, develop videos or develop new publications or even just provide electronic files for people. We literally don't have any budget for that. Our budget has been cut to where we're pretty much a personnel and we have allocated expenses and that's about it. And your budget is now what, roughly? 370, something like that. One of the lowest in state government. Yeah, the House put $8,000 into our budget for per diem compensation for commissioners, which has never been here before. So in the original bill, did they have a dollar amount for education? No, no. And I don't say that in order to tell you you can't pass this without sending you to appropriations and getting us more money. I don't mean that at all. I just kind of want to put appropriate expectations on what we're able to do. We can do a lot without spending money on paper things, you know, or hiring consultants or anything like that. We could do a much better job with more money like anything else, but we can do this with our existing. Do you have a notion of what it would cost? Oh, well, if we wanted to do, you know, videos and travel around the state and things like that, and we spend all the money that was given to us on that. But we can do things online and we can do collaborative work with other state agencies and with employer groups and not spending any extra money. And it's also correct. It would be interesting if we were willing to consider putting some money in for it to have it matched because my guess is that this is something that a bunch of our business organizations and alliances might be willing to match if the state was willing to put in something. Yeah, I think that's an interesting idea. And there may be, we may be able to do a little creative thinking about other sources of money to do more. Yeah, I'll think about that one a little bit. Did you hear that? I did not. I was suggesting that actually if we wanted to put our money where our mouth is, we might consider putting some money into this bill to finance some of the outreach and education with the provides of it, some of that money that that money's matched by some of the work with the encouragement or however we want to do it, that money would be matched by the business community either with the business organizations and alliances that might be willing to match the state's investment. We recognize there's a sexual harassment problem. We need to be part of the solution. You're our arm into working with ACCD and DOL and education, everybody else, the AG's office, but you need tools to do it, you need financing. And so it's an idea like this. It'll hang it up? Yeah, exactly. I mean, it's not to say it won't get through, but it'll wait till the end probably. So that's the solution. Oh, I realize. I just want us to think about it. Yeah. Anything else? I think those are the big things that I wanted to address. Is there any questions? So I think Mr. Chair, since Damien has previously done a walkthrough, I think it makes sense to hear from more of the witnesses and then bring him in. I think we'll wrap it up for the next few minutes. Dr. Lee, can we have a little time here? Actually, I wanted to go to the office there. I could. Okay. And AG's office. Good morning. Good morning. I'm going to have dry mouth. And I remember my glasses this time, which I did not manage to do in a hug, so they should go much better. Thank you very much for giving me an opportunity to address the committee. My name is Lisa Senkel. I'm a member of the Vermont Commission on Women. I'm also the co-founder of the Nairing Group where we work with women who've experienced workplace sexual harassment and assault, and we also work with businesses to print cultures and reduce risk with the help of preventing and reducing the overall incidence of sexual harassment, which also causes real harm to companies and their reputations and value. Most importantly, I am the proud mom of two exceptional young men who are 19 and 17 years old and a native of Monarch. I am also a survivor of workplace-related sexual assault and harassment. The Me Tube and Times Up movements made me new. There's nothing new about sexual harassment. My first experience was unwelcome touching when I was working as a waitress at 15 years old. The next was verbal and physical harassment at my retail job when I was 16. Neither company had a formal HR department. Reporting would have meant accusing the owner's father or reporting directly to the owner who was the harasser. More recently, after holding senior management positions and starting and running my own businesses, I was sexually assaulted by an executive after he contrived the meeting in an isolated location. As difficult as those experiences have been, they were not at all unique. Sexual harassment happens in businesses. Throughout Vermont, every day, the reality is, women mostly, most often silently, manage to flight, avoid, ignore, and endure various forms of sexual harassment from demeaning, degrading, and sexually explicit comments to unwelcome touching and quick pro quo sexual demands. If the Me Tube movement has showed us anything, it's that staggering numbers of women have experienced workplace harassment yet they never tell even people closest to them. Rare still is reporting harassment to their employers. State entities are the EEOC. According to a 2016 study that the EEOC did between four and eight out of every 10 women experienced harassment and only two and 10 reported. The opiate crisis and through a narrowly averted tragedy and fair haven, the risk of gun violence in our schools show us that as wonderful as that state is. We aren't immune to all the social skills that confront communities throughout the country. I was going to be submitting some samples of harassment that has been submitted to the Vermont Commission on Women, but Carrie has done such an effective job. There's no reason for me to do that. Well, we'd still love to have your testimony electronically to Kayla. Absolutely. There are three sections of 7 and 7 that I would like to draw particular attention to today. The first section is section one G. Over on one side. And that is on page three, top of page three. An employer shall not require any employee or prospective employee as a condition of employment to sign an agreement or wait, or it does not. It does either the following. And I'm only concerned with subsection B, except as otherwise permitted by state and federal law reports to waive and substantive or procedural right or remedy available to the employee with respect to a claim of sexual harassment. My recollection is that that phrase, except as otherwise permitted by state and federal law, was used to address the fact that it is federal statute that allows for mandatory arbitration provisions. I would urge the committee to revisit this section and consider expressly prohibiting mandatory arbitration and sexual harassment claims. The Republican-led New York State Senate recently passed by a vote of 56 to two, a new law related to sexual harassment that among other reforms bans arbitration clauses in those settlements that would reads any employment contract or agreement which has the purpose or effect of concealing the details related to a claim of discrimination, retaliation, or harassment is unenforceable and against public policy. I hope that Vermont can find a comparable way to protect targets of harassment in our state. If you may, I don't want to say this for the lawyers, but a couple of questions on that section if we were to say except as required or preempted by federal law, these would be illegal, but I don't know if there is any preemption and I don't know what it says extent is otherwise permitted by state law. There's some particular provision in state law that harms out some protection for arbitration clauses for some good reason. I don't believe that there is any provision in state law and I should leave this to the lawyers since we have plenty of room this morning. Good lawyers behind us. And Daniel too. I thought you looked away, dude. Richard. I was checking to see what we're seeing. Hi. My understanding is that very often states will push limits as far as they can when the federal government has imposed federal law that is damaging to citizens