Vermont Legislature SmartTranscripts:

[Rep. Abby Duke (Witness, House Commerce & Economic Development)]: Oh, thank you. Welcome

[Marc Mihaly (Chair)]: everyone back to the House Committee on General and Housing. It's still Tuesday, and it's still April 14. So we're going to talk for a little bit about S two thirty, which is the omnibus labor bill from the Senate. Just by way of background, it was suggested to us on Friday by members of the House Commerce Committee that we consider putting in S two thirty a much, much narrowed version of their bill on non compete. If you remember, just by way of background, we have a non compete bill on our wall, they had a non compete bill in their committee, which was actually, I think, Marcotte's bill, and so I talked to Marcotte, and basically when I talked to you guys about it, we just gave the issue to them, and they heard it ad infinitum, and developed a lengthy, complicated bill, which then ran into issues, ran into trouble over coverage of a related issue, labor issue, and the labor unions, and so it basically, they couldn't resolve that issue, just, the whole thing kind of collapsed, it didn't make it to the floor. I thought that it was an interesting bill, and regret it. Remember, we took a little testimony on the whole problem of non competes, particularly as they apply to, apparently which are often applied to segments of the workforce where it's kind of oppressive and it doesn't really serve a useful purpose. So they suggested that we think about putting in an Act two thirty, and our witnesses today are describing and addressing that issue, and we'll probably have more witnesses later in the week if this is going to go anywhere, but at this point, we are not actually proposing to insert this into S230. We've got some language which our council has prepared, and we're looking at it to deplorate it, it's all in Stapheny. Do you have anything you want to add on?

[Emilie Krasnow (Ranking Member)]: Me? I think you summarized it quite well, we're just having a conversation and hearing more background, and see how things go.

[Marc Mihaly (Chair)]: Right, I've made it clear to all the parties

[Emilie Krasnow (Ranking Member)]: that We

[Ashley Bartley (Vice Chair)]: have the time.

[Marc Mihaly (Chair)]: We have the time to hear this, we don't have the time for a replay of the entire complicated disagreement that emerged the last time around, so, if there's a way to pass a more constrained version that people are happy with, we'll consider it. So let's start with Sophie.

[Sophie Zdatny (Office of Legislative Counsel)]: Good afternoon. So I'm Judith Adetney for the Office of Legislative Council. If I go ahead and share my screen.

[Marc Mihaly (Chair)]: Of course. That's what we expect.

[Sophie Zdatny (Office of Legislative Counsel)]: I'm just gonna do a very quick, I love colored charts here. So just as a quick reminder for folks, what's an s two thirty. So s two thirty has a number of different things in it. The first three came over from the senate side, and then you added in section three a, which was h five fifty six. And so those we've gone through before, and then what we're looking at today is this new section three b, which is adding an abortion of H205 prohibiting non compete agreements for nonexempt employees.

[Marc Mihaly (Chair)]: Which were, again, SOFI, for form's sake, was put in the bill, since that's what we're talking about, but we haven't yet, got to that so go ahead, please.

[Sophie Zdatny (Office of Legislative Counsel)]: Version 4.1 of s two thirty, and I'm just gonna fast forward to the new section that we're talking about. So this would add a new provision into the Fair Employment Practices Act, and it simply provides that agreement not to compete between an employer and a non exempt employee as defined under the Fair Labor Standards Act are prohibited as presumptively coercive and a restraint on trade unless bargained for as part of a collective bargaining agreement. So if for example there's a collective bargaining agreement out there that whatever reason, happens to contain some language around non confines, then would not interfere with that. But generally speaking, this would prohibit agreements not to compete with non exempt employees. And I've got a little chart on non exempt employees, which I'll go through in a moment. But generally speaking, with non exempt employees, you're talking about those employees that are sort of most marginalised, the ones that would pay for these hourly workers, and who don't, not really in a position to make autonomous decisions in their jobs, etcetera. So these tend to be some of the more vulnerable employees in terms of non compete agreements. Where some of the worst abuses come up is with your non exempt workers, and there's stories out there nationally around subway shops and prohibiting people from coming to work elsewhere, so this would cover those kinds of situations. And then has subsection B is really just the remedies piece. So if somebody, if an employee challenges the non compete agreement, they can't be retaliated against their exercise of their rights under this section and the penalty provisions that are currently in Fair Employment Practices Act would apply. This is pretty standard language throughout the Fair Employment Practices Act. So that is very briefly what it involves. It's going to run through exempt versus non exempt. So, and again, there are always some nuance to it, but generally non exempt employees are hourly. You can be non exempt and be salaried, but that's unusual and the employer still has the obligation make sure that the minimum wage and overtime rules apply. So if you're non exempt, you're entitled to receive overtime forty hours or more. And again, if you're salaried, typically you don't. So again, if you only worked four days in a week, you would still receive your full salary for that week. If you work sixty hours that week, still receive your full salary that week, you don't receive anything additional. And then as far as salary goes, the current federal minimum wage is 7.25 an hour since 2009. The state minimum wage is $14.42 that typically goes up each year. And then there is, to be considered exempt, there are actually two tests. So one is a salary threshold test and one is a duties test. So the salary requirement is that you have to earn at least $684 a week. So if you were salaried but you made less than that, then you would be considered non exempt. And then the duties test, and again, there's a whole array of how you look at this, but essentially your duties have to require advanced knowledge or skills and you have the ability to make independent decisions. And so if you're a supervisor, you need to be supervising two or more employees to qualify as exempt. So there are different rules around that. And then, again, typically for a non exempt position, you're just doing the job. You're told these are the tasks you need to do, and you do those tasks. You don't have a lot of independent discretion around how you do your job. Supervision, typically for non exempt, they're typically directly supervised. If you're an exempt employee, typically you would have seen little to no direct supervision. And then just some examples, constructive and maintenance, non supervisory, retail workers, clerical, secretarial, as compared to employees such as doctors, lawyers, teachers, business executives. And again, there are different fact sheets that go through for each of the different categories of exempt employees.

[Deborah "Debbie" Dolgin (Member)]: That was a very quick question. Questions,

[Marc Mihaly (Chair)]: I'm members of the committee. Sophie, could you put it back up, because I'm in the text, and questions of Sophie? I have a couple of questions, Sophie. What does it mean to say presumptive recurrence of ownership? Does that mean that one would have a chance if a noncompete is challenged to argue that it wasn't coerced?

[Sophie Zdatny (Office of Legislative Counsel)]: So the current prohibition would effectively prohibit agreements not to compete with nonexempt employees, and

[Deborah "Debbie" Dolgin (Member)]: the reason that they would be prohibited is because they are simply that act, the Fair Labor Standards Act.

[Sophie Zdatny (Office of Legislative Counsel)]: The Fair Labor Standards Act doesn't address agreements not to compete. The reference for the Fair Labor Standards Act is around what the definition of a nonexempt employee is.

[Marc Mihaly (Chair)]: So it's presumptively coercive and a restraint on trade are those terms that are recognized in the labor law?

[Sophie Zdatny (Office of Legislative Counsel)]: Generally speaking, when you're talking about agreements not to compete, so you're usually looking at things like if someone has an agreement not to compete, what's the length of time that that agreement not to compete applies? Is there a geographic limitation? Is there a scope of activity? And again, it varies depending on the situation. If you're doing something very unique and unusual, for example, for a startup, the geographic area could be the whole of The United States or it could be the whole of the world. If you're doing something sort of more regular routine, it might be a 10 mile radius or a 15 mile radius. So it really depends.

[Deborah "Debbie" Dolgin (Member)]: A court would look at the different factors and then weigh them. It would be very fact specific as to a particular agreement not to compete and how restrictive that was and how appropriate and reasonable. But here, it wouldn't be subject to some extensive factual inquiry. It's just essentially a flat prohibition for this narrow class of nonexempt employees.

[Marc Mihaly (Chair)]: I take it someone like a hairdresser, it would depend if they were employed in a if they're employees, they could be non exempt?

[Sophie Zdatny (Office of Legislative Counsel)]: So, right, if until they pay ninety hours, then

[Deborah "Debbie" Dolgin (Member)]: they would be But if they're sharing space and they're

[Marc Mihaly (Chair)]: a contractor, they're just an independent contractor, they wouldn't be

[Deborah "Debbie" Dolgin (Member)]: They be I covered by

[Marc Mihaly (Chair)]: guess my last question is, we're not familiar, since we handed it off, with the larger bill. Can you put this in the cut? My understanding is that what we were attempting with this situation was to see whether a much narrowed version or much more specific version of a broader bill could be feasibly inserted in s two thirds

[Deborah "Debbie" Dolgin (Member)]: in a way that would not cause a replay of all the controversy that existed before. Can you assist us by putting this in the context of two zero five and what else was covered? Yeah, so two zero five had some extensive definitions in it around what is an agreement not to compete, what is not an agreement not to compete,

[Sophie Zdatny (Office of Legislative Counsel)]: so for example, it didn't cover things like non solicitation agreements, trade secrets, non disclosure agreements. And then it essentially prohibited agreements not to compete unless you met There was a number of carve outs, so things like if you were selling a business or you were dissolving a partnership or dissolving a limited liability company, those would be exceptions. I mean, that's not unusual if you have an owner of a business and someone else is purchasing it to be like, well, you can't just go down the street and open up the same business just down the street. So those things would have been permitted. And then there was a specific breakdown of when you could have an agreement not to compete. And that dealt with things like you had to have a salary that was 300% of state minimum wage, which I think is right around $90,000 a year. You had to have information that was material and would be, if you took that information somewhere else, it would present a really inherent existential threat to wherever you took it to. And then it would still have to be reasonable in terms of the geography, the time, the scope of activity. So there were a number of factors that in order to have a valid agreement not to compete, you would have to meet those things. There was a general broader prohibition beyond just non exempt folks. It also included language around healthcare providers. So apparently this has been an issue in healthcare where private equity comes in, acquires a practice and then restricts the ability of people to open up a practice nearby. So there was language that was added in house commerce and development that had come from the committee on healthcare, and they had taken it out of the bill to put it into H2O5. So there was language on that. And then there was a separate, so this would all have been under creating a new section under the Fair Employment Practices Act around agreements not to compete and then it also included another section under the Fair Employment Practices Act dealing with what's called stale pay provisions and generally prohibiting stale pay provisions that are coercive and require people to pay back if they receive training that the employer wants them to have and it's essential to them in that job but then the employer is like right but you need to pay us back if you leave. So there was language around stay or pay provisions as well. So it did cover a lot, it covered a

[Marc Mihaly (Chair)]: lot

[Sophie Zdatny (Office of Legislative Counsel)]: of ground. So this is a much narrower, very specific provision.

[Marc Mihaly (Chair)]: Was the state where the stay or pay provision is also linked to end of the day, had definitions and assumptions?

[Sophie Zdatny (Office of Legislative Counsel)]: Yeah, not as much as the agreement is not to compete, but it could have definitions, and again, there was discussion in house commerce around what's included, what's not included. If you worked for a bank and had through your employment got a good deal on a loan, it didn't mean you didn't have to pay back your loan when you left. So it tried to take into account all the different nuances that were brought up by witnesses in House Commerce.

[Cameron Rutland (Office of Legislative Counsel)]: Yes, Robert, are you just reminding of where that bill died?

