Vermont Legislature SmartTranscripts:

[Senator Alison Clarkson, Chair]: Okay. Welcome everybody to Senate Economic Development, Housing and General Affairs. It's good to have a full room. So I've got lots of interest in this bill as it comes back to us from the house. This is one of our this labor bill now has most of our labor work other than s one seventy three on it. And we are looking today at the additions put on by the house, the very, very narrow non compete work that was added to this bill. And I we have a proposal from the in addition to hearing about the non competes, we have a proposal from the PSEA. So, I believe to begin the discussion about the non competes, we are welcoming Austin Davis. Austin, introduce yourself and go for the guest. We're on S two thirty.

[Chris D’Elia, President, Vermont Bankers Association]: Good morning. Yeah.

[Austin Davis, Director of Government Affairs, Lake Champlain Chamber]: For the record, Austin Davis, director of government affairs, Chittenden White Chamber. Since this is the end of session and time is tight, I will take my best efforts to manage this product very brief. And then, I think Kate Harlow, who's in the room, can speak to some of the more technical aspects of the law. I wanna focus my remarks on four main points to bring to your attention and the effort to be brief. Just to visit this perspective on your use of non competes, how we got as Zacchafonia in this legislation, how the Fair Labor Standards Act is a bit of an apple to orange boots test for this, which will lead me to a very narrow and I believe friendly amendment that we might have. Backing up real quick, I just think it's good to give some context, you know, what a nonfifteen agreement is. It's a legal contractor clause where an employee agrees not to enter into competition with their employer for a specific period of time in a specific geographic area with a specific scope of work after their employment ends. In most states, including our own state, a non compete agreement is enforceable if it meets a reasonable and a standard. Unfortunately, looks at, is the duration reasonable? In Vermont, it's generally about a year duration. Is the geography reasonable? And is the scope of work, keeping you know, making sure that person's not doing any work, but not doing the work that directly competes with their employer, where there might be some impropriety there. They're Right. Easily can be applied judiciously, and I think Vermont's current reasonable standard and its rich body case law have shown that they are being used judiciously. I think it's important that most of the work around non compete agreements is done in a judicial setting because these agreements are really meant to cover many gray areas, and you need to look at them in totality of the issue, in the employment relationship, and all of the criteria and circumstances. We haven't seen any issues around status quo, the reasonable standard. We don't see it being used, and I think you'll we've heard some standard some egregious examples from outside of our borders, but we haven't specifically in the eight years we've been discussing this over at the house, haven't heard egregious examples within our borders. You know, I think in my interactions with employers, I've seen them being used judiciously. Employers understand that these agreements can also have an effective scare for talent. If they're using them, they've done the internal calculus to understand that what they need to protect is so valuable that it's worth oftentimes reducing the talent pool which they can crawl on to fill that position, because some folks will not come to role that has not been intervened. There's, like you said, a body case law that follows this. And then I think finally, one thing that's lost in this discussion is that there's an important ethical component to this. I think that's best embodied by the fact that you all are covered by an agreement. While not an aim is a non compete agreement, in effect, is a non compete agreement. Legislators are banned from lobbying for one year within the state of Vermont. Unless it's a state patron. Unless you're going to a state agency, in which case, there's a similar That's a agreement.

[Senator Alison Clarkson, Chair]: As we have discovered in this building. Well, once you

[Austin Davis, Director of Government Affairs, Lake Champlain Chamber]: leave a state agency, there's a simpler agreement as well, that prohibits lobbying for one year within this state of all the elements, but not people getting under there. And that's an ethical consideration. And so we always would ask if legislators, if they think that there's an ethical issue within a person leaving a position where they are entrusted with certain information and certain relationships, that they might then go abused, if they think that's important enough to protect in the context of a legislator or an administration official, it's certainly important to protect in the context of of an employer in our state. You know, many of our employers in our state are small shops. They're small businesses. They're competing at a national and international level, way above their weight class, and some of their first mover advantage or intellectual property could be very easily trampled if folks can just easily poach those employees rather than buying that property. You might say, well, there's intellectual property law. There's trade secret law. There's all these other things. They are all part of the ecosystem, but really it's about the interstitium, the gray area between all those things. And sometimes things might not actually be intellectual property, but they are important. You know, sure, I can use intellectual property laws to go after an employee who leads to go to my competition and brings the special sauce formula, but I can't do anything about the fact that they were there for the creation of the special sauce, and they know the 700 ways to get to it that are unsuccessful. So if they want to move to the next thing, they have that, and that's not necessarily protected.

[Senator Alison Clarkson, Chair]: So this is a very narrow noncompete clause for nonexempt employee. Yep. You this was supported in the house. I believe you ended up landing in support of the house, my understanding from the chair. What is it that you think needs to change or that you were not happy with in house version?

[Austin Davis, Director of Government Affairs, Lake Champlain Chamber]: If I may, I just wanna get through one more point and I'll get to that. Just the historical context is helpful. So I was just getting some of the overall and background of non competes, how they're used, how they're judiciously used. Used. The point number two is none of this happened overnight. There's been a heat gear discussion in the House Commerce Committee around this. This last summer, there was a working group with many people who cared about this, that worked on this issue. It resulted in You were on that. That's right. Yeah. It ultimately resulted in h two zero five, which came out of House of Commerce. Unfortunately, that legislation got waylaid because of a last minute conversation around teachers and their agreements, their statutory agreements that have ruled by the legislature to be non competes. That made two zero five go back on the wall of commerce, and then that led us to a situation where the chair House General took it upon themselves to create a short term quick fix. And I think, it's very impressive, the work that House General did in such a short amount of time. Sometimes it's, I think maybe it's just because they didn't have that eight years of history that they were able to do that. The outcome didn't make everyone happy, but I think we all ended in a place where we felt this was a reasonable outcome. Thomas?

[Senator Thomas Chittenden, Member]: On that point, did the chamber have a strong opinion in support of H2O5, and simultaneously, do you have an opinion on the HEDRIC amendment that ultimately tanked it? Would you have objections to moving that non compete for teachers?

[Austin Davis, Director of Government Affairs, Lake Champlain Chamber]: I don't wanna get involved in the, I think you should talk to the principal association. That's super great, Randy. I'm gonna say the one thing. Wanna thank the school board association. I think they all have very strong opinions on But do you. Principal? I think that we went through eight years of discussion without the teachers ever being involved, and then we went through about four months of discussion without the teachers ever being involved. It was only we went into the floor that that discussion was at. H-two zero five had some things that we weren't necessarily happy about. We could have seen a different version. At the end of the day, politics and legislative theory are impossible, and I think we ended up with what was possible with H two zero five. It was an unfortunate reality that it got, sent back to the wall because of that floor security.

[Senator Thomas Chittenden, Member]: Which you were supportive of H2O5, by

[Senator Randy Brock, Vice Chair]: the way. Yes. Thank you.

[Austin Davis, Director of Government Affairs, Lake Champlain Chamber]: So, I think, you know, again,

[Senator Alison Clarkson, Chair]: I think just to clarify that, you were on the task force, and then were you involved in also helping to Did you have input in drafting two zero five as it is on the wall? That's right. Right.

[Austin Davis, Director of Government Affairs, Lake Champlain Chamber]: And so, you know, to be clear, what you're seeing here is something that was created, you know, in mid and large by House General as a way to move something Some pieces. Related to that. And none of the language, actually, in, you know, 02/30 right now was really discussed in the House of Commerce, the part of H two zero five. I'd say this solution actually was probably in the past brought out a few times in the many years that this has been a discussion in the legislature, and each time I'd say it kind of got pushed aside for various reasons, but here we are. Okay.

[Senator Alison Clarkson, Chair]: So that would need to need your ask. Yeah.

[Austin Davis, Director of Government Affairs, Lake Champlain Chamber]: Because I've got two thirty. Whole aspect of

[Senator Alison Clarkson, Chair]: this bill we have to talk.

