Vermont Legislature SmartTranscripts:

[Rep. David Durfee (Chair)]: Know John from other contexts, but he was not here last year. The VSL concert. The VSL concert. Okay. Did you introduce that? I didn't.

[Sophie Zdatny, Office of Legislative Counsel]: You were one of the people, right, that were Yeah.

[Rep. John O'Brien (Member)]: It's already

[Rep. David Durfee (Chair)]: different than that.

[John L. Bartholomew (Vice Chair)]: Farmer's wife, your wife, the place where we assembled?

[Rep. David Durfee (Chair)]: Yes. But it was, I think because it was Farmers' Night that when we got the answer. We so last year, we had representative, Surprenant, introduced this bill, and so if so, he did come in and walk us through it, we now have it. And it seemed like it was long enough ago that we should probably just have a quick refresher on it. So thank you for coming back. And do you wanna put it up?

[Sophie Zdatny, Office of Legislative Counsel]: So Sophie Sadatney for the Office of Legislative Care.

[Rep. David Durfee (Chair)]: Before you get started here, one question, representative. You mean we now have it? It's not in our possession. It was not before. Okay.

[John L. Bartholomew (Vice Chair)]: Was it just

[Rep. David Durfee (Chair)]: It was in house housing.

[Sophie Zdatny, Office of Legislative Counsel]: House general. Was in housing. Okay. All right. I'm putting it up, but I also have copies of the bill. That would be helpful, folks. Also shared with the community some resources. So obviously you can't click on the links on the paper, but just so you're aware what they are, but they are on the Mitten website. So I just thought that that might be helpful for you to have. It's a bit larger. So this this bill was introduced last session, and it was referred to the committee on general and housing. And then I believe just last week, that committee was relieved of the bill, and it came over here. But because it dealt with agricultural workers and because Heather, representative of Supranant, was on this committee, I came in, I think it was May 21, and did a walk through at that time. So this bill does essentially does three primary things. So it moves to repeal the exemption of agricultural workers from the applicability of the state Minimum Wage Act. That, in turn, would also provide overtime pay for agricultural workers, but it includes a different limit. So instead of the more normal forty hours a week, it provides for sixty hours a week as being when agricultural workers would receive overtime. And then the bill also proposes providing inspections to determine the adequacy of farm employee housing, and then a mechanism for how to address violations of that. So those are the three main things that the bill is seeking to do. I would just point out, and it's on your resource list that I just shared. This work really started, I think, with the committee. There was a study committee created by the legislature on agricultural workers and looking at labor and employment laws related to them. And there was a report that was issued in December 2024, and Chair Durfee and Heather Surprenant were both on that committee. And so that provides some of the background. So again, it's just over a year ago now. But a lot of the information around agricultural workers is contained in that report, so it's also helpful to take a look at that. So moving forward, and again, if you're not familiar with it, under our employment practices laws, it's a little convoluted on how we do this. But essentially, on the minimum wage section of the Fair Employment Practices Act, it provides that employees are entitled to receive minimum wage, and then it carves out a whole series of people that are not considered employees for purposes of minimum wage. And as of right now, it includes any individual employed in agriculture. So they're not covered by the state minimum wage at this point. So what this bill would propose doing is providing that individuals employed in agriculture, unless you're the agricultural employer's parent, spouse or child, you would now be covered by the state minimum wage act. And so moving into March, this is the current language on minimum wage. There's a formula that's used each year to increase the minimum wage. Right now, it's 14.42 at the state level. The federal level is $7.25 an hour. That has not changed since 2009. But the way this formula works, it typically goes up each year. So that's the current minimum wage language. And then this gets into the overtime piece. So again, you have to be an employee that's covered by these provisions in Title 21. And normally, it provides that you receive overtime if you work in excess of forty hours a week if you're a covered employee. And this would add in some language that would provide that individuals employed in agriculture would receive one and a half times their regular wage for hours worked in excess of sixty hours a week. And then it has 01/01/2026. Again, if the committee moves forward with this bill, you'd want to adjust the dates in it because this was introduced last session. The reason sixty hours a week is, and you will see