 Ron, thank you. So we're back this afternoon with the Ledge Council, Damian Leonard, and we are going to have a conversation about H270 as introduced. That is the labor that doesn't want to open up. Okay, modernization to labor laws. So I guess we'll start with general conversation. Does anyone have anything? We've done a run-through on this, Damian. Is that correct? Yeah, the chair wanted me to just kind of give folks a refresher on some of the points in there where there was more than a technical amendment because a lot of it's technical, but there are some sections where there are some open questions that the committee probably needs to discuss whether they actually want to tackle this session or address that at another time. Okay, so Mike is yours. Chip, I had my hand up. Tolino, I just was curious. This is representative. I just was curious because I didn't see this as a walkthrough and I'm sorry, I'm misremembering us having a walkthrough on this bill. Was there a date that I could be reminded of that this was introduced to us? Yeah, there must be, Ron, because I did the introduction and then Damian walked through the bill. I'm looking it up. Thanks. I did try to look back and the only thing I could find triggered to it in my attempt at search was today, so thank you. I actually, I'm with you. I don't recall anything, Barbara. I don't really recall a full walkthrough. No? So I did do a walkthrough, but I think it was about two months ago, so it's been a while. Well, I have to be honest and just say that at this point in this day of this week, looking at a 22-page bill that we're supposed to, I mean, it almost sounded like the chair wants us to wrap this up and I'm like, okay, well, that means I'm done. I'm not touching it because that's way too much pressure, so I'm just putting that on the table. Fair enough. Yeah, so I mean, what might be helpful, so Rana is saying it was a month ago, March 16th. It feels like two months over here. But what might be helpful is if I just highlight some things that are worth discussing rather than getting into the nitty gritty, because I think there are some things that are very technical and minor and other things have some implications behind them. They could have substantive impacts on, for example, the minimum wage or something like that. By updating an exemption from the minimum wage or possibly need additional testimony from the committee so that it might be helpful, at least there, so that the committee can have a better sense of what's needed on this bill. I see Representative Hango's got her hand up. Yes. Yeah, thank you. I was putting my hand up as you were saying, March 16th. I didn't think to look back that far, but we did get introduced to three bills that day and I really don't think we did a line by line on it. No, I remember going very fast because we were pressed for time. Yeah, so my apologies that I didn't remember and I guess I really don't remember much about it and I'm kind of with Representative Murphy that it's been a long week and my brain is pretty full right now. So I think the chair did want us to hear some, I guess you would call them, highlights from you Damien. So I think that's a good way to proceed at this point and then I think it's obvious that we need to take a deeper dive into the meat of this bill. So I would be willing, we have about a half an hour only, so I'd be willing to hear what your recollections or your suggestions are Damien in order to move forward. Thank you. Sure and I will try to use my most exciting Friday afternoon voice and try not to put you to sleep. So I'm right there with you. I feel like this week has been very, very long. So I'm going to share my screen here so that you can follow along with me and we'll kind of go from there. So really the first section here is in our payment of wages law. It's not the minimum wage law. These are technical changes in section one, cleaning up the language to make it more clear. In section two, again, we're still talking about just the requirement to pay wages. This is technical changes again. But let me just see here. There are some changes in here that are substantive and I'm just going to move through this with you. So the first here is on page four lines 14 and 15. We're clarifying what kind of deposit account and this is for payroll cards where employers pay people by payroll card. Really just something where you want to make sure that I've covered everything, not a major decision. The strike through that I just skipped by is not a substantive change. It's just moved to later in the bill in case anyone sees a big four lines of strike through and gets worried. A lot of this is renumbering in section two. And here on page seven, this would be a substantive change, although it's a fairly small one. This basically requires that employers ensure that payroll card accounts provide one free written transaction history each month to employees rather than at the employee's request. So it would be the default rather than something the employee has to request. And then at the bottom of that section on page seven lines 20 and 21, the it used to say, and this is dating the law somewhat that the employees could elect to receive the transaction history by email. We're saying by regular mail email or in another digital format to recognize that, you know, for example, I access a lot of my banking statements on my phone now. So things are changing quickly. Okay. This language here is just the language that was moved above. It's regarding providing written copies of disclosures. But it's not changed from the underlying law just moved. Section three is getting into complaints for when an employer hasn't paid wages. This is a substantive substantive change. You would want to hear from the Department of Labor on this. And this was a change like we did with the liquor control laws to reflect what actually happens in determinations regarding whether or not wages are due. So what happens here is you file a complaint of unpaid wages, the department investigates, and then they issue a determination as to whether you're actually due for the wages you claim you're due. And so it would provide to the prevailing party by regular mail and the other party by certified mail or service so that they would be guaranteed to receive it in time to appeal. Or if wages are due in an amount less than the amount claimed to both parties by certified mail or service. And this