[Austin Davis, Director of Government Affairs, Lake Champlain Chamber]: So two thirty, you know, uses the Fair Labor Standards Act, the exempts, non exempts, which was originally created in the 1930s to address overtime and scheduling of employees, but it was never really intended to be related to competitive threats or possession of sensitive intellectual property. So I think while this represents a workable solution, it's not obviously the best solution. I think we'll hear that from everybody. Everyone might have other ideas, but this is one of the best things we've actually had in the long eight years discussion around non compete agreements. S-two S-two zero five or 30 was before you right here and then chair Mahali together. That said, there is a narrow concern that some individuals might be, Dave Parlow will speak more to this, but there is a narrow concern that there are some employees who will be nonexempt, but will make high salaries, and will be in situations where they are exposed to competitive materials and intellectual property. A good example of this might be an executive assistant because of they might have a higher salary, but because of the Fair Labor Standards Act duties test, they will not meet the criteria of an exempt employee, but they will be in with the C suite as they're negotiating all these sensitive, all this sensitive information. The very narrow and I believe friendly amendment to this would be to just say that, and then keep all of the language that currently exists in this bill, and then add that a non exempt employee with a salary above a certain amount can be eligible as well for a non compete agreement. I think if you don't wanna do that and you wanna stay with just the language as a sense, that is a workable solution with a couple problems, but if you wanna make it even better, this is something to add. I'd say though that Do have

[Senator Alison Clarkson, Chair]: a threshold in mind?

[Austin Davis, Director of Government Affairs, Lake Champlain Chamber]: Well, if we wanted to stay in keeping with the region, that'd be about 200% of the federal minimum wage. If you wanna keep with what 02/2005 had for a wage threshold, that was 300%. That works out to about roughly 60,000 for the regional threshold or 90 for what commerce was looking at in h two zero five. But I'd say, you know, this conversation is, I've been in this much longer than I ever thought I would or wished I would be in. It's a very complicated organization, or, you know, very complicated body of law. What has been put in front of you, I'd say, is a Jenga game that is at the very final stage of it where there's really no more boobs to make or the whole thing will tumble. I think this is the one narrow block you can push out of the bottom of the Jenga game and it won't fall over.

[Senator Alison Clarkson, Chair]: And maybe not. So narrow. So I think sadly on that, we're gonna have to turn to David.

[Austin Davis, Director of Government Affairs, Lake Champlain Chamber]: That'd be perfect. Because we

[Senator Alison Clarkson, Chair]: have a lot to explore this morning. Perfect. Thank you, Autzen. Thank you.

[Caroline Hawk, Policy and Legislative Affairs Director, Vermont Department of Labor]: Can I say something that's

[Senator Kesha Ram Hinsdale, Member]: coloring my whole look at this? I'm gonna forward an email from 2024 from Rich Cassidy, thank you, Rutland Pete, who was our labor attorney, who had come in quite a bit when I was chair of It's non a reminder of what landed at the federal level with non competes, Rich Kesha was also part of a national group, like a streamlined commercial code, is not sort of labor code, where attorneys from all over the country also found a lot of agreement around non competes. None of it had to do with exempt versus non exempt. I personally can't vote out a bill that is at odds with non compete law in every other state and what the federal government came up with, which was mostly barring non competes below a certain wage threshold. Most states have a wage threshold and then they might look specific to certain industries. I see no reason that we kind of did all this going around and around to exclude teachers. I would have to hear something extremely compelling on that front. I'd much rather go back to H205, which was not only workshopped, but looks a lot more like what other states have, maybe raised the income threshold. The federal government had it at 151,000 when they passed whatever order that kind of never took effect because of the Trump administration. But I'm gonna remind people that's that was a fairly simple, elegant, and it's where most labor attorneys in the country, as I understand it, landed in federal government. So I'm just personally not willing to vote something out that because labor law has to be sort of a national coordinated thing, just like tax

[Senator Alison Clarkson, Chair]: It doesn't have to be, but it would be good if it was. So just question for our legislative council, Dave. Sorry. Hold on one second. The in 02/2005, and could we're back but gonna hear about 02/2005 in a minute. But was the distinction exempt and non exempt in 02/2005?

[Sophie Zdatny, Office of Legislative Counsel]: No, had a salary threshold

[Senator Alison Clarkson, Chair]: at this time, Thank the you. Right. David. Let's put our time is tight. Yeah.

[David Harlow, Partner, Downs Rachlin Martin]: Thank you, Senator. For the record, my name is David Harlow. I'm a partner with the law firm McDowndrack and Martin, and I practice in the firm's labor and employment group. Thank you for having me. I'm mindful of the chairperson's comments about time, so I'll attempt to speak briefly.

[Senator Alison Clarkson, Chair]: Apologies. The Senate is just it's a tough, we have such a limited morning time, and now it's been scrunched another hour. Understood. Well, thank

[Chris D’Elia, President, Vermont Bankers Association]: you, nonetheless, for having me here this morning. Why did you take the time, sir?

[David Harlow, Partner, Downs Rachlin Martin]: My hope is that I can provide some insight, thoughts from employment and labor lawyer on the subject of S-two 30, specifically the non competition brief provision. You know Austin better than you know me. Born and raised in Clarendon, Vermont, I left the state to Grum County.

[Senator Alison Clarkson, Chair]: There's your Rutland booster. That's right,

[David Harlow, Partner, Downs Rachlin Martin]: that's right.

[Senator Randy Brock, Vice Chair]: You're giving my book.

[Senator Alison Clarkson, Chair]: Just ask for the moon.

[David Harlow, Partner, Downs Rachlin Martin]: I left the state to attend the University of Virginia for my undergraduate work. After that, I worked for Senator Leahy in Washington, D. C. On the Constitutionary Committee.

[Senator Alison Clarkson, Chair]: Oh, I saw Ellen Lovell, Ellen McCullough Lovell last night. Very nice.

[David Harlow, Partner, Downs Rachlin Martin]: For a couple of years before ultimately going to law school at the University of Arizona. After law school, I did a upheld clerkship on the Harrison Court of Appeals, and later joined a national labor employment firm called Lopus Certificates, where I practiced for about five years before joining Downs Rack of Vernon and returning to Vermont in 2013. My eighteen or so years of private practice in law, I've only dealt with employment law, the only thing I do. And I care very deeply about employment laws and how they function in our state, both for employers and for employees. I should add, I'm not here on behalf of Downs Rutland or on behalf of any particular client, and I'm also a lawyer who represents both sides of non competition disputes. So there are times when I advocate for their enforcement. There's also times when I advocate that a particular agreement not being enforced. It's my personal view and observation, after practicing this area for some time, that we do not have these types of abuses that have led to non compete legislation at the federal level and in other jurisdictions in The United States. I have the second Austin Davis' testimony about employers in Vermont adopting these agreements when reasonable, and I would also vouch for the judicial branch of Vermont. Judges in Vermont have resolved these disputes equitably and reasonably for over one hundred years now, without legislation. So if it were me, I would offer the opinion that there's there's no need for this legislation in the first place. But if the committee's determined to pass something out, I do have some suggestions to make this particular bill, S-two 30, a little bit better. My goal here, try to do this safely, is to simply point out the different legal concepts that are at play in the FLSA as compared to noncompetition agreement analysis. The underlying premise of a non competition agreement is that an employer may enter into an agreement with an employee in certain situations to allow for some restriction on that employee's ability to compete with the employer, to protect the legitimate interests of that employer. And those interests can take many different forms. Sometimes it's confidential information, sometimes it's the secret sauce. Other times it's customer relationships that the employer has entrusted that employee to employee safeguard on what they have. There's a variety of different factually specific factors that lend themselves to resolution on a case by case basis before a court approval. The use of the FLSA exemption standards as sort of a proxy for this highly detailed, highly factual case by case analysis is not ideal, to say the least. Under And the current version of S230, as I understand it, it would prohibit its nonexempt employees from being put under a non compete agreement under any circumstances. And the real difficulty with that is that there are non exempt employees who meet the traditional century old standard for application of a non competition agreement when they hold those legitimate interests, and thereby jeopardize their employer's business if they were to go and work for a competitor. Now, Austin pointed out an example of an executive assistant who, by virtue of his or her employment, is given access to all the same confidential information that a CEO or other C level suite an executive might have, and therefore presents the same, if not a greater risk of being poached by a direct competitor for slugging or pay, with the understanding that that person is gonna know exactly what the business plans are, what the confidential information of the competitive business is. So in my view, exempting that nonexempt executive assistant actually presents more of a risk to the employer's business interests than a non competition agreement focused strictly on the exempt employees. Thomas, do you have

[Senator David Weeks, Clerk]: a mic as well? Yes.

