Vermont Legislature SmartTranscripts:

[Marc Mihaly (Chair)]: Welcome everybody to the House Committee on General and Housing. It is Wednesday, April 15. We've got a couple of witnesses this afternoon. We're hearing S230, which is Fair Employment Practices Labor bill, which comes from the Senate, and it has sort of an potpourri of labor issues in it. One of the issues that we're looking at, but have not formally agreed to add to the bill that we are looking at, is the question of whether we should deal with non compete agreements. There was, for members of the public, a bill that passed out of House Congress, which was a kind of consensus bill on this subject, but ran into problems and was basically referred back to committee. And now we're wondering whether it's worth our while to take up the issue in a streamlined way, in a limited way, or not. And we do have one draft from legislative council, is on our website, which is very short. And our first witness today is David Mickenberg, who is a lobbyist for working in Vermont. David, take it away. Thank you. Welcome. And

[David Mickenberg]: I should just say I was also a member of the sort of working group over the summer and fall that worked on this issue with a variety of different stakeholders, so I'm certainly invested in this issue and actually think that 02/2005, the bill that came out of committee was good. We wanted to make sure it included everyone and we don't have to revisit that issue. But just want to say this is an important issue. As I mentioned to this committee earlier in the year when we were talking about federal issues, the FTC, the Federal Trade Commission, had banned non competes generally for people making around $156,000,000 or less when there was a change in administrations. Well, rule had been appealed, they did it by rule. That rule was appealed, when they changed administration, the administration decided not to pursue the appeal anymore, so it's no longer the case. From our perspective, non competes are just a restraint people's ability to advance economically in their lives. And we do think they should be banned across the board. Exempt and non exempt employees, I think that's an important value that the state should put forward. That being said, as I understand the proposal, is to ban non competes for non exempt employees as defined under the FLSA, While I do think it should go further, I think it is an important and positive step forward. And we at Working Vermont would support it. And supporting it, understanding, and I was able to speak with the legislative council a bit about it, that it's not limited to

[Marc Mihaly (Chair)]: Let me just interrupt you for the members of the committee.

[Deborah "Debbie" Dolgin (Member)]: I don't know if you were

[Marc Mihaly (Chair)]: here when it happened, but I authorized our legislative council to talk to David. She generally, council, remember, we've been through this, it's such a complicated thing, we're their client, so unless we give them permission to talk to somebody, they just don't. And I just thought here it would be good for communications purposes. I'm fairly free with legislative council offering to let them talk to somebody. Sorry to interrupt you, no problem.

[David Mickenberg]: So, and I've looked at what was posted online in terms of her chart around who this would and what to cover. I understand that for certain sort of learned professions, doctors, teachers, even if they were hourly, they wouldn't be covered here. But for those making hourly wages who aren't in a supervisory position and a decision making position, my initial concern was that it would somehow, the limit of who would be covered would be covered, that would be hit if you were the exempt versus non exempt limit for the FLSA. That's not my understanding. So for instance, if a construction worker is making $50 an hour and they're not in a supervisory position and they can get overtime and they would otherwise qualify, then they would not be subject, I mean, they would be covered under this proposal and would not be required to sign a non compete and we support that. So generally we want as broad coverage as possible. And I think this is a step in the right direction. We would object to, I think there was some suggestion that there would be a threshold based on what the FLSA cutoff is between exempt and non exempt, which I think is fairly low, I think 35,000 or something like that, we would object to that.

[Marc Mihaly (Chair)]: You prefer the more complex, somewhat more complex, but more, well, more complex approach. Yes, yes. Okay.

[David Mickenberg]: I mean, if we were gonna do a threshold, what I would suggest is looking at what was covered in 02/2005 and there was a test for, and that was 300% of the amount and the wage, which amounted to about $90,000 so.

[Unidentified committee member(s) (diarization mixed)]: Yes, go ahead. So would you,

[Marc Mihaly (Chair)]: is that what you would propose? He supports the bill as Sophie drafted it, not as Austell suggested.

