Vermont Legislature SmartTranscripts:

[Sophie Sedatney (Office of Legislative Counsel)]: Hi.

[Senator Alison Clarkson (Chair)]: Thank you. Welcome, everybody, to senate economic development, housing, and general affairs. It is Thursday, May 14, I think. We are looking at s two thirty, a labor bill that has come back to us from the house, and we are looking at, given in the interest of time, we're looking at two amendments for this bill. One, I think we all agree we don't have time to take up the huge issue of non competes, which is big, but the one that was well vetted and thought out and as there is agreement on is the non compete with healthcare providers. That is amendment number one, I believe. Is that correct? That's one of the two amendments, right? And the other amendment is the discussion of solicitation in Department of Corrections and parking lots. And the commissioner of the buildings and general services has agreed to conduct that conversation. I've checked with administration. They're good with that. Contract was just signed and so they have two years. So there's plenty of time for this conversation. And Wanda, it's in rules and Wanda Minoli is kindly taking on in session law, taking on this conversation, facilitating it between the Department of Corrections and the Vermont State Employees Association. So those are the two. They also made one change in changing back to the original language of self attestation with the victims of domestic violence. And so that is, those are the three points of agreement if people are willing to do a straw poll on that. And I think given to-

[Senator Kesha Ram Hinsdale (Member)]: And we look at the

[Jessa Barnard (Vermont Medical Society)]: healthcare non compete absolutely. Sophie's

[Senator Alison Clarkson (Chair)]: got it all ready to go. We have Jessica here and Devin is gonna be talking with David on the way because I think David was they were all checking with their hospitals.

[Senator Kesha Ram Hinsdale (Member)]: Did we check with labor?

[Senator Alison Clarkson (Chair)]: Labor was here yesterday.

[Sophie Sedatney (Office of Legislative Counsel)]: Yeah. This is this so Sophie Sedatney, office of legislative council. This is the language that the committee has been looking at throughout. This was the language that came over from the House. It doesn't, the section has been reworked to remove the non competes for nonexempt employees, so, but otherwise, the language around healthcare providers is the same language that came over from the House. There's no change to that. The only change in this amendment is to strip out the reference to non competes with nonexempt employees and make it solely about healthcare providers. I don't know if you want me to.

[Senator Alison Clarkson (Chair)]: Yeah, Jessa, do you wanna just reiterate your support for this or whatever you wanna say about it?

[Jessa Barnard (Vermont Medical Society)]: Sure. For the record, Jessa Barnard with the Vermont Medical Society. We've been looking at this language with a whole group of healthcare associations since early in the session. It started way back in the conversation actually around private equity and then moved over to the labor bills as the more appropriate vehicle that they were, seems to be already dealing with non competes, and we've not heard any concern in those conversations on the House side about this language. It is really intended to help make sure there can be continuity of care for patients and address some of the unique access to care issues that Vermont needs around healthcare, also be able to have out of state contracts employees, be able to be hired by local Vermont healthcare organizations that stay permanently in Vermont if those employees would like to. So we very much support this language and hope it's able to move forward.

[Senator Alison Clarkson (Chair)]: Thanks. Appreciate that. Thank you.

[Senator Kesha Ram Hinsdale (Member)]: Is this the mirror language for certain other states like Massachusetts?

[Senator Alison Clarkson (Chair)]: I think Sophie's looked into the other states. I think there are lots of other states that have this. Certainly, yeah.

[Sophie Sedatney (Office of Legislative Counsel)]: There are many states that have not specific to health care providers. This exact language was language that was proposed by the Vermont Medical Society, and I believe it came from a variety of different states. So it's not a cut and paste from a single state.

[Senator Alison Clarkson (Chair)]: Many states have similar language.

[Senator Kesha Ram Hinsdale (Member)]: And is labor-

[Senator Thomas Chittenden (Member)]: First,

[Senator Kesha Ram Hinsdale (Member)]: they're neutral or they're supportive?

[Sophie Sedatney (Office of Legislative Counsel)]: So there 16 states that have non competes for healthcare providers, and then there's just pending legislation in a number of other states. So this is an area where a lot of states have moved specifically in the healthcare area.