[Senator Thomas Chittenden, Member]: Oh, I was gonna wait till Do have more recommendations that you're gonna make to decide

[Senator Alison Clarkson, Chair]: Are you recommending that we go to salary?

[David Harlow, Partner, Downs Rachlin Martin]: Well, what I would recommend in this particular instance, if you were to use this as a framework, would be to add something to it that allows for the employer to pay non exempt employees over a certain threshold, let's say 60,000, and that effectively would give the employer a tool to safeguard itself. If you have to raise the income of a nonexempt employee in order to be able to enforce a non competition agreement, that might be a reasonable solution for an employer. As it currently stands, there's nothing the employer can do. You can't, as an employer, make a nonexempt employee exempt. Their status for the FLSA is determined by their job duties, not by how much money they So that's the fundamental I would also just point out that the executive assistant in that example is not prohibited under a non competition agreement from working as an executive assistant. Not at all. That executive assistant would be prohibited from working as the executive assistant for a direct competitor of the employer. So if you're in a small, niche industry, which many Vermont businesses are, you'd be prohibited from working for one or two direct competitors, not as an executive assistant in any other industry. So that problem is real. There's another example that I think I'll point out very quickly.

[Senator Alison Clarkson, Chair]: Yeah, we really need to be

[David Harlow, Partner, Downs Rachlin Martin]: Very quick.

[Senator Alison Clarkson, Chair]: A lot of people want to chat about this.

[David Harlow, Partner, Downs Rachlin Martin]: Salespeople. Salespeople enjoy customer relationships that have, throughout the history of Vermont's jurisprudence on this issue, been a basis to enforce a non competition agreement. Salespeople under the FLSA are often nonexempt. There's an outside salesperson exemption, but there's not typically an exemption for an inside salesperson. In 2026, there's very few door to door salesmen going physically door to door. Salespeople currently usually don't meet that outside sales exemption that's drafted in the fourth. So my recommendation would be to include some form of income threshold that the employer actually has the power

[Chris D’Elia, President, Vermont Bankers Association]: to to implement non competition. Great, Thomas.

[Senator Thomas Chittenden, Member]: Statement in the question, but you don't have any other key recommendations you're offering. Those are the recommendations about the threshold, just to be clear.

[David Harlow, Partner, Downs Rachlin Martin]: If you were to adopt S230, that would my recommendations.

[Senator Thomas Chittenden, Member]: Right. So I agree. And one concern with this approach is, that it's just people using nonexempt. It's just not the right approach because it really should be about income. You make less than a certain amount. But the other half of this that I'm concerned about is that this won't address the so this addresses the high paying nonexempt. I'm worried about the low paid exempt employees. And I since you have employment law and you mentioned Yeah. This isn't an issue in in Vermont, I have a quick Google search. I'm worried about gonna use names because this is what came up in Google search, the Dick's Sporting Goods or the Dollar General, the large chains applying these non competes for assistant managers that are making 45,000 a year or so, ask to work sixty plus hours a week. You put a noncompete on them so that they have to stay within that chain and move elsewhere, uproot their family, go elsewhere, rather than maybe looking across town through a competitor, that gives me concern. So I don't like this nonexempt exempt, but I'm curious if you'd reflect on that approach, that aren't there exempt employees making less than a certain income threshold that really should be bound by restrictions that aren't really fair in the labor market?

[David Harlow, Partner, Downs Rachlin Martin]: Yes, there are exempt employees who, under certain circumstances, should be bound, but the generality of that example demonstrates, I think, why these disputes are best resolved in a case by case basis by judges, Because there are gonna be certain non competition agreements for certain exempt employees, certain managers, which I think we're all gonna agree are reasonable, warranted for the protection of the small business. The the assistant manager for DICK'S or for I I can't remember. Dollar General. Dollar General. Something like that is unlikely is unlikely to pass the test that currently exists. Right. Exactly. If DICK'S worker, if Dollar General were to attempt to enforce that agreement, what what I would tell them is you're gonna waste about 75,000 to $100,000 attempting to enforce an agreement that you're gonna lose on, and as a result, that doesn't happen.

[Senator Alison Clarkson, Chair]: I have to move us along, because we have a bunch more to hear from David,

[Senator Randy Brock, Vice Chair]: This you're a gonna go question. So, going back to the very beginning, do you support the addition of this section 3B, which is agreements, the noncompete agreements, the prohibition about noncompete agreements, is it

[David Harlow, Partner, Downs Rachlin Martin]: necessary to I think any change to legislatively that would limit non EPs, in my view, is unnecessary. But I'm I'm sort of saying, I understand it's politics. If you're gonna do it, we

[Senator Alison Clarkson, Chair]: need do the salary threshold and not exempt nonexempt. That's what I'm hearing.

[David Harlow, Partner, Downs Rachlin Martin]: Correct. If you're gonna use the exempt, nonexempt dichotomy, you would also need some third outlet in the form of salary threshold rate. Thank you.

[Senator Thomas Chittenden, Member]: Just because of his expertise, I'd like to throw one more question. Yeah. Okay.

[Senator Alison Clarkson, Chair]: So And then we're David's up.

[Senator Thomas Chittenden, Member]: To your previous point, though, I'd also say that those non competes, even if they're unenforceable, they can have a chilling effect on the laborer that doesn't know what their real options are, and when they're told that they can't go somewhere else, they they won't, and so then they'll have to work with their family. You raised another point that is a piece of this discussion. You said legitimate interests. Would you tell me what you personally think are the legitimate interests that a school district has to prevent teachers from applying to other schools on their terms when their life circumstances suggest they might want to work elsewhere? I have to say, don't know, because I don't practice in the field of public education. Okay. So you don't have a strong opinion on that?

[David Harlow, Partner, Downs Rachlin Martin]: I would say I don't know.

[Senator Alison Clarkson, Chair]: There are other people in the room who I think probably have a strong opinion about that.

[Tom Abdelnour, VSEA Coordinator for External Government Affairs]: Thank you very much.

[Senator Alison Clarkson, Chair]: Having looked at who's in the room.

[Senator Randy Brock, Vice Chair]: Question for

[Senator David Weeks, Clerk]: you. Where where did

[Senator Alison Clarkson, Chair]: the T Care legislation appear? It's in 02/2005. It's not here. That is why that was the issue on the floor that Troy Oh, okay. Heedrick raised. That was the issue that pulled it off the floor back in onto the wall, and that it that is what house general did was they took the piece that was a little narrower out and put it in this. Thank you, David, so much. Lovely to meet you. Beth Rutland, do you work which office do you work after? Well Obviously, not in Lebanon.

[David Harlow, Partner, Downs Rachlin Martin]: I'm not in Lebanon. I live in Middlebury. My office is.

[Senator David Weeks, Clerk]: It's not a great picture.

[Senator Alison Clarkson, Chair]: Yes, well, Beth, here we've got labor lawyers all over for VRM.

[David Harlow, Partner, Downs Rachlin Martin]: That's

[Senator Alison Clarkson, Chair]: true. It's great. Thank you very much for taking the time today to come back. Sure. David. Sure. Come join us.

[David Mickenberg, on behalf of Working Vermont]: Sure. Thank you. David McElroy here on behalf of working for Mike. I want to echo many of the things that Austin said about the work that must have been on around h two zero five, not the bill that you're seeing in front of you, but the bill that was voted out and nothing out of the Commerce Committee. I think there was a lot of good work on that. The one unfortunate thing, like, that senator Chittenden just brought up is that while the bill's intent and I think you should read the intent if you get a chance. It's very broad and really says that we should be discouraging, competes generally, across the board. And that intent wasn't in line with one aspect of the bill, which was to, sort of systematically smooth one particular tweet or post it. So I just also wanna just to frame this a little bit. This is from a press release from the current FTC that said, once again yeah. This is from a month ago. Once again, the FTC is fighting for American workers to ensure that they have the freedom to pursue new job opportunities and better pay, said Daniel Guinera, director of FTC's Bureau of Competition. The American economy runs best when workers are not limited by noncompete agreements that distort competition and prevent workers from changing jobs, starting competing businesses, and earning higher wages. The FTC's actions today build on its work to enforce the antitrust laws to protect American workers, and that was an action that they took against pest control companies that affected about 18,000 workers across the country, perhaps in the state. I also wanna just correct with one thing for the record. House Commerce did hear testimony from Vermonters that have been subject to to non competes. There was a chiropractor that gave very compelling testimony about her experience and how difficult it was on her life and her economic future. That's We just

[Senator Alison Clarkson, Chair]: have no I I under understand and fully appreciate how much time House of Congress took on this. Came out ten zero. It was a strong bill. Kelly's skill in it seems to have been the teacher piece, which they, I assume, also took a huge amount of testimony on that aspect of it or not.