[Unidentified committee member(s) (diarization mixed)]: Right, So I just wanna make sure, because we've had the feedback about it becomes a salary test for so many situations rather than the other nuanced categories, right? Is there a way to Frankenstein it and do

[Marc Mihaly (Chair)]: As I understand your testimony, I wanna reflect back, I think this gets at what you're saying.

[Elizabeth Burrows (Member)]: It's not a discussion, but I'm

[Unidentified committee member(s) (diarization mixed)]: just inviting a feedback on Right, what I'm hearing is Possibly way to go You

[Marc Mihaly (Chair)]: prefer the test, that is the chart that we saw that shows all the different reasons why one might be nonexempt Because versus it's more thoughtful in who it covers. You were concerned that if we simply had as a threshold, the threshold that's the overtime threshold, that someone could be caught in that and be considered exempt when they're really not because they have no supervisory responsibilities, whereas the FSLA test, the test of exempt versus non exempt, has got enough subtlety in it that it would keep that person from being considered exempt and therefore not covered. Is that correct?

[David Mickenberg]: Yes, it's not just, I mean, yes, it's not just a mere test of how much money the person is making in terms of, if you're talking about exempt versus non exempt, I guess stay in those lanes for the non exempt, we wouldn't support a threshold for non exempt, which is the cutoff on the FLSA of whatever it is, 35,000. Somebody could be making more and all these other nuances that you have to bring in and analyze as to whether they're exempt or not, we would support having those be considered by employers when they're deciding whether they're subject to the ban on not competes or not.

[Thomas "Tom" Charlton (Member)]: So if

[David Mickenberg]: we're talking about threshold, we would wanna be talking about that in a broader sense of exempt and non exempt, and that's outside the scope of what's being proposed And that's what was considered in 02/2005, which we supported, so. So

[Marc Mihaly (Chair)]: you're supportive of this as it's iterated using the fair labor standards treatment of exempt versus not, I guess.

[David Mickenberg]: Long as we're not incorporating the threshold as the test for whether the ban on non compete supplies. Right. Any

[Marc Mihaly (Chair)]: further questions? I might take the unusual step of suggesting you might want to sit and listen to the next testimony.

[David Mickenberg]: Sure, yeah, and then we also, when it came to the medical, we were supportive of that in 02/2005 as well, so a ban on if that's what Jess is talking about.

[Marc Mihaly (Chair)]: Okay. Alright, thank you. Thank you very much. Thank you. Our next visit is Jessa Bernard, Executive Director of the Vermont Medical Society. Hi Jessa, you know what, you have not been here.

[Unidentified committee member(s) (diarization mixed)]: I see people in the building, but they never come to our committee. So

[Marc Mihaly (Chair)]: I think we'll go around and introduce ourselves. You want to start? Gayle Pezzo, Colchester, District 20. Welcome.

[Mary E. Howard (Clerk)]: I'm Mary E. Howard, I represent Rutland City District 6. Elizabeth is behind you. Elizabeth?

[Marc Mihaly (Chair)]: She was, there.

[Elizabeth Burrows (Member)]: Hi there. We have met from when I was on the healthcare committee, but I'm now over here. I'm Elizabeth Burrows and I represent Windsor One, Heartland West Windsor, and Windsor.

[Saudia LaMont (Member)]: Hi, Saudia LaMont, Lamoille, Washington, Hoosher. Emilie Krasnow, South Burlington.

[Marc Mihaly (Chair)]: And I'm Marc Mihaly, and I represent Caledonia, playing field in Marshfield.

[Unidentified committee member(s) (diarization mixed)]: I'm Leonora Dodge, Essex Town at City Of Essex Township.

[Thomas "Tom" Charlton (Member)]: Tom Charlton, Athens Chester Grafton.

[Deborah "Debbie" Dolgin (Member)]: Debbie Dolgin, representing St. Johnsbury, Concord and Kirby. Welcome.

[Marc Mihaly (Chair)]: Thank you very much.