[Sophie Zdatny (Office of Legislative Counsel)]: It's titled third reading, the House floor requested the second reading, it's titled third reading. It got recommitted back to House Commerce and Family Development.

[Thomas "Tom" Charlton (Member)]: I saw it. Okay.

[Ashley Bartley (Vice Chair)]: I'm Ashley, I think it's a relatively supportive. I think I have concerns with attaching this to exempt versus non exempt. One of my biggest concerns is kind of the two folded salary minimum. And so for those who follow the Fair Labor Standards Act, it's pretty notoriously always been pretty low, that threshold's been like 35. And then in 2024, it bounced to 40 roughly $4,848,000, thousand a okay. So what happened was, a court in Florida, or southern state, fought it. It was appealed, it kind of waffled. Was an election year, and so what ended up happening is it has since gone back to 35. My concern as someone who deals with employee classification is, I'm not sure putting it on the exempt versus non exempt, I don't really know if there's certainty in that because that amount can change. Pretty willy nilly. I don't wanna say willy nilly, but arbitrarily that amount can change, and then things are kind of thrown up in the air. I know for months when we were looking at this increase in change that all of a sudden we're trying to make sure all of our employees are at the right amount. And I think it's, when you're looking at duties, it's a lot easier to say, okay, well, I can classify this person because of this duty, that makes them exempt versus non exempt. But when we're attaching it to the salary, that's a lot harder to maneuver. And so I'm just like, I'm at this point just talking out loud. I think I just have some concerns that I'd wanna talk through. Does that make sense? Right. So, I

[Sophie Zdatny (Office of Legislative Counsel)]: mean, yeah, just again, just to follow-up on that. So the administration, the first Trump administration was actually the one that increased it to 35,000. There would be some effort being under the Obama administration to move it up, but that actually happened during the Trump administration. During the Biden administration, they had like a two pronged jump up. And so that did put employers in a situation where someone may qualify on the duties test, but their salary now is no longer, it's gonna be too high, and therefore that would make them not exempt, and it would cause a lot of it would cause employees to have to be reclassified from being salaried or being exempt to being non exempt. And that was a major headache for employers. So yeah, I mean, understand the concern with that. I think the goal by tying it to non exempt was intended to make it as simple as possible. Absolutely, I think, yeah. But it could, depending on what happens in the future, you could have another administration that wants to increase the salaries portion of the TASER. And what happened was with the Biden proposed increase was essentially the, I think it was the Fifth Circuit, but basically held that because the salary was going up so rapidly, it was essentially eliminating the duties test. It was essentially becoming just a salary test. And that was the reason it was struck down, was because the salary was elevated so rapidly and so high. Yeah, I think it was like a Even from back in 2010, it wasn't even quite that large. And even the two pronged, it was large. I would say, just going back to what was in H two zero five, there was a concern around salary for that in terms of, to the extent agreements not to compete were going to be permitted, There was a salary threshold for that, but again, the goal was not to put in a concrete amount because then it get stale over time, so that's why it was put in as 300% of the state minimum wage. So it would effectively move up as state minimum wage. So that may be another way to think about this, is tying it in some way to the salary. But I will say that got very complicated. I'm just putting it out there.

[Thomas "Tom" Charlton (Member)]: Yes, sure. I'm looking at the language in line 19 to 20 here. It's not going to be prohibited as predominantly perversive and restrained on trade unless bargained for as part of a collective bargaining agreement. So if you're a small shop and you don't have a union, but it's written into their job, agree. Does this require participation of the union? Because my impression of collective bargaining agreement is that this is kind of an organized labor sort of thing. So what do you do with the small

[Cameron Rutland (Office of Legislative Counsel)]: side of that?

[Sophie Zdatny (Office of Legislative Counsel)]: Right, so this would be the example there is, well the exception there is for bargaining for as part of the collective bargaining agreement. I don't know how common that is for these types of workers that are not exempt, But it just, again, the goal was not to disrupt any existing collective bargaining agreements that may be in place. And one of the challenges with agreements not to compete is that uneven bargaining power between an employer and an employee. But if you have a union, the union is there negotiating negotiating on on behalf behalf of of the the employees, so it's less of a coercive sort of situation, because presumably the union is negotiating what's in the best interest of its employees. If you, as a small employer, had non exempt employees, this would preclude you from having an agreement not to compete with them.

[Thomas "Tom" Charlton (Member)]: Be a problem for entrepreneurial startups that do have the new approach to any trade.

[Emilie Krasnow (Ranking Member)]: If they Working

[Ashley Bartley (Vice Chair)]: technology, so they And

[Sophie Zdatny (Office of Legislative Counsel)]: again, there was a lot of conversation around start ups in house commerce and economic development. Typically those folks are salaried, they're just not salaried at a very high amount and their job duties would almost certainly qualify them to be exempt. So I think it would be quite unusual to have, If someone's non exempt, they're not likely to have the secret sauce for

[Deborah "Debbie" Dolgin (Member)]: the entrepreneurial company to start Yes, go on.

[Emilie Krasnow (Ranking Member)]: The other day I was well, let's just say the field of hairdressing. And they have non compete sometimes, the aesthetician field. And then someone in the hall, when I was talking about it, the cafeteria, I guess it was the halls cafeteria, was saying that's called something different. What's that called?

[Marc Mihaly (Chair)]: That's an independent contract. Well, could be a non hourly rate.

[Emilie Krasnow (Ranking Member)]: No, it

[Sophie Zdatny (Office of Legislative Counsel)]: was like, which, yeah, What's the difference? So non solicitation would be that if you leave your position with Beauty Salon A, you can't take the customer list from beauty salon A and reach out to those customers and say, hey, I'm opening my own beauty salon B down the road, come and join me there. So that solicitation.

[Emilie Krasnow (Ranking Member)]: And then what, they get a cease and desist? Right. I think I've heard

[Rep. Abby Duke (Witness, House Commerce & Economic Development)]: of that.

[Emilie Krasnow (Ranking Member)]: That's not that. But so then the hair people and aestheticians that I know, lots of them in my area, they don't get non competes. Those are likely non solicitations.

[Sophie Zdatny (Office of Legislative Counsel)]: Right, so you again, take someone's custom and

[Emilie Krasnow (Ranking Member)]: What they if they stole, the non compete is different, because then they'd be like taking the hair recipe.

[Thomas "Tom" Charlton (Member)]: Sorry. It had to be specified.

[Emilie Krasnow (Ranking Member)]: Okay, yeah, I didn't look at the contract, she's just calling it that.

[Sophie Zdatny (Office of Legislative Counsel)]: Right, mean, interview would effectively be, if you're leaving this beauty salon, it's like you cannot work or open your own beauty salon within a 30 mile radius for the next two years.

[Emilie Krasnow (Ranking Member)]: Yeah, I don't like that though, because we're so small.

[Sophie Zdatny (Office of Legislative Counsel)]: Right, that's why we're- And then you're really restricting someone's ability to

[Emilie Krasnow (Ranking Member)]: do Yeah, don't like that.

[Deborah "Debbie" Dolgin (Member)]: Well, going off of what Emilie is saying, I mean, if you're a hair influencer and you're working in a big place, you're renting your little booth and and all that, I shouldn't use the word little, you're renting your professional booth, and you decide, I can't work in this environment, I'm going to leave and maybe open my own place or whatever, but you could take your clients with your clients.

[Sophie Zdatny (Office of Legislative Counsel)]: Clients. I mean you can let your clients know again if there's time to do that, you just can't be soliciting generally and you can advertise, you can be like Debbie Dolgin Salon is opening and that way people that went to you in the previous place would be like, oh, looks like Debbie's. I think in this day and age with the internet, don't have

[Emilie Krasnow (Ranking Member)]: to see a of

[Deborah "Debbie" Dolgin (Member)]: people, can probably find someone once they've left. Sophie, Okay, I get that

[Marc Mihaly (Chair)]: two zero five had a much broader reach. It wasn't as narrowly constrained in terms of just hourly, non exempt employees. But can this function without definitions? In other words, it talks about an agreement not to compete, but it doesn't define it. Do we need to define it? Is it okay, do you think?

[Sophie Zdatny (Office of Legislative Counsel)]: Well, again, that's a decision for the committee. Once you start going down that path, you're gonna end up with a lot of definitions and discussion around it. I would say agreement not to compete does have a general understanding of what that is. There's certainly case law that talks about agreements not to compete, and again, you're really looking at the length of time, the geographic scope, and then the activity that you're So I think there's a general understanding of what an agreement not to compete is.

[Marc Mihaly (Chair)]: Okay, yes.

[Ashley Bartley (Vice Chair)]: I'm going to go back to my original question, I'm so sorry, it's just stuck in my head. In this hypothetical situation, say I am an employee, I make 34.

[Marc Mihaly (Chair)]: You want to put the table back on?

[Ashley Bartley (Vice Chair)]: What? No, I don't need the table. No. Oh, got it. I'm making 34 that. So I would be considered non exempt. Something happens, I am now making 36. I'm 36, so I can now be considered exempt if

[Sophie Zdatny (Office of Legislative Counsel)]: you meet the duties But

[Ashley Bartley (Vice Chair)]: then what happens if, again, the FSLA number changes? Can I go from, if I started and I couldn't do it, what happens there? If I'm not eligible for a non and then I am, or the other way around where I started with a non compete and then all of a sudden I'm not. So what happens?

[Sophie Zdatny (Office of Legislative Counsel)]: Now you've gone back to being out, and what happens to the that you've already signed? That is an interesting question. I don't

[Deborah "Debbie" Dolgin (Member)]: know what the answer to that would be. I think that's what's just stuck in my head right now.

[Sophie Zdatny (Office of Legislative Counsel)]: Because essentially it would then be prohibited. Correct. The question would be, but you already had signed that before, so you already have the existing contract. Whether that Well, would it be a would

[Rep. Abby Duke (Witness, House Commerce & Economic Development)]: be important to you.

[Leonora Dodge (Member)]: I mean, the minimum wage goes up.

[Ashley Bartley (Vice Chair)]: But this isn't really long. No.

[Sophie Zdatny (Office of Legislative Counsel)]: I know. I'm just saying

[Austin Davis (Lake Champlain Chamber, Director of Government Affairs)]: think it I

[Leonora Dodge (Member)]: mean, your category

[Marc Mihaly (Chair)]: The law the law preemptive control. Yeah. So don't you think probably, it would be ruled that it was a valid contract until it wasn't, and then It's what? It was a valid contract until it wasn't, and now under current law, it's not.

[Rep. Abby Duke (Witness, House Commerce & Economic Development)]: That's why people lose their benefits all

[Deborah "Debbie" Dolgin (Member)]: the time, because some people think that

[Marc Mihaly (Chair)]: would The be law trumps, sort of, contract. Any other questions of Sophie at We're this going to have to, mean, it's not going to be over today.

[Leonora Dodge (Member)]: Well, I'm just curious, what would be the pros and cons? Do we want to keep the person protected, or do we want to make everybody play by the same rules?

[Sophie Zdatny (Office of Legislative Counsel)]: I think that's a conversation for our committee to have.

[Marc Mihaly (Chair)]: It's a policy treatment, as opposed to her issue.

[Leonora Dodge (Member)]: Right, but before we have that question, I guess we do have to

[Deborah "Debbie" Dolgin (Member)]: really know whether the contract is trumped by the change in law.

