Vermont Legislature SmartTranscripts:

[Sen. Alison Clarkson (Chair)]: Great. Welcome. Welcome, everybody. Welcome back to seventh Economic Development Housing and General Affairs. It is Thursday, January 22. And today, we are pivoting with some of the bills that are on our wall that we would like to address and we are going to begin by addressing a labor bill introduced by our own defender Berchley which we welcome to the table. Come join us. We're going to begin with looking at F two thirty, and activating the flexible working arrangements. Andy's going to introduce it and give us reason for why we're doing this, and then we're gonna ask Sophie to walk through the bill with us. Welcome, Andy.

[Sen. Andrew Perchlik]: Thank you. I really appreciate the opportunity. Andrew personally, District. This is a bill that came out of the governor's return to office executive order or requirement. And we had several employees that I don't know if you heard in your districts as much as I did here since there's so many states Yeah, I represent the vast majority of them. We had a lot of people that were hired under a verbal agreement that they could work one day, a week in the office, or no days in the week in the office. And then that changed on them. They asked for an exception to the rule, and then a lot of them just hadn't heard back. So they were worried about what was happening. And so I'm talking to these constituents, fellow state employees, and what we could do, talk to the union. They pointed out that we have the statutory language about flexible work arrangements where it says they will consider it, and that we could make a change by just switching it from a meeting to a shower. That if if if the flexible work arrangement doesn't upset the, I think the wording of the statute is the business operations. But just think of it as like if they can do their job under the flexible work arrangement, which doesn't have to be home, it could be showing them to work later so they can drop off their kids or leaving early so they could pick their parents up from adult daycare or whatever it is, if they can do that and still doesn't affect their work, doesn't affect the mission of the place that they're working, then that should be given that they shall do it.

[Sen. Alison Clarkson (Chair)]: Who has the authority, who in this building has the authority to okay that? The super budget, the manager, know, the head of the department?

[Sen. Andrew Perchlik]: Well right now it's you, it's the governor, the agency of administration said that they want to review all the flexible work. By either bill we do have. The bill is just the changes the may to the shall. It's determined to not be, if they're determined to be able to do the flexible work without affecting their work, basically, but in layman's terms, then they shall be allowed to do that. Which I admit, I didn't I don't know a lot about labor law. I didn't look at all the different consequences throughout all different places of work that that might have. This was just to address these issues that I was hearing from my constituents. So there might be other things. And I didn't talk to the Legion Council all that much about it. Was made aware of the statute where it's made, and I didn't have to back and forth and let counsel know other ways of doing it. Was like, here's the here's the proposal.

[Sen. Alison Clarkson (Chair)]: Right. Thomas?

[Sen. Thomas Chittenden]: Really glad you introduced this. I have all the constituents that commute up Chittenden County, and they just saw this as using a sledgehammer when we could have used a scalpel. There are many positions that you just don't need to go into the office so it's worth looking at. I had the same question because I'm reading the language and the real change is this the employer shall consider the employee's request for a flexible working arrangement and rather than may shall grant the request in the event the request is not inconsistent with its business operations or legal contractual obligations. I think the employer in your language still ultimately determines that so it defaults to it. I guess somebody could take legal action saying that the governor or the employer in this case incorrectly deemed it to be inconsistent but it's not changing the authority over who would determine this, right?

[Sen. Andrew Perchlik]: It's just defaulting to It gives the employee a little stronger case if they wanted to push it. Right. If they were saying no, we're still not gonna allow you. You have to show up at 07:30, can't show up at nine, a shared worker, they have figured it out. They could take that to the court and say no, the loss is this.

[Sen. Alison Clarkson (Chair)]: Well I think it's important to understand who the employer is in this situation because who can give permission and is it yeah so to me that's the one thing that's unclear because that's always the challenge with sweeping mandates is that it it doesn't necessarily understand or appreciate the particular. Yeah. And the particular is only known by that supervisor or by that commission, you know, that direct manager, whoever is managing that employee.

[Sen. Andrew Perchlik]: And I did get an email once the bill was introduced from the school district. I was concerned about it. They didn't say specifically, but, you know, I can't imagine the teacher saying, well, I would just go teach it home from home on video, and that should be good.

[Sen. Alison Clarkson (Chair)]: So is this for all state employees?

[Sen. Andrew Perchlik]: It is for all employers. So that's the kind of broad Public and private. Yeah. Yeah. Public and private. All employers would would now fall into this, as they do now under the May. But the governor's EO is just for state employees. Yes. So that's the impetus of the introduction, but this is would change the statute that applies to all employers,

[Sen. Alison Clarkson (Chair)]: which is It has a bigger impact. Okay.