of an individual state. I appreciate you bringing that section. I'm also here for more legislative counsel as to why the House put that in. The second area I'd like to address is section one H. Next. From the drafting of this legislation, one key goal was to provide whistleblower protection under specific limited circumstances for individuals who have nondisclosure components in their settlement agreements. As this bill is currently written, it does not yet accomplish that goal. Section one H merely codifies existing law, enumerating rights that all people retain even if they sign NDAs. It does not, however, address the critical issue of nondisclosure agreements, either intentionally or unintentionally, serving to hide the actions of serial sexual harassers and assaulters. Women who sign nondisclosure agreements should not be forced to become complicit through their silence. We would consider it against public policy to have employees sign confidentialities related to workplace safety violations. We need to recognize that sexual harassment is a workplace safety issue, resulting in not only physical, emotional, and psychological harm, but very often has a long-term negative impact on future earnings. And mental health. And mental health. According to the EEOC, 80% of women who report sexual harassment leave their jobs within a year. The majority take jobs with lower pay, lower status, less responsibility, and opportunity for advancement. Very often, women leave the industry they were working in altogether to move to fields that are more heavily female. Unfortunately, female-dominated fields also tend to pay less. When we look at the gender pay gap, we can't ignore the role that sexual harassment plays. It harms women and families and creates a drag on the overall economy. With Vermont's demographic challenges, we cannot afford to have women's careers and incomes derailed due to sexual harassment. Contrary to what you may assume, I am not opposed to NDAs. Although they're originally envisioned to protect trade secrets, they serve an important role in sexual harassment settlements. The privacy protections go both ways and that privacy can have an ideal of meaning for survivors. New Jersey, California, Pennsylvania, and Washington State all have proposed legislation that would prohibit to varying degrees the use of NDAs in sexual harassment settlements. New York State has new rules that prohibit mandatory arbitration and prohibit NDAs unless they are at the request of the victim. These protections also extend to independent contractors and freelance workers. I appreciate the goal of what New York State has done. I have a concern with the method that they have chosen because victims may be pressured into signing NDAs in exchange for a higher settlement amount. And it would not be in the best interest of victims to low ball settlements and only offer legitimate settlements. So I agree with the line you're pursuing. I'm just a little confused. Are you suggesting a change to a piece of this or are you saying that we're lacking a piece? I believe we're lacking a piece. I think we need, in this section, there needs to be an additional. And you have suggested. Yeah. Do you have one? Yes, I have. Okay. Is this the issue that Sarah called on? Yeah. I just said that she would like to see it Yes. Okay. Both these things are different. Thanks. All right, last question. So I do urge the committee to amend 707 to render NDAs melanchoid in circumstances where a survivor learns that their perpetrator is a serial harasser and that history had not been disclosed to them prior to signing their non-disclosure agreement or in instances where victims learn that the perpetrator has continued to harass. Survivors should not be denied the ability to warn others. This could still opt not to disclose the existence of other victims. They can choose not to do a thorough investigation and identify other victims, but they would be assuming that risk. It would provide a strong incentive for honesty and negotiations and for businesses to take all reasonable measures to ensure the perpetrator does not continue to offend. There seem to be two main arguments against this. Inelifying of NDAs, I find both of them incredibly insulting to women. The first is that if women aren't under NDAs, they'll share their settlement amounts with fellow co-workers and say, hey, look what I got and this is all you have to do and you can get money for your claim too. And that was actual testimony that was given in House General. This leads- By a business? No. Someone else. That paints women the entire gender as threats inside a company who conspire with other women to victimize employers and make a fast buck. Or in this case, I should say a fast 85 cents to reduce the gender pay gap. False allegations are not the problem. Under reporting is. I encourage you to ask anyone asserting that false reporting is a significant issue to cite cases or studies that document this problem. Fortunately, we have had an unintended but excellent decades-long test running in the state of Vermont. The state as a public employer does not have nondisclosure agreements as components of their settlements. Despite this, the state does not have a problem with details of settlements being widely spread or disclosure of sexual harassment settlements amount leading to a rash of baseless complaints being filed. Women aren't eager to talk about sexual harassment. They're not eager to report sexual harassment. They're certainly not looking for reasons to talk about it after they've already signed a settlement agreement. I can say from personal experience, there is no pleasure in describing again and again your degradation and victimization. Victims are slut-chained and have their honesty and motives questioned precisely as this argument shows. Coming forward carries great risks to jobs, careers, reputation, and the negative blowback in small communities is real. It's highly likely that your harasser is someone in the community. They are known as one person. Most people don't know that side of them and it is very difficult for your fellow community members to believe that that could happen. Victims, perpetrators, coworkers, and employers have social circles that all overlap and you run into everyone at the market, walking down the street, and it's not unusual for children to attend the same schools. There are strong forces at play that discourage reporting, not encourage it. The other argument is that companies will be less likely to settle if they can't be guaranteed silence or will pay lower settlement amounts. This is where cultural change comes in. Companies need to see the financial portion of settlements that they are paying is to do right by the person who was hired and they are not buying silence. That is a minor component of the settlement agreement. In time with the right of encouragement, companies will come to the realization that dealing promptly and appropriately with sexual harassment is a good thing for their company. They can either be NBC and handle things the way that they did with Matt Lauer, or they can be Fox and they can pay huge settlements, get one NDA after another, only to have this eventually come out and make them look far worse than if they had just dealt with it in the first place. The final section that I'd like to address is commonly known as a do not darken my doorstep or more simply a lifetime ban. Is that in a spill? It is, section one, subsection H one. The bill prohibits them, not creates them. It reads an agreement to settle a claim of sexual harassment shall not prohibit, prevent, or otherwise restrict the employee from working for the employer or any parent company subsidiary, division, or affiliate of the employer. Testimony was given in House General, varied from these provisions don't exist in the settlements of the state of Vermont to companies need to be protected from someone who caused significant turmoil inside their company by bringing forward a harassment claim. This is the worst kind of victim blaming to state that it is the person who was harassed and had the courage to come forward who is the problem who created the turmoil in the company could not possibly be more misappropriately placing