[Marc Mihaly (Chair)]: Well, under that narrow circumstance, think we wouldn't know the answer probably until someone litigated it.

[Sophie Zdatny (Office of Legislative Counsel)]: She realized that's supposed to be

[Marc Mihaly (Chair)]: And we want to move to our next witness on this, which is Representative Abby Duke, who was involved in 02/2005 in House Commerce and is a guest of our committee. You.

[Ashley Bartley (Vice Chair)]: Thanks Sophie.

[Marc Mihaly (Chair)]: Thank you Sophie. Welcome Abby.

[Rep. Abby Duke (Witness, House Commerce & Economic Development)]: Thank you, thank you for having me. Thank you

[Emilie Krasnow (Ranking Member)]: for making the prep

[Rep. Abby Duke (Witness, House Commerce & Economic Development)]: work hard. I'm here to tell you the epic journey of H2O5.

[Leonora Dodge (Member)]: Not Bill. This doesn't count as competing when you come over to this committee.

[Emilie Krasnow (Ranking Member)]: Am here to be

[Marc Mihaly (Chair)]: She's non exempt in the worst way.

[Emilie Krasnow (Ranking Member)]: I am

[Rep. Abby Duke (Witness, House Commerce & Economic Development)]: here to be as helpful as I can in this committee, so let me know how I can help. I can say just briefly as an intro, H205 started, we started taking testimony last spring and then a kind of group formed, without a study committee, it was a group form to look into the matter that had a dozen or so people on it from a whole variety of different interests, labor, business, chamber. A whole bunch of folks got together and met, I think six times, times. Okay. Six times they met and wrote a letter. It's on our, you can really compile research on the issue of non compete agreements. The letter is posted on our page, and it included an overview of what is case law in Vermont, where issues that have come up, how are other states dealing with non compete agreements? And so then we took all that information and incorporated it and really put a tremendous amount of time, took a lot of testimony and really did our very best to balance competing interests and found a path that until the final moment was really, I thought it was a really good path that looked at legitimate business reasons for having non competes, as well as some really strong reasons for not having non competes, because they do fundamentally impede the economic mobility of workers. Even if you found another job, if you have a non compete, you may not be able to take the jobs you want to take. So I allowing non compete shouldn't really not be allowed in really legitimate time periods or for legitimate reasons. So what else can I tell you? Do you want me to tell you our thought process about how H. Two zero five approached anteeps?

[Marc Mihaly (Chair)]: One issue, if we want, is Do you feel like this language, what's your reaction to this language, how does it stand the test of threading the needle between all the different considerations? Sure, thank you.

[Rep. Abby Duke (Witness, House Commerce & Economic Development)]: Way we approached it, and I'll say the way we approached H205, which I think we'll walk through the various considerations that go into it, and then I'll talk about the specific sort of narrow focus. So H205, we said, okay, there's a broad ban on non competes. And then we're gonna have exceptions. And as Sophie mentioned, number one, a non compete is not non solicitation agreement. It's also not a non disclosure agreement, which I think when you talk about a recipe, for example. So, a non disclosure agreement would be like, you can't take a trade secretly.

[Sophie Zdatny (Office of Legislative Counsel)]: So that is still allowed.

[Leonora Dodge (Member)]: Secret recipes are still

[Rep. Abby Duke (Witness, House Commerce & Economic Development)]: Secret recipe is not nonconfused.

[Ashley Bartley (Vice Chair)]: List of customers.

[Deborah "Debbie" Dolgin (Member)]: I

[Leonora Dodge (Member)]: was trying to keep it into what it does do rather than what

[Rep. Abby Duke (Witness, House Commerce & Economic Development)]: it does not, not, not, not do.

[Leonora Dodge (Member)]: I'm just saying A

[Rep. Abby Duke (Witness, House Commerce & Economic Development)]: just would say, a non compete agreement would give Let's say you're working for me and that's not compete. It would limit your ability to work for a competitor bound by time and space, basically. So within a certain geographic area for a certain amount of time, you can't go work for a competitor. That's basically what an non compete agreement says. And case law has, that's what it focuses on is scope and geographic area. Okay, so that's what a non compete is not. It is not non solicitation, it's not trade secrets. And then the other exceptions we built into the bill were if you're selling a business or if you're dissolving a partnership, that's an exception. And then we did a two part test for all other jobs. One was salary and we pegged it to 300% of the minimum wage, which is about $95,000 I think, something like that. Duties. So if you make over a certain amount of money and your job, I don't have the language in front of me, but basically your job is are privy to really important information in the business, the processes, maybe have relationships with key clients. So it's really a two part test of what do you do at the business and also how much money do you make. So we did not, now I will say, so that was how we structured it. And through testimony, I think the two most compelling places where there can be abuse with non competes, or we have a real, I think, public interest in limiting non competes are low wage workers. And I do think that maybe with this language we get to that, we get to it partly at least. I'm not no expert on employee classification, but

[Austin Davis (Lake Champlain Chamber, Director of Government Affairs)]: taking a look at

[Rep. Abby Duke (Witness, House Commerce & Economic Development)]: what Sophie put together with the chart makes sense to me. But if you're a low wage worker where you are leaving a job because you're gonna make $5 more an hour, there should be no scenario in which there can be enough compete to keep you when you're just changing a job so you can make enough money to pay your rent. Think that gets to at least a potential egregious abuse. How often are non compete used for low wage workers? I think not very often. I think hairdressers or aestheticians is a field where sometimes it's used. But I think there's widespread abuse of this in Vermont. That said, I think it makes sense to make a very clear statute that it is not allowed. Because what we heard testimony about is right now, law does If you had a non compete for a low wage worker and you sued, you would most likely win because the case law says it should be found, it should be something that makes You're saying the worker would win. Right, but they'd have to sue.

[Leonora Dodge (Member)]: But they'd have sue. They'd have have to sue. Seeking the remedies and expensive high obstacles.

[Rep. Abby Duke (Witness, House Commerce & Economic Development)]: Exactly, and the reality is they're not going to because of use of the use use non competes makes sense. And then the other piece we heard testimony about, I do think there's compelling reason. Sorry, weren't raising No. There's compelling reason to at least consider it has to do with healthcare providers. And that is a place that non competes are used that limit, so if you're a nurse practitioner, for example, and working in a you want to go work for another clinic, if you have a non compete, then you may need to move. You may not be able to get a job in your profession within 20 miles.

[Deborah "Debbie" Dolgin (Member)]: So those are happening, those kinds of things. Those kinds

[Rep. Abby Duke (Witness, House Commerce & Economic Development)]: are happening.

[Emilie Krasnow (Ranking Member)]: Let's say I go to Evergreen Family Health.

[Deborah "Debbie" Dolgin (Member)]: No, yeah, no, get this I

[Leonora Dodge (Member)]: understand. I'm just trying to gauge whether the policy solution is coming out of this actually occurring or whether we're trying to prevent it.

[Rep. Abby Duke (Witness, House Commerce & Economic Development)]: So we heard testimony from a woman who's a chiropractor in Hartwick, and she was working for a chiropractor working for a clinic in Hardwick, and it was not a good situation, and so she wanted to leave, but she had signed a non compete agreement, and I think it was within 30 miles of Hardwick, mountain 30 miles of Hardwick. And so she was not working as a chiropractor, she was doing something else for two years, because she didn't want to move, and she also didn't want to commute

[Ashley Bartley (Vice Chair)]: an hour and half, or whatever.

[Marc Mihaly (Chair)]: She was not an unaccepted employee, So, would not help them.

[Rep. Abby Duke (Witness, House Commerce & Economic Development)]: Right, that was just an example of the two most compelling pieces of the bill.

[Emilie Krasnow (Ranking Member)]: I was trying to say, I wasn't actually trying to explain the scenario. I had a question about the Evergreen Place, but now I forgot Okay.

[Rep. Abby Duke (Witness, House Commerce & Economic Development)]: So, but back to your original question, I mean, do think this very narrow focus gets to, it seems to me a benefit to have in statute something to make it very clear that it is not allowed.

[Marc Mihaly (Chair)]: Did you define the healthcare worker situation? How did you define that?

[Rep. Abby Duke (Witness, House Commerce & Economic Development)]: We talked about them as healthcare providers. So it was a provider with a direct patient relationship.

[Marc Mihaly (Chair)]: And those, I assume, that it wouldn't simply be as simple as a non exempt employee or a healthcare provider. Because you have definitions, exceptions.

[Rep. Abby Duke (Witness, House Commerce & Economic Development)]: Yeah. I'll pull up that.

[Emilie Krasnow (Ranking Member)]: And does that include mental health, licensed social workers and psychiatrists and Otter Creek, bigger practices? I

[Marc Mihaly (Chair)]: don't know.

[Rep. Abby Duke (Witness, House Commerce & Economic Development)]: Yeah, no, it's a good question. I'll pull up that language, and I can also check-in with Sophie about that.

[Deborah "Debbie" Dolgin (Member)]: I'm going ask you one more question, which

[Marc Mihaly (Chair)]: is, forgive me, a little difficult.

[Deborah "Debbie" Dolgin (Member)]: No, no, I was just playing So with my my question,

[Marc Mihaly (Chair)]: which you can of course decline, AIDS, is, so what happened in the end, in your own words, and why wouldn't it happen with this? So what happened was,

[Rep. Abby Duke (Witness, House Commerce & Economic Development)]: we put a line in the bill that said this, as one of the exceptions to non compete agreements, was teacher contracts. Teacher contracts were exempt.

[Marc Mihaly (Chair)]: Teacher contracts were exempt from the prohibition.

[Leonora Dodge (Member)]: You could not compete if

[Rep. Abby Duke (Witness, House Commerce & Economic Development)]: you were a teacher. So, meaning, wait, this does not apply, I'm sorry, not exceptions, this bill does not apply to teacher contracts. So it basically said, we are not saying anything about non compete agreements with teachers related to teacher contracts. Because, so be our ledge counsel said, this will keep us from conflicting with some statute in the statute about teacher contracts. And that statute related to teacher contracts says, and you can go to, going off memory here, but basically says that if you are a teacher and you cancel your contract, you cannot work in any other public school in Vermont for the year.

[Emilie Krasnow (Ranking Member)]: And now I want to be clear, I think that needs to be discussed, not in here, but in a future legislature Ultimately,

[Rep. Abby Duke (Witness, House Commerce & Economic Development)]: I'll just boil it down, because I could talk for a long time about the nuances of this. Basically what it comes down to is the ability for teachers to get out of their contracts should be in their contracts. It should be in the collective bargaining agreement. The problem is it's not in their collective bargaining agreement, it's in statute. But how do you take it out of statute if it's not in collective bargaining agreement? It's like eggs before the chicken or the egg kind of a thing, right? So we have some groups saying, need to, and the amendment that ultimately killed this bill got rid of, deleted that statute. But if you delete that statute, then it should be in the collective bargaining agreements, but it's not there. How do you negotiate it in, right? So one party would say, well, I can't negotiate it, I'm disadvantaged because I need to negotiate it in if you've removed it from the statute, and the other party says, well, am I making sense? Yeah, well, was basically

[Marc Mihaly (Chair)]: the basically

[Leonora Dodge (Member)]: school districts, the employers would feel like, why would I add this?