[David Mickenberg, on behalf of Working Vermont]: They did take some testimony. Yep. Yeah. So, I mean, a simple solution

[Senator Kesha Ram Hinsdale, Member]: But then that didn't have exempt, non exempt?

[Senator Alison Clarkson, Chair]: No. No. No. Two zero five has no exempt, not exempt.

[David Mickenberg, on behalf of Working Vermont]: So one option for you, one recommendation would be to take two zero five, add the Hedrick amendment, and move forward with

[David Harlow, Partner, Downs Rachlin Martin]: that. Yeah.

[Senator Alison Clarkson, Chair]: And the Hedrick amendment is it Hedrick or Hedrick? Hedrick. Say, anyway. The Hedrick amendment is what? Forgive us for those of us who are Sure.

[David Mickenberg, on behalf of Working Vermont]: It clarified that teachers, which have been subject to a version of a non MP provision since 1860 They would they would also be included in the bill and not teachers subject to non

[Senator Alison Clarkson, Chair]: would all be read down. Exactly. And teachers and staff, because this a lot of this right. Everybody would be not Yes. Big impression. Yes. Right. Jeff, is that

[Jeff Fannon, Executive Director, Vermont-NEA]: That is correct.

[David Mickenberg, on behalf of Working Vermont]: Yeah. Thing I'll for the record. Yeah. Thanks. One thing I'll mention also, this idea that you

[Senator David Weeks, Clerk]: can just leave it up

[David Mickenberg, on behalf of Working Vermont]: to the courts. Well, for a lot of workers, we don't have they don't have we don't have the capacity to go to court to enforce.

[Senator Alison Clarkson, Chair]: I was gonna say exactly the same thing, which is who can who has particular very low pay. Who has the money to go to court? They don't. And that is the brevity and showing factor. So your recommendation at this point is At this point.

[David Mickenberg, on behalf of Working Vermont]: Would be to take two zero five, include the Hegrick's amendment, and then send this back, for considering something else.

[Senator Alison Clarkson, Chair]: Thank you, Thomas.

[Senator Thomas Chittenden, Member]: So I definitely support that approach for a couple of reasons. One, h two zero five was well vetted. There was a lot of the concurment. It was going to ten zero. It was just support for it. It was a good policy. And the Hetrick amendment addresses what I see as a real issue in current Vermont labor law. Good

[Senator Alison Clarkson, Chair]: question. It's reflected that.

[Senator Thomas Chittenden, Member]: Teachers are as I've heard the governor say, okay, it's not that we're paying them too much. You look at how much teachers get paid in Vermont, they are not paid more than other states. The argument, though, is that we have too many staff in our schools, like, pareducators and so on. So that's that's the debate, but the teachers themselves are not getting hired then. Right now, on my experience, I'm a very good one. I love her. Alright? This is a very problematic rule that she has a very small window where she can apply to other jobs that she effectively can't. So this noncompete where teachers making $4,550,000 a year, they effectively can't go. They can't upward move, taking their skills and go to other school districts where it's needed without additional without completely either quitting their job or otherwise. So we didn't take testimony on this, but I know the house did, and I I definitely support us addressing this this problem, which is percolated for years. You wanna hear the BSBA and we can we can qualify that there's enough time, but just because there isn't enough time doesn't mean I'm gonna support s two S230's approach, which I think is flawed for multiple reasons. And I think the H2O5 approach makes a lot

[David Harlow, Partner, Downs Rachlin Martin]: of sense and it's fair.

[Senator Alison Clarkson, Chair]: Right, so this will all take a little more time because many people, we haven't gone through 02/2005, so it's one of the options that we have in front of us. Appreciate One last thing, yes. I would not,

[David Mickenberg, on behalf of Working Vermont]: yeah, sorry, I would not support, if you're sticking with the two thirty framework of non exempt, I would not support an income threshold. I think that's just limiting. I think that just means fewer people are gonna be fewer people are gonna be protected, and more people will now have a restraint on their ability to seek employment that works for them.

[Senator Alison Clarkson, Chair]: I don't disagree. The question is there was an income threshold line. Wasn't there an income threshold until then? There was. There was. Except for

[David Mickenberg, on behalf of Working Vermont]: it was much broader in terms of who this Who would apply to. Would apply to. And there was a test, not just an income threshold, but a three part test, which made it very clear when these would be appropriate or not. Right.

[Senator David Weeks, Clerk]: K.

[Senator Kesha Ram Hinsdale, Member]: Sure. So for the sake of not confusing people, I'd say let's just set aside the exempt, non exempt thing for a second. I don't think it's I don't think it's good policy. Let's just talk about the wage threshold. What do other states' wage thresholds look like? Because, I mean, whatever testimony received, I believe if you're gonna ask somebody to work hard for you, extra hours, build customer relationships, build a lot of value for your business, we should increase the wage threshold at which you're essentially paying them to be entrapped a bit for working for you. I mean, the personal assistant example, I think is a great one. Right? Like, Elon Musk had a personal assistant who was loyal to him for decades, who he, you know, summarily fired one day when she asked for a raise. So he should make sure that the income threshold, I think, is more aligned with the federal one that was proposed. Because otherwise, these are a tool that an employer could just put on somebody at what's actually a very low wage in Vermont. It's that's 90,000 is is very immediate income. Not Well, not

[Senator Alison Clarkson, Chair]: for my. But maybe so so what I know is that regions.

[Senator Kesha Ram Hinsdale, Member]: I would suggest 90,000 is is area median income for our area. I don't I mean, I just like to use a higher threshold. I heard a 151 from you. Yes.

[Senator Alison Clarkson, Chair]: So I thank you for this because we have some decision points, and we have a lot more time that this will take, which is fine. I'm not being critical. I'm just saying we there are a lot of other things that are being There are one other major piece that big goes. And on the nonconvenience, we have Jess and Chris still up here. So Ten seconds. And then we have the SBA. That's it.

[David Mickenberg, on behalf of Working Vermont]: Yeah. Okay. Just one quick related to the executive assistant example. Nothing in this bill prevents people from being covered by an NDA, a nondisclosure agreement. Nothing in this bill prevents people allows people to reveal trade secrets. And what we're saying in in talking about that example is that we don't we want the burden to be on employees that are subject to noncompetes to go to court, but we don't want any burden to be on employers to enforce the law around NDAs and trade secrets. So I think it's you know, I I just think there are other ways to get at those issues, and nothing in 02/2005 or 02/30 would affect those particular ways to protect that information. Thank you.

[Senator Alison Clarkson, Chair]: Thank thank you very much, Dave.

[Senator Randy Brock, Vice Chair]: Question for you, madam Eric. Yeah. Can we get a copy of two zero five and

[Senator Alison Clarkson, Chair]: the Hebrew Peninsula? We will manage it. That's great. We can just go right out the bin. Maybe yeah, I could go out again. We will. We Awesome. Yeah. I'd recommend it. Yeah. Awesome. So we have at the moment so I'm gonna have Jessa and Chris come and chat first. And I think I can't remember who's on deck next, but I think it's Chris. Chris, come and join us for a sec, and then Jessa. Then we're gonna Kristen. Then we're gonna have a brief conversation about what we wanna do about that piece, and then we have another proposal for this bill from the VSEA. So and I'm I'm gonna do that all by nine for you.

[Chris D’Elia, President, Vermont Bankers Association]: For the record, Christina, your president of Vermont Bankers Association was the one at the request to chair Marty Gotham and pulled everybody together over the summer to have this extensive discussion. You were part of two zero five also? I was part of two zero five. And as you are discovering very quickly, it becomes a very complex issue that has a lot of moving parts to it. So I am going to just offer our support to work with the committee as you go forward over the next few days on this. I will say that in support of Jess's community, there wasn't any opposition to finding solutions for the groups that she represents, both in two zero five and in work that was not in house general. But you are embarking on a very difficult discussion that as soon as you solve one issue, there will be other questions that come up around it. So it's not any path forward for you in the short period of time.