[Jessa Barnard]: Well, I'm Jessica Barnard, the Executive Director of the Vermont Medical Society. We are a physician and physician assistant membership association. So we are representing the individual providers rather than any specific employer or healthcare entity type. Though I do work very closely and collaborate very frequently with other healthcare associations, representing other types of entities like the hospitals, FQHCs, long term care, home health. I am speaking on behalf of PMS and my own association on this bill, but I've been again in close touch with those other organizations as we've been looking at this issue of non competes in a number of bills this session. So appreciate the opportunity to testify here this afternoon. We did work fairly closely on the issue in 02/2005 and we supported the language as came out of that committee. It was also something that House Healthcare Committee was taking a look at this session in H583, a bill regarding the role of private equity in healthcare. And there was also language in that bill around non competes and non disparagement clauses. It was taken out of that bill thinking it would be in 02/2005. And then when it did not proceed in 02/2005, we're still in communication about vehicles. I know that when the private equity bill five eighty three gets taken up in the Senate, there may be some interest, but we are here today to see if this could be another potential vehicle to make sure something does move this session. We are strongly in support of not having non compete, that started out a lot of negatives in the healthcare environment. We think healthcare is especially an area where end in a rural state that already has access issues that we need to maximize our healthcare workforce and allow our healthcare workers to be able to take care of patients wherever that need may be. It's also an issue of national interest. The Federal Trade Commission has weighed in on this issue just this past fall. The American Medical Association has policy opposing restrictive covenants, and they all kind of highlight some of the same issues around patient access and especially continuity of care. Many of you or your constituents may have experienced this of a healthcare provider leaving one organization, maybe moving to another place in town, but if the patient doesn't know that, or if the provider would not be allowed to work, if they were limited from working there, it really interrupts patient care. And we certainly have issues that we may only have one or two specialists in a certain area in a community, and if they were not able to continue to serve the patients of that community, that could really interrupt care and increase health disparities and lack of access. So we support a broad ban on non competes for all healthcare professionals. Many other states have gone in that direction. I've attached some references. There are some vary a little bit in terms of their application, but it's an issue that a number of states have addressed specifically in healthcare or healthcare providers for the reasons I mentioned. At the end of my testimony, I include some proposed language that's largely from 02/2005 with a couple of additions from May. So the language in there is a broad prohibition on competes for healthcare providers. We also think it's important to address non solicitation. So the way that two zero five addressed that was to allow, basically state that it's not, it is still allowed for a provider to at least communicate where they are now seeking, caring for patients and that a patient has the right to choose who their healthcare provider is. Again, we think it's important for patients to be able to have continuity of care for necessary healthcare services. And just as important to say, you can't even work within the community or within a certain geographic area or amount of time is to be able to communicate to the patient that I am now practicing here, you have the right to choose your provider.

[Marc Mihaly (Chair)]: This is, I'm a little, excuse me for interrupting, a little confused. Sure. Since we're at a point where language is important. Absolutely. Is the language in two zero five acceptable on non solicitation? Yes.

[Jessa Barnard]: It addressed both.

[Marc Mihaly (Chair)]: It addresses non solicitation? It does. For healthcare providers.

[Jessa Barnard]: For healthcare providers specifically. It's done in a slightly different way than I proposed here, just because I'm not sure the exact outline you may be taking. It was embedded within a much longer, as you know, longer bill that had a definition of non solicitation and it was defined as an exception to what could be considered solicitation. Here, I just propose it as standalone language, but it's the same definition of what would be allowed. It's just put in a little bit, stated in a little bit different way because of the, I'm not sure quite how you might be envisioning drafting a bill.

[Marc Mihaly (Chair)]: I'm sure to say that we're not sure how we use it. Okay. So in a medical practice, someone

[Thomas "Tom" Charlton (Member)]: leaves, specialist or whoever leaves that practice, but uses contacts for their, are there not HIPAA complications with that if they're no longer employed by this practice?