[Rep. Abby Duke (Witness, House Commerce & Economic Development)]: Right, exactly. If now

[Leonora Dodge (Member)]: we are not forced

[Rep. Abby Duke (Witness, House Commerce & Economic Development)]: to do it. Right, Why would I add this to the effective bargaining agreements? And they say, and you put me at an advantage. If you delete this statute before it's an effective bargaining agreement, I'm at a disadvantage. And the teachers say, well, if you say this statute doesn't apply if it's in the collective bargaining agreements, they say, Well, why would the, then I'm at a disadvantage to get it into that. So the problem is it should not be in statute, but parties can't agree about how to get it into the collective bargaining agreements in a way that doesn't disadvantage one party. Is that clear as mine?

[Cameron Rutland (Office of Legislative Counsel)]: How frequently are teacher contracts negotiated? Three years.

[Thomas "Tom" Charlton (Member)]: Okay. So if we simply add in the sunset date to the statute, it's five years out. They know it's coming and they're all gonna have negotiations. With

[Cameron Rutland (Office of Legislative Counsel)]: that.

[Rep. Abby Duke (Witness, House Commerce & Economic Development)]: That was discussed. There were a number of things discussed. So I'm not gonna speak for why. A number of options were put out there. One included sunsetting the statute, giving time for it to come under the collective bargaining agreements, including some language saying, as soon as it's in the collective bargaining agreement, the statute goes away. For unknown reasons, to me exactly, an agreement was not able to be

[Deborah "Debbie" Dolgin (Member)]: gotten. Okay. And

[Rep. Abby Duke (Witness, House Commerce & Economic Development)]: here we are. So, really, other than that, I will say, I felt like the bill was very We worked really hard to balance competing interests and really, there was a lot of agreement that people, including folks who wanted the ability to have, at times, non competing agreements, really were in agreement that we need have to the right kind of parameters. So it was really this sticky issue that has been an issue for decades with a sixty five year old statute that shouldn't be there. Every other state in New England has the ability to get out of your contract in the collective bargaining agreement. That's the way it is done throughout New England. And there's no reason, the only reason it's not there is because it's in statute, right? And the wording in statute is vague, it's not even clear exactly how it works in statute.

[Marc Mihaly (Chair)]: So that is the way it's interpreted. Yes.

[Ashley Bartley (Vice Chair)]: What did you mean by statute goes away?

[Rep. Abby Duke (Witness, House Commerce & Economic Development)]: Well, meaning if we were to, let's say we were to repeal that piece of the statute. Okay. That's what I mean. It's like, how does one, so, you know, that's what I meant.

[Austin Davis (Lake Champlain Chamber, Director of Government Affairs)]: Okay.

[Rep. Abby Duke (Witness, House Commerce & Economic Development)]: Because deleting that, should that statute be deleted? I think it should, but you can't just delete it without taking into account the real world implications for the collective bargaining agreements. Okay, so the parties were

[Marc Mihaly (Chair)]: not able to reach the female.

[Rep. Abby Duke (Witness, House Commerce & Economic Development)]: Yeah. That is that the sum is, it was that very specific narrow issue, how do non competes apply or not apply to teacher conferences?

[Marc Mihaly (Chair)]: Is the theory behind this amendment, the alleged hope for Teflon of this amendment, would be that somehow non exempt employees aren't teachers?

[Ashley Bartley (Vice Chair)]: Yes,

[Rep. Abby Duke (Witness, House Commerce & Economic Development)]: also, yes, that non exempt employees are not teachers. And it also does not apply to collective bargaining agreements. And the only thing we know of in statute that could be, some people could interpret as a non compete agreement, or non compete sort of provision in statute relates to teachers.

[Marc Mihaly (Chair)]: Any other questions of any? Yes.

[Leonora Dodge (Member)]: Teachers didn't include higher ed.

[Rep. Abby Duke (Witness, House Commerce & Economic Development)]: This is specifically related to specifically, the statute specifically references public school teachers in Vermont.

[Deborah "Debbie" Dolgin (Member)]: So, this will help you. The FSLA, there is an exemption to the FSLA for educational higher ed private school teachers, there is an exemption.

[Ashley Bartley (Vice Chair)]: They would be covered under that. They're already allowed to compete, in other words. No, this had nothing to do with, if we're talking about the language of this amendment, and talking about exempt versus non exempt.

[Sophie Zdatny (Office of Legislative Counsel)]: There's already

[Marc Mihaly (Chair)]: Any other questions of Abby at this time? I believe, without knowing for sure, I suspect that labor is busy trying to think about this, and we will have witnesses in and may want you back, so we'll let you know. Sure, just let me know, I'm Yeah, you're very nearby, yes. Close my heart.

[Rep. Abby Duke (Witness, House Commerce & Economic Development)]: You so much. Yeah, you're welcome, thanks for having me.

[Marc Mihaly (Chair)]: Very helpful, actually. Thank you. Austin, come on up. Good afternoon, Chittenden. Knew you were a player in this, so we couldn't help ourselves. I think you've

[Austin Davis (Lake Champlain Chamber, Director of Government Affairs)]: identified Austin Davis, player and director of Deborah Debra Harris at the Lake Champlain Chamber. I want to back up for a second. Levelset, a non compete agreement is a legal contract or clause where an employee agrees not to enter into competition with their employee, employer for a specific period of time and with a specific geographic area after employment ends. In most states, including Vermont, a non compete is forcible if it's considered reasonable by the courts. They generally look at the duration that you're not allowed to compete after you leave a tournament. In this state, one year is generally, if I

[Marc Mihaly (Chair)]: were to kind of look at

[Austin Davis (Lake Champlain Chamber, Director of Government Affairs)]: the case law, it's generally what's reasonable. You get beyond that, seen as unreasonable. You get below that, you're very reasonable. Geography, that can vary, but it has to be reasonable depending on what the work is. So if you're competing at a global scale, like we have employers here that are competing with Amazon and Sony and Microsoft, they might have a very broad geographic scope on it. We might have folks that have just a matter of a few miles for their scope on it. And again, that's all based off our rich body case law. And then there's the scope of work, what are they actually doing? But I think it's worth at this point to kind of like zoom out and just unwind. I feel like there's a little bit of just kind of implicit bias and conversation up to this point around this. These are not about strictly protecting one entity or the other. They're about balancing protections for the employee and the employer. And when we think about balancing protections and we think about the protections of the employer, it's also worth noting that you're protecting all of the other employees that the employer works with. Because if I am working in a startup in South Burlington, and I have a crucial amount of insight into this company, and we're using first mover advantage as a cutting edge startup, and I want to leave and go to a very well money competitor who wants to do what we're doing in this pretty little state, I can basically just make that startup superfluous and I can ruin the lives of every other employee at that employer. There's an ethical component to these things that I think has been lost up until this point of conversation. And I think a great example, the ethical component of this is the very own ethics agreement that you folks all are under as legislators. It's not technically a non compete agreement, but it tracks exactly like a non compete agreement. You folks are all prohibited from lobbying within the state of Vermont for one year after the completion of your term as a legislator. That's a prescribed and reasonable duration, geography, and scope of work. They're not saying you can't work in Vermont at all. They're saying you can't lobby in Vermont. They're not saying you can't lobby in Massachusetts or Maine if for some reason that works for you. They're just saying here where you have an ethical duty and you could sell out your colleagues or utilize things that are not on the open up, can't work here. And for one year, it's just one year of your life that you can't do that. After one year, you can come here and you can lobby all you want. So I think that's just kind of some of the level setting I wanna do. So from there, have just like six points to make and then about three questions. So one, I just said that I'm pretty lonely here today. I was with a lot of folks in the company of many folks up until this point. I've worked on this bill since 2018, not this bill in particular, but this subject matter since 2018. It's a very needy, very difficult one with no easy answers. Because of that, part of the reason of that is that non compete agreements are really about interstitium. I don't if folks are familiar with the term interstitium, but it's kind of like the connective tissue and whateverness that goes between organs and cells and everything else in the body. Yes, there's trade secrets. Yes, there's nondisclosures. Yes, there's non solicitation, but really kind of what connects and what's in between all those gray areas, all those places you might not have thought of is not being integrated. So it's on a very difficult road. And over the last eight years working on this, there have been many folks involved in this conversation. Just recently after the last legislative session about a dozen at max, not everyone participated regularly, but about a dozen folks were asked to engage on this in a working group for the summer and fall. And we brought, as Representative Duke said, a letter to the committee on commerce and economic development outlining some of our ubiquitously held points and some of our agreements, some of the things we couldn't make headway on. But I just would point out that I'm just one person, there's many folks that have been enrolled at the summit. Frankly, I think if you're starting, you almost have to start with

[Deborah "Debbie" Dolgin (Member)]: all of them. You can't really read any

[Austin Davis (Lake Champlain Chamber, Director of Government Affairs)]: of them out. I'd also say, frustratingly, the folks who have come to an impasse at the eleventh hour and have made this bill go back to committee were not involved in any of this for the entirety of the time I've been working on this particular issue. I've never actually engaged or had any interest from the education committee until this particular session on this legislation. So it personally is a little bit frustrating, though I understand where they want to be involved. You're not at table, you're on the menu, but they have not been involved. And from my perspective, actually, bill as directed coming out of committee could have just kept the language that it had and it would have kept the status quo. It was really the following proceeding floor amendment that asked the question and created the impasse.

[Deborah "Debbie" Dolgin (Member)]: So number two, thanks for

[Austin Davis (Lake Champlain Chamber, Director of Government Affairs)]: bearing with me. This You has happened overnight. We've really worked on this thoughtfully. Some of the language that your alleged counsel actually attributed to the House Health Care Committee did not in fact come from the House Health Care Committee. It came from our working group this summer. We all kind of agreed in these instances around health care, this language is appropriate. I think we all did agree that we needed some kind of income based threshold and a clear modern metric to set the rules of road. There's pretty ubiquitous agreement that we don't want low wage employees using these. The issue is where does that low wage start and how do you understand in context of say startups or places where employers want to bring employees into decision making in a really progressive way, how do you ensure that individual is not at a level of salary, but maybe aspirate from climbing, that they can still get access to all that information. I think this two zero five, I mean, it represents an outcome that didn't make everyone happy, but despite that, I think everyone thought that it was worth passing and it was the best that we've seen in all of these years of conversations. I think what you have in this amendment before you has been tossed around numerous times and tossed out just as many times. I think it doesn't necessarily strike the balance that folks are looking at. That leads me to point three, which is these things need to be applied judiciously. Vermont's current reasonable status standard has been shown to not be a problem. It's working well. We have rich case law behind us. One thing we've said in the past is a great place to go would be maybe just codify case law because what we hear when we say we have rich case law behind these agreements is well, people can't read that case law. We say, well, then maybe we need to start this year with just codifying the case law. So everyone can see it in the green books. But these are really, because they focus on that kind of unique connective tissue between different aspects of business and they are trying to balance the interests and needs of all these different people, these agreements are really complex. So you lose a lot when you try to handle them in statute. The really best, not legislated, but almost litigated or having someone look at them and judge them on the totality of all the circumstances and criteria. So we haven't seen an issue in the state. I think Representative Dukkan pointed out, we haven't really gotten that many issues these being we haven't seen issues of these being abused necessarily. We've seen examples of, if you Google examples of fast food chains and other states using these, we've not been able to find, we've asked ad nauseam for such examples of abuse, raison d'etre for this legislation and we've not gotten that in the past. So we're purely working on hypothetical threats. And now we kind of get to this FLSA design, which I think is really potentially the wrong tool. It's using apples to oranges potentially. And I think the FLSA was designed in the 30s to deal with overtime and labor expectation. I don't think it was intended to necessarily do this. There's a potential Venn diagram problem here where it doesn't neatly line up. I don't think everyone who is non exempt necessarily should be left out of this and then not everyone who So is exempt should be using one of you kind of have a problem here where you're tugging on like a spaghetti chart that is the Fair Labor Standards Act. And when you tug spaghetti across the table, it's not a clean drag across the table. It gets messy. So it'd be better to maybe not tie directly to that language and that statue. All of that said, I might have seemed sort of negative. I'm not ready to completely bastard my office at this moment. I got word of this on Monday. I got language this morning. I've battered around in my email with a

[Rep. Abby Duke (Witness, House Commerce & Economic Development)]: couple employment

[Austin Davis (Lake Champlain Chamber, Director of Government Affairs)]: attorneys. I have had a little bit of time with all of my free time today to think through some of the consequences of this, but I don't think I'm ready to necessarily say here, hey, as I sit in this chair before you. What I would say is, I would ask, are you trying to do just something? Are we trying to say like after years of going through this, we wanna just get something? One thing I would say is maybe then just drop all of the extraneous language around fairly for standards act and just start this year with just a wage threshold and maybe look at the overtime wage threshold. That's a very clean, neat, tidy, not referencing back to Fairleigh or Sanders Act, but just that number purely and just do that. You can

[Marc Mihaly (Chair)]: explain, don't assume everybody understands that.