if you go look at the Agricultural Study Committee report in appendix four, there was a matrix that looked at state by state comparison of employment laws for agricultural workers. And there was a lot of testimony and discussion in that committee around overtime. And this, in excess of sixty hours a week, would sort of put Vermont in line with some of those other states that provide overtime for agricultural workers. There aren't many, but those that do, it's at a higher rate. And some of them are in the process of scaling back. So it starts at sixty hours a week and then after a year or two, it's fifty five hours a week and then fifty hours a week to try to get it down to forty hours a week. But this bill proposes starting at sixty hours a week. And again, it wouldn't apply if the individual working on the agricultural employer is a parent, spouse or child. And then the section four is adding a new section into state law. And this would be under Title VI, which deals with agriculture. This would be a new chapter that deals with adequacy of farm employee housing. And it uses some of the current definitions. So one, a farm would have the same meaning as in section 2.14 of the required agricultural practices. I think maybe there needs to be rule in there, but I'm not sure you guys would know that better than I would. But I looked in the statute to see and sometimes they just say required agricultural practices and sometimes it's required agricultural practices rule. So again, if you take the bill up, that might be something to look at. The definition of farm employee is an individual employed by a farm employer for farming. Farm employee housing has a definition. Housing owned or controlled by a farm employer, whether located on or off the farm premises and provided for the occupancy of the farm employees and the farm employees' family or household members. And then it has the definition of a farm employer, again going back to the required agricultural practices definition. And the same for farming, is referring back to those definitions. And then what the approach this proposal is taking is that when the Secretary of Agriculture, Food and Markets is there's a scheduled inspection of a farm under Chapter two fifteen, which I believe was the water quality. So when they're planning on going to a farm, the secretary would determine whether or not there's any farm employee housing in use on the farm. If there is, they would then conduct a survey of the farm employees regarding the adequacy, availability, and safety of the farm employee housing. And to facilitate the survey, the secretary would provide the farm employees with a form containing questions regarding the housing. And then there's a list of things, if these are a minimum, of what the form would include. So these are the list of the questions that would be asked. And again, there could be additional questions. But is the farm employee housing provided voluntarily, or are you required to reside in the farm employee housing as a condition of employment? Is the housing provided in clean working order? Does the employer provide proper and timely maintenance without undue delay? Do you pay rent for the farm employee housing? If you pay rent, does the rent reduce your net wages below the prevailing minimum wage? Does the farm employee housing provide sleeping areas with doors and other ability to maintain privacy? Is the farm employee housing provided with adequate heat, safety, ventilation, windows or temperature control? These were some of the questions that were raised again in testimony that came up in front of the study committee regarding concerns around some of the farm housing. Subdivision two here provides that if the secretary knows prior to an inspection that there are employees living in housing, then the form would be made available prior to the inspection, and then they would collect it when they go. And again, they would make sure, the secretary would make sure that the form is provided in multiple languages. So again, if there are employees working that English is not their first language, providing information to them so they could do the survey as well. And then if the secretary determines that the foreign employer has obstructed the completion of the survey, then there's an administrative penalty that can be imposed. And then section 4,753 provides that the forms would be provided to the Division of Fire Safety. The Division of Fire Safety is the one that inspects housing, rental housing, to inform them on whether the Division of Fire Safety should then conduct a more thorough inspection of the farm employee housing to determine whether it's safe for occupation. If they conduct an inspection, they would then determine whether or not it meets the code. And if it does not, then they would they would find them in violation. And then if they fail to comply with any of the requirements or timelines from the Division of Fire Safety, then again, there would be administrative penalties related to that. Obviously the effective date, if you were to move forward, would need to be amended. That is an overview of the bill.