is their normal practice right now. This is just a reflection of that. But it may be something you want to discuss with the department because their current practice deviates slightly from the existing law and that if there's a clear prevailing party, they don't do certified mail to both parties, I assume as a budgetary issue because the prevailing party is unlikely to appeal. The rest of the changes in this section are technical. The changes here are stylistic changes in the form here. And then some of this is clarification too because the way the old language was written for employees who were owners of or shareholders in a cooperative corporation. This is a section that prohibits employees being paid by debt. So if you think of the old fashion sort of idea where the company would give you a voucher to spend at the company store kind of thing, this prohibits that unless you're part of a cooperative corporation. The old language said any shareholding employee, but you could have read that two ways meaning any employee in the corporation who holds shares or alternatively any shareholding employee in the corporation could request for another employee in the corporation. So this is just clarifying that it's actually the employee, but otherwise it's not a major change. Let's see. The changes in the next section which relates to assignment of wages are technical and add some cross references for clarity. Non-payment of wages, the changes in here are again generally technical. We did strike the language and without good cause because neither myself nor the general counsel from the department Dirk Anderson could think of an instance when you could willfully and knowingly violate the law with good cause related to payment of wages. But perhaps there is an instance that we couldn't think of. So the next change down here also a substantive change is clarifying from civil penalty to administrative penalty. As I've probably mentioned in the past, an administrative penalty is one where the department issues it and then they can collect it on their own action. And it's only if the individual doesn't pay that they need to go to court. A civil penalty is a penalty where the department issues the penalty, but then needs to get the court to actually approve the amount of the penalty in a civil action. So it's a lot harder for the department to enforce the law with a civil penalty. And typically our department of labor works through an administrative penalty. And then if it's disputed it goes to court or if the individual doesn't pay it, it goes to court as part of a collection action, which is already provided in subsection C. So I think that was the intent. We used to not be very clear with the way we phrase that. We would often use civil and administrative penalty interchangeably. All right. So now we're getting to the minimum wage section. We are striking out the coverage language because it does what a definition should do. And so we're just adding a definition of employer rather than having a section saying which employers are covered. That way anytime you refer to an employer, you're referring to an employer who's covered by the law and you don't have to say an employer covered by this subchapter or something like that. So and this actually brings us to probably one of the biggest decision points for the committee here. And it is these exemptions under employee. Some of these are issues that have been raised in the past, particularly the exemption for employees in agriculture and the exemption for secondary school students here. The secondary school language here is updated to reflect the way the department has interpreted this section because regular vacation year periods is ambiguous. And so they interpret this in favor of the employees. So the regular vacation years are just those following during the school year, not the summer break between school years. So this is something that the committee may want to clarify. The other piece of this is the question of whether the minimum wage exemptions for agriculture are too broad, should stay so forth. And this has just been a point of discussion in past years. Agriculture has a pretty complicated series of overlapping regulations with the federal government. And generally, if you're exempt from our minimum wage law, the next minimum wage law you look at is the federal minimum wage law, which covers some agricultural employees, but not all. It's the subject of a report I'm working on for the legislature, which I expect to have to you probably shortly after the session ends at this point, because it just has kept getting pushed back as my workload has not allowed me to finish it. But that's another issue that's come up. Other questions here are the exemption for domestic service and are about a private home. Does that need to be clarified? Individuals employed by the US, we don't set wage laws for the federal government. D here is another one where this is the way it's worded, an individual employed in the activities of a public supported nonprofit organization could apply to any number of nonprofit organizations that the state contracts with or provides support to to provide services. And the only exceptions here are laundry employees, nurses, AIDS or practical nurses. Looking back at the legislative history that's available and talking with Dirk Anderson, neither of us can tell what this was originally intended to provide an exemption for. Our assumption is that it may have been related to some of the state supported nonprofit hospitals or schools or institutions, some of which you have probably heard about in the context of the eugenics bill, because they were involved with some of that. But we don't know if it may have been something else. That was that is just a sort of guess based on what we could come up with is this may have been a public supported nonprofit institution of some sort that, for example, employed some of the residents or students or so forth at a sub minimum wage. I see there's a question from Representative Kalaki or a comment. Thank you, Damien. This whole section, when was this last updated? Like what decade are we in when we're looking at this language? Well, if you don't mind coming along with me, I'm going to call up the section for you. So look down. The last update was April of 2006. I can't tell you off the top of my head what that update did. But the first amendment was in 1959. And I would have to