[Austin Davis (Lake Champlain Chamber, Director of Government Affairs)]: So as you've heard a couple of folks talk about today, that there is a potential wage threshold by which overtime compensation kicks in. If you would like to just do a clean, neat amendment this year that I think no one would push back upon and doesn't get into any of the other extracurriculars conflict that's been around this, the easiest thing would just be to target that number. I'd say target that

[Marc Mihaly (Chair)]: This is the salary number at which point Yeah, overtime kicks

[Austin Davis (Lake Champlain Chamber, Director of Government Affairs)]: so that was $35.06 thirty six years ago. Think it went up to,

[Rep. Abby Duke (Witness, House Commerce & Economic Development)]: what was it we said earlier?

[Austin Davis (Lake Champlain Chamber, Director of Government Affairs)]: 35. Brain's not firing all solids.

[Deborah "Debbie" Dolgin (Member)]: But no one in the

[Austin Davis (Lake Champlain Chamber, Director of Government Affairs)]: people who I've engaged with over the course of all of my discussions has any issue with people below that number not being able get these agreements. Folks are focused on people above those agreements. And I think for the most part, a lot of the constituency that I have and that I've engaged with and other stakeholders, they're even fine with a higher number than that, but they do have also the understanding that there are people who are in a situation where their salaries aren't quite low, but it's because they're at the ground floor of something new. If you're working startup out of Burlington Southend, you might be making 35,000 a year. You're there,

[Marc Mihaly (Chair)]: fishing from

[Austin Davis (Lake Champlain Chamber, Director of Government Affairs)]: God, you've got the special sauce and you want to start this company, your salary will quadruple that within couple of years, but for right now. And the worry at that point is if you prohibit non compete agreements from this person, they could lose the first mover advantage. There's If four of us and we've all agreed we're going to work on this project and we all know And sometimes a lot

[Rep. Abby Duke (Witness, House Commerce & Economic Development)]: of people think like, oh, it's

[Austin Davis (Lake Champlain Chamber, Director of Government Affairs)]: a special sauce. That's trade secrets. Don't have pizza there because sometimes it's not a special sauce. It's all the ways not to make the spongy sauce, which are also valuable. It's all the doors not to knock on for financing. It's all these other things. And that knowledge combined with first mover advantage, like if I want to just go to Amazon and say, hey, look, I think from this little Vermont startup and 're doing fantastic work on X, Y, and Z, moving a little slow. I have your resources. We can move right away on this. That's a very real threat for a lot of our entrepreneurs. So that's where the salary threshold, like what prohibits a lot of us from allowing it to wanting it to go higher, in a nutshell. But all this is to say, I think the threshold that you identified with the Fair Labor Standards Act, I don't think you'd find anyone who would say, We want Mountain Beans below that threshold. You're not going find anyone. I think the only place where people kind of start to get some adage to us apart from that statute is when we have all the situation, as I said, there's some people who would trigger that non exempt status but should be covered by this but for that and then vice versa.

[Deborah "Debbie" Dolgin (Member)]: Leonora, do I have first Leonora? Okay, thanks. I think we did the same thing. So

[Leonora Dodge (Member)]: I'm just hearing, I just want to voice, like what I'm hearing a lot for the, these non compete protections could be maybe not beneficial for the public good may not be for the public good when we're talking about the interests of a small startup losing employees to a big company that you can't compete with. Was there an effort to put, say, that scenario into statute instead of getting rid of all of the protections that we think could benefit a lot of people?

[Austin Davis (Lake Champlain Chamber, Director of Government Affairs)]: Well, mean, that's just one example.

[Leonora Dodge (Member)]: Without hurting a company?

[Austin Davis (Lake Champlain Chamber, Director of Government Affairs)]: This is where it gets very,

[Rep. Abby Duke (Witness, House Commerce & Economic Development)]: I feel like it's very specific.

[Austin Davis (Lake Champlain Chamber, Director of Government Affairs)]: That's why I kind of sound like they really need, these are things that are not really well legislated. You really do need a judicial officer to preside over the entirety of the circumstances and criteria. Because there's so many other things at stake. And like I said, there's also that just broader kind of ethical considerations that I think we all wanna, like we don't talk about often in this, but are obviously important to the legislature. They've created an agreement not to compete, not in name, but in practice for working tribute because they worry about abuse of knowledge that you have. So it's like, why would you not extend that same protections to your constituents that you thought were important in the context of retiring legislators? So it's not an easy, there's no easy answer. And that's why I think we've gone over this for eight years. I think that honestly, from my perspective- Well, I'm sorry, can I respond to that?

[Leonora Dodge (Member)]: I think the reason for doing and you're not allowed to lobby, isn't because you're gonna compete with the legislature, it's because you're gonna undermine democracy. It's different than building a business.

[Austin Davis (Lake Champlain Chamber, Director of Government Affairs)]: Yeah, I think like you're gonna undermine a local Vermont business potentially by leaving with the trusted information. I mean, if you think about a family business, if you think about someone who's brought someone into the fold to show everything to them, they're trusting that person to not exploit that trust. And there's the trust but verify and that's a non compete. It's, I'm trusting you to come into the fold and understand everything about generational family business. But I also wanna put some guardrails on this to make sure that that trust doesn't get violated. Ironically, actually, say this as someone who's famous in the case law, Boise Orthopedic versus LaMont is my family business in 1987, I believe. It established some of the reason most doctrine and blue penciling for the state. Emilie?

[Emilie Krasnow (Ranking Member)]: Yes, for the sake of time, I was wondering, I know I don't want to give you extra work, but you seem invested. Wondering if you would be willing and able at some point to help us out as a committee and write up what you had said would be kind of the benign approach just so we can look at that. Then, like, I can't, I didn't write it that way.

[Rep. Abby Duke (Witness, House Commerce & Economic Development)]: The benign approach is

[Austin Davis (Lake Champlain Chamber, Director of Government Affairs)]: just to find a wage threshold.

[Emilie Krasnow (Ranking Member)]: Someone here besides me I wrote that

[Austin Davis (Lake Champlain Chamber, Director of Government Affairs)]: think you identified as a group that you like the FLSA overtime wage threshold.

[Marc Mihaly (Chair)]: I don't think we decided what we're We're

[Emilie Krasnow (Ranking Member)]: just kind of, but I your opinion and expertise in this matter. And so I would like to weigh your recommendation, if you will. I know you didn't say you have a formal, but that would be helpful to see what your floor is, or ceiling, rather.

[Marc Mihaly (Chair)]: The overtime wage threshold sounds like that was one where you felt Overtime. The overtime wage threshold is the salary amount at which point overtime kicks in, And he's saying he can't think of any group that would oppose that. And I guess I would like to refine what was just suggested. He'd say, give it twenty four hours of thought and give us some language. I do want to know, just back to your Venn diagrams, who might be included in the FSLA language and excluded from the wage threshold or vice versa? Well, the wage threshold's kind

[Austin Davis (Lake Champlain Chamber, Director of Government Affairs)]: of, you know, very clean. That's a one gate test. So if you're below it, you don't have to worry about one of these, it's great mess. When you start looking at FLSA Then you've got all these criteria. And that's where it gets messy too because I might go through one gate but not through another. You look at things like, Fair Labor Standards Act looks at number of subordinates. Well, you're a Vermont small business, you might not have any subordinate but you are definitely a C suite employee who is exempt. And that just gets complicated. And that's why you folks also, not so much in this by name, but in past by names, talk to nausea about misclassification because it gets really complicated. So I'd rather not get into how we'd support. I understand, that response. Ashley?

[Ashley Bartley (Vice Chair)]: I was just going to give educators. This is a perfect example of the Venn diagram. It is an FSLA, they are considered exempt. We all know that our educators don't always make the best salaries out there.

[Rep. Abby Duke (Witness, House Commerce & Economic Development)]: So there are a lot of

[Ashley Bartley (Vice Chair)]: nuanced examples and exemptions made in the FSLA. And the duties also make it really difficult. So you can have somebody who's like a graphic designer, and that's very creative, and because that's a

[Deborah "Debbie" Dolgin (Member)]: creative art, they could be exempt, while also making pennies.

[Marc Mihaly (Chair)]: Any other questions of Austin? Austin, thank you very much.

[Emilie Krasnow (Ranking Member)]: We haven't seen you in a while.

[Austin Davis (Lake Champlain Chamber, Director of Government Affairs)]: No, I've been a little preoccupied.

[Deborah "Debbie" Dolgin (Member)]: Yeah, you know the babies.

[Marc Mihaly (Chair)]: Thank you. Thank you. So, we are now just for members of the committee and the public, but I think the next step will be on this. We're just considering it. We're gonna talk to counsel again and hear from a few more witnesses probably tomorrow or the next day, tomorrow afternoon. In Sunday morning, we're going to be doing our field trips. While I'm on the air, tomorrow the committee is going to go to Huntington Homes and meeting at 09:30 at Saudia LaMont as a field trip, an exploratory field trip. So now we're going to go back to 03:28, and we have counsel with us with a the latest markup of 03:28. Cameron, do you wanna join us? This is draft. Where are

[Emilie Krasnow (Ranking Member)]: we at? Oh, it's not that many.

[Marc Mihaly (Chair)]: This is draft 1.2.

[Emilie Krasnow (Ranking Member)]: Does everyone have a good draft or need a copy?

[Marc Mihaly (Chair)]: We all have draft 2.1.

[Leonora Dodge (Member)]: We just got it. Miriam's on top

[Ashley Bartley (Vice Chair)]: of it. Miriam is totally Tuesday.

[Leonora Dodge (Member)]: I'm Draft Master.