the blame. And this becomes another deterrent against reporting. These clauses are in settlement agreements that the state of Vermont has and I can tell you personally they're private settlement agreements as well. Often when I bring this up to people, this issue up, their immediate reaction is Vermont doesn't have any businesses large enough for this to really be an issue. But considered that the state of Vermont is the second largest employer in the state, it also, this provision applies to affiliate subsidiaries and that means that if a doctor had a harassment claim and a settlement with the University of Vermont Medical Center, she would be not only prohibited from working at the Medical Center again, but be prohibited from the UBM Colleges of Medicine, Nursing and Health Sciences, the Alice High Memorial Center, Central Vermont Medical Center, Central Vermont Physicians Hospital, Elizabeth Town Community Hospital, Porter Medical Center, and the Visiting Nurse Association of Chittendent and Grand Isle Counties. Having a settlement with the Burlington Prepress with this provision in it would prevent the person from working from any of the 81 newspapers and broadcast outlets on Bygonette. And at the lower end of the income scale, if Marriott uses this provision, a housekeeper could be banned from working at Starwood, Spring Hill Suites, courtyard residents in Fairfield Suites, Sheridan and more than 20 other hotel chains around the world. You get the picture. Businesses are becoming more consolidated, not less, and that is happening in Vermont. Is this provision applied only to settlement, provisions of settlement agreements, or could an employer say this was such a bad experience for all sides, and they put out an email to the rest of the people in state government and say, don't go near this provision again? That would be considered retaliation, and then we have a whole new set of issues to resolve. H-707 is a really good bill with a couple of amendments. It could be a powerful step in shifting the culture, not only in Vermont, but be a model for the nation. Vermont's long been a leader in protecting, enhancing, and visual rights. It's a most basic right for all people to be able to pursue careers and opportunities, to do their jobs and support themselves and their families in safe environments where they're treated with respect, creating an environment where all Vermonters go to work to their full potential. Not only benefits individuals, but it's good for employers, our economy, and our business environment. As we work to expand our economic base, attract and retain talent, and start and expand the businesses that employ them, a key component of the special quality of Vermont provide that the special quality that Vermont provides should be protecting the dignity of our citizens and opportunity for all of them. Thank you. Thanks. Thank you very much. I had a question about the, I think it was the middle of the provision you suggested. And that's the idea of serial harassment and having that nullified agreement. And I'm thinking that something that happens in the past might be easier than something that's currently ongoing and has yet to go through any sort of formal process. So let's say you have an NDA and a current co-worker of the harasser involved alleges harassment. Does the allegation itself nullify the NDA or would there need to be some process, some finding that would trigger the nullification? The allegation, and this is a risk that employers and people under NDAs would take, in most settlement agreements, there is a disincentive to break them without cause because usually there are clawbacks or liquidated damage clauses or something. So a person under an NDA is going to be very careful about coming forward and accusing a harasser of harassing someone else. But yes, it would be an allegation because the majority of the time you would never find out at the end of that process what had occurred. Now I'm a little confused as to the, so I'm thinking person A, person B have an NDA and then that's enforced for a year and then person C makes an allegation of harassment because that allegation then nullify the other two peoples. Yes. So Lisa, why don't you share if you're willing to your own experience with this particular situation because I think it might help eliminate what we're talking about here. Are you willing to do that? I am, okay. When I was sexually assaulted it was in the hiring process. I had been going through a series of meetings and interviews that were strung out for about five months until one of those meetings was in an isolated location I was assaulted. I went through the miserable process of coming forward and finally reaching a settlement agreement which did include an NDA. The prior to signing that settlement agreement I made sure that I received assurances that I was the only person that this perpetrator had ever done this to and that two thorough investigations had been done to identify any other victims who had not yet been identified and I was told this was done and there was nothing else. I signed the agreement five months later I got a message on Facebook from a woman I had never met who said she asked if I would be willing to meet with her, understood that I really couldn't speak about my experience because of my NDA but that she had been assaulted by the same man. She was absolutely the first person you would have thought of who the company needed to speak with to find out whether or not she had also experienced this assault. She was in the hiring process. We are similar age. We look very similar and it was the same time period and they did not manage to even ask this person. She had never been contacted by the company. So that's one example of the kind of situation that you can end up in and yes, that's only an allegation. And I see that and that's clearer to me because it's something that happened in the past and your agreement was supposed to have covered that time period. I'm thinking more of let's say that they have been active and they have investigated everybody and that was actually true that that person had been harassed. Then two years goes by and the person hears of an allegation which remains just an allegation at that point. As I understand you, you would be saying that that would nullify the agreement from the beginning. Yeah, it would the likelihood after two years that some most people will have put this well in their past depending on what the allegation was. If it was a similar circumstance, one of the provisions in my settlement agreement or prior to the settlement agreement during negotiations was that this person was no longer allowed to meet alone with women in the office or off campus for conducting business for that company. So if the circumstances that I learned later were he had locked another woman in an office then that is a pattern. That's the company not following through on what they said they were going to do to make sure they were mitigating the risk to future women. So yes, I think women under those circumstances should be able to speak. You should have closed it. Lisa did, when the company assured you that there had been no other instance like this, did you get that in writing? Was that part of the agreement? No, it should be part of future agreements. Yeah, exactly. Because if that agreement is clearly not true, then you do have a light for either further suits or stuck in the outside agreement. So you mentioned at the end of your testimony but I'm assuming would these changes would help put Vermont at the forefront of the country? And Sarah, can you just like 60 second saving areas where we would be at the forefront compared to other states? This way of handling, no other state is trying to find a way right now that they can have some balance between having NDAs that completely prohibit speaking and completely getting rid of NDAs. This would allow us to find a middle ground if companies are operating in good faith, if they have disclosed, if they have cleaned up workplace practices that allow the harassment or assault to occur. They should not be worried that this same person is going to reoffend. That problem should have been taken care of either by changing job responsibilities and