[Sen. Andrew Perchlik]: Yeah. So it's I'm definitely open to that conversation. Maybe there aren't places where it makes sense, but but I think it's I think it's center Chittenden said the employee still has the ability to say, no. This would affect our business operations. We're not gonna

[Sen. Alison Clarkson (Chair)]: no. Nobody has to do this. Right?

[Sen. Randy Brock (Vice Chair)]: But what's what's the process once the employer says no because of whatever my interpretation of that? This is I'm assuming that the the employee would still have the

[Sen. Andrew Perchlik]: right that they go to

[Sen. Randy Brock (Vice Chair)]: court saying the court is wrong, and the question would be, how much litigation would something like this spur? What would the cost of that be?

[Sen. Andrew Perchlik]: Yeah. I think that's a good question for lunch counsel. I I don't know. But but I guess you're right that that's that's what could happen, which I assume some employers would want to avoid.

[Sen. Thomas Chittenden]: That's happening now. Right? We that didn't happen last fall when people were filing court actions to try to overrule the governor's decision about the VSEA. Yeah.

[Sen. Andrew Perchlik]: We know. So that was just for state employment. Thing to do to deal with the police. True. Yeah. Well, thank you. Yeah.

[Sen. Alison Clarkson (Chair)]: That's right. More to follow, and we're gonna then have some people walk us through.

[Sen. Andrew Perchlik]: Okay.

[Sen. Alison Clarkson (Chair)]: And if a simple change would begin, but possibly big implications.

[Sen. Andrew Perchlik]: Yeah. And I have another bill on your wall that at some point

[Sen. Alison Clarkson (Chair)]: We love that bill.

[Sen. Andrew Perchlik]: To talk to you 70.

[Sen. Alison Clarkson (Chair)]: And we are going to look at it. I've incorporated it into our committee housing bill because it's a I mean, could stand on its own, but we also might consider it in the package of housing.

[Sen. Andrew Perchlik]: Okay. Changes. Would that hold us down there? Yeah.

[Sen. Alison Clarkson (Chair)]: Do you want me to just quickly have our heads go to EV Trucking, or do you want to wait and introduce it when we chat?

[Sen. Andrew Perchlik]: What's up to the chairs?

[Sen. Alison Clarkson (Chair)]: How long do you want to be absent from the Senate Transportation?

[Sen. Andrew Perchlik]: I'll just tell you what it is. This is another constituent that has an electric vehicle, lives in a condo association, doesn't have a garage but has their own driveway parking spot. Their condo association said they couldn't charge their vehicle in their driveway. They said at first, they said it was charging a vehicle, main maintaining your vehicle, and the the bylaws of that condo association said you couldn't use your driveway to maintain your vehicle, like change your oil and things. She successfully argued that it wasn't maintaining a vehicle. She had to hire a lawyer to put condo association, you know. I don't think they went to court, but hired a lawyer to make make the case. And then they changed the bylaws just to specifically disallow charging your vehicle in your own driveway, on your own cost, with your own charging station. So I thought that people should be allowed in homeowner associations or condo associations to they wanna pay for the installer. So there's a difference in the right to charge for a couple years ago that had have an impact on all landlords. This is just if you own the unit, condo You own the unit. You have

[Sen. Alison Clarkson (Chair)]: to own the an AV charger.

[Sen. Andrew Perchlik]: If you're gonna pay for it, they can't say it's unesthetic to have a Ford, which

[Sen. Alison Clarkson (Chair)]: So that's coming out of like, I'm I'm just incorporated into our given the time pressure on this committee Sure. Yeah. I've incorporated it into our committee housing though.

[Sophie (Legislative Counsel)]: Because we have a little HOA section.

[Sen. Andrew Perchlik]: Right. Yeah.

[Sen. Alison Clarkson (Chair)]: Great. Chargers are $2.20. Yeah. Would the would the owner of the vehicle be responsible for or I'll pay you the amperage and what have

[Sen. Andrew Perchlik]: Everything, they have to do it by code and get a license. It's not just mounting the box. Right, yeah, because they own the unit so anything they would do in there they would just like any other changes. I think it's just like as you might know some homeowners associations like dictate with

[Sen. Alison Clarkson (Chair)]: the color of your door and the color of your everything.

[Sen. Andrew Perchlik]: Are they on the outside of the building? So as long as they're not, they can have restrictions as they do now. They just can't have a restriction since you can't have one. But they could say What color? Maybe they could say you

[Sen. Alison Clarkson (Chair)]: have to be thoughtfully done.