[Marc Mihaly (Chair)]: All right,

[Cameron Rutland (Office of Legislative Counsel)]: for the record, Cameron Rutland, Office of Legislative Counsel, I made the mistake of working and not logging into the Zoom while I was sitting on the sidelines, so give me a second while I pull that up. But happy to walk through draft number 2.1 of your amendment to S-three 28. Before I share my screen and we get started, I'll just comment that the changes from the last version are highlighted in yellow. We have a few tweaks, and then there is the addition of a new section at the end. I'm coming into the Zoom,

[Thomas "Tom" Charlton (Member)]: and then I'll share my screen.

[Emilie Krasnow (Ranking Member)]: Anyone gonna hit up free cone bag?

[Ashley Bartley (Vice Chair)]: Is there a Ben and Jerry's near here?

[Emilie Krasnow (Ranking Member)]: Waterbury, I guess.

[Ashley Bartley (Vice Chair)]: Oh, yeah, right.

[Emilie Krasnow (Ranking Member)]: All right, I was coming.

[Marc Mihaly (Chair)]: Can get a little picture? Yes,

[Cameron Rutland (Office of Legislative Counsel)]: sir. Okay, draft 2.1, 3.28. First change, common interest community resources, section one, adding a section three BSA 119. This is, if you recall from our conversation last week, there was a bill that was introduced, required the state treasurer to contract with a nonprofit for the creation of a Comprehensive Community Resource Center. To have them provide the information on a free online website. And then I mentioned last time that we had discussed, I had shared that information with the Secretary of State but they hadn't yet provided any feedback. So they provided some feedback, I think to you all as an admitting, but it came to me and then I further narrowed down the language to what you have here on the page. I will comment that at this point in time, I don't really know what the language on the page is really intended for because I think it probably is just as easy to have the Secretary of State's office commit to doing this on the record as opposed to taking up a specific statutory section for this language because it does simply say that they will provide information to the public and the information shall include the governing statutes. Governing statutes are already published, they're published on our website. And so a lot of the substance of what was going to be provided has been removed. So I'm not telling you you can't have this. If you think that it's important to specifically call this out and feel that it needs to be in statute to ensure that the Secretary of State does this, there's something prohibiting you from doing so. I'm simply making sure you all are aware that I generally wouldn't advise having something so high level in the statutory section because, again, I think it's probably just as easy to have their verbal agreement to accomplish what you're trying to accomplish. But I understand that there may be reasons that you want this and so

[Emilie Krasnow (Ranking Member)]: Me, me. No, I'm going to

[Deborah "Debbie" Dolgin (Member)]: level with the committee and let's see

[Emilie Krasnow (Ranking Member)]: what you guys think. So, Cameron and I talked about this previously, and here's my thoughts. But I'm not a lawyer, and I'll go with however the committee feels. This started for myself and Reptore and a couple other folks who had this request from constituents. I personally like having it there so that people can then see it in our bill, know that we did it, gets it a little more I don't know. And then But what happened was the language that Cameron originally had was when he put was to create a website. So as you'll recall, they aren't creating a new website for this. That's not the right language. What they what I like about the language, while it does seem very lean and vague, and, you know, it basically has them keep the accountability to keep updating it, to have it somewhere. But the language is vague, whereas it could be like, they end up just having, we talked about this, a link on their website to the statute somewhere else. Right? Like, it may not even be on their web. We don't know because it's that big. So I won't cry in a corner if people just want to not have it in there and they seem like they'll do it anyway, But it wasn't really a commitment on record. They didn't make the suggestion that you did saying, why do we even need this? So they're not mad about it. So I don't see the harm of having it in there, but you're our lawyer and your advisement was that it seems maybe unusual to have something this vague in statue. And that may be the case. So what are people's thoughts also? Like, we don't need to spend a lot of time on this. Tom, whoever, what do you think?

[Thomas "Tom" Charlton (Member)]: Just to leave it in there because I see this

[Marc Mihaly (Chair)]: is what

[Thomas "Tom" Charlton (Member)]: I see in the value of it.

[Rep. Abby Duke (Witness, House Commerce & Economic Development)]: Okay.

[Thomas "Tom" Charlton (Member)]: We get the the chance to talk about it for hours and hours. If somebody has a question and they don't know where to find the answer, even if they go to the page and the first words they see are, it depends. Is it a condominium? Is it a manufactured home park? Is it a HOA? When and the next set of questions are when was it formed? Then it takes you to a couple of resources. That would take me, not having had

[Ashley Bartley (Vice Chair)]: Right.

[Thomas "Tom" Charlton (Member)]: The advantage of these conversations, that would take me weeks to try to figure out with no direction. So there is value even in just doing that.

[Emilie Krasnow (Ranking Member)]: Yeah.

[Thomas "Tom" Charlton (Member)]: So I think that

[Rep. Abby Duke (Witness, House Commerce & Economic Development)]: I don't see the harm,

[Emilie Krasnow (Ranking Member)]: but I'm not in charge.

[Marc Mihaly (Chair)]: Oh, there's I guess my feeling is, I would actually add to the one. I definitely think it's worthwhile having it there, there's no harm in it, they've committed to it, it memorializes the commitment. They didn't want us to say on their website because what happens? It was a fairly lame reason that maybe Websites will be obsolete. But, you know, it will be obsolete. Hell. So will I. I think that it could say it could say the secretary of state shall provide information on their website or otherwise disseminate to the public.

[Emilie Krasnow (Ranking Member)]: Right.

[Marc Mihaly (Chair)]: And that would give them the discretion on how they do it.

[Ashley Bartley (Vice Chair)]: Am I mistaken in my memory in that one of the concerns was the information that they have, and so they said public information. I think, I don't know why that stuck out in my head. It was in that it was something, I thought she had mentioned as opposed to information to the public, it's whatever, information, not specific to each community because they're all different. And which, just to extend on that, but just to clean that up a little, I think that was the request was to say public information because that way it's not, when they don't have the answers, they can say, you know, it's there, but it's the information that is the general line of information. I thought that was what

[Leonora Dodge (Member)]: she said, but I may be mistaken on that. Right, I think that it was like, this wording might sound a little too much like still a call center.

[Emilie Krasnow (Ranking Member)]: Right. They said this was okay.

[Ashley Bartley (Vice Chair)]: Right camera? What saying. Oh, thank

[Emilie Krasnow (Ranking Member)]: What you

[Cameron Rutland (Office of Legislative Counsel)]: see on the screen Fairly, what they written feedback.

[Marc Mihaly (Chair)]: Oh, it's something. But we can deal with that easily enough that you can conceivably say the Secretary of State shall provide

[Deborah "Debbie" Dolgin (Member)]: But I believe should do that, it's clear to make sure.

[Marc Mihaly (Chair)]: Secretary shall of provide publicly available information on their website or otherwise disseminate about Vermont's common interest communities, run that up the flagpole and see if they have problems with that.

[Emilie Krasnow (Ranking Member)]: Yeah, let's run it up the flagpole. Anyway, I don't really, I'm not like it is

[Marc Mihaly (Chair)]: Unless it's worth doing.

[Deborah "Debbie" Dolgin (Member)]: Let's do it. Is worth Let's

[Emilie Krasnow (Ranking Member)]: No fight. No fight left.

[Deborah "Debbie" Dolgin (Member)]: Alright. Section two. But thank you.

[Marc Mihaly (Chair)]: Yeah.

[Emilie Krasnow (Ranking Member)]: Said there weren't getting any more know. Creepy. Well, I go I

[Deborah "Debbie" Dolgin (Member)]: told Jeff, you know? He

[Emilie Krasnow (Ranking Member)]: did, he did. I said he was done with my request.

[Cameron Rutland (Office of Legislative Counsel)]: Yeah, we'll see what they do.

[Leonora Dodge (Member)]: I can't help but think that It definitely feels like this would be a missed opportunity if we don't have some help with the Like our goal is to make sure that A, the Secretary of State's office is not considered a stand in for getting legal advice, but also there should be, I feel like some indication of some of the questions that might arise or that have arisen that they get, like some sort of FAQ that at least to mention like, know, solar panels that, you know, to avert, but like, I'm just saying like some indication of like, didn't want

[Emilie Krasnow (Ranking Member)]: to be told what to do.

[Rep. Abby Duke (Witness, House Commerce & Economic Development)]: Yeah, yep.

[Deborah "Debbie" Dolgin (Member)]: But we can

[Leonora Dodge (Member)]: tell them anyway. What

[Marc Mihaly (Chair)]: I'd like them to do, I didn't think they were going to do, but let's start here. Let's throw in a little more language and start here and see what they do.

[Emilie Krasnow (Ranking Member)]: Yeah, let's test the waters. Maybe they're listening.

[Marc Mihaly (Chair)]: Okay, so the next thing I is agree. It should tell them

[Deborah "Debbie" Dolgin (Member)]: that state

[Marc Mihaly (Chair)]: law contains the following common provisions that you should know about: bullish, bullish, bullish, But they

[Emilie Krasnow (Ranking Member)]: don't want us to signing the web page, because then what didn't want to over, what did she say to me, she didn't want to overpromise and under deliver.

[Deborah "Debbie" Dolgin (Member)]: Yeah, let's

[Marc Mihaly (Chair)]: see if they underpromise Which I

[Emilie Krasnow (Ranking Member)]: get, and it's what they say, lean office.

[Marc Mihaly (Chair)]: Okay, next. So we've already sectioned lot of segments.

[Cameron Rutland (Office of Legislative Counsel)]: Page four, we're talking about service supported housing and the service supported housing advisory council. So when we get to page four, you all remember there was some discussion primarily you know, Representative Burrows wanting to make sure that you're very clear about what individuals you're trying to serve here and as part of the recommendations for future action that has to be included in the report, the annual report from this council, making sure you're targeted in the population that you're trying to serve. Subsequent from that conversation, I received some feedback from Kristen Murphy directly about trying to ensure that the language is right And

[Marc Mihaly (Chair)]: this

[Cameron Rutland (Office of Legislative Counsel)]: is what she recommended, was just to reference back to the language that's used above in the section. So this is about creating housing needed by individuals who are eligible to receive Medicaid funded developmental disability services. So this is the recommendation from the individual who was on the study group that you all created that ultimately resulted in a recommendation of creating this council. This is one of the experts in the area. So I deferred to that person, inserted their recommendation here. If you have potential tweaks about the language to get it exactly how you want, I would potentially recommend having that witness back. And then with the expert, nuance on the language specifically and let us know what

[Marc Mihaly (Chair)]: I think it's my own feeling is this is great. Everybody okay with this for the moment? Remember, we're not voting, we're just for this draft. Okay,

[Cameron Rutland (Office of Legislative Counsel)]: the next piece is in the initial report. This is section 2A. This is where you're asking them in that initial report to come back with a potential per or excuse me, per acre surcharge on lands that are in the use value appraisal program. And we're trying to make sure that they're only looking at lands that are utilized as a second home that are in the use value appraisal program, so that's the change there on lines ten and eleven. So it would be implementing a per rate per surcharge on lands enrolled in the use value appraisal program that included dwelling used as a secondary home. It's pretty just plain language because in talking with Kirby Keaton in our office who covers tax areas, he said I would just be plain language to keep it flexible for them so they can look at it. I would request that you speak with Dani Fisko.