access, training, or firing them. And that's the middle ground for allowing NDAs? Within that box to continue. Are there any states that have totally prohibited NDAs? New York state has totally prohibited them unless a victim requests that there be an NDA. But you still think there's room for an NDA as long as? I do. There is this provision. When everyone fulfills the obligations of that contract, then yes, an NDA should stay in place. How does New York ban it yet let it in? Does it have some sort of stricture that says it has to be initiated by the victim? Otherwise, it's a problem? It doesn't specifically say the victim needs to initiate it. It just says that the victim has to. No, it is at the request. My concern with that is that counsel for the employer could say to counsel for the victim, you know, if she asked for an NDA, we'd be held off from it. I have to say, I find myself more lenient toward just getting rid of NDAs because what? And I understand the logic behind it, but it seems like the non-disclosure agreement, as it applies to sexual trafficking, has non-disclosure in its title because that's what it's seeking to do. And yet, everything that we're talking about and trying to put into the language is to combat it and produce disclosure and yet still allow the agreement to be made and sealed with an exchange of things of value between the sides in other words, payments. And I don't know that those are ultimately, I feel like this is maybe a half step and then in 10 years we'll say, what will we do and why don't we just outlaw NDAs in this instance? Yeah, I think that's entirely possible. The benefit at this point of still having that option of NDAs for me is that we have not had the cultural change yet that we need for. But this is not just the companies that face exposure. This is the victims. Companies would be free to talk about victims as well as victims talking about what happened. And right now, we have not reached a point where victims are not blamed for the harassment or for coming forward and causing problems in a community or in the company. But just to follow up on how I could. So the example that I gave before, so we talk a lot of things here about contracts. We're working with the brewers and the franchisors and should we enter into their contractual relations. So one thing that makes me uncomfortable when I haven't seen the language would be the idea that somebody could sign a contract, accept payment, have non-disclosure, be the agreement. And then if one person in the future makes an allegation, the allegation would itself nullify that. That seems to me weakening contract law in a very profound way. So I would rather not have any case because that way you don't have that problem. The information is out there from the start. Or not. I mean in most cases, people, you reach a settlement agreement or the victim doesn't want to talk about it. The company's not going to talk about it. But I mean the idea is prohibits. But it could be out there. And so I feel like in this middle ground we're being pushed toward a place where the contract would hold tight for one party but not for the other party because we so much want to support victims in that situation. But to me that presses up against contract law in a weird way. And I started thinking why not just say in these instances we're not going to allow contracts to be written that produce that sort of effect. That allows you to grasp it. Well if I have to choose between NDAs that silence women no matter what continues to happen and not having NDAs at all, then not having, and it's a no brainer. But I can see at a point in a person's life where an NDA would be useful. I think in Lisa's case this is the older person who's clearly got a pattern. I mean I'm sorry but if you actually are effective with an NDA and it's mutually agreeable for a person who's maybe beginning their professional life or younger it may have a profound impact and actually make some of the cultural change we're hoping for. And that leads to my second question and actually might have a profound impact and change behavior. And it wouldn't go on to bug him for the rest of his life. I mean it would be sort of like what we do with juvenile court when people really screw up early on and then have a moment of seeing the light and actually change behavior. So I can see something like that actually being effective and making that NDA productive. That being said we have a huge cultural shift to make in our society. How and you've heard Carrie and you're on the commission now and I applaud you for your membership on the commission because we're such big fans of the commission. I would just love to know if you had a couple thoughts on cultural change that you know where would you be in? You know I'm the mother of two boys too. So we are proud parents of people who are going to change this going forward into the 21st century. So we're hoping we've produced four boys that are going to be part of this journey. We hope so. But we hope so. But you know so all of us are individually responsible obviously in parenting. But what would you, this is the biggest challenge that we face is the cultural change independent of our laws. How do we affect? Who want to do a thorough investigation of the organization and have a complete understanding of anything and everything that might be going on and then have recommendations and training to be able to cure whatever those issues are. Most companies care about their employees and these things aren't happening because they want them to. It's mostly ignorance and neglect. So to be able to go in, change some of the corporate cultural practices that are going on can have a tremendous reduction. And one of the things that we insist upon is that the executive team be a part of that process and a part of the trainings. It's not unusual that senior management or executive level folks are not required to participate in sexual harassment trainings. And up to this point, trainings have been shown to be incredibly effective in the way that they've been done. So I'm not sure that's really been a big problem, but going forward now that we seem to be taking this a little bit more seriously than we have in the past. Trainings can be changed. So it's less going in and we're going online and taking it, reading a pamphlet and taking a test. But it's really getting into those difficult and comfortable conversations that men and women need to have with each other. So those things that people can say and do that the other gender doesn't recognize as being offensive, have an opportunity to really have a conversation and understand why that is. Thank you very much. You're welcome. I'm going to provide here. Senator Balto, would you like to hear from the next one? I think Tom's here. Okay. We have Tom Walden and we have two other attorneys here. Heather Wright, Richard Cassidy. Okay. Any choice of one of those attorneys? No. Julia. Is it Bankers State on the Dome? Is that why we're here? And the bankers came to economic development. That's why we have so many people here. Well, let's hear from the people who are certainly out of the building. So let's hear from Heather Wright, first. I am here. I think I'm about to second everything Rich had to say and I think he's probably a more persuasive person anyway. Okay. Do you want to go? And then from, I represent employers, so I acknowledge that there's a level of skepticism of everything that comes out of my mouth. Rich is probably about to say everything I'm saying. And he represents employees. So I think he's a little more, he's got a better insight into this than I do. So you've already sort of damaged his credibility. Thank you. Thank you. Well, for those of us who haven't met you yet, you have nothing that's been there. Yes, I will introduce myself. Let me just say you're talking to one of the foremost experts in the country on organizations. I know more about it than I wish I did. Well, thank you, Heather. As you know, I'm Richard Cassidy. I've long been interested and involved in civil rights law in Vermont. I was appointed to the old Human Rights Commission by Governor Sandman while I was a college student in 1973. I served until I went to law school in 1975. Including