[Senator Alison Clarkson, Chair]: Well, thank you, Chris. That's really what you look at. I'm so wrong. That's okay.

[Chris D’Elia, President, Vermont Bankers Association]: I don't think it is, but I wanna I want you to tell the reality you're getting into right now.

[Senator Alison Clarkson, Chair]: Right. Sometimes we do very good work under pressure. I in pressure.

[Senator Kesha Ram Hinsdale, Member]: I I guess I would just ask, you know, if you've heard any complaints from the bankers you work with in other states that generally just have

[Chris D’Elia, President, Vermont Bankers Association]: a wage threshold on competing. I have not heard complaints from other bankers regarding wage thresholds. It's it's not just the wage threshold, it's also the work that the individual is doing.

[Senator Kesha Ram Hinsdale, Member]: So industry by industry section.

[Chris D’Elia, President, Vermont Bankers Association]: So industry by industry. I think there was general consensus and agreement that for the examples that you highlighted Senator Chittenden, there's no reason why there should be nonconvenient administrative bills in those types of job positions. It's when you get into higher level positions and the type of work that they're dealing with, or the entity, with the information that they have access to. That's where you're starting to get into the serious discussions. Right. However, you're also gonna find the opportunity to get into discussions about other agreements that surround non compete, deferred compensation, forfeiture for income agreements, because they have may have noncompete language in them, because when I retire, I defer compensation when I retire, I cannot go to work for somebody else, otherwise I will lose that compensation. It just starts to snowball and snowball. So what's in, what's out, what needs to be clarified.

[Senator Alison Clarkson, Chair]: But that was covered and addressed, doctor Malini. I have to believe five for no.

[Chris D’Elia, President, Vermont Bankers Association]: No. What do you mean? Some are

[Senator Alison Clarkson, Chair]: gonna leave some of that for another session. It's just why we keep running is to keep dealing with these issues year after year. I'd rather not.

[Senator Thomas Chittenden, Member]: But And then Claudia's deployed.

[David Harlow, Partner, Downs Rachlin Martin]: I don't know. So the spread. Thank you. Right.

[Chris D’Elia, President, Vermont Bankers Association]: So Anyway, support of this work of We supported 02/2005, the extensive work that was done on it. I had one issue come up, after 02/2005, it came out of the committee, which if it ultimately gotten to the size of the table, would brought to your attention, it's just on the clergy for it's for the compensation degree. But beyond that, we Sure.

[David Harlow, Partner, Downs Rachlin Martin]: Communicated that to them? I will.

[Chris D’Elia, President, Vermont Bankers Association]: I didn't think we'll get a chance to start.

[Senator Alison Clarkson, Chair]: Listen. We move fast in this. Thank you very much. I'm gonna ask Jess to come up, and then we're gonna leave some time for PSEA. But first, we're going to look at yeah.

[Jessa Barnard, Vermont Medical Society]: Thank you very much. Jessa Barnard with the Vermont Medical Society. Will try to also be brief and thank you Chris for teeing up some of the background. There are sections in two thirty, also two zero five that are specific to healthcare, and this is not unique to Vermont. A number of other states have addressed not competes and other employment practices in healthcare specifically, sort of categorically for those professions.

[Caroline Hawk, Policy and Legislative Affairs Director, Vermont Department of Labor]: Are they

[Senator Kesha Ram Hinsdale, Member]: the same like Maryland or

[Jessa Barnard, Vermont Medical Society]: They are in, yep, referenced in my testimony, our Which we have,

[Senator Alison Clarkson, Chair]: which we

[Jessa Barnard, Vermont Medical Society]: have, reminded about. We have here. And middle of page two. Tell me your favorite one. My favorite one. I would actually say Massachusetts, New Hampshire, Wyoming all have pretty similar language to what we're proposing or what is in what is actually currently in the bill. Mhmm. But then enough you know, a number of states have have laws specific to health care providers. The difference tends to be which providers they include, and we recommend being broad and using Vermont's existing underlying statutory definition of health care provider, which is pretty broad. We don't think it makes sense

[Senator Alison Clarkson, Chair]: to carve out just certain types of healthcare providers from others.

[Jessa Barnard, Vermont Medical Society]: The reason healthcare is different in that if you are restricted as a patient from seeing or following your healthcare provider, that really restricts access. We're a rural state. We already have access issues. Know have workforce shortages. We don't want any other barrier to patients being able to continue to see their healthcare provider in a rural community. And this is echoed. The American Medical Association supports banning or not having non in healthcare. The Federal Trade Commission has issued letters recently to staffing and employment companies critiquing their use of non competes. We actually know they are used in healthcare, not extensively in Vermont. The real issue we actually see in Vermont is out of state staffing companies using non competes, especially in the area of nursing or physician temporary physician placements. And that local Vermont employer may want to keep that person on after that contract ends. And sometimes those contracts prohibit that. So you may have a temporary nurse in a long term care facility. That facility would like to keep that nurse local, pay local wages, not pay the staffing company a huge premium, on the, above those wages, and then there will be often be provisions in those contracts prohibiting that nurse from accepting a full- And

[Senator Alison Clarkson, Chair]: I believe that kicked in all from a traveling nurse. Exactly. That's

[Jessa Barnard, Vermont Medical Society]: what I'm saying. Exactly. Traveling nurses, traveling physicians, that's actually in Vermont where we, our understanding is that most of them are present. Yes. So

[Senator Kesha Ram Hinsdale, Member]: I'm not sure I am with you on a blanket non compete for health care workers. I I have to look at that definition. I'm looking at Massachusetts, the details of Massachusetts law and under one legal document from an attorney's website, so it may be incorrect, but if you could tell me your understanding, they have industry or profession regulation on lawyers, physicians, psychologists, nurses, social workers, broadcasters. If we did something related to physicians, psychologists, nurses, not sure about social workers, but I'd have to look into that more, but physicians, psychologists, and nurses for your purposes. What is captured in all healthcare workers that we think

[Jessa Barnard, Vermont Medical Society]: Well, I'm wearing multiple hats here. Me just disclose. So I represent physicians and physician assistants. I will also say I am Informally, there is a whole coalition of health care associations that have been working on this issue, and I it's actually the it all started in a third bill, May, which is about private equity in health care that started in house health That had provisions on non competes, nondisparagement that were then taken out because it was moving in 02/2005. Then 02/2005 had its issues of not moving, so then it is in 02/30. Moved and then ground to Moved, ground to a halt, then these were sort of imported into 02/30. I will say sort of everyone weighing in on all of those various steps has been looking at a broad applying to all health care providers. So, you know, for for my organization, personally, we would wanna see physicians and physician assistants. Will say sort of speaking on behalf of all of the entities following this issue as it's landed in various places, we've all been in support of a broad definition There is

[Senator Alison Clarkson, Chair]: a definition that exists that we could go with.

[Jessa Barnard, Vermont Medical Society]: If there's an underlying definition in in state statute sort of in and Sofia, I know, has

[Senator Alison Clarkson, Chair]: it Then we can look at that.

[Jessa Barnard, Vermont Medical Society]: You can look at that. And it is I will say it is broad. It doesn't list necessarily profession by profession. That's your preference. Our preference is to just keep the existing kind of broad definition that Can

[Senator Kesha Ram Hinsdale, Member]: you speak to physician assistants, though? Only because I mean, again, I I could see the I can see the that's like a subordinated position, you know, to somebody, and they may really wanna leave. You know? So so as we talk about, like, the independence of physicians and and having some level of competition

[Jessa Barnard, Vermont Medical Society]: that might be healthy for So we actually got way in interesting feedback even from independent practices. Mhmm. So I'm getting at I'm actually

[Senator Alison Clarkson, Chair]: gonna pull this together because I think if we have some choices, and the committee has to help me make this decision. I'd like to have you finish, and then I'm just gonna have a brief conversation, and then we're gonna turn you to the VSEA request. So I just would love to have you finish, and then I think we just need a brief conversation about the direction we wanna go.

[Jessa Barnard, Vermont Medical Society]: I will be a high very high level. We are most in favor of the current language actually in 02/30. It is very similar to what was in 02/2005. All the concepts are the same, but there was just some refinement of language that we actually think are is a little more specific. So we actually support the I would call them minor revisions that were made between 02/2005 and 02/30. Just on the health care. Just on the health Only because we are weighing in section three b, I believe it is, specific to health care providers. That is the only section of the bill we have Right. Position on. We have not heard any opposition in all of the stops this language has made throughout the building in terms of the direction of that language. Great.