[Sen. Andrew Perchlik]: Yeah. Uplift updated or aesthetically pleasing.

[Sen. Alison Clarkson (Chair)]: Thank you, Annie Perchlight. Wonderful to have you on loan from Senate Transportation.

[Sen. Randy Brock (Vice Chair)]: Yes. I will go back.

[Sen. Andrew Perchlik]: You're in good hands with your counsel.

[Sen. Alison Clarkson (Chair)]: I would work in good hands. We have a copy. Why don't you just walk through it and it's on our web page. So for people who are watching on YouTube, you can access it on our web page. It's f two thirty. Yes.

[Sophie (Legislative Counsel)]: So the flexible working arrangements bill was passed in 2013, went into effect in January 2014. There haven't been any changes to the bill since it was passed and I couldn't find any case law discussing it. So I don't think it has generated a lot of litigation that say that through the Sorry.

[Sen. Alison Clarkson (Chair)]: It was passed in 2013. 2013.

[Sophie (Legislative Counsel)]: Right into effect 01/01/2014. So under the bill, it is essentially, it was based on European flexible work policies and the belief that if you had flexible work policies this would be more family friendly, it would reduce absenteeism, reduce turnover and lead to higher productivity and that was part of what was in the legislative intent of when the bill was passed. So it provides that an employee can request a flexible work arrangement from the employer again it's just the employer so covers all employers private, public, whatever size here in Vermont twice a year and then it defines in subsection a2 at the bottom of page one what a flexible working arrangement means. This isn't a short term I just need some flexibility in the next couple of weeks, this is more I need to be able to come into work an hour later than everyone else and I'll stay an hour later or I'm gonna work three days a week at home and two days a week in the office, whatever. It's those more substantive changes in the regular work arrangements and the way it's written now which you've already touched on is essentially it's a discretionary you know the employer has to you know the employee can ask twice a year so the employer has to in good faith consider the request but the current language is that the employer makes the determination whether to grant the request as long as it's not inconsistent with its business operations, its legal contractual obligations. So what this is proposing to do is changing that sort of discretionary piece to require or say the employer shall grant the request in the event the request is not inconsistent with its business operations or its legal contractual obligations. And then it has a list of examples of what inconsistent with business operations would mean. So if it's really going to detrimentally impact the business operations of the employer, the employer can say no this is you know it's just not going to work and again if you had a school teacher who said actually prefer to work at home from my kitchen, it's like no that's not really going work for the kids, you really need to come in but if it's something that you know I've been working from home successfully you know three days a week there's nothing that requires me to be in the office that's you know that's a different situation. So that's what the change is there was some reference in the prior conversation around you know going to court and litigation so the way the act works and you don't have all of it here it's not a terribly long act but it just has this just has

[Sen. Alison Clarkson (Chair)]: the sort of first half of

[Sophie (Legislative Counsel)]: the act in it. But there's no private course of action for violations of this statute so if somebody you feel that you've been retaliated against because you've asked for a work arrangement or, you know, for some other reason you're aggrieved by what you perceive to be the failure of the employer to follow this statute, you would file a complaint with the Attorney General, with the Human Rights Commission if you're a state employee, with the state's attorney and then it would go through an investigation process. They would determine whether or not there's plans to move it forward. So there's no private right of action in the current law.

[Sen. Kesha Ram Hinsdale]: Kesha? I think you said in the beginning this is this could be public or private? Yeah, this is all employers. Okay. I raised that because a lot of the language about consumer demand and business performance feels more private sectors. I could imagine I can imagine this could be raised with the return to office order at the state level.

[Sen. Alison Clarkson (Chair)]: Okay. That's how Andy that's why Andy is coming.

[Sen. Kesha Ram Hinsdale]: Ah. Oh, okay. Sorry to say that. So in that vein, I wonder if, I mean, I see no problem looking at advancing this. We might want to look at the section on what's inconsistent with business operations to make it more applicable to the public arthritis sector.

[Sen. Alison Clarkson (Chair)]: Updated in it, this was fifteen years

[Sophie (Legislative Counsel)]: 2013. Yeah. About fifteen years ago.

[Sen. Randy Brock (Vice Chair)]: You mentioned there's no private right of action but certainly an individual can make a complaint to one of several sources and then depending upon what those sources do with the claim, let's say you send it to one of those sources and they dismiss it, doesn't the employee at that point have some right to appeal that?