[Rep. David Durfee (Chair)]: I know that you've passed it out, Sophie, and it's on our red page too. Thank you for assembling all of those resources. There's a lot there, not least of which is the pretty lengthy report that the study committee produced a year and a half ago. And we had eight people on that committee, four of them were House members, four senators. There was little that the committee was able to agree on unanimously, little if Who anything the committee? Was It was David

[Sophie Zdatny, Office of Legislative Counsel]: Durfee was the chair, then represented Ashley Bartley, who's on general and housing, Robin Chesnut and Benjamin, Feather Surprenant. And then on the senate side, it was Irene Renner, who was the vice chair, senator Randy Brock, senator Brian Cina, and senator Akeisha Ram Hinsale. And

[Rep. David Durfee (Chair)]: I I think the one area of consensus remind me or if I've got this wrong, tell me what's wrong. But I think the one area of consensus was that we thought recommending to the legislature working on employment law rather than labor law made sense. So we were looking really originally at should farms be allowed to unionize, farm workers that is. And then in addition to that, what about all the other employment law rights that most workers have that farm workers don't have? So minimum wage over time, There a list of them, and the feeling was, well, maybe we want to focus on those rather than unionizing, which could be a bigger issue. In any case, I think the four house members all did come to some consensus, and it's all in the report anyway, on the minimum wage piece. Two of the senators did not, I believe, but I think the four house members all were comfortable with the minimum wage after hearing the testimony, quite a bit of testimony. We did not, I think, have unanimous house agreement on the overtime piece. Although that we may have been talking about a forty hour overtime in that context rather than a sixty hour. And then the housing form, I think that representative Suture and I don't want to speak on her behalf at all, but we discussed this, it certainly came up, but I don't think we spent a lot of time focusing on it in our study group other than the fact that it's provided for many farm workers, as we've heard, and that employers can deduct and legally deduct some money, not a lot of money, for housing. And I asked the Department of Labor here if they would come back in and help us understand in this context. We looked at that last week when we had testimony on the h two a visa program, but it could very easily also come into play here since many farm workers who are year round workers also have housing and currently are not, but would be eligible for a minimum wage over that under this. So questions for Sophie or just for general.

[Unidentified Member]: Yeah, I'm not sure if Sophie would know the answer to this, but I'm wondering in terms of the sixty hour number, how many farm employees would work more than sixty hours on even daily regular basis? I mean, is that common? I mean, I know when I think about some of the workers that have come from Jamaica, I have heard that they work really long hours, but I don't know, more

[Rep. David Durfee (Chair)]: than sixty would be I think that we can certainly hear anecdotally from the farm groups and maybe even some of the folks around the table here. I did invite the farmer organizations if they would like to help us with that. Also, think the Department of Labor, our own Vermont Department of Labor has that data since I think they're collecting that.

[Rep. Charles "Chuck" Kimbell (Member)]: Question, Jared, Durfee. My reading through this, it seemed that this only applied to large farms and medium farms, which are a very tiny percentage of Vermont farms. Is that accurate or do I miss Rita?

[Sophie Zdatny, Office of Legislative Counsel]: It covers, sorry. I gotta find where I had all my the definition is the same as in section 2.14 of the required agricultural practices. And that defines it as a parcel or parcels of land owned, leased or managed by a person and devoted primarily to farming, as defined in section 2.16 of this rule, and that meets the threshold criteria as established in section three of this rule, provided that the lessee controls the leased lands to the extent they would be considered as part of the lessee's own farm, indicators of control may include whether the lessee makes day to day decisions concerning the cultivation or other farming related use of the leased lands and whether the lessee manages the land for farming during the lease period. So there's a whole slew of then references to other definitions.

[Rep. Charles "Chuck" Kimbell (Member)]: So where did I see that?

[Rep. David Durfee (Chair)]: Yeah. Think you saw a reference to that in the housing survey section maybe. Where was that?

[Sophie Zdatny, Office of Legislative Counsel]: Is there any other than the reference to how farm is defined?

[John L. Bartholomew (Vice Chair)]: I there was a service room.

[Rep. David Durfee (Chair)]: Yeah, I think on page four, line four, there's a reference to

[Sophie Zdatny, Office of Legislative Counsel]: Oh, yeah, farm employer means a person engaged in farming who's required to obtain a large farm permit or medium farm permit under chapter two one five of this title or is subject to the required agricultural practices under chapter two one five of this title and who earns at least one quarter of their annual gross income from the business of farming.

[Rep. Charles "Chuck" Kimbell (Member)]: So a and b, b included all the other

[Sophie Zdatny, Office of Legislative Counsel]: farm employers. Yeah. And I don't this is not my area of expertise, so I really am not familiar with all

[Rep. David Durfee (Chair)]: the Yeah.

[Sophie Zdatny, Office of Legislative Counsel]: We just sizes. Think that Yeah.

[Rep. David Durfee (Chair)]: I think that so in this in this case, farm employer is only, as you're saying, the large and medium farmers. And I think this only applies to this section of the bill. So it's just a reference to this housing survey. So there's an existing apparently, we'll have to ask about this. Currently, the ag agency or somebody is going out to farms that have housing and is inspecting them. How often? I don't know.

[Sophie Zdatny, Office of Legislative Counsel]: Right, so that wouldn't impact the minimum wage and the overtime provisions?

[Rep. David Durfee (Chair)]: Would not impact. Right. Those provisions as written in your right slide at all. Right.

[Rep. John O'Brien (Member)]: Chuck? You probably said as we went through here, but what are the consequences if you don't pay the minimum wage?

[Sophie Zdatny, Office of Legislative Counsel]: Complaint would be filed with the Department of Labor, and then there would be administrative penalties through the Department of Labor for violations of the minimum wage and overrule. Another section of law? It's within title 21. Right? It's under yeah. So what what the first couple of sections are doing is just adding in so that agricultural workers would be covered by existing state law regarding minimum wage and overtime. It's not a separate standalone piece for them.