the two years I served as a judicial law court, I'll have been practicing law in this state in October for 40 years. My practice focuses on representing individuals, mostly individuals in personal injury cases and employment cases. I also work as a mediator and occasionally as an arbitrator. Since at least 1992, representing employees in employment disputes has been a major focus of my practice. I've represented scores and scores of women and some men who have been victims of sexual harassment. I occasionally represent employers. I occasionally represent employees who've been accused of sexual harassment. I occasionally see these cases in my work as a mediator. In 1998, I wrote a chapter of a book I see over there on the wall Vermont State Government since 1965 on the development of civil rights law. Mr. Cassidy, I'll give all of you a respect. We don't have much time. All right, let me get to the point. I would love to get to the bill. I'm sorry, Mr. Chair. I guess I need to focus on the language. First of all, let me say that we already have the best fair employment practices statute in the country. I don't think we need to talk about that. If just having good law would solve these problems, the problem would have been solved a long time ago. Get worried. I do think there are two things that are very important that we need to emphasize more. Education is very important. If you talk to behavioral scientists, they will tell you that being reminded of the rules is very important and very helpful. Secondly, enforcement is very important. They're very important. And we have a real problem with respect to enforcement. That's probably one of 10 or 15 lawyers in the whole state who regularly does these cases for employees. That bar is getting smaller as we get older. I don't see a lot of new lawyers enter this practice. It's a very difficult practice. These cases are very hard because they are fact sensitive. There are a lot of facts because there often are few witnesses and very little corroboration. The law is already complex. The employers are well-defended and know how to make these cases difficult. There's a job to do that and we do it. I would suggest to you that the bill doesn't really do much to improve enforcement as it stands. I heard money mentioned earlier. Comparing the resources that the Attorney General's office has today to the resources they had in 1996 when I did the research for that essay, they maybe have one more staff person. At that time, it was taking 420 days to get, we have a rich case cleared by the Attorney General's office. We're doing better, a lot better today. It's 207, approximately, during 70 days, I believe, but Julio can give you more information about that. That sounds a lot better. I got to tell you, it's an outrageously long, difficult time for any of my clients who have to rely on them. And I think if you really want to affect this, more resources is really the key. On the government side, I think the bill, it gives the Attorney General's office more responsibilities than I think they'll have a hard time meeting. I heard the testimony of the receiving witness about nondisclosure agreements. I think this is a very important pressure point. Nobody wants to see a Harvey Weinstein style sexual harasser get away with this over and over again. I don't think it is a very common problem in Vermont. Having a sexual harasser on your staff is not good business. And once the cases are resolved, most of these people get fired or eased out of their jobs because smart businesses do not want to have them around. An unfortunate consequence of lengthy litigation about these cases is that businesses feel forced to circle the wagons and protect the harasser. And so trying to get these cases resolved quickly and through negotiation is very, very important. Why is nondisclosure agreement stated there? Well, I don't want to tell you this because I don't like it. But the ability to agree to a nondisclosure agreement is one of the most valuable tools in my toolbox for these signals. If I need to bring these cases to closure, what most of my clients, most of these women want is they want to get out of there and move on someplace else. And if they can get a little help to do that, that's typically what they want. Without that weapon, these negotiations are hard fought, bare knuckles negotiations. Employers not sitting there talking with me about what's good social policy or cultural change. It's rich. If you want this case to settle, here's what I want. Nondisclosure agreements are ubiquitous in these agreements and do not darken my door agreements are ubiquitous as well. If those tools go and employers need closure, if I can't give them those things, it's going to reduce the number of cases where I can do something. Because, you know, a very common fact pattern is he said, she said, no, we saw, there's no document, there's no nothing. Yeah. So I'm very sympathetic to the view that we need cultural change. We do need cultural change. I ask you not to sacrifice the chambermaid that I represent from the motel who's been harassed repeatedly on the altar of cultural change because there are not many people standing by those folks and they need help and they rely upon a system which either involves turning to the government for help with few resources or turning to the private bar for help. And as I say, it's hard to do these cases already. That's true. Could I just follow up? Yes. Yes. Could I just follow up on it? I understand that NDAs have their place. Yes. How do you feel about the better balance that Lisa has proposed? I don't think the balance that we have is certainly not ideal because I'd like to see a better world, right? But I don't think that the balance is that bad because if I'm doing a case, I'm listening to what my client tells me about, what my client's heard. And if we're going to go to court, we're going to do some discovery. And I'm going to find those cases and the court's not going to enforce that non-disclosure agreement against me in a situation which I'm going to take your deposition if you were a victim. I'm going to be able to get at that information. At the serial issue? Have you gotten it? I assume you've gotten it at the serial issue. Of course. You know, it does happen. And so the agreements are void against public policy if they're going to prevent somebody from cooperating with the government investigation or if they're going to prevent somebody from testifying under a valve subpoena in the deposition. Could we specify, could we do something that's being suggested where they're allowable but they become void upon discovery that you say? Well, I think Senator... You're saying that a court would find those things unenforceable by law if they were repeat offenders or against some sort of public policy? I think Senator Ruth puts his finger on the problem with that, which is what's the trigger that allows release, you know? And if the mere augmentation is enough, I don't think that's really going to help. Because I don't see an easier way around. What are other areas of the law that you're aware of where non-disclosure agreements are not permissible? I mean, we passed a law here, I remember, a few years ago. It's very hard to find this law, by the way, that's there, it's there. In terms of referring from what school district we're referring, giving a reference to another. They cited non-disclosure agreement, we made it against public policy to not allow first schools to tell about the child abuse or something that is... I can't think of another... My teacher was re-hired at the same thing happening in other schools. I can't think of another example, Senator, that isn't me and there's no law. But I do have a couple other points. Sorry, can I just go to your darkened door? Yes. That bothers me. I mean, it bothers me that we... So I'm wondering, particularly with national companies, that own tons of businesses around. To ask this person, I mean, to make it a stipulation that they cannot work in any of those places, is quickly. And I would ask for you to think about what we could do to limit that and not allow a national owner, a company that owns many, many, many businesses to require that. And then the third, just lastly, you