look back. My guess is that this was enacted, given that we say amended in 1959, this was probably enacted before the green books came out. And then it was amended. I think the green books were 1953. And so this was amended in 1959. And then you can see there's a handful of amendments over the years. And federally, the minimum wage law came in 1938. Okay. Yeah. So the federal minimum wage was 1938. Yeah. Vermont was, I can't remember how long after the feds we were. But yeah, it took us a while to adopt a minimum wage. And for a while, like many other states, what we would do is adopt the federal minimum wage. And that was just to cover folks who were exempt from the federal minimum wage. But very likely, and from what I could see, and what I remember from the statutory history I did on this, our legislative research is the original language tracked a lot of the exemptions from the FLSA, such as the agricultural and domestic service exemptions. And a lot of states would do that to basically say, we want to cover people whose businesses are not covered by the FLSA, but we don't want to provide coverage to groups that Congress has determined shouldn't be covered by the minimum wage laws. The difficulty with that for a lot of states has been that Congress updates the FLSA a lot more frequently than states update the definitions for their minimum wage laws. And so you end up with things like subsection D here where we don't remember why this was added. And I can't find it, I haven't been able to find a corollary at the federal level. So I assume it was relating to a Vermont specific situation. But we just don't know what that situation was 60 or 70 years ago at this point. And it might be possible to find out if you did much deeper research and had a lot more time to dedicate to it, but with the resources that I have and that the Department of Labor has, neither of us have been able to find anything in the records pointing to what that is. But this 2006 language now in Vermont, is that incongruent now with federal minimum wage? We deviated from the federal minimum wage a long time ago. Some of this matches up to federal minimum wage. Like I said, at least in broad strokes, the executive administrative and professional agriculture, domestic service, home deliveries of newspapers, although the federal exemption is limited to newspaper carriers, I believe, under 18. And I do have a breakdown somewhere of sort of the federal and the state exemptions. And I can try to put that together in a side by side for the committee if I haven't already. Thank you. Yeah, I'll make a note to do that. So that gives you a sense of just of kind of what's there. As we mentioned the last time, I think I walked through this to Representative Howard has a bill on E here, the bonafide executive administrative or professional employee relating to the salary basis. There is a federal salary basis. The question would just be whether you wanted to adopt a higher salary basis for the state. So in the salary basis is is just basically you look at two things you look at the job duties that the person performs and then you look at how much money they make. And the idea is basically that if you're performing this kind of work, and you make above a certain wage, you shouldn't be subject to the minimum wage and overtime requirements. And that's, you know, that's why someone like me who would be considered a professional employee, you know, my employers are not required to pay me overtime. Although they could if they wanted to. But, you know, let's see. So beyond that, you know, there may be other questions on these exemptions. They just haven't been looked at in 15 years. Or at least they haven't been amended in 15 years. So they may they have definitely been looked at since then because there have been bills proposing to alter amend them over the years. Here's the added definition of employer on page 14 line five, and then in line number four here, it's just cleanup. Going to the minimum wage section, the strike through here is just getting minimum wages that have expired out of the statute. It always frustrates me when you have to read through multiple sentences to get to the current minimum wage. So that kind of gives you a sense there. It's just getting some old language out. And the tipped wage here, again, nothing new here. The Department of Labor defines hotel motel tourist place, restaurant industry is self explanatory. The other change in here, the only change in here is just a technical change. And then again, in section three, again, just a technical change. The reason these changes weren't made in the minimum wage bill a couple years ago is that there was in the sort of push to get out a simplified bill. At that time, the choice was made to just minimize changes to the language so that the changes were the actual wage changes. Because as those of you who are here will remember, this was a negotiated change that got hung up at the end of one session and then was moved out at the beginning of the following session last year. And so the goal was to just get a very simple bill to the floor with a lot of things taken out of it that had been in the underlying minimum wage bills, including some of the cleanup. So this is just doing technical cleanup to address changes that were made in that bill. The next piece here on subsection B, the committee wants to change any of this, but this is again an area where you may want to do a more substantive dive. These are the exemptions from the overtime laws. So employees of a retail or service establishment are currently exempt from overtime. Amusement and recreational establishments that are seasonal or at least do the majority of their business in one season are exempt from overtime. Employees of hotel, motel or restaurant. And I see representative Palisick has raised his hand. Yes. Can you go back to what you just said about the exemption for retail employees? Can you bring that back up because you went real fast, but I just want to take a look at that again. Sure. So it's any retail or service establishment, which is defined as an establishment for which 75% of the annual volume of sales of goods or services or both is not for resale and is recognized as a retail or service establishment in that particular industry. So the key here is that, for example, a wholesaler, their goods would be for resale versus the grocery store here in town. I'm not buying groceries