[Jessa Barnard]: That could be an issue and I think there is nothing in this language that would prohibit, sorry, that would allow or an employer could still say you couldn't take a patient list with you. And I agree with you. I think actually having access to that patient list after you've left could be a HIPAA violation. So it is just saying that you could provide, and in fact, it could be even employer who could potentially notify patients that, you know, they already in fact have an obligation to notify patients if somebody is leaving so that the patient has an opportunity to seek another place of care. What often I think is the experience is that then the patient may call up the practice and say, Oh, I see Doctor. Jones has left, where have they gone? And the staff or at least interpreting, and it may be an overly broad or incorrect interpretation of non solicitation to say, I can't even tell you. I'm not allowed to tell you where they've gone, which isn't really, again, it may not be a correct interpretation of what solicitation is, but that's how it is being perceived in the healthcare world. So the language doesn't say anything about, you may take a list with you, but it does say you could at least inform patients that you are continuing to practice where you're practicing and that they have a right to choose a provider. Sure.

[Marc Mihaly (Chair)]: Questions or Jess?

[Jessa Barnard]: I'll just frame one, so one other, two other issues, I'll try to make them quick. I mean, there is language, and again, this was all in 02/2005, so we were happy with how that language came out of that committee. We do think it's important to at least try to address the issue of out of state staffing contracts. So that's an issue, again, a little bit less in the physician rule, but it applies to temporary physician staffing placements, as well as things like temporary nursing placements. One of the things that we've heard from our healthcare organizations here in Vermont is we are getting better, but still have a reliance on traveling medical providers. And often the local entity wants to hire that person as an employee and try to keep them in Vermont and actually build our own workforce. And that's actually my understanding of where we see non competes the most in healthcare right now is actually with national staffing companies rather than our own Vermont healthcare organizations. So the goal of the language that we, I will admit borrowed from Mexico when they were seeing a similar issue is to say that healthcare contracts or contracts of healthcare providers in Vermont have to be subject to Vermont law. And so that this would then be applicable in that contract. So we're trying to get at not allowing national staffing companies from them and non competes so that a local entity could spend higher than other people.

[Thomas "Tom" Charlton (Member)]: Would a national company be more hesitant to sense from here? If that was gonna

[Jessa Barnard]: be a little bit of a shortage. Yeah, I understand. We've had that conversation internally with some of our association partners and sort of the pros and cons. And it was the consensus among the organizations I discussed it with is that the potential benefits are greater than the potential downsides. That it's more important, that the real goal is to try to hire people locally. Think there will be enough of a demand that those staffing companies would still provide staff to the state if that were the case.

[Unidentified committee member(s) (diarization mixed)]: I think they'll just add to the ecosystem rather than

[Jessa Barnard]: But I understand that we didn't have that discussion. Elizabeth.

[Elizabeth Burrows (Member)]: Thanks. I think that this actually touches on the private equity question. Yesterday, when I when we were on the floor or during our caucus of the whole, and I asked during the discussion about H nine fifty five, I brought up the question of private equity in our Transportation. Transportation. And a really good example of that is that we are, we have our transportation, our school transportation system is largely dominated now by private equity owned transportation companies. So when workers or drivers in Brattleboro, I believe it was in January or December, were renegotiating their contracts, The private equity firm was able to, before they even went on strike, the private equity firm was, or the private equity owned transportation company was able to fly in drivers from Detroit. And so I think it it goes, you know, you follow it down the line, I think. Thanks.

[Marc Mihaly (Chair)]: Go ahead. Is I guess just I'm just expressing an opinion, is when I was on the Appropriations Committee before this round, we just again and again were seeing the problem of traveling nursing. I mean, you want them when you need them, but my God, are they expensive. And it was just sort of breaking the bank in so many different places, and we were pouring money into nursing because of no alternative, and of course, we're now trying to train nurses as fast as we can, but one of the solutions to that is to hire the traveling nurse. Exactly, absolutely. And generally, they want to do it, and they want to live in Vermont, and we need people to want to live in Vermont, because they're not going to make less money. So they're making the trade off of less money, but permanency here. They fall in love with the place, they like the people, and they want to do the job. So I think it's a really, personally, I'm supportive of the concept.