[Rep. John O'Brien (Member)]: How would this apply to undocumented workers who I mean, does it apply would it apply to them even though they probably wouldn't feel confident to file a complaint?

[Sophie Zdatny, Office of Legislative Counsel]: Yes, it would. I mean, it it would, whether in practical terms, right, how that would work is a separate question. But if it would apply. Right. So, I mean, and I just wanted to loop back to what representative Durfee said before. So one of the reasons the committee heard a lot of testimony from different farm farmer representatives of the farm workers' organizations. But what was interesting, you'll there was also testimony in front of the committee around unionized several states do allow agricultural workers to unionize. And interestingly, the history was that they just don't. They just don't get together and and unionize and collectively bargain. And I think that was one of the reasons why the committee decided it would it would be better to address sort of working conditions through these other laws rather than, you know, through a stand alone labor relations act covering agricultural workers.

[Rep. John O'Brien (Member)]: The team today took ortho lines.

[Sophie Zdatny, Office of Legislative Counsel]: It was it was a very, very interesting testimony. Play soccer.

[Rep. David Durfee (Chair)]: It's not here, visible anywhere, but the existing minimum wage law in Vermont, the federal minimum wage law superseded by the state law. High school worker, high school aged, or there's a It doesn't apply to younger people, and I'm not sure how that's defined.

[Sophie Zdatny, Office of Legislative Counsel]: For the youth? I mean, in terms of how much they're paid?

[Rep. David Durfee (Chair)]: Yeah. My understanding is that the existing minimum wage law doesn't cover somebody who's under a certain age or is a high school student.

[Sophie Zdatny, Office of Legislative Counsel]: So the laws currently provide that there are certain occupations you can't do at different ages. And I can just double check on mean, think there are rules around, you know, you shouldn't be doing the heavy equipment stuff. Don't know if that's I mean, pardon me.

[Rep. David Durfee (Chair)]: That's something you don't have to look it up on the fly. We can sort of back on that. That's a question I know that's come up. And then there are also, and I asked you this yesterday, after looking at the resources, I saw internships and apprenticeships. We all know that many farms, smaller farms, often have people who work in one capacity or the other, and wanted to be sure that if we were to change the law and not exempt agriculture workers, that wouldn't be affected.

[Sophie Zdatny, Office of Legislative Counsel]: So for things like internships, To truly have an unpaid internship, it's quite a strict test, and you need to meet all all the criteria for that. And if you don't meet them, then you have to pay at least minimum wage to those individuals. And then apprenticeships, the the one resource that I linked was specifically for farm employees, and it just said referred to the Department of Labor on their apprenticeship programs. And then when I looked into that more than it referred to the federal Department of Labor and apprenticeship programs. And often those can be, you earn while you learn sort of situations, but I don't have any specific knowledge around farms. I did see on the state Vermont Department of Labor website has a list of registered employers that have apprenticeship programs, and I didn't I just did a search for farm and some terms to see if there were any, and I didn't see any or listing farming as as an occupation. They were like, some of them have them like, think habit is part of the program, but it's for electricians and other categories.

[Unidentified Member]: There's a really big international program called WOOFing, Willing Workers on Organic Farms. And I know there are farmers in Vermont who get I mean, basically, the idea is sort of like you like an alternative to a youth hostel. Young people that are traveling might go and spend two weeks on an apple farm and pick apples in exchange for staying in basically the equivalent of farm worker housing. And so, I mean, I would think that that I mean, I guess I would like to know the answer to this because I know people that use whooping as part of their part of the way they get labor done on their farm. And so I would like to know the answer to whether that counts as an internship or because it's sometimes it's paid, but usually it's not usually it's it's the the room and board is given in exchange for a certain amount of labor, and usually it's, like, a half a day or something like that.

[Sophie Zdatny, Office of Legislative Counsel]: Yeah. I think it's probably skirting around the law, to be honest. So one of the resources that I linked was there's a specific Department of Labor resource that deals with farm employees. Yep. And in that, it talks about volunteers, and it points out that generally an individual can only volunteer for public agencies such as a state government or a nonprofit corporation. Individual that volunteers for a for profit business must be paid the applicable minimum wage.

[Rep. Charles "Chuck" Kimbell (Member)]: You know many firms that are for profit right now.

[Rep. David Durfee (Chair)]: That also reminds me of agritourism, farm stays where you vacation part of the needs area. Yeah. I did ask all the farm groups if they would like to testify on this, And I was thinking particularly of the point you raised.

[Unidentified Member]: I know some people, but I don't know if they're going to want to testify on the record if that's the way it is.

