Vermont Legislature SmartTranscripts:

[Marc Mihaly (Chair)]: 26. We have two active bills in front of the committee, we've been working on. They're Senate bills that came over from the Senate. One is sort of an omnibus miscellaneous labor bill, one of them is kind of miscellaneous land use bill, I mean, housing bill. The miscellaneous Senate bill that relates to fair employment practices is S two thirty, and that's the one we're looking at today. We have a subsequent draft from counsel with a few changes in it. We have with us, Jessa Bernard from the Vermont Medical Society, Laura Pelosi from MMR, and they can comment on this draft when we get into it, But why don't we start with you, Sophie? Take it away.

[Sophie Sadat (Office of Legislative Counsel)]: Good afternoon, Sophie Sadat, New Credit Office of Legislative Council. So last time we met, we went through version 6.1 of S230, and that's the language that includes from the healthcare providers under the non compete. But this version that I currently have is version 7.2, so I will put that up on the screen. So this does not relate to the healthcare providers at all. And I'm just going to race through to the event here for the new set.

[Marc Mihaly (Chair)]: Did you, Mary E. Did you see the, no, it's got command as well. We don't need it. Okay.

[Sophie Sadat (Office of Legislative Counsel)]: Alright, so this adds a new section 3C. This is this committee's bill H548, that involves adding a mediator position to the Vermont Labor Relations Board. It passed out to this committee, H548. It went to House Appropriations, House Appropriations incorporated it into the big bill. And I discovered this morning that Senate Appropriations has taken it out to the big bill. So I was requested to go ahead and put this language back into S230. So it's the language you've already seen. It does not include the appropriation, and it is an important mediator. So when this bill had left this committee the last time around, H548 included a staff attorney position in the Vermont Labor Relations Board as well. So just as a refresher, this is just amending current language in the State Employee Labor Relations Act to add a mediator position. And that first line at the top there is just a fixing. We don't have gender language any longer in the statutes. We try to eliminate those when we see them, so it's now the secretary rather than his or her. And then the new language is in subsection C here, and it provides that the board may employ a mediator to provide free mediation services to public and private sector collective bargaining units and employers of funds to union pass during collective bargaining. Then there was testimony before around having the mediator also provide mediation services on grievances and unfair labor practice charges. So if there's capacity, the mediator could then provide free mediation services in those two areas. The distinction is that under the State Employee Labor Relations Act, mediator is mandated when you get them passed, then contract negotiations, it's not mandated. Agreements are not by Label Practice charges, but it can be helpful. And then subdivision three asks the board to develop policies and procedures to ensure that all confidential mediation information is maintained separately and insulated from access by members of the board or other employees of the state relations board to protect the integrity of the mediation process. So mediation, it's really important that parties are able to speak freely and confidentially to the mediator and that that information not be given to the decision maker, and in this case would be the Labour Relations Board or some of the staff on a Labour Relations Board. So that is what is added in version 7.2. Good question.

[Mary E. Howard (Clerk)]: Page seven, line six, c1, the board may employ, is that may because it's unfunded rather than CHO, or was it originally?

[Sophie Sadat (Office of Legislative Counsel)]: It was originally May, I'd love to change that. So what happens if we leave this in? It's just an unfunded okay? So I guess it would allow the board to create the position if they get the funding. So as I understand it, that's still given the house appropriations and the house itself already passed the appropriations bill with funding for this end. I'm assuming that's going be an issue for the two chambers to work out between themselves in terms of the funding.