[Jessa Barnard]: Last little piece I'll

[Marc Mihaly (Chair)]: add, just

[Jessa Barnard]: because it actually was not in 02/2005, but it is a recommendation to add actually more from May, the bill that passed out of the health care committee, but then we, again, we took the employment pieces out of that, is around non disparagement. And this really does get to the potential private equity type situation. So there's a specific language basically allowing healthcare providers to raise concerns and discuss issues regarding quality of care, patient safety, ethical or professional challenges in the practice of medicine. So the underlying goal is to say there also should not be non disparagement deposits with healthcare providers to make sure that they can raise fairly important.

[Marc Mihaly (Chair)]: I take it, forgive my ignorance, that I have a feeling I'm not alone with the one, that I'll take the risk. Non disparagement needs a clause that says you can't complain about us. Exactly.

[Jessa Barnard]: You can't complain about us, and that really gets into influence. We've seen this in other states where there have been private equity investment and healthcare settings that then professionals feel that they're handcuffed from speaking it out about real patient safety, quality of care issues because it could be seen as a violation of a non disparagement clause. So those are the pieces, the language is all at the end of my testimony and happy to engage further if the committee decides that you're interested in adding any healthcare components into the bill.

[Unidentified committee member(s) (diarization mixed)]: Debbie, you have question. I just don't understand,

[Deborah "Debbie" Dolgin (Member)]: I mean, on the East Side Of Vermont, we depend on a lot

[Unidentified committee member(s) (diarization mixed)]: of New Hampshire hospitals, so I don't know how much influence all this language would have in those situations. We have Dartmouth and

[Marc Mihaly (Chair)]: Littleton Hospital. Does Dartmouth I think raises an interesting issue? Does Dartmouth Hitchcock, I mean forget about traveling nurses, does Dartmouth Hitchcock, do you happen to know, have any of these closets non complete?

[Jessa Barnard]: That's a great question. I don't know about Dartmouth. I do know that the hospital association surveyed the Vermont hospitals and we do not believe that Vermont hospitals currently use certainly non competes. I'm not sure about all of these components, as far as I know, Vermont hospitals are not using non competes. I don't know about Dartmouth, I didn't.

[Deborah "Debbie" Dolgin (Member)]: Well, I mean, NVRH, we're connected more with Dartmouth than

[Marc Mihaly (Chair)]: with Burlington, I forget the lovely part, UVM, hospital, medical school.

[Jessa Barnard]: I think it would be, and it's a great question, I think it would get to the interpretation of the language when I was discussing the language about trying to make sure contracts are subject to these restrictions or guardrails, or even if it's an out of state staffing company, the same kind of analysis would apply to an out of state healthcare entity. And it says that it's regarding a contract, regarding a professional relationship with a healthcare provider, regarding the provider's provision of healthcare services in this state. It has

[Unidentified committee member(s) (diarization mixed)]: to follow all of these guardrails.

[Jessa Barnard]: So I think if that provider were largely providing services to Vermont patients, say they were at Mount Scutney or another clinic located in Vermont, I think they would have to at least take a look at this and make sure they were complying. If it were a Dartmouth provider fully located in New Hampshire, they were not.

[Marc Mihaly (Chair)]: So in other words, if I go to Dartmouth Hitchcock, it doesn't matter. Right.

[Jessa Barnard]: We can't

[Marc Mihaly (Chair)]: do that. If somehow, is Dartmouth Hitchcock at the moment, do you know, I mean, is an interesting issue, because it goes to the state law section that you proposed. Do they provide services in Vermont?

[Jessa Barnard]: They have a relationship with several Vermont located hospitals. Actually Southwestern Vermont Medical Center in Bennington, Mount Essex. So I would think, for top of my head sort of analysis is that if those were employed clinicians or nurses working in Vermont, providing care to Vermont patients, they would have to then follow these in their contracts.

[Marc Mihaly (Chair)]: Right, so it would be interesting to know, wouldn't it, whether as a routine matter, they're different than our hospitals, which don't have these clauses.