talk about putting resources, more resources is key, okay. So you would encourage us to actually do the battle of resources for education on this bill. You bet. I think having free, widely available information for small businesses through the government is a very important thing. I really do think that, you know, we're talking about a battle of hearts and minds, really. You gotta change people's attitudes. And I do think that being in a situation in which you're in a group and people are talking about these issues is very helpful. And that conversation needs to occur on a fairly regular basis. I am concerned about the provision in the bill that says that you have to file these cases with the Attorney General's Office or notify the Attorney General's Office if you file one of these cases. I'm afraid that, you know, businesses that are well represented and wisely represented, I think a common response to that is gonna be to see more mandatory arbitration clauses in employment agreements. And that results in a situation. If we drive these cases further underground, that results in a situation in which an arbitrator who is not obligated to follow the law will decide the case. Right. That's the reality of arbitration. And those arbitration decisions are far more enforceable, far less likely to be set aside on appeal than a judgment from a superior court after a jury verdict. That's the law. Federal law of preemption around arbitration is very broad and very powerful. If you're in interstate commerce, you can't discriminate against an arbitration clause in your agreement or it's void. So the last thing I have to say really relates to a different issue. And that is to think of only this issue for a second. All right. So what is the provision you're talking about? Do you have the bill in part of it? I do have it. No, no, no, no, no, it's one of the last sections. The arbitration one? No, no, it's really the provision it requires that there should be a registration notice to the agreement of these cases. Yes. Section seven, so it's on page 11 of our bill. So here's like different drafts of mine. Thank you, bankers. Can you explain to me how? I'm very insightful about that. Give a notice to the attorney general of the criminal trial of superior court with drive-thrues. Drive-thrues would be more mandatory arbitration. Being accused of sexual harassment is bad business. Companies don't want that. Or aren't they going to accuse sexual harassment? Of course. Is it a complaint? Of course. The more publicity and attention that they get, the worse it is for the business and the more that they will be driven to find a way around that. So what's the easy way around that? That's not let the plaintiff go for it. Let's have an agreement that says if you have a dispute with me or I'm going to turn you over from your employment, it must go to arbitration. Now if that happens, nobody's going to see that case. Right. Nobody's going to see that case. So what of your mind was the purpose of the notice to the attorney general? And is that the straw that brings the catalyst back to do himself going to arbitration? I certainly wouldn't say it's a straw that breaks the catalyst back. No, I don't think it's that. It's a question of what the tendency is. There are some good provisions in this bill. Well, the question was, what's your mind, what's the, or others may answer, what's the benefit of notifying the attorney general? Unless the attorney general has more resources which intervene and help us, I don't know. I guess the idea is. I think you just made a point for resources here. Yes, the idea is that there would be a better data and more information about the cases. Very few see what these cases are going to do before anyway. So I don't think you're going to get better data. I don't, I'm not sure there's a benefit here. Really? Well, the last point I want to make is to encourage you to think about this a little bit more broadly, this problem. The law is set up the way it's set up as an artifact of how we got here. And it's often said that the life of a lost history not logic. So the law against sexual harassment as it stands is an offshoot of some very tough, smart, creative lawyers, mostly women, one of them would be Bayard Ginsburg, who made the point that when a woman is harassed on the job, she's discriminated against. So that's how we got here. Well, the artifact of that is that in order for that harassment to be actionable, it must reach a very high level. It must be so severe and pervasive, or pervasive that it affects the terms and conditions of the person's employment. The effect of that is there's a whole low level range of sexual harassment that is legal. Why is that the case? You don't have to let that be the case. You could say unwanted sexual advances, unwanted sexual language is illegal in the workplace in Vermont. And if you, an employer, get a complaint, you have to do the same thing you have to do now if upright sexual harassment is proven. And that is you've got to take prompt and effective actions or stop it. It's a practical, sensible thing that could be done. I'm sure there are a lot of quarters that wouldn't take it. But I'm looking at that. So lower the Ruth Bader Gainsford bar. Absolutely. She did great work. But it's time to do more. Yeah, it's time to do more. And may I just tag on to your concern about it? Can you have a question? Yeah, I do. I have a question, which is, one of the reasons it's bad for business is that it's public and done in the public eye. Of course. So I have to understand that I have an arbitration issue more, but you're absolutely right. The more that's done publicly, sadly for the victims in many ways here, but the more that is publicly done publicly for the companies, the more pressure they're going to have about actually addressing sexual harassment in the workplace, doing the education, doing the trainings, doing all that work. If you think about the nature of these cases, you compare a sex discrimination case, garden variety, and the sex harassment case. It's the former case on steroids. It's like throwing gasoline in a fire. There will be an explosion when these allegations are made. It's very serious business. And that provides us with some opportunity to quietly negotiate resolutions that work for victims. They're not ideal. But I don't know what I do with the case that I don't really want to try because it's going to be said. She said that I can't settle because I don't have the tools to work with. I'm sorry if I sound rather cynical. Doing this for a long time has maybe made me more cynical. I think what you're expressing is the obvious tension here. There's a lot of tension. And I appreciate the effort on the part of the sponsors to try and say, we want to see this end. I've just not convinced that some of the provisions don't have unintended consequences. One of the things that I feel about this is that all due respect to people in the room, this is not politically. This is somewhat analogous to guns. We have a moment in time here where we can make some great progress in this area because of all the shenanigans that are happening nationally. And other things that might get stripped apart or attacked might get some birth because of the whole issue of Washington. I'm afraid you may put some more language in the book. It doesn't mean very much. Would you be willing to send some proposed language to Damian? Sure. I'm going to get your email address shortly. Mindful of the time? Yes, what? If I could just a few minutes? Absolutely. You're on schedule. I don't want to hear it. The table are great with each other. So I represent businesses. I'm going to just generally second everything he just said. I think his experience is duly noted. He's got good perspective on both sides. I did want just a couple quick points to double down on what he said at the end and that this bill is made up in my mind almost in two categories. We have this whole first half that is nitpicking NDAs, these things like this. Most of that is already covered in either federal labor law, title seven, public policy, contract law, as you pointed out. So it's a lot of words and a lot of extra lot to make a very small little change, perhaps a change, but not