[Marc Mihaly (Chair)]: I would say a couple of comments that partly answered the concern I think you're raising. So I inquired of Sophie early today, wait a minute, what about the mediator? Since I was just going through 02:30 and trying to check things off, Sophie then replied, oh, we took it out because it's in the budget. Then she replies again and says, oh, the senate took it out. So we approved it, as you may remember, and we originally had the idea, as it passed out of this committee, to give them two positions. The mediator to replace the federal mediator and an attorney position, because what we've seen is the number of bills on our wall are really motivated by long delays at the labor board, and those in turn come from under staffing. And so we felt that it was important, and we sort of had half the loath in the end when appropriations took out the attorney but left the mediator. So what do we do now, given that it is this doesn't look good in the Senate? The Senate isn't going to finish its budget until at least a week. It might be ten weeks, actually. So we can't put an appropriation in, because this goes to an appropriations committee and the budget's gone. But by putting it in, it's a signal, I will definitely talk to the chair of the appropriations committee, let her know what's going on, and this is a signal, sort of putting a stake in the ground, if you will, on this issue, so that when the budget comes to Senate House Conference Committee, it sort of marks the issue, which is about as much as we can do. So that was the idea here. Is it every, yes? You can finish. Well, otherwise, bill, this draft of the bill 7.1 is unchanged from the prior draft, and one of the things, once we get done with questions about this change, I do want to ask two people who are here with us today, just to verify a few things

[Mary E. Howard (Clerk)]: about the non compete. But please, go ahead, Mary. Thank you. Do you know of any moderators who do not charge a fee? I know we had to have a moderator for a A mediator. A mediator for a neighborhood conflict. We had to pay for him when he got his vehicle to drive to meet us and back. Do you know of any moderators that would do this for free? What's happened historically

[Sophie Sadat (Office of Legislative Counsel)]: was that under the public bargaining units in Vermont, as well as for private employers, they've been able to access free mediation services through the Federal Mediation and Conciliation Service. But then with the cuts that have made by the Trump administration, those positions, they went from something like 143 mediators down to six. So that is being rebuilt, but when it's rebuilt under federal law, under the National Labor Relations Act, the Federal Mediation and Conciliation Service is to help entities that are covered by the MLRA, which our state public employers are not. So before that was a sort of, I don't if it was a courtesy, mean, I know historically it had gone on for some time, that we were able to access, as a state, our public sector unions were able to access FMCS mediators. So it's not clear even if FMCS is rebuilt, which it is in the process of being done because the court struck down the sort of evisceration of the FMCS, it's not clear that that would still be something that would be available. I don't know if it was in this committee or in semi economic development, has to be was that typically the mediations involved in collective bargaining agreements, you're looking at around $450 an hour, so it's very expensive. So again, this is something that is, it's a cost to the state now that shifted because of changes in patents at the federal level, but it's also something that in the long run, if parties can come together and get things resolved through mediation, which generally has been very, very successful, it lightens the load on that Labor Relations Board, because then things don't have to go to a hearing, etcetera.

[Mary E. Howard (Clerk)]: Would it be more effective to have an attorney versus the mediator? Well, was a

[Sophie Sadat (Office of Legislative Counsel)]: discussion committee had, so I think there was a sense that maybe adding staff attorney would also be helpful in terms of the workload side of things, not the mediation side of things, but that got stripped out in house appropriations.

[Marc Mihaly (Chair)]: Thank you. Other questions of Sophie on this draft? Sophie, would you stay just a little bit while we talk with Jess and Laura about

[Sophie Sadat (Office of Legislative Counsel)]: Do you want me to run through what the changes were in six point one? We went through those quickly last week, but I don't know if it would be helpful.

[Marc Mihaly (Chair)]: Yeah, Which are incorporated in this graph.