[Jessa Barnard]: I can reach out to Dartmouth

[Marc Mihaly (Chair)]: and see if You know, I think actually, I'd hate to see us run into trouble unintentionally. It would be good to know if there's a problem there.

[Jessa Barnard]: Yeah, can run this language by folks I reach out.

[Marc Mihaly (Chair)]: Tom, do you have a question? Or did you, wait, did you have a question? It's okay. Tom? I'm just curious to

[David Mickenberg]: know a little bit more about

[Thomas "Tom" Charlton (Member)]: non disparagement clause and just how that works. If that is in place, I'm assuming that there are channels to communicate when there are regulatory questions and malpractice with a legitimate concern, are there not boards or committees or agencies that should be hearing that information whether or not there is a non disparagement clause? That's kind of part one of my question. So, let's say that-

[Jessa Barnard]: Yeah, I understand the question. I assume that you could still make a complaint to say a licensing board or CMS that regulates hospitals, for example, even if there's a non disparagement clause, but I don't know for sure the answer to that.

[Thomas "Tom" Charlton (Member)]: Okay, because I would, and the second part of my question is, somebody's disgruntled, they leave a practice and they write a statement in editorial in the local newspaper. Now, is that a non disparagement? Is that a place where that would apply?

[Jessa Barnard]: Yes. Okay. Would think that is like a public statement is more where it would apply than, I believe, and again, it's a question for legislative council, than a regulatory explanation.

[Thomas "Tom" Charlton (Member)]: Right, that might swing over into other legal. Right.

[Jessa Barnard]: Well, defamation and it still needs to be factual, right.

[Thomas "Tom" Charlton (Member)]: Right, because certainly, I mean, can see in both cases, one being problematic, the other one has to be able to happen to some degree.

[Marc Mihaly (Chair)]: Great, thank you. Yeah, that's a good question. I think I've been in a position where I wasn't allowed to express myself. For possibly good reason, it's when I was a California deputy attorney general. It really didn't feel very good to not be able to say what you think and to not be able to say what you think about your workplace is difficult.

[Jessa Barnard]: And I think one of the situations we've heard of, not in Vermont, but in other states where there is more, say, private equity ownership of practices is clinicians being able to talk to each other if we're considering investment by that company. Oh, I've had an offer to partner with X. What do you think about that? And so that's not a regulatory complaint. It's also not a brand public statement in the newspaper, but can you just talk to a colleague in another organization and say, honestly, here's what your experience has been. Here are some red flags, you may not want to sell your practice to this entity or that kind of thing. So, really, some of those clauses really can constrain free flow of information.

[Marc Mihaly (Chair)]: And they are constraining on their face in the sense that the question of to what extent does a private contractual relationship trump versus, you know, prevail, excuse my use of that word, prevail over a constitutional right is or one which I think most individuals don't wish to litigate all the way to a high court to find out. Which is a problem, a real problem. I the boundary between private contract and public policy is often a vague one, and sometimes people wouldn't know, and maybe you'd have to get out in the Vermont Supreme Court or whatever Supreme Court, which is a problem in and of itself.

[Jessa Barnard]: As more and more healthcare employees are employed by larger entities, the resources to litigate a question are imbalanced, so the employee may just take the safe route and not raise constraints.

[Marc Mihaly (Chair)]: Other questions at this point of Jessup?

[Unidentified committee member(s) (diarization mixed)]: I just have a question about the this conversation has gone in an interesting direction, the disparaging comments, and which I'm trying to understand the nuance around, and you spoke to it a little bit of, to the new to the new with the with the provide the departing provider not being able to speak to the make public statements or such. But I'm just curious about the limitations around that and what that looks like in having negative impacts on said provider if they are not intending to be disparaging, but sharing their experience, then which their experience happens to shine a negative light on their previous employer unintentionally. How does that get navigated?

[Jessa Barnard]: I think that's the issue. The employer would have to allege they are violating this clause and then there could be a litigation over this if it was a significant enough issue that the employer wanted to try to enforce this clause. And then there would be a factual

[Unidentified committee member(s) (diarization mixed)]: dispute So there's nothing around intent what I think is what

[Marc Mihaly (Chair)]: Do you mean in your typical disparagement clause?