[Senator Alison Clarkson, Chair]: Thank you. Yes. So I'm gonna take a pause before we hear from VSEA. Thank you. I appreciate everybody. This is terrific and very helpful. We I believe, as I looked, having just come out of a chairs meeting yesterday where we are being given Friday as our deadline, we have the opportunity to have a few hour and a half here, hour and a half there next week. I want I'm sensing, and I haven't heard from Randy and David, but I'm sensing that people we have some options at the moment. We can accept 02:30 as it came to us right now. We can accept $2.30 the looking at $2.00 5, which will take us a little more time, but looking at two zero five with the HEDRIC amendment. And we also have the option of doing 30 with two zero five and maybe adding this VSEA request. So those are the sort of the options. I just need to hear because we are happy to take the time to look at two zero five. We're not gonna do that today. We'll do that probably Monday. Remember, we'd save Monday 09:30 to 11:30 or nine to 11:30, something like that. We had talked about that. We could chat, heard about that. But we can make time to look at 02:05. It's gonna have to be very tight, and we're going to have to make time for it. So if people feel that they would like to do that, I'm I'm happy to do that. And, also, I would like to I we need ten minutes to hear the request from PSA because they also what we just discussed refer really relates to to the bill as passed from the house. But what the and so those are the options I think that we have within the the bill that has been sent to us. The SEA has a proposal that's an addition that has not been passed by any committee in the house, and it would be a new piece. So I think we also have to hear from Matt and see if we'd wanna add that. But at the moment, what are your thoughts about two zero five and the Hedrick amendment? Do we wanna hear more before we make a decision on two thirty? David and Randy, I'm pretty clear on this side of the table. Yes. The two zero five with the. So Randy and David. We wanna hear that. One if what I'm hearing is the language currently in two thirty is not viewed with much affection. And there's interest in looking at two zero five with the Hendrick Amenden. That will take us some time to understand and appreciate, which we're unhappy to give.

[Senator David Weeks, Clerk]: But the question that I have is, have we heard from every group or segment that ought to be represented in

[Senator Alison Clarkson, Chair]: this We're not gonna have time to do that. We're gonna have

[Senator David Weeks, Clerk]: don't time have time to do it. We shouldn't do it.

[Senator Alison Clarkson, Chair]: Right. We're not gonna have time in the time we have available. They took the whole beginning of the session. There was a lot of time spent on two zero Is

[Senator David Weeks, Clerk]: that perspective representative of any discussion that we've heard in years by collection?

[Senator Alison Clarkson, Chair]: Well, we can all take some time to look at some of the tape that from you know, if we wanna do this, we're gonna take some time to hear what two zero five the the final work of two zero five that was passed out of committee, which you have in front of you. You have the Hendrick amendment. We're gonna have to do

[Senator Randy Brock, Vice Chair]: a little work on our own

[Chris D’Elia, President, Vermont Bankers Association]: to be brought up to speed.

[Senator David Weeks, Clerk]: We have looked at this thoroughly. My question is, have we heard from or understood the positions of those people other than those who were in the room as groups?

[Senator Alison Clarkson, Chair]: We will by the time we look at it. The question is do we take the time to look at two zero five plus the Hedrick amendment on getting a strong support from one side of the table that before we pass too much. Know, another option is to pass two zero three with two thirty, rather, with none of these additions. No. No.

[Senator Thomas Chittenden, Member]: I really wanna hear from senator Meeks, but if I could just frame one more thing. So to your point, h two zero five is well vetted. It came from a study committee. It got unanimous support. It

[Austin Davis, Director of Government Affairs, Lake Champlain Chamber]: was That's what we just heard.

[Senator Thomas Chittenden, Member]: So so we're I currently have what I don't like in s two thirty is this is a haphazard approach that other states doing a cutting long sentence. So what I I'm sensing might be an easy path for us is we take two zero five, put heteroic amendment asylum. K? Page two zero five, that seems like it's very clear, and replace the s two thirty with that. And then we can have the debate about the hetero and that might be where we could focus if we could squeeze any test. Right. Is that an option, madam chair?

[Senator Alison Clarkson, Chair]: That is what I'm describing is we can take time to appreciate two zero five and include that in two thirty. Or, of course, we have the option of doing two thirty without the non compete at all and just do two thirty as we voted it out of this committee. David, what

[Senator Randy Brock, Vice Chair]: are your thoughts? Well, certainly happened to hear about two zero five, and I recognize that such. I do understand we're running out of runway. Next week is gonna be a problem. Monday is probably going to

[Senator Alison Clarkson, Chair]: be absorbed with education, absorbing all the oxygen. Are you doing afternoon meeting and education in the morning? That's Seth and I can coordinate that.

[Senator Randy Brock, Vice Chair]: Monday, as we did last this last week, I guess, in the afternoon. As far as I am aware of this, there's a lot of lot of issues without traction in that committee that are going to serve our effort. Okay. But I'm happy to hear about 02:00. I don't know anything about it until this morning. Okay. So

[Senator Alison Clarkson, Chair]: I think I think I have a sense of the committee. We're willing to do the 30, not as without the non compete as it is at the moment, looking at the non competes in 02/2005 and the HEDFRIC commitment. Okay, we will make time to do that. And now we're gonna turn to the VSEA. I'm sorry we have we're running out of time here, but give it ten Hinsdale. Minutes. Al Horton, welcome. If you would frame up a request. Doctor. Kesha

[Senator David Weeks, Clerk]: Yeah. Just one just I want to go back to what I said before. I'm not looking to satisfy anything. Before I have the answer to the And

[David Harlow, Partner, Downs Rachlin Martin]: that means not talk to anybody, any group,

[Senator David Weeks, Clerk]: or any affective population that has not been discussed in what's discussed thus far. What are we missing is my question. I don't know what we're

[Austin Davis, Director of Government Affairs, Lake Champlain Chamber]: not missing at this point. That's what I will be seeking to find out. I agree. I'm sure that many people in

[Senator David Weeks, Clerk]: this room, for example, are subject to non compete agreements.

[Senator Alison Clarkson, Chair]: Well, guess all legislators are, because

[Senator Kesha Ram Hinsdale, Member]: we have

[Chris D’Elia, President, Vermont Bankers Association]: No, a different no, no,

[Senator David Weeks, Clerk]: I'm talking about it in real jobs.

[Senator Thomas Chittenden, Member]: Yeah. But my wife is.

[Senator Alison Clarkson, Chair]: Yeah. His wife is. Okay. You are. David is. And and yeah. So we will discuss that further. Thank you for weighing in. And Randy, we're not going to do anything until everybody's satisfied and on board. So with that, Al Gordon, take it away.

[Al Gordon O’Connell, General Counsel to VSEA; Managing Partner, Pyle Rome Ehrenberg]: Good morning and thank you and my apologies for not being able to be with you in person. For those who have never met me, my name is Al Gordon O'Connell. I'm a labor lawyer and I've been doing that for about thirty years. First as a labor investigator and prosecutor for the federal government And for the last twenty two years in private practice representing unions across all industries, all sectors, public sector, private sector, state federal. I currently am the managing partner of PileRome Ehrenberg, which is the largest union law firm in Vermont. And I serve as general counsel of the Vermont State Employees Association, who've asked me to sit with you for a few moments today. The request from the BSEA with regard to the legislative change really is seeking to close a loophole with regard to solicitation on state premises, and particularly on premises controlled by the Department of Corrections. State facilities rule one, which is passed by buildings and grounds completely exempts department of corrections, but for all other state facilities or most other state facilities, already exempts nearly all solicitation on state grounds. And that includes labor union solicitation. There's one minor exception I'll get to in a moment, but that's the existing state rule. DOC is exempted from the state rule. And although there's no legislative history of an administrative rule, it seems clear that the reason that the DOC is exempted is because the Department of Corrections Commissioner should be permitted to create more restrictive rules around secure facilities, particularly facilities that house incarcerated individuals. But the DOC Commissioner has never passed any such rule with regard to the outside of the facilities, the grounds of the facilities. And so what VSEA is seeking your assistance in doing is closing that loophole to prevent wide scale solicitation on areas controlled by DOC outside of the facility, such as the parking lots, where our members every day must come through and to in order to get to work. I did mention that there is an exemption for labor organizations in buildings and grounds facilities rule one.