[Rep. David Durfee (Chair)]: Yeah, well, you'll need to know. All right, Yeah, you have a just Yeah. John? I don't know much

[John L. Bartholomew (Vice Chair)]: about what we require statutorily in Vermont, but I was just thinking, if you work a forty hour week, what is required of your employer as far as obviously an ag minimum wage isn't necessarily even required, but are there other things that are required such a TORLE in Vermont?

[Sophie Zdatny, Office of Legislative Counsel]: Minimum wage? If you work

[John L. Bartholomew (Vice Chair)]: that relationship between employer and employee.

[Sophie Zdatny, Office of Legislative Counsel]: I mean, are certain other groups that are carved out from that definition of employee for minimum wage. So things like amusement parks. I mean, that's just an odd list of professions. But primarily, we also look at the Fair Labor Standards Act. So there are a number of employees that don't receive overtime, and those are if you're a administrative, managerial supervisory. I mean, there's a whole list of of exceptions from receiving overtime. So overtime, generally speaking, is for, you know, the lowest paid workers that are paid on an hourly basis. There could be some hourly workers that aren't eligible and and vice versa. There could be some salaried employees that are eligible for overtime. But that's all I mean, it's very a lot of regulation around exactly who receives it and who doesn't. But the easiest way to think about it is usually hourly employees who work on an hourly basis are the ones that are entitled to receive overtime.

[John L. Bartholomew (Vice Chair)]: But the suite of other things like holidays off or sick days, are those statutorily required, or is it purely the relationship between employer employee

[Sophie Zdatny, Office of Legislative Counsel]: We have extensive laws on that. And

[John L. Bartholomew (Vice Chair)]: I was wondering if any of those would be triggered by a minimum wage coming into effect for ag workers. Is anything tied to that? Well, besides maybe overtime.

[Sophie Zdatny, Office of Legislative Counsel]: Right, not specifically. So where this would be in the statute is it's around minimum wage and overtime. And there are different definitions of employees depending on which sections of the statute they are under. So for example, under rental and family leave, which is unpaid leave, it's a different definition of what an employee is to qualify for that. So, yeah, the different things that are in statute, there are different definitions for employee for those purposes. This would be just affecting the minimum wage and

[John L. Bartholomew (Vice Chair)]: But like maternity leave, it's in statute that you have to offer that program?

[Sophie Zdatny, Office of Legislative Counsel]: That would be under the Parental and Family Leave Act. So you have to work a certain number of hours, the employer has to have a certain number of employees, so there are different eligibility requirements to be covered.

[Rep. David Durfee (Chair)]: Any other questions? Yes, John.

[Rep. John O'Brien (Member)]: The way all this intersects with labor law can get kind of confusing. I'm looking at on page three, number nine, we've read about sixty hours overtime. If the minimum wage is increased in that previous part of the bill and nine wasn't there, would that mean that farm workers would have to be paid overtime just like any other worker, or does there have to be some language in there?

[Sophie Zdatny, Office of Legislative Counsel]: Yeah. So what we what you'd be doing is under the first the first section, under section two, you would be including individuals employed in agriculture as under the definition of employee. And then in section three, because they're now an employee for the for the purposes of this, then they would be eligible to receive overtime at forty hours a week unless you have that that language in number nine, which says you're eligible at at sixty hours

[Rep. David Durfee (Chair)]: a week.

[Rep. John O'Brien (Member)]: Wasn't there at all. They would be eligible at forty hours.

[Sophie Zdatny, Office of Legislative Counsel]: Right, unless you had some other language to carve in that, right? Some other language. Like they said they're not eligible for

[Rep. John O'Brien (Member)]: If time that was gone, they'd be Right,

[Rep. David Durfee (Chair)]: so that would be a policy decision that we could write in one, yeah. Can't just strike that section without Striking that section would not do that. Yes, good point, very good point. Yep. Okay. Well, you waiting and for giving us this second walk through. You're welcome. And I'll have to say, I didn't really remember any of it. Yeah, and I noticed that we had invited the Department of Jainburg, I think we've invited the Ag agency, and then there's the Division of Fire Safety, which is referenced there too. I guess that's probably a public safety.

[Sophie Zdatny, Office of Legislative Counsel]: So they're in charge of mental housing. They oversee all that and make sure that they're all there.

[Rep. Charles "Chuck" Kimbell (Member)]: All right,

[Rep. David Durfee (Chair)]: so we also have them come in. Alright. Good. Thank you very much. You're welcome. So, we're back tomorrow. So we can wrap up for the day. We're we're back tomorrow.