[Unidentified committee member(s) (diarization mixed)]: Yes. You

[Mary E. Howard (Clerk)]: understand what And trying to

[Marc Mihaly (Chair)]: what I would guess is that the people who draft these clauses, their client is the entity who doesn't want you to talk. Right? Right. So they don't put intent in there Okay. Because they don't want to have to prove that you intended to hurt them. They just put in there, you have to keep your mouth shut no matter what you intended.

[Jessa Barnard]: And if you actually look at the statement, is on page three of my testimony, paragraph three, it's not about the intent, it's about whether it causes or threatens to cause harm to the other person or party's reputation, business relations, or economic interests. So it's really about the facts rather than the intent.

[Unidentified committee member(s) (diarization mixed)]: And that was just all, I was puri- it was that part, because if it does unintentionally cause that to happen-

[Marc Mihaly (Chair)]: It's clear, I would have, yeah.

[Jessa Barnard]: Sorry. Great questions, great questions.

[Marc Mihaly (Chair)]: Yes, please. I knew you were good.

[Mary E. Howard (Clerk)]: I know, I'm just So employment law follows the employee. And this might be a great question for Sophie. So if I have, let's say, a traveling nurse who lives in New York, and then employment law follows and abides by New York, and say they're doing, working in Vermont and New York, where does employment law follow them?

[Marc Mihaly (Chair)]: In other words, for example, let's say that a nurse in New York is hired in New York by a New York company that has in their clause a non disparagement clause, and then they come to Vermont, which tells them that they must follow Vermont law, and guess what, Vermont law says non disparagement clauses are not valid, right? What happens? Is that your question?

[Mary E. Howard (Clerk)]: Kind of, it's how does employment law, because you could hypothetic, I'm thinking, my experience is like the traveling nurse down in Rutland, where it's closer to New York. So if you have a traveling nurse who lives in New York, is doing some time in Rutland, some time in New York, where does the employment law fall? Because they're living in New York.

[Marc Mihaly (Chair)]: I will tell you, I can give you an answer, which is, it would be really messy, and here's why. Someone, let's take the example that Jessa just gave, which is a really interesting one, of the need for people to be able to talk to other nurses and say, What's it like to work with these people? You know, that kind of thing. Okay, supposing that the nurse is sitting in his home in New York, picks up the phone. Is that New York covering that conversation? Versus are they at their workplace in Vermont? Oh, I'm glad you called, as a matter of fact. I don't know the answer to that.

[Jessa Barnard]: I will say that the hope with the language around what state law governs that contract is to try to provide a little bit of clarity to say if that nurse is on placement in Vermont, providing services to Vermont patients, they may need to rewrite that contract that they typically have with that nurse because it says it should be subject to the laws of Vermont, which probably is not how they routinely draft their contracts for traveling nurses. They probably make it subject to the laws of wherever that company is domicile, it could be Utah, Virginia, wherever. But the intent of this language and why New Mexico went this direction was for these reasons. To say, if you are providing services in Vermont, you have to have that contract subject to Vermont laws and follow Vermont law. I don't know, I don't believe it's been challenged in New Mexico. I didn't hear that the NA haven't reported any difficulties hiring traveling staff because of this. It's been on the books for, I think it's 2017. So there is some history there that it's

[Marc Mihaly (Chair)]: My suspicion is actually this is somewhat easier than many circumstances, because if I'm a New York company and I have a contract which my lawyer drafted and threw in the kitchen sink, and in the kitchen sink was a non all these clauses. All that would happen, I wouldn't have to change the contract. It's just those clauses would be void if they applied to a residency in Vermont. There are other organizations. I mean, there are private organizations that provide services in 30 states, and, man, they have whole departments they have to go through figuring out what the laws are in each of the states. Questions? We're not letting you out easily apparently, although this committee is always full of these pseudo lawyers like you are.