for resale. Those are for for final use. This is a, you know, with this, like some of the other definitions here, the committee might want to take more testimony to on what the Department of Labor regulations are around this, whether this needs any tweaking to reflect modern realities or to clarify it. But did you have a gestural questions on that representative Palisick? Well, well, just, you know, and I apologize because my brain is kind of fried right now. We, we have a hand of words in top. So let's just say that, you know, it's a retail store, supermarket, whatever. They sell products retail, they have employees. If the employees work in 12-hour days, is that employee going to get four hours overtime or not? Well, so there's kind of the law doesn't necessarily, the way I read this, the state law doesn't require them to get overtime. However, those employees may have a contract with the store or the store may have an overtime policy in place. Oh, Ron, you are not muted. So, you know, to give you a sense of this, when I was quite a bit younger now, I worked for a retailer and they had an overtime pay policy. So we earned overtime, but they weren't required to under the state law. So they, they just happened to have that policy on the books for their stores across the country. And it may have been that some states had an overtime requirement. And so they just implemented it across the board to avoid confusion for their payroll. But this doesn't require it. Nothing prevents an employer from providing it. And, you know, as, as we all know, too, I mean, if all of the other employers are offering it, it often becomes something that employers may offer. But this, like everything else here, because it's an exemption from the law and it hasn't been looked at in a while, it may be something you just want to take a further look at. Because these are these are fairly substantive kind of questions and just it was one of those points that we had highlighted early on as a potential discussion point for modernizing here, whether any of these need to be updated or whether it's working and reflects current practices in the industry, or at least what we want to allow employers to make the decision on rather than mandating. Okay. Thank you. Yeah. Yeah. And then so you'll see kind of consistently with a lot of exemptions from wage laws is oftentimes it's industries where they have either they may have a seasonal push, which requires a great deal of hours in a very short period of time. But then other parts of the year, they may either be shut down or working at a very low ebb. So that's where the amusement and recreational establishments come from on this exemption. But again, it's a policy question the committee may want to consider is whether this still reflects what's appropriate for the law. Hotel motel and restaurants are also exempt from the overtime requirements under state law. Hospitals, public health centers, nursing homes, maternity homes, therapeutic community residences and residential care homes provided that the employees are paid on a biweekly basis. And then the employer has to file an election to be governed by this section. So this the employer has to opt into the exemption. And then the employer does still have to pay time and a half for these employees. But it's on a workday or a biweekly basis instead of a 40 hour workweek basis. And that that actually going back to Representative Palisick's example is a just another thing to bring up the requirement under law is in excess of 40 hours in a workweek, not in excess of eight hours in a day. So that that's just something to keep in mind. You could work for 10 hour days and not get overtime. Or you could be, you could do a job that has 24 hour shifts where you're on the clock for 24 hours, take a couple days off and then you're on again for another 24 hours, but you'd only get eight hours of overtime at the end of that week. Yep. So it's about 10 after and we'd like to wrap about three 15 I have a standing appointment and got it. So I'm going to leave these off at this point, but just want to highlight that this is a second that you may want to do a deeper dive on. The there are other questions in here too, such as state and municipal employees, which are both partially state employees are partially exempt from the overtime requirements. And municipal employees are fully exempt. And then the the other one here is is truckers who are exempt under the FLSA to the next section relates to deductions. The only substantive change here was around the this is very old language dating back to when tips were something that the state would determine whether they were deductible or not from an employees or determining what was the appropriate wage we've our law has settled that so this is just antiquated language. The next changes in here, the recommendation language dates back to the wage board, which no longer exists and hasn't existed for over four years. And the language in here was just updated to change wage board to commissioner. Again, we're getting out rid of the outdated gratuities language. And so the the next sections here 12 and 13. These are both being repealed again. These are sections that date back to the wage board that were not repealed 30 years ago when the wage board statutes were repealed. The next change here is a change that we these next two changes are just they're not substantive their changes that we can make because we made employer a defined term and that is bringing us to again here the same thing updating getting rid of extraneous language and then adding in the language around administrative penalty instead of a fine because a fine is typically a criminal thing and clarifying then just the language here that this is not a substantive change it's just clarification and again clarification here in the next section section 17 clarification of the language. There's a big strike through here but we've just added a clarified version of it below. And the language in D is again a clarification of the process to reflect what actually happens and then the effective date so really the big changes here or the big questions are around the exemptions from the minimum wage and the minimum wage in overtime or excuse me the overtime and the minimum wage in overtime laws. Some of those are antiquated some of those just you know might need to be dusted off to decide whether or not they need clarification or should