[Marc Mihaly (Chair)]: I will send that to I reached, she, I ran into her, and I heard from a member of her staff that they have some issues. I don't know, though, they haven't seen this language. No, sir. But I think that I promised Danny that you would be in touch. She's really great. I think that there might be various hidden problems that we don't know about, she's a good place to start. I also think, I just want to tell members of the committee, I will talk to David Durfee about this, because there may be some issues for agriculture in here that we don't know about. I mean, it's just a study, but

[Cameron Rutland (Office of Legislative Counsel)]: That was going be one of my comments to you, and potentially the committee, etcetera. At this stage, it's just asking them to look at this and include some information in that So I wouldn't get super hung up on making sure it's as technically narrowly designed as you potentially need it to be. If they came back with a recommendation that you wanted to move forward with, then obviously

[Marc Mihaly (Chair)]: you would There's want to stay on other committees that will want to hear it. The reason that I want you to talk to Jamie is ideally I would like to get to the point where Annie can inform the administration that they don't have a problem with this study.

[Cameron Rutland (Office of Legislative Counsel)]: I will send that over as soon as we wrap. I mean, you can't get there, I don't want to do

[Marc Mihaly (Chair)]: it, but let's see. Okay,

[Cameron Rutland (Office of Legislative Counsel)]: so the next page is going go all the way down to page 15.

[Ashley Bartley (Vice Chair)]: Can I just have a very basic book?

[Leonora Dodge (Member)]: Sorry, I feel like I missed. Did this, if this language is just about Medicaid funding, development and disability services,

[Deborah "Debbie" Dolgin (Member)]: housing. About creating funding for a tax.

[Leonora Dodge (Member)]: It's a tax on a second, okay.

[Marc Mihaly (Chair)]: It's a potential surcharge on lands that would be used to generate funds that would be used for disability. For the benefit of the housing, okay. Okay,

[Cameron Rutland (Office of Legislative Counsel)]: so we're gonna go to page 15. This is the farm worker housing report, and I've simply made the alterations that were requested by BHCV to make sure that it is a written report updating you on the progress made toward meeting the goals identified in that report so they're not having to do the report again and then change from I think it was on farm housing to farm work. Changes there. Next change is going to be on page eighteen and nineteen and this is where I have added in the section to amend the fiscal year '24 appropriation to BHCD to add in that of the $10,000,000 allocated here expanding what it can be used for. So currently it's support and enhance capacity for emergency shelter and permanent homes for those experiencing homelessness, and then it's adding in here or who need supportive housing, and then separately including the same language about funds shall be used to create housing for individuals eligible to receive medication funded developmental services. For the committee, I'm reminding you, this came to us, we have testimony of this, This came to us from VHCP, but

[Marc Mihaly (Chair)]: the disability advocates, and then, yes, also VHCP, because, as I understand it, they were not, for various reasons, able to spend all the money on shelters, and have some left over, and they have disability projects ready to go, and could use the money for that. I asked them to check with Teresa Wood, and she was very favorable. The course of this, how we do this, I confess, Let's say we leave this in, and let's say we pass this bill, this bill will then go both to Ways and Means and to, most importantly here, appropriations. I don't know what appropriations does because they they don't have a budget. You know, I just don't know. But the whole point is it's a signal to the senate because the senate has the budget, which will come back to us. So don't ask me exactly how this works. I don't know. I just know it works. I just don't know how it works.

[Cameron Rutland (Office of Legislative Counsel)]: I believe the Appropriations Committee is aware or is going to be made aware of the same language and agree to put it in, it goes to House approach. I presume that they would remove it because as you mentioned, they don't have to. They could leave it in. It could be a standalone amendment to FY24's budget.

[Deborah "Debbie" Dolgin (Member)]: I'm confused. You too.

[Rep. Abby Duke (Witness, House Commerce & Economic Development)]: Money has already been appropriated. Correct.

[Ashley Bartley (Vice Chair)]: The HCB already has that money. Correct.

[Marc Mihaly (Chair)]: They just can't use it.

[Leonora Dodge (Member)]: So we're giving them a new purpose that they can also use it towards, is that?

[Cameron Rutland (Office of Legislative Counsel)]: So what happens is you've appropriated the money, if they haven't spent all of it, they can ask for it to be carried forward into additional fiscal years. Okay. So presumably because they're asking for this they still have some of this money left that they requested carry forward to continue to extend. So what this amendment would do is it's going back and amending that one time appropriation language the FY24 big bill, to authorize it to now be extended for these additional purposes.

[Ashley Bartley (Vice Chair)]: So then would it go into FY27's

[Cameron Rutland (Office of Legislative Counsel)]: they've asked for that money to be carried over, then this change was included either in this bill or put into the budget, either or, then it would expand. It can live in this bill, it's just amending an act that was previously passed. You all, as you know, the appropriations committees typically strip those things out and put them all consolidated into either the BAA or the budget. So the appropriations committee could take this out and it could just become part of the budget conversation between the Senate and the House as they're doing their conference committee negotiations and ultimately make it in the budget

[Marc Mihaly (Chair)]: Or The '27 budget could contain language

[Cameron Rutland (Office of Legislative Counsel)]: Could contain this exact language.

[Marc Mihaly (Chair)]: One day of language amending the '24 budget.

[Deborah "Debbie" Dolgin (Member)]: Wow. Alright, live and learn. Does that answer your question by any means? It just seems silly. Yeah, that's fine.

[Sophie Zdatny (Office of Legislative Counsel)]: Like we should have put it in the '27 budget.

[Ashley Bartley (Vice Chair)]: No, I just think that,

[Marc Mihaly (Chair)]: I don't know, maybe just

[Ashley Bartley (Vice Chair)]: my brain works, it's already been appropriated.

[Rep. Abby Duke (Witness, House Commerce & Economic Development)]: Why can't we just tell the HUB, yep, we're good with it. Otherwise

[Leonora Dodge (Member)]: what, they would have to return it?

[Marc Mihaly (Chair)]: It sits there, it's $2,000,000 of the tenant just sitting there.

[Deborah "Debbie" Dolgin (Member)]: Is it sitting I don't

[Cameron Rutland (Office of Legislative Counsel)]: know how much they have left.

[Deborah "Debbie" Dolgin (Member)]: Alright, at this point, go ahead, please. If it was for the same exact purpose as originally allocated, would it then still need to go through this? It wouldn't be here. It wouldn't be here.

[Cameron Rutland (Office of Legislative Counsel)]: The only reason you're amending it is because you're expanding the statutory authorization for what they could use the money for. And because it was appropriated in 'twenty four, you have to go back to the appropriating language to make the change there.

[Marc Mihaly (Chair)]: So it's the budget,

[Deborah "Debbie" Dolgin (Member)]: we always use the money and

[Marc Mihaly (Chair)]: tells people what they can spend it for. So, where we are is, at this point, we do not have right, I'm getting at it. At this point, this graph just sits here. Elizabeth is down in the senate. I just wanna say, Elizabeth wanted us to at least discuss a universal design amendment, which would find its way into here, and at her request, prepared a draft. And I think even though she's not here, it would be fine to just put it up, Cameron, so that people can see it. It's pretty straightforward, It's what it really

[Leonora Dodge (Member)]: clear, yeah.

[Deborah "Debbie" Dolgin (Member)]: It's a good language.

[Rep. Abby Duke (Witness, House Commerce & Economic Development)]: Is it the eight zero two harms

[Marc Mihaly (Chair)]: still? Actually, yes, partially, yes. So But I have, before you go ahead, I have had conversations because I asked people, I asked the person, Chris

[Rep. Abby Duke (Witness, House Commerce & Economic Development)]: Yeah,

[Marc Mihaly (Chair)]: tell People who work on eighty two Homes, I asked Chris Cochran, but also, who testified this morning, about Commissioner it, but the problem was they couldn't open it, so they don't know what they think yet. We can look at it.

[Cameron Rutland (Office of Legislative Counsel)]: So draft 1.2, and it just says language for S-three 28 because I drafted it up in the same way that I drafted up some previous language that you ultimately have in this amendment. As you can see the first piece would really be an amendment to section four, which is the off-site construction accelerator pilot program. So what you have, all of these are highlighted because I'm adding in a section two. So because I added in a section two, I had to move up and add a section one and then bump everything kind of down the line to the uppercase letters there. So there's no changes in the B1A guarantee. So it's really the subdivision two here. So it's saying that under this pilot program, housing units funded through the pilot program shall incorporate universal design elements to ensure accessibility to the greatest extent possible to all individuals regardless of their age, size, ability, or disability. And so if you recall, it's the pilot program working with municipalities. The treasurer's office can use some of the money through the credit facility changes that you all made at seven seventy five. So if housing units were to be purchased, they would have to incorporate universal design elements. And then you get to page two towards the bottom here. This is the report. On a report 11/15/2029, the agency has to submit the report to you all. The report has to include certain information and there in line 17, information on whether to enact statewide building code or codes for off-site construction, including whether to enact building code elements related to universal design.

[Marc Mihaly (Chair)]: So that's the

[Cameron Rutland (Office of Legislative Counsel)]: pilot, but then you have this language here on page three which as you can see is just listed as a section X because you know depending on where it would be located, it says that this would be session law language as part of its efforts to develop the Homes for All eight zero two Homes catalog. I took that phrasing from their website, I would defer to the department of whether it needs to be tweaked. I don't know their formal naming of what this catalog is, but that's my understanding from the information on their webpage. The Department of Housing and Community Development shall incorporate universal design elements into each draft home design to ensure accessibility to the greatest extent possible to individuals with dollars that

[Marc Mihaly (Chair)]: are age, sizability, or disability. Just for the benefit of people Elizabeth really wanted to put this forward to discuss it, not necessarily not to enact something, but just to discuss it. Alex Farrell didn't have an opinion because he hadn't seen the language. Chris Cochranz wouldn't see the language, but he did, this morning, come by and tell me that all of the eight zero two homes in the catalog utilize universal design, but I don't know what that means. He did say, at this point, we have to find developers who are willing to try them out. They're just designs at this point, the eight zero two Homes thing hasn't moved to the point where They haven't built anything yet, and they haven't got the pilot towns haven't enacted the zoning ordinances, but remember there's three pilot towns, they haven't enacted the zoning ordinances yet, but it's pretty preliminary. He just said it's an older design. Tom, and then he yes?

[Cameron Rutland (Office of Legislative Counsel)]: The only question I have, I mean,

[Thomas "Tom" Charlton (Member)]: it's not complex. So I have two questions. One, have we specified anywhere in statute? We're putting this in statute. What elements of universal design are we asking architects to,

[Marc Mihaly (Chair)]: No. Because how are they gonna Could

[Rep. Abby Duke (Witness, House Commerce & Economic Development)]: be anything.

[Thomas "Tom" Charlton (Member)]: So that would be something we need

[Marc Mihaly (Chair)]: to know further. I think that that's, what's the difference here, it's a good question to ask. I do remember that in our housing bill last year, when it came to the

[Deborah "Debbie" Dolgin (Member)]: The HIP? No, when it came finally,

[Marc Mihaly (Chair)]: the issue was one of the issues at the Senate House Conference Committee, and at that committee, it was asserted by a number of people on the committee, not me, that remember there was a universal design study, and the universal design study with a committee, the whole thing, and there were a number of people who asserted that it was the Department of Fire Safety was already engaged in this effort, and this was duplicative of it, and without knowing for certain that that was the case, we talked about talking to those people, and it didn't resolve itself. It came out. It just came out. Was one of those things that just we weren't gonna have a fight over, and we took it out. You know how that is in conference. We had other things to fight about. As you may remember, it was not a boring conference committee. It isn't, I it think that's a good question, and I think you should raise it.