[Senator Alison Clarkson, Chair]: Building's a general service, it's out.

[Al Gordon O’Connell, General Counsel to VSEA; Managing Partner, Pyle Rome Ehrenberg]: Yeah, I'm sorry. Thank you very much.

[Senator Alison Clarkson, Chair]: That's okay. I know it's

[Al Gordon O’Connell, General Counsel to VSEA; Managing Partner, Pyle Rome Ehrenberg]: Right, moving fast today. Just trying to get through your schedule. But the state facilities rule one already has an exception for labor organizations, but only in one limited capacity. There is a provision in CELRA, section nine zero nine of CELRA, that allows access to the exclusive representative to have access to new employees right after they're hired, to give them information about their union, to determine whether they wish to join that union. That is the only exception. The only other reasons that the exclusive representative currently VSEA would have access to the facility would be to perform its statutory functions such as coming on-site to represent an employee in a Loudermill proceeding or any other kind of investigation. And so all that the VSEA is seeking here is to extend the no solicitation rule to build it to the grounds of DOC facilities to have that same protection. And it treats everyone the same from a solicitation point of view. No one is allowed to solicit on those premises with the single exception of CELRA section nine zero nine for new employees to have access from their exclusive representative. So ultimately this closes a loophole, has the DOC facility comport with state facilities rule one, and also US Supreme Court precedent around an employer's ability to control its premises. So it's a very simple approach. We're hoping that the committee will endorse it.

[Senator Alison Clarkson, Chair]: It may be a simple approach, but every time somebody says something simple, they're on the ramifications, as you know. Unfortunately, this is a new proposal coming to us at the end of session with, as you've heard, we're fighting for every hour that we spend together after Friday. So this is coming to us. This has been you've proposed this, I believe, in senate institutions. They chose to not take it up. Is that correct?

[Al Gordon O’Connell, General Counsel to VSEA; Managing Partner, Pyle Rome Ehrenberg]: I believe that's correct. But Tom who's Yeah. Across from

[Senator Alison Clarkson, Chair]: the Was it proposed in house institutions? Because they feel Well, can

[Senator Kesha Ram Hinsdale, Member]: we ask what happened in senate?

[Senator Alison Clarkson, Chair]: It's I feel like we're Okay. What happened?

[Senator Kesha Ram Hinsdale, Member]: I have no understanding of what is happening right now.

[Senator Alison Clarkson, Chair]: Okay. So Tom and Al, you'd be kind enough to share with us what happened. And because the committee of jurisdiction on state property would probably be and is all in all likelihood is our Senate and House institutions committees. So what happened in the Senate institutions committee? Could hear from Tom or Al.

[Tom Abdelnour, VSEA Coordinator for External Government Affairs]: Madam Chair, for the record, Tom Applemore, VSEA's Coordinator for External Government Affairs. The committee briefly reviewed the proposal, and I believe I I don't wanna speak for either chair Harrison or the rest of the committee. I believe, it was essentially the same scenario whereby they had a a short period of time in order to review this. And there were, as, I think, the perception on the part of the committee that it might be better handled, by one of their counterpart committees in the senate. So they probably decided not to take action on this year. Not that I don't believe due to any opposition to the proposal, but simply because of the perspective Timing.

[Senator Alison Clarkson, Chair]: Well, the timing is an issue for us as well.

[Senator Kesha Ram Hinsdale, Member]: I don't okay. So let's So And

[Senator Alison Clarkson, Chair]: I finish on house. So was this proposed in the house?

[Tom Abdelnour, VSEA Coordinator for External Government Affairs]: There were brief discussions in in the house, but it didn't arise to the level of testimony in

[Senator Thomas Chittenden, Member]: the committee.

[Senator Alison Clarkson, Chair]: Okay. So this hasn't been passed by the house. Correct. And the senate institutions committee chose not to take it and send

[Senator Kesha Ram Hinsdale, Member]: it to us. So here's the problem with what happens particularly to state employees or any labor issue that that comes to our body. There are three committees of jurisdiction, institutions, gov ops, and in some cases, economic development and labor. The I think the concern that I heard from the committee institutions was that they the the concern raised about the problem with this was labor standard.

[Tom Abdelnour, VSEA Coordinator for External Government Affairs]: That that's correct, senator. And I I so I believe it was the committee's decision, not necessarily that they didn't have time as such, but that it might They

[Senator Alison Clarkson, Chair]: don't have jurisdiction.

[Tom Abdelnour, VSEA Coordinator for External Government Affairs]: Dealt with by the committee of

[Senator Kesha Ram Hinsdale, Member]: jurisdiction for labor issues. Right. The question of is for some reason excluding corrections workers from not experiencing, vending, whatever, you know, in their parking lot, a a prison issue, a state employee bar you know, a state employee government issue, or a labor issue. And they were told that it was a labor issue.

[Tom Abdelnour, VSEA Coordinator for External Government Affairs]: I I think that's right, senator. I I think that was the guidance.

[Senator Kesha Ram Hinsdale, Member]: We are the only ones who can answer that question. So I just wanna be fair that it wasn't that the other committee said we don't have time. They're not the committees of jurisdiction for this issue we are.

[Tom Abdelnour, VSEA Coordinator for External Government Affairs]: I think that's right. And I think I'm sure the desire on our part to have Al be able to join us today and as we're having these discussions is to clarify that making this switch with regard to the proposal would be well in line with all of existing state labor law, with the precedent that exists with regard to the all other state buildings.

[Senator Kesha Ram Hinsdale, Member]: We will hear from our legislative council. If I could just say

[Senator Alison Clarkson, Chair]: I I I just I have other people that we have that we have lined up to weigh in. On this issue. On this issue. We have Wanda Manolik, and we're five minutes over time. And so Wanda, who is with us? That's us, did you? That is Wanda, they both rang off. Yes. So, Kesha.

[Senator Kesha Ram Hinsdale, Member]: Oh, great. Thank you. So I I haven't really talked to anybody about this. It's just sort of, you know, when we think about this issue, like, I just don't know if other people have an image of in their mind of what it feels like to be in a parking lot in Corrections. I used to spend time in the women's prison in Chittenden County because of my work as a legal advocate for victims of domestic violence. And when you enter or exit a place where you have to remove everything from your pockets, you cannot I've have done the same. Literally anything with you. You are in a space that feels enclosed and confined and time, you know, and space start to escape you. That parking lot actually became a very important place for me to, like, collect myself, because it's a very intense thing to to enter or exit a corrections facility. I have no idea why they were originally taken out, but, like, this seems very simple to me, and I don't know who opposes this.

[Senator Alison Clarkson, Chair]: I believe our legislative council has thoughts on this, and I would like to hear from Wanda about the history of

[Senator Kesha Ram Hinsdale, Member]: But that wouldn't be opposition. That would be an opinion.

[Senator Alison Clarkson, Chair]: No. There'd be history, which is not an opinion. It's a fact of why this why corrections was carved out. That's one question. And second, again, we have very little time. This could be dealt with next year. This is not a pressing issue that has to be solved this moment. So I would like to take five minutes just quickly to hear from our legislative council as to this proposal that we have in front of us. So do you want to just speak from there? Yeah.

[Sophie Zdatny, Office of Legislative Counsel]: Okay. It's Sophie Sedatney for the Office of Legislative Council. Yeah. I mean, I I don't have any additional information really as to why the Department of

[Senator Alison Clarkson, Chair]: Corrections Right, would that's what we're hoping we'll end

[Sophie Zdatny, Office of Legislative Counsel]: in that. There's a facilities rule that's issued by the Agency of Administration, BGS, that was passed in 1999, effective 2000. So that's the current facilities rule that Al was talking about that has this carve out for the DOC. I did look at statute, so the Commissioner for Buildings and Gender Services is the one that is directed to develop the rules around facilities. There are some carve outs for some state agencies, but the Department of Corrections is not listed as one of those. Under the title 28 dealing with the Department of Corrections, the commissioner has authority to oversee the operations of the prisons and the department has been delegated authority to develop the rules around the Department of Corrections. Again, I couldn't find anything online with regard to rules governing the exterior of prisons. Obviously, there are rules around who can go into the prisons. So in looking at this in the proposed language, if this were to move forward, my thought would be to put it into Title 28 under the section that deals with the administration of prison, so it would be in there. I guess my, even

[Senator Alison Clarkson, Chair]: my Not in the fair labor practices that

[Sophie Zdatny, Office of Legislative Counsel]: Well, because the way it's drafted is specifically around the facility, right? Right. So, I think that is what would make sense. I I think that's why people would look in terms of rules around the facilities for the Department of Corrections. So I guess I would be keen to hear, again, testimony from the Department of Corrections or Buildings and General Services in terms of the current policies and why that seems to be, why the DOC is carved out, whether there are any rules that are not right there governing parking laws.