just remain the way they are. There are substantive changes around getting rid of the wage board and a few substantive changes just to update to reflect modern pay practices. So probably the the biggest discussion points are just those exemptions and that is it I see representative Hango has her hand up. Yes I do thank you. I know that the chair was looking for some direction from us so I think representative Triano I think what we really should do because the first part is really just about technical changes and updating. We really should take a look from section seven on because that is all that minimum wage section and we talked about that two years ago and we said oh we've got to get to that we've got to look more deeply at that especially with regards to the secondary school students and the agricultural workers and then some of those exemptions that we just didn't really understand. So I think that would be a great place to start and start taking testimony on it. I think that's right we just spoke about agricultural workers and this piece just what the other day just in passing so I agree I think that that is probably what we need to do and Ron do we have any anyone scheduled for for this bill in the next week? Yes sir I'm here I'm sorry I'm on the phone with the chair also what did you just ask me I had the volume turned down what did you just ask me? Just if we had any so we were expecting any testimony on this bill next week. Do we expect anything? That's exactly what the chair and I are talking about right now is time availability. It's not currently scheduled no but um station by Demian that we speak with the Department of Labor on some of these issues that we encountered this afternoon. Okay yeah Dirk Anderson would be the person from the department probably to contact and then I think they they like to have Amanda Wheeler their legislative liaison and the commissioner looped in but you know some of it's just kind of getting a sense from them what the existing practice is and you know whether they have any concerns or feedback. Another thing too is just looking at the department's regulations on some of this because you may be satisfied with some of those exemptions that their regulations provide all the clarification you need and that that's something where again a deeper dive on those issues could be helpful particularly around like the retail question and so forth. I can't remember how much clarification they offer there I know I know they do offer someone for example who's entitled to the tipped wage and so that that's often helpful when you're figuring out do we need to actually do anything here or is this something we can just leave alone for now. Amusement workers that was interesting. Yes yeah and some some of these all um Ron we can hear the chair but yeah and I will send you that side by side I'll try to send that early next week so that you can kind of compare what the Feds are doing to what we're doing and see if there are things that in some instances the Feds have updated their language and we may want to just draft a corresponding update or say as set forward in the Fair Labor Standards Act or we may want to say you know Vermont should depart because our situation is different you know than the broader country as a whole and that that's always kind of the policy questions that come into play there you know for example the one of the federal agricultural pieces for the FLSA requires it exempts farms with under 500 man hours of labor in a quarter and a man hour of labor is at least one hour of labor on one day by one person so quarter is about 90 days so that means you've got about six employees working over the quarter if there may be a simpler way to say that that works better for Vermont farms and that also fits Vermont farms or maybe we just want to say we'll let Vermont farmers who are subject to the federal law be subject to the federal law and other farms be exempt yeah well yes and the term man hour is rather dated at this point um so but does put your assistant on it yeah she's she's looking a little tired right now she looks great and I have to respond to the man hour comment because I tried very hard a few years ago in technical language cleanup to remove the term airmen from a different title of state statute and was unable to because it is technically a defined term that has to be used in that manner um just because of the connection to federal laws and all those sorts of things so we just have to understand that sometimes man means human human right yeah but um yeah there there are a lot of those things in here that that could potentially use a little bit more information um and it might also be that the committee wants to tackle some of the easy stuff right away and put some of the other stuff off or I don't know what the even the situation with getting pills out in the next couple weeks is or whether the committee even has time to do that so um well that gives us a good focus on what we need to look at um so I appreciate that great I think we're gonna call it a day all right Damien thank you for doing all the work on this bill yeah thanks very much oh it's my pleasure I love cleaning this stuff up it drives me nuts to find things in the statute me too you know there's like two sections of this that have been driving me crazy since before I even got in the building for yeah if anyone's looking for a drafting request for next year you know there are a couple sections of title 21 where we you know we say uh on and before like July 1 1978 the following shall apply on and before like so in such 1986 the following shall apply and it was just these transition periods that no one's ever taken out of the books and they just take up pages and pages um that that was um Tucker actually was the one who did that when he was my law clerk oh okay so but yeah yeah that that's another good one Damien when we do when we start drafting bills for next year let me know when you want to talk about putting that bill in anything I can do to make your life easier and clean up unnecessary and superfluous language yeah just just for the record here I I can't put this in but I'm happy to do it for one of you know when we discuss putting bills in yeah because you know like I have to I have to confer with you that's the process yes yeah uh anytime after the session feel free to shoot me an email or give me a call yeah I've come across it three times all right