[Sophie Sadat (Office of Legislative Counsel)]: They're incorporated in this graph, but I have 6.1, they're just highlighted on this graph, they're not highlighted on the graph seven point two because then seven point two already has that new language. I just thought it might be helpful to set the scene because these were changes to the language that had been provided by the medical society. So I'm just running through. So one was, this is under Section 3B, was adding in the headings to make clear. So Section A deals with nonexempt employees, B deals with health care providers. Subdivision one provides that if you have any of these provisions in a contract or an agreement, then that provision is struck out rather than the entire contract or agreement being struck out. There was an addition event for another health care provider, just to make clear what this language is relating to, provides that those provisions will be void and unaffordable if the provision, and then it lists out the particular categories of provisions that would be voided by this language. So the first one is this non compete. And again, it just uses the word A instead of any restriction. If it limits the ability to send rates to healthcare provider to provide notice, that's the non solicitation piece. Subdivision C was streamlining the original language to make clear that this is, if you have an agreement that prevents a healthcare provider from making disparaging statements, that would then be stripped out. D is inconsistent with Vermont law, or E requires litigation arising from the performance of a contract or a brief in Vermont to be conducted in another state, and I know there was discussion around that with the choice of law issues. So those were the main ones, and then it just adds headings into the other sections, but I just wanted to highlight that.

[Mary E. Howard (Clerk)]: Yes. Can we really quickly talk about the disparaging comments or statements? You can't have a contractor agreement that says they can't make statements such as, That would be disparaging. But that's not stopping somebody from pursuing legal action if somebody is liable or Disastering. Is that correct? Right, okay. There's a

[Sophie Sadat (Office of Legislative Counsel)]: legal definition in the statute to that definition. Perfect.

[Marc Mihaly (Chair)]: Questions by the committee. So, I guess I'll just ask quickly, Jessa, you want to identify yourself for the record?

[Jessa Barnard (Vermont Medical Society)]: Jessa Barnard with the Dunham Hood Society.

[Marc Mihaly (Chair)]: Jessica, this language is identical to the language you saw Friday, Do I you see any problems?

[Jessa Barnard (Vermont Medical Society)]: We are very supportive of this language. We think the clarifications and some of the federary organization all make sense to us. Limiting it to the provisions rather than the whole contract being voided makes sense. So we're very comfortable with this. In fact, we got a question today about the very original disparagement language, and this, the language Sophie proposed has actually answered the question, clarified, so appreciate the clarity in that section. The trauma medical society's standpoint, we are very happy with this language and appreciate the committee having it into the bill. Thank you, Laura. And I just wanted to clarify You

[Marc Mihaly (Chair)]: want to just announce yourself, Laura the

[Jessa Barnard (Vermont Medical Society)]: Pelosi from MMR. I just wanted to clarify response to a question that was asked on Friday about whether or not the interstate nurse licensure compact would in any way be in conflict with the restrictive covenants and prohibitions of the non competes. And I did verify with Laura Hibbert, the Deputy Secretary of State, who was head of the Office of Professional Regulation at the time that we did the Nurse Licensure Compact in 2022. And she agrees with my assessment that those would not be in conflict. The licensure compact doesn't in any way regulate the terms of employment, which this bill would do.

[Marc Mihaly (Chair)]: Thank you. Questions of either of these witnesses? Great. Well, I think where we stand at the moment is, what this means is, this is the current draft, is what it means. And if there's any change to the provisions that either of you or both of you have been involved with, we'll let you know. We're not going to just do it unilaterally, but I do think we are approaching the point in which we would vote two thirty out of the committees. We haven't gotten there yet, but we're approaching that point.

[Mary E. Howard (Clerk)]: Can I ask a quick question, Please,

[Marc Mihaly (Chair)]: yeah?

[Mary E. Howard (Clerk)]: All of the effective dates are July 1, including the agreements entered in after July 1, can't have the non competes, right? Right, it's prospective only. And

[Marc Mihaly (Chair)]: in fact, I don't even know about the legality of retroactive provisions that affect contracts under the contracts clause. I'm just not sure how that would work. Okay. It's not. Right, Sophie? This is prospective old. Any other questions? Myriad, is Cameron showing up at 02:15 because he's busy until then?

[Jessa Barnard (Vermont Medical Society)]: You what? My watch stops at the

[Marc Mihaly (Chair)]: So the question is, can it get here soon or should we go offline? I'll tell you what, unless he says now we'll go offline and then come back on.