[Senator Kesha Ram Hinsdale, Member]: Have you heard why the OSD is carved out

[Caroline Hawk, Policy and Legislative Affairs Director, Vermont Department of Labor]: from 1999 onward?

[Tom Abdelnour, VSEA Coordinator for External Government Affairs]: I believe Al's testimony earlier, Senator, speaks to that. Al, I'll ask you, I guess, reiterate your point.

[Al Gordon O’Connell, General Counsel to VSEA; Managing Partner, Pyle Rome Ehrenberg]: Right, so the statute does give the Commissioner of Buildings and General Services the authority to control outside of the DOC facility. She has delegated her authority on DOC facilities to the Commissioner of DOC, which is presumably because of the expert of the commissioner of the DOC in controlling secured facilities and the surroundings. There's no other language anywhere that we're aware of.

[Senator Kesha Ram Hinsdale, Member]: Okay. So it was it it was I I got that part. So there was no at the time, it was just they were missed. It wasn't like somebody wants tacos in the parking lot or something.

[Senator Alison Clarkson, Chair]: Well, I I think we in all fairness, we should hear from Wanda and because we've asked Wanda for the history

[Senator Kesha Ram Hinsdale, Member]: Well, of do you know what Wanda's Wanda's been doing?

[Senator Alison Clarkson, Chair]: I don't. Okay. I asked her to come and testify. So my question to get the the gist. Okay. We have some other things to do. I think one of the questions I have to the committee now is, as we look at s two thirty as a vehicle for this, we have we've made the decision to hear more on two zero five on the noncoupies, and we'll be looking at two zero five. The question is, do we also wanna take up this and look at the history of this and make a decision about including this next to 30, and we will and we can make a a very short amount of time to look at this as well. So are are are we on this?

[Senator Thomas Chittenden, Member]: I'm not against this language.

[Senator Alison Clarkson, Chair]: Willing to hear more? Certainly going to hear more.

[Senator Randy Brock, Vice Chair]: Okay. I'm going to see what

[Senator Alison Clarkson, Chair]: we don't know, though. Okay. So we will aim to fit in both the the FDA discussion and the noncompete discussion next week with some specific time, but it's gonna be I'm I'm it's gonna be short. So we're gonna have Wanda. We'll have a bath. And we'll Al, if you could be on deck when we're back and Sophie, we'll be dealing with this next week. And your proposal is sent to grab this. Do we and you have sent, I believe you've sent I know Sophie has the language, but we could do it in title 28. 28.

[Sophie Zdatny, Office of Legislative Counsel]: It would be just a new set. My my thought would be a new section. It would be section one twenty nine from title 28.

[Senator Alison Clarkson, Chair]: Great. Okay. Well, we will look at that next week. Thank you everybody on s 02:30. We're now gonna shift to s one seventy three because we have a question about whether to concur or not to concur with the house proposal of amendment on s one seventy three. And David and I spoke and Sophie, if you could stick with us on this. We David did his work talking to Jay Ramsey, I hope, and I did a Jay's on holiday. Who

[Senator Randy Brock, Vice Chair]: we do have some feedback from From archive? No. We do have some feedback from labor. Yeah.

[Senator Alison Clarkson, Chair]: Great. Terrific. What are your thoughts?

[Senator Randy Brock, Vice Chair]: I think that the apprenticeship section is don't wanna that's sort of speak on behalf of Do want Roland to I think it'll be more appropriate

[Senator Alison Clarkson, Chair]: Okay.

[Senator Randy Brock, Vice Chair]: Rather than being the monkey in the middle. Roland has been advised not to be the monkey in the middle.

[Senator Alison Clarkson, Chair]: You are not the monkey in the middle. You are the reporter of the bill. And, Rowan, would you join us at the table, please? Thank you. Thank you. Because this was a request of Department of Labor, so it's great. And, Mark Hinsdale oh, I mean, I spoke to Mike Mark and they were very Thank

[Caroline Hawk, Policy and Legislative Affairs Director, Vermont Department of Labor]: you very much. I appreciate having me. I'm not very much time, so I'll make this quick, but I'm Caroline Hawk, who policy legislative affairs director, the Department of Labor. The changes that are in s one '73 were requested by the Department of Labor. Act 55 of 01/23 changed the entire registered apprenticeship statute. We made a lot of updates per federal government guidelines, really kind of changing it to what we wanted to be, if want the program to be. And so within that, we have two of those report requested that we've worked with the Office of Racial Equity to look through all of the updated language to see if there's various to make sure that subpractices had access. It was equitable. Any changes we should make to make sure that everyone could who wanted

[Senator Kesha Ram Hinsdale, Member]: to part of their own cookie.

[Caroline Hawk, Policy and Legislative Affairs Director, Vermont Department of Labor]: And so that's what the language reflects in s one seventy three. We are in full support of it. There is nothing substantive in any of the changes, and I'm happy to go through

[Senator Alison Clarkson, Chair]: That's okay. I think we went through them. We went through them yesterday. Fantastic. And David. Yeah, just wanted to

[Senator Randy Brock, Vice Chair]: make one comment. This is an observation. Maybe made I made yesterday, but the apprenticeship section applies to there's a list. One of them, the on age seven is anyone living in a rural area. Federal standards, all of Vermont is a rural area. Just So kind of negates everybody. There's no real distinction between who it applies to, it's our statement.

[Caroline Hawk, Policy and Legislative Affairs Director, Vermont Department of Labor]: That's recognized. It is recognized and it's written to make sure that we have eligibility as opposed to state. So, in that particular section, we took out some of that specific language identifying groups, because it's not really about the groups of protections associated with this section or other parts of legal law. It's the books of this with the identifying barriers that we see here where the protection still exists before those groups in other areas of legal law.

[Senator Alison Clarkson, Chair]: Right. It does realistically cover state. Yes. Reporter, I would I think, given that, I would entertain a motion to concur with the house proposal amendment.

[David Harlow, Partner, Downs Rachlin Martin]: So moved.

[Senator Alison Clarkson, Chair]: And we'll do a straw poll on it because we don't have possession of it. We can We can't don't have possession on the floor. We don't. Oh, okay. So, yeah, it's working. So we could ask how those wait. I mean, if if there was a lot of work like, on s 02:30, we're gonna ask once we get, we're gonna ask to take it into committee, I think. So Or

[Senator Thomas Chittenden, Member]: If if we do, then it adds, like, another warning day. So are we just gonna pass over, or you gonna take it into committee?

[Senator Alison Clarkson, Chair]: Well, see. I never had to start the talking. So if we could just we could take it. Senator Clark. So we actually voted both Yeah.

[Senator Randy Brock, Vice Chair]: On the strip up. But Senator Brock? Yes.

[Senator Alison Clarkson, Chair]: Right. And I think that Rowan can get you some language on what this accomplishes and what this does. Right. Thank you very much. Thank you, Rowan, for coming over, and I hope Jay's having a ball wherever he is.

[Senator Randy Brock, Vice Chair]: Mhmm. And I'd rather be tonight as the house pulls over back.

[Senator Alison Clarkson, Chair]: Yes. Absolutely. That's

[Sophie Zdatny, Office of Legislative Counsel]: two thirty years of what is up to date.

[Senator Alison Clarkson, Chair]: On the floor? Yeah.

[Sophie Zdatny, Office of Legislative Counsel]: On our calendar? Right at the very end. Yes.

[Senator Alison Clarkson, Chair]: Of the house calendar. Of the senate floor calendar. Yes. So I am going to so just to finish on s two thirty, I am going to ask to bring it back into the committee and we will be able to work on it. So thank you. So we're going to launch into h two eleven. If we do people need four minutes at because we with people waiting from California who've gotten up early to join us. We join at ten or ten. Okay? So if we go short, that would be great.