[Jessa Barnard]: Well, I consider myself a pseudo lawyer, so. This has been another great conversation. I really appreciate the questions and your interest.

[Marc Mihaly (Chair)]: Okay, and just letting us know by text to Miriam what you found out. Oh, about you. Yeah, that's enough. Okay,

[Unidentified committee member(s) (diarization mixed)]: thank you so much. Thank your time. Thank you.

[Marc Mihaly (Chair)]: I think, well, first of all, at this point, we do not have anything else on our agenda. Right, Mary? I think we do have tomorrow morning at 10:30. Well, at 09:00, we have a whole update on paid leave, which is just a hearing. We're having a hearing on the subject of paid leave. And as I mentioned to you all previously, it's not because we have legislation in front of us. We don't. It's because, as I mentioned to you, we have two bills before us, we have time. That's why we could do a field trip. We have time. One of the things, if you want to know, since you haven't had the experience yet, what committees do when they don't have a bill to hear, they have hearings on other things. They have subject matter hearings, and this is the subject matter hearings. It was a suggestion made to us that we have an update on paid leave, and what that means is that we have in the state, our approach to paid leave at the moment is through an insurance policy that the governors, that administration has, and so I'm assuming that what we're going to do is to hear how is that insurance policy working, what's in it, how what kind of uptake is there, etcetera. Those are the some of the issues that we'll hear. So that's at 09:00 tomorrow. Then at 10:30, we have a markup on S 02:30 again with Sophie. I intend to try to get us to a text on this issue we've been hearing about today, that Sophie is satisfied with, that is narrow enough so that it's not going to replay the miss the problems that 205 went through and see if, you know, we can get there. That's part of what we wanna do tomorrow. And then, we're back again on 03:28. We're really just bouncing back and forth between 02:30 and 03:28, in which case, until we get so sick of them, we throw up our hands. Elizabeth?

[Elizabeth Burrows (Member)]: Thanks, Marc. I'm assuming that that brings us all the way up to lunchtime. Is that right?

[Marc Mihaly (Chair)]: Yes. And it also means that in 03/28, we can actually have a discussion. Do you think you'll be able to actually physically be here tomorrow, or you'll still be participating by Zoom?

[Elizabeth Burrows (Member)]: No. I I will definitely be there tomorrow because I have got a resolution honoring John Caledonia. But

[Marc Mihaly (Chair)]: because we can discuss as part of the two 03/28, we can discuss your language. We have that scheduled for 11:00 tomorrow. Yeah. That's at eleven.

[Elizabeth Burrows (Member)]: I really appreciate that. I do want to alert you or inform you or whatever that I am supposed to introduce S95 in appropriations at 10:30 tomorrow morning.

[Mary E. Howard (Clerk)]: S 98?

[Elizabeth Burrows (Member)]: S 98. Sorry.

[Mary E. Howard (Clerk)]: Okay. Don't know what that is.

[Marc Mihaly (Chair)]: Which is that? Oh, s 89. Do you need survivors?

[Elizabeth Burrows (Member)]: The survivors benefit, whatever. S 89. Sorry.

[Unidentified committee member(s) (diarization mixed)]: Sorry. We all were confused. Well, I should have

[Elizabeth Burrows (Member)]: Clearly, I'm confused as well.

[Mary E. Howard (Clerk)]: So worse is when we don't know we're confused

[Unidentified committee member(s) (diarization mixed)]: or we pretend that we're not when we are.

[Marc Mihaly (Chair)]: No, that's so typical, because I'm dyslexic, so I often would confuse. Oh, really? IDA. As well as my left and right. Okay, so you'll be there at 10:30, that's great. And we won't have the discussion of your amendment while you're here. We'll try to have it when you're gone. No. I'm teasing. Will have it when you're here.

[Elizabeth Burrows (Member)]: I actually, I'm just checking the schedule, and it is actually for 10:00.

[Marc Mihaly (Chair)]: Oh, great. Okay. Alright. Okay. So at this point, does anybody have any final things to say before we adjourn? In that case, we are adjourned.

[Elizabeth Burrows (Member)]: Bye for