[Sophie (Legislative Counsel)]: You can appeal it but it would go through the attorney general, the state's attorney, or the Human Rights Commission and then an investigation is not necessary and the civil division of the superior court can award injunctive relief and court costs but I believe you have to go through one of those agencies.

[Sen. Randy Brock (Vice Chair)]: Yeah, so you start with one of those agencies, but if that agency denies you or says that you don't have a valid complaint or it doesn't meet the requirements of the statute in terms of one of the exceptions, and then the individual disagrees with the agency's judgment, doesn't that person at that point have a

[Sen. Andrew Perchlik]: right to get a lawyer in appeal for one of

[Sophie (Legislative Counsel)]: certain I'm not aware of that. I mean I can double check and see again. There haven't been any cases.

[Sen. Andrew Perchlik]: Magnet for cases, you know, as I read this. It hasn't been. It's been I mean, it's been

[Sen. Alison Clarkson (Chair)]: in law for a long time.

[Sophie (Legislative Counsel)]: I mean, the most likely claim would be a retaliation one. Like, you've, know We've got you've come forward and asked them, and the the employer said no, and then you've had an adverse Mhmm. Employment action. Action. So that would typically I would imagine is how these cases would come up with rent or retaliation.

[Sen. Randy Brock (Vice Chair)]: Have this situation in any other states that you're aware of?

[Sophie (Legislative Counsel)]: No. What I noticed from the legislative history, there was reference to European policies and mainly certain countries like The UK, Germany, and places.

[Sen. Alison Clarkson (Chair)]: Kind I'm curious as to whether

[Sen. Randy Brock (Vice Chair)]: or there are any other states in The United States that have something like this in place

[Sen. Andrew Perchlik]: that we could look at, and

[Sen. Randy Brock (Vice Chair)]: in particular, what the effect of litigation has been elsewhere.

[Sophie (Legislative Counsel)]: I can certainly chat to see if that's

[Sen. Alison Clarkson (Chair)]: And after Sophie is done walking, we do have an

[Sen. Kesha Ram Hinsdale]: expert in a particular area in

[Sen. Alison Clarkson (Chair)]: this city right behind you, Carrie Brown, our director of the women's executive director of the women's commission who I believe has some input on this and may want to contribute. May, I want to contribute to May, Mao Xiao. So this would apply so I'm just thinking about the executive order which I mean it's a challenge and I bet the other area I think we do need to explore is who the employer is particularly in a big operation like this like state government is it the direct supervisor is it the commissioner is it the person who knows the details of a person's work schedule so that they are actually the thoughtful one to be able to weigh in or not on this so I think

[Sophie (Legislative Counsel)]: that I mean the employer is just the employer so you would raise it you know you'd go up through the chain right you would make a request and it might end up in you know your HR department. Mean again it depends on the size of the business I would assume right now if you're dealing with state government those those will be looked at by the Department of Human Resources and then again it's an individualized determination so on the one hand what's the impact on the business operations of the employer on the other hand you know sort of what's the justification what what is it that the employee needs?

[Sen. Kesha Ram Hinsdale]: Well I would be curious I don't know if government operations is taking up what happened just now with the RTO. Not yet. But you know, I'm sure there are some departments that it worked very differently and let's just say that other departments, some probably had a lot of waivers, know some have satellite offices. I'm just saying that because I think somebody should be looking if we're gonna keep working on this, it's an I always say it's incumbent upon us to be the model.

[Sen. Alison Clarkson (Chair)]: I agree.

[Sen. Kesha Ram Hinsdale]: And I don't know that we have been I don't know what's happened in each department in each department.

[Sen. Alison Clarkson (Chair)]: So at the moment, SGO hasn't taken it up, and I I will clarify. I don't think we have anything on the law about it.

[Sen. Kesha Ram Hinsdale]: It's a labor matter anyway.

[Sen. Alison Clarkson (Chair)]: It's a labor matter that belongs here. I think the the challenge I mean, and the state state government is facing this as we all have anecdotal evidence of expert real experts in areas, in departments, in agencies who have been granted over the five years especially over COVID the opportunity to be able to not live here and still be work full time. And it's it's very interesting to watch who's getting those waivers and who isn't. And in it it's just curious. There are a number of people who are beginning permission to work through June and they're gonna be reviewed. In June, Andy who's Andy has had a a coworker who has had challenges of of not being able to be to satisfy the new return to work order and a real expert in an area that is going to be a big loss for their department. We have multiple examples of that and so I think in all things we need to learn to be flexible and particularly we want to keep expertise working in state government as we do. So I think this bill is worth our taking some time on and we can have that committed discussion but is there anything else Sophie you want to add? No and I

[Sophie (Legislative Counsel)]: can certainly look into what other states do and again just to be clear there is a separation here so I understand from Senator Perjic why he was motivated to bring this, but this is not limited to senate state government provision Right. Actually provision. It's a

[Sen. Alison Clarkson (Chair)]: That's certainly one. I mean, we if we take it up, we have all those choices in terms of the direction we wanna go. So thank you very much and we have some experts in the room particularly I will carry and if you'd like to just join us and talk about the importance of this bill and how it's been important and who it's been important to. Sure, Kerry Brown, Executive Director. You're welcome to come join us.