something that's worth getting super excited about quite yet. I think the oomph of this bill is the second half. I think it's where the good is done. So where's the most bang for your buck? It's looking at why don't people report? What can we do to facilitate that reporting so that it gets to employ your speech that they have to do something about it? We can't do things about complaints we don't know about, force us to do something about them by making it easier for people to come forward and complain. I think the laws that already exist create enough framework to allow for once that complaint is brought forward for the responsible handling of it. There is sufficient framework there. We just need the complaint to come forward. So help us facilitate that complaint coming forward. I will also notice we mentioned the piece about the AG's office providing notice of a complaint to the AG's office. I am concerned, generally speaking, about just from a business, it's going to be the standard business argument, any additional authority by the AG's office to just walk in unannounced. I will acknowledge that they do have this authority when a complaint is at their feet to issue a request for information of these documents, while they're having to actually come in. We just give it to them. You just said the complaint has to be made. Correct. Help us make the complaint. Yeah, when the complaint is on the table already, these are people that did come forward that did say do have a concern. Please look at it. I will notice a rich sort of tosses in here. And it is an issue. I've wondered about the standard of sexual harassment. I like that it is generally consistent across the country. It helps us to kind of understand where the boundaries lie. I will acknowledge this is an employment bill. So the bad actor here frequently falls on the employer, regardless of what the individual did. How do we change this? How do we shift culture? Can you make it criminal? If you don't have to go through the employer, but I can directly go after you as a person, you have a lot more leeway than saying, because right now you have to go through your employer or your employer to handle this. The sexual assault that came about for a bit earlier, that should be a criminal matter. This has nothing to do with NDAs. I don't know the details of this case. And that's real. I don't know anything about this when it's passed. It sounds terrible and tragic. But this should go beyond the standard. This isn't about an employer taking action or not taking action, which is also important. But there should be jail time involved with that. And the darken my door clauses, you asked about? National. Yeah, and what kind of language should we do with this? I will say the only language I've never seen personally. I mean, it doesn't exist. But in 20 years, I've never seen something that says you are prohibited from working for me. But what I do see very frequently is the clarification that I'm under no obligation to rehire you. This stems out of labor law contracts that provide rights like bumping rights and things like that. So it basically draws a line in the sand and says, as of this day, you have no special rights tied to your labor union, seniority clauses, anything like that. I am under no special obligation to give you preference. So we need to address that because, again, that's victim blaming. I mean, it just put tax of victim forever. It continues to punish a victim. Just saying, well, what it's tried to get at, and for better or for worse, is just what I don't want and what my client doesn't want. I don't want any more case. Is, well, to say, a life's sexual harassment, we don't believe it happened, you believe it happened, it's not worth going to court, here's some money. Lying in the sand. The very next day, you apply for a job, I don't hire you for whatever reason. Let's even assume, for the sake of the story, non-discriminatory, just we don't rehire you. And I've got retaliation claim the next day. That's tied to, say, and now I have to defend this all over again. And so the reason these sorts of clauses started was to say, you are now lying in the sand today, here's your money, and in trade for that, you are in line equally with everyone else and that you don't have any sort of bumping rights or any priority. You don't come to the table with any special stance. You are equal to all others who would apply in the future. Or not equal because they know more about you and actually don't necessarily launch it. I mean, theoretically, but if you're dealing with a company that is large enough for this to matter, I mean, UVM was an example that was used earlier. UVM, in and of themselves, has an HR team. And just the medical center alone has an HR team of approximately 75 people who all work. Recruiters work in surgery. Recruiters work in that these people are talking to each other, that these things are lined up, requires a lot more free time than those recruiters have not to mention that this all got taken care of legal, which is a totally different department. Compliance, which is a totally different department. When you are big enough to have enough people's hands in this, no one's carrying around this institutional knowledge. If your tag isn't an employee, you've got the tag, and it's going to go with you. No matter who looks at you, it doesn't matter. They're not all talking to each other. But if you have a tag on your file, that's going to follow you. I mean, I can't say it doesn't. I'm curious about the tag. But we don't have, I'm going to find out. You're identified as a penny. You know, as somebody they don't necessarily want to hire, and that's going to stand your file and be noted. I mean, I don't think you've ever seen these files, like their drop-down box. I mean, to say someone's hireable or not rehydrable, as mentioned earlier, to say you're not rehydrable is retaliation. That's a whole other thing. Usually the separation clauses talk about what this looks like. It's now resignation. It's now whatever. I mean, that's an internal crossing. There's no sticky note that gets on someone's file that says, you know, this person makes a lot of complaints that doesn't serve anybody. I believe that, oh, and just generally speaking about this law, something I just noted, I always, when I'm looking at these things, I like to look at what's the negative inference that's what's the shadow of what we're doing. And I, without in any way negating the severity of sexual harassment as something that we need to work on a society, I want to look at what are we saying by silence, if you will, to race-based harassment or age-based harassment or whatever, that all of these things specifically call out sexual harassment in a very deep way. And what does that mean? For everything else. For everything else. I'm just generally concerned about what we're saying. Right. But we know when we try to bite off all those things that we're doing. Sure. Sure. I just want to point it out, but I don't know that that should necessarily slow you down. It just gives us feel for next biennium. Sure. Take it. Run with it. I love it. I think that is generally all. So again, I'm rushing through to save you some time, but. So I had a question. Was there a prohibition on questions? No. Oh, my arbitration. There's a prohibition on just discussion. Too much. There's no prohibition on questions. OK, so I'm looking at page 3H1. And I'm wondering if this is the piece you're speaking to directly. So an agreement to settle a claim of sexual harassment shall not prohibit, prevent, or otherwise strictly avoid working. So are you saying that you would prefer if that piece wasn't in there? Or are you just saying that there might be a situation where someone could, as a result of this, receive a false retaliation point I'm saying that's why I think back in the 60s, 70s, I think that's why these things started getting in there. What I might propose, alternatively, is that you can keep in there that an agreement shall not prohibit it, because that's fine. And then prevent or otherwise restrict is broad language that might actually crossover the I'm not under any obligation. So I think if we're concerned about saying, clauses specifically say, you cannot