[Leonora Dodge (Member)]: So, I think I was next.

[Deborah "Debbie" Dolgin (Member)]: You were next. I

[Leonora Dodge (Member)]: think that our conversations, if I'm misremembering, I feel like Chris Cochran, when asked, is Universal Design Incorporated? There was a discussion that at least two, I think, of the designs are accessible. The 1st Floor units are accessible units and designed to be so, but not all of the homes are accessible. And that definition is a lot more Yeah, it's a much more rigorous standard for rollability and stability in flooring and thresholds not having too much of a thick lip between one floor surface to another, etcetera. But that universal design incorporates much more, much easier to integrate elements, elements that are, I don't want to, name things in case they're not even. But the point is that I think this language is like whether to include, whether to enact building codes or it's to the greatest extent possible, I think gives a good amount of leeway while still calling attention to like, this is an important policy goal for if you're going to design housing that's going to be infill housing for the future of Vermont to replace old houses that are not retrofittable very easily or cheaply.

[Rep. Abby Duke (Witness, House Commerce & Economic Development)]: So

[Leonora Dodge (Member)]: there's my

[Deborah "Debbie" Dolgin (Member)]: Yes, for Saudia, and

[Ashley Bartley (Vice Chair)]: then Gayle. Yeah, I was just, you know, I just said basically what I was going to say, but essentially the universal design has to do with it means things, but it says universal, it means accessible to anyone. And so that means the wider doorways, thresholds, lower countertops, easy accessibility, which is easier to implement than accessible housing. You you know what said, oh, was gonna say, you stole my thunder. So, you know, but, and I think even though,

[Deborah "Debbie" Dolgin (Member)]: what did you say, said

[Ashley Bartley (Vice Chair)]: that it is included in the anal joint?

[Cameron Rutland (Office of Legislative Counsel)]: His

[Leonora Dodge (Member)]: abdomen. Yeah, he did say that a couple of the units

[Ashley Bartley (Vice Chair)]: are Exactly. Yeah, are accessible. And so I think the language is loose enough that it is not, it says elements of, and that can be up for discussion, which I mean, I think Elizabeth needs to be part of the conversation as to which aspect, if we want to even name that, And universal design has its own definition, so I don't really think that if we need to design that, or if we need to define that, or if we're going with standard universal design because it has its own definition of what that means. So, but that's If folks are saying that it already has it in it, then I don't see why the language is problematic.

[Marc Mihaly (Chair)]: Gayle and then Tom.

[Deborah "Debbie" Dolgin (Member)]: I think Saudia might have answered some of my questions, because I was thinking, isn't there a definition, a specific definition of universal design? Doesn't the ADA have a specific definition of accessibility? Yeah,

[Ashley Bartley (Vice Chair)]: there's accessibility, visibility, all the different things. I didn't mean to cut you off, I'm so sorry. No, that's okay.

[Thomas "Tom" Charlton (Member)]: So, if it's accessible, it already meets universal design. Universal design is building it the first time so that it is very easily adaptable, future proof, if you will, and largely it's an aging in place kind of question. What I'm I have two sets of questions. Were a couple. I mean, I've already mentioned. One is, are we talking about voice activated light controls? Are we talking about, you know, are we, you know, we're I mean, do the numbers on the microwave need to be four inches high for visually impaired? I mean, there's all kinds of things that can be wrapped up in this. So we need a very specific list to give builders before they tell us, you know, is this a cost driver, is it not? In theory, it's not. But if you put 36 inches doors in, they are more expensive than 32 inches doors. If you are building 50 houses and every door is 36 wide, it's a little bit, it's not zero. So I would look at something in my specific list to put in statute, and two, the financial effect has to be made in the sense. I will keep jumping on this. If we're trying, we're shaving here, we're shaving interest there, and we're shaving bulk order discounts here, and we're trying to get price of this down where people can get into it and everybody's lined up, so to speak. I'm little exaggerating, but well, you should incorporate this, should incorporate that, should be this way, should be that way. We're gonna lose the savings advantage to everything but housing. And then we've gained nothing. So those are my criteria that will make me more comfortable. One is knowing exactly what are we talking about. We're just talking about ramped thresholds, 36 inches doors, lower counters. I don't know if you've ever washed dishes at a counter that's too low,

[Rep. Abby Duke (Witness, House Commerce & Economic Development)]: I

[Thomas "Tom" Charlton (Member)]: don't kill know your what. Right, it will kill your back in no time. So it's not as simple, it's just making low counters.

[Rep. Abby Duke (Witness, House Commerce & Economic Development)]: Can I just ask you a question? So

[Deborah "Debbie" Dolgin (Member)]: are you saying, because I can't even see, financially it would make any sense to make even the doors accessible on anything that you're building, but what you were saying is make it so that the builders could easily,

[Marc Mihaly (Chair)]: I don't know what the word would say.

[Thomas "Tom" Charlton (Member)]: So when you frame the wall, you put pieces of wood in the wall that later you can attach grab bars to.

[Deborah "Debbie" Dolgin (Member)]: Right, if Because someone was

[Thomas "Tom" Charlton (Member)]: it's easier than tearing the door open later. You've I I think it's less expensive to put a 36 inch door in than it is to frame for a 36 inch door and then frame inside that. Right.

[Cameron Rutland (Office of Legislative Counsel)]: For a 32 inch door,

[Thomas "Tom" Charlton (Member)]: just do it first time is probably less labor cost.

[Rep. Abby Duke (Witness, House Commerce & Economic Development)]: Well, think the builders accessible.

[Thomas "Tom" Charlton (Member)]: It's cheaper. But what I need, I need to hear a builder say, yeah, that won't cost anything different, or it's very for what it achieves, it is minimal. So I I and I can't find the report. It's probably maybe in the report, and I can't locate it.

[Marc Mihaly (Chair)]: Yeah, this is not a world, yes, go ahead. So,

[Ashley Bartley (Vice Chair)]: I have a few questions, and I think it might be good to consider tabling this conversation until rep Burrows is back because I am 98 sure part of why this has continuously come up is that we actually don't have a definition of universal design. I am very but confident of I could totally be wrong and would love to be proven wrong. And so I just, I would like us to consider tabling this without her for right now, or until she returns. Eight zero two Homes catalog. To my understanding that all of the homes, like the catalog, the draft designs, they're already complete.

[Rep. Abby Duke (Witness, House Commerce & Economic Development)]: And it of brings out a

[Leonora Dodge (Member)]: They're doing all these feedback days.

[Marc Mihaly (Chair)]: But the draft, there's a draft, all the draft designs and the draft, what do you call it, drawings are done. Yeah. And then they're trying to get developers and trying to try them out, and then they'll be revised.

[Thomas "Tom" Charlton (Member)]: I don't think we're necessarily locked into eight zero two homes. We just have a resource there where we've eliminated the soft costs of engineering and architecture, but that doesn't mean another manufacturer doesn't have their own designs eligible. And they need to know what the criteria are if they're gonna submit a request for proposals.

[Deborah "Debbie" Dolgin (Member)]: Yeah. I mean, it's well, it's kinda silly, but Even, I mean, people that are, they can have a medical condition where they're like very tall, there's a genetic component to that, and they're disabled because of their, not because of their height, but because of this genetic MR fans, yeah. And, I mean, then they don't want a low cabinet or countertop, they're gonna need a higher one. I mean It's So, dealt with I'm sure

[Marc Mihaly (Chair)]: people have thought of this, I just don't know how they've dealt with it.

[Deborah "Debbie" Dolgin (Member)]: It was just a It's

[Marc Mihaly (Chair)]: generally All I know is that generally universal design, as Tom said, is not that the thing is necessarily installed, but that the house is prepared so that it can be installed. How do you apply that, I don't know. Fine, I agree with the tabling, but you get to talk one more time.

[Deborah "Debbie" Dolgin (Member)]: Are we talking about built in homes, or is this apartments, this is any dwelling,

[Marc Mihaly (Chair)]: what's It's any dwelling, but it's and I do have, personally, I do agree with Tom that I don't want to see the pilot program stymied unnecessarily, it's important, but I also feel like it would be really great, in fact, everybody ought to think about it, just keep it in the back of your head, is there something we can do, something we can say in the app, if Ashley's right, and there isn't a unified definition, and if we're not going to get what Tom wants now, well, you know, your list, and we're not going to do that now, is there still something we can do and something we can say? Just think about it, and we'll talk about it when Rett Burrows is here. Okay? And we'll calendar that. We are I'm sure you are all going to be disappointed to hear that at this point, we are next, what we're going to do next is have a 09:30AM visit on Huntington Homes. So I just want to go back. I am prepared to come in and be here to drive anyone who's here to Huntington Homes. Joe has alleged that he is willing to do that, although Joe told me that he didn't want to go to hunting gnomes any more than I would want to go to a field trip to a law firm.

[Deborah "Debbie" Dolgin (Member)]: So I'm not writing the thing.

[Marc Mihaly (Chair)]: Anyway, I will come here and I will make sure we've had enough, But some of you are going directly, Debbie, you're going direct.

[Ashley Bartley (Vice Chair)]: Yeah, I'm picking up Krasnow.

[Marc Mihaly (Chair)]: Okay, directly, okay.

[Ashley Bartley (Vice Chair)]: If we're not there, start without us. I

[Marc Mihaly (Chair)]: think it will be interesting for everybody to see how these places are built. I have asked, just so you know, not that anything is going to come of it, I have asked whether we have access to money for a two day trip, because what I would really like to do is to go to one of these manufactured home factories. I want to see the factory where they produce a thousand of these homes a year, and talk to people about how they can do it for so little money, but they're all, one of them, a bunch of them are in Philadelphia, Pennsylvania, and others are in Quebec, and I just would have to see how we would get there, and if it's worth it. I know about Champion Homes in New York, because they're the ones that are building the cross mod in New York. Champion Homes in New York, do you have any idea where they are? Yeah. Yeah, okay. We also are planning a possible trip to see a mobile home park, excuse me, a manufactured home park.

[Ashley Bartley (Vice Chair)]: Unlimited

[Deborah "Debbie" Dolgin (Member)]: Unlimited limited hybrid And mobile home park.

[Sophie Zdatny (Office of Legislative Counsel)]: So that's three. Field trips? Field trips.

[Marc Mihaly (Chair)]: The other I don't think we're gonna do a two day field trip. I don't think it's gonna happen. I don't know if we can calendar it.

[Ashley Bartley (Vice Chair)]: As someone who is very passionate about housing, I am even more passionate about saving taxpayer money, and would feel a little

[Sophie Zdatny (Office of Legislative Counsel)]: bit uncomfortable with the two day.

[Marc Mihaly (Chair)]: Well, has happened, and we can all pay for ourselves. Where has it happened,

[Deborah "Debbie" Dolgin (Member)]: a two day trip? Never really? Yeah, must be appropriations. That's where the money is.

[Marc Mihaly (Chair)]: Okay, Anything else before we adjourn? I'll be here in the morning for anybody who needs a ride. I can take I could really take four people. So alright.