[Cary Brown (Executive Director, Vermont Commission on Women)]: Well I would love an opportunity to really give testimony on this and talk about it because there are a lot of aspects that we touched on all of them in some way here. This bill has been around since 2013 and this is one the first bills I worked on in this job and so it's really, it's very interesting to see what has come of it or not come of it. And it's long overdue for updating in some way. And then tied in with what's been going on with the state employees, the commission on women has been a very, it's been really trying to raise issues of equity, particularly as it concerns women and the whole return to office order thing and we're very interested in looking at who is being impacted in what ways, who's leaving, so it's a bigger issue and I would love the chance to come in and really. We would love to have you come in and testify because you will with bring the data that you always bring on this and just because it impacts us.

[Sen. Alison Clarkson (Chair)]: If have it available and the impact since '13 because you were key to this being passed and we did it the women's, I don't remember the women's cards making this all in, it was part of a whole larger equal pay bill, it was a big equal pay bill, we would love to book you and we take us up again which I think I have this feeling around the room that we will be wanting to do and if you can come back to us with as much data to that would support our decision making that would be great. Anything else for caring? Well

[Sen. Kesha Ram Hinsdale]: there's just so much new data now that there's so many employers doing a return to office there's so much new data about how it's impacted women.

[Sen. Alison Clarkson (Chair)]: Yep. I think that's one of

[Sen. Randy Brock (Vice Chair)]: the data pieces that we report also,

[Sen. Andrew Perchlik]: the subset that you can,

[Sen. Randy Brock (Vice Chair)]: is how many men versus women are in

[Sen. Andrew Perchlik]: the categories that take.

[Sophie (Legislative Counsel)]: I think it's, like,

[Sen. Alison Clarkson (Chair)]: three to one. It's two. Yeah. Yeah. Yeah. I'll do my best to get as much of that as I can. That would be great.

[Sophie (Legislative Counsel)]: Yeah. I did it in my article too. Alright.

[Sen. Alison Clarkson (Chair)]: Thank you. Thanks. Terrific. Thanks very much. Anyone else? We have five more minutes. Anybody else who would like to testify? Hi. I see. Anybody else who'd like to testify briefly on this? Encourage us to take it up or not take it up?

[Sen. Andrew Perchlik]: JP, labor persons? I don't have anything to add, Katie Gisbold from my AFL CIO. Yeah, I would love a more

[Sen. Kesha Ram Hinsdale]: Thank

[Sen. Alison Clarkson (Chair)]: you everybody. I think okay to move, keep that in our hopper and take it up again. Ready? Yeah. Great. I think so let me just explain what's happening because we've had a big shift in our schedule today. We had, as you previously note, we had asked the director of CTE for technical education workforce. We were gonna pivot to workforce this morning. Well, still are, but differently. And at the very last minute, late last night, we had a request from the agency of education to not have her alone, but with the secretary, and the secretary is already booked, and they canceled a whole hour of our morning. So it turns out I found out that CTE is a new rollout is actually being presented at the same time in house commerce and education. So at 10:00 we are going to join via Zoom, we're all going to be on to all the committees are on Zoom, to hear the rollout of the new proposal from the agency. I would remind us all that we have a bill from Kesha that also addresses updating the Career and Technical Education system. I think it's fair to say system. Yeah. For Career and Technical Education. Yeah. And that we will be looking at that not today as we hope, but in it could very soon. I know David and Kesha have both heard this already, and I apologize for that. And so if you have other things that you need to be doing but we'd love to have you obviously here but if you feel super done we appreciate that. I do need Tom and Randy though for us to keep going. So I think it's important for us to hear what the agency's plan is it's ready to roll when they're doing it. And so we pivoted flexible. Speaking of flexible, here is a flexible working. We are going to give you the break that you were gonna have later and take it now. And then if you could be here at 10:00, we're gonna start at ten, and we'll join by Zoom. Does that serve everybody?