apply to me anymore, if you're concerned about that as being the continual punishment, I think it's a healthy compromise to say you shall not prohibit it, but otherwise remove, prevent, or otherwise restrict it. But I'm curious, if we're prohibiting it, why would we allow it to prevent or restrict? Because I'm wondering if we're saying you shall not prohibit, why are we allowing it to be prevented or restricted? So I took your point to be that someone could make a false retaliation complaint if they weren't hired. And I think that's always true. Someone could always make a false complaint, in any sort. But all this says is when you're making the NDA, you can't prohibit or restrict. So I'm not so sure about how this enables more false complaints. Sure. So the clause that I believe, I remember talking about this back when this was just all an idea, I believe the clause that started this language was in a way to respond to agreements that, in my experience, more frequently say something like, I'm under no obligation to rehire you. I've never seen, although again, not saying you don't exist, the clause that says it is you're prohibited from working here. The only time I've actually seen those is when we are dealing in a settlement with the harasser, which is to say, you will not darken my door ever again. You will not darken my door anywhere. In any of my institutions, you are never welcome back again. But that's when it's the harasser. There isn't much reason to do that when it is the victim, because that person wasn't the troublemaker. The harasser is the troublemaker. So I use these only when it's the accused. I mean, yeah, the harasser. So I know we're, we have a microphone on the phone, so I'm wondering if she's supposed to be. Oh, that's why I heard she's come in. And so, yeah, you just need to check it. I wrote down her sheet. She wrote down her sheet slightly in the fall. Is she out of the possibility? I need to. Well, I've got two people also driving up from the tower. They're outside the tower. OK, and I'm going to sit at the back side of the building for one minute. OK, so I just want to hear, before we do that, I want to hear from Tony Walton. Tom? Tom Walton. HR. Hello. And can you just down to your testimony for the purpose of this morning of what the state's practices are vis-a-vis these NDAs and darken how they were? Certainly, to the extent that I'm aware of them, I'll be happy to do that. I'm Tom Walton on the general council. Will you send it to Kayla? You're sorry. I have not, but I have the talk weekends that I will send. Great, that'd be real fun. I'm Tom Walton on the general council of the State Department of Human Resources. And I'm here really to address just one provision of the bill. And that is the proposal to prohibit what are commonly known as darken-light-door provisions. And I am here really to speak from the employer's perspective, because the state of Vermont is one of the larger employers in the state. Either the largest employer or the second largest, it seems to trade that position with the University of Vermont Medical Center. The state does use what are commonly called darken-light-door provisions in settling employment cases, not as a regular basis, but when they're necessary. And as the other attorneys who work in the employment area have testified earlier, it's a very useful tool in settling these cases. Very often, there's much more going on in a discrimination case or an employment case of any kind than what meets the eye or than what's alleged in a complaint. And both parties, to a case, have myriad of reasons to want to see the cases settle. And from the employer's perspective, being assured that this employee is not going to come back is a really important consideration and a strong motivator for settlements. So the state's concern is that if the prohibition were in place, that there would just be much, much more litigation. Many cases would go to trial. Or I think, as we heard from Mr. Cassidy, he wouldn't even take cases if he didn't think he could settle them. And then complaints wouldn't be heard at all. The don't darken my door provision or the prohibition on future employment is something that very often is the decided factor in certain cases to buy peace going forward. And it's very much what an employer often pays for. I understand the concern that there could be victim blaming. I'm very sensitive to that. But I think that from a practical perspective, it's a very important tool in reaching resolution of a lot of these cases. And I think I see your point. I would say, and I have no experience negotiating these, but I would imagine that silence itself is also something that people are, is a big motivator. And yet, there are provisions that say you can't prohibit somebody from going to the Commission on Women or filing a criminal complaint. So silence is not, you're not able to buy complete silence. Well, the state isn't able to buy silence at all. All of our settlements are a matter of public record. We never seek silence. To my point. So in other words, if you could offer total silence in NDAs, that would be a really big motivator for people who want total silence. Well, we don't. And similarly here, so if the only rationale you're offering is that people would really like to be able to prohibit victims from being rehired, that's not a big motivator for me because I think it's unfair to the victim. And if the only logic is that people would really like to be unfair to the victim. Well, I think that there are circumstances where it might be unfair to the victim. But I've only seen it used in circumstances. And like short tenure here at the state, I've only seen it used in circumstances where it really was a valid concern. Where there were issues other than the issues raised in the plaintiffs' complaint, performance issues, misconduct issues. And it was very much in the state's interest to move on to not have to deal with this person again. Not in a punitive way, but in a productive way really for both parties. The concern again is that if cases don't settle, court systems are backed up, judicial resources, scarce judicial resources are consumed. There is a public policy arguments on both sides with respect to the don't darken my door provisions. That's really my only point. Obviously, the administration and the state government, the executive branch supports the goal of the bill. And the governor's recent executive order on ethics incorporated sexual harassment raised it to the level of an ethical concern. The governor ordered that all of his appointees have set for sexual harassment training. I'm a gubernatorial appointee. I went through the training. The Department of Human Resources has mandated that all state employees in the executive branch have live training. That's ongoing through the CAHPS, the Center for Achievement and Public Service. And we have designed and updated a training program on the prevention and identification of sexual harassment. So the goals of the bill are something that the Department of Human Resources really, really strongly. Our only concern is this one provision, because we think that it really does take away a very useful tool that's used only when appropriate. We at the state can't use the tool to protect the harasser, because if there's a complaint, the State Department of Human Resources is under an obligation to investigate the conduct as an administrative matter. And there's a whole procedure in place for investigating employee misconduct and for imposing discipline. That goes forward regardless of what happens to a civil plane brought by a plaintiff. Do you use non-disclosure agreements at all? We do not. Did you give this testimony to the House, say testimony pretty much? I don't believe that we appeared before the House. I know that the point was made by some private practice attorneys representing employers. So does the governor oppose this bill as present for? Only that one provision. But if this went through, does he oppose the bill? I don't know if the governor proposes the bill. Could you find out? I could certainly find out. Thank you. OK, I think that's all we have on this. You want to get a pat on the phone? Thank you very much. You're welcome. Thank you.