[Senator Thomas Chittenden (Member)]: Sorry, I think I have to report this since I reported the underlying bill.

[Senator Alison Clarkson (Chair)]: It'd be great.

[Senator Thomas Chittenden (Member)]: Is it fair to say that these states that have these, if we have a nurse in Vermont that's traveling there, then they would not honor a non compete that if we issued it here in the state that they would dis they they would disregard any non competes from a contract here in Vermont. Does that make sense what I'm saying?

[Sophie Sedatney (Office of Legislative Counsel)]: I don't know specifically with regard to traveling nurses, like how that would play out in the particular states, but generally speaking, the goal is to provide freedom of movement for healthcare professionals to make sure that they're, you know, again, I think everyone's dealing with concerns around healthcare and cost of healthcare and to make sure that you're promoting

[Senator Randy Brock (Vice Chair)]: You've got to be good

[Senator Thomas Chittenden (Member)]: for the Hughes, good for the gander argument. So if there was a company here in Vermont that had a non compete on a nurse and they were working elsewhere, would they disregard and ignore that non compete in one of these states that has this?

[Jessa Barnard (Vermont Medical Society)]: Joseph Barnard, Vermont Medical Society. It would depend on the law of that state and not all other states have included the language that's in this draft around or this bill around the these provisions being subject to the law of, say, in this language, of Vermont. So that's actually a model that we are suggesting bringing from New Mexico, specifically for this reason around the traveling staff contracts. So some states don't specify in particular, you know, you must subject these provisions to the laws of our state. And so some of those national staffing companies, have been trying to get around that by subjecting those contracts to a law of a different state, like where that company is headquartered, if that makes sense. But it really would depend on that state's

[Sophie Sedatney (Office of Legislative Counsel)]: law where that nurse is.

[Senator Thomas Chittenden (Member)]: I'm probably gonna say it wrong on the floor, but that's okay. Thank you.

[Senator Alison Clarkson (Chair)]: I think 16 other states it's good. I just gotta I

[Senator Kesha Ram Hinsdale (Member)]: need to understand the definition. Is there a definition of healthcare provider and a wage threshold?

[Sophie Sedatney (Office of Legislative Counsel)]: So this does not contain a wage threshold, and the definition of healthcare provider is very broad in Vermont, and that's elsewhere in state statute. But it's it's generally broad. I mean, it covers So

[Senator Alison Clarkson (Chair)]: so, Kesha, I also understood your question about health care unions and where they are with this. I don't know, Jess, what the conversation was with the unions, but I don't think this necessarily impacts, in a negative way, union workers.

[Senator Kesha Ram Hinsdale (Member)]: Have we asked them?

[Senator Alison Clarkson (Chair)]: I don't know, Jessa. Yeah,

[Jessa Barnard (Vermont Medical Society)]: Jessa Barnard, Vermont Medical Society. We have not heard one way or another from the specific nursing unions. I will say, again, this has been language that's been talked about since really the beginning of session, in various bills. We had not heard certainly any concern from the unions. I think in general, it's a pro worker, pro movement kind of language. So we have not heard concerns. We have been working with a number of other types of healthcare providers who are very supportive. So

[Senator Kesha Ram Hinsdale (Member)]: if a home healthcare worker is working with like a state or national company or they're going through an app, does that mean they're subject to this and they also have to be paid, like they have to meet our labor standards?

[Sophie Sedatney (Office of Legislative Counsel)]: So this bill is just dealing with non competes and other provisions that are in agreements and contracts with healthcare workers. So it doesn't, it's not really addressing border labor law. It's really just focused on agreements and contracts and saying what can not be in those agreements and contracts.

[Senator Kesha Ram Hinsdale (Member)]: Are home health workers included in the definition?

[Senator Alison Clarkson (Chair)]: Yeah, I believe so. I mean, we talked about that earlier, think.

[Jessa Barnard (Vermont Medical Society)]: Jess, are they included? Jessica Barnard from Vermont Medical Society. My understanding is they would fall within the definition of a healthcare provider. Certainly if they were an LNA or a nurse, but I believe the definition is broad enough that it would include Can care workers as

[Senator Alison Clarkson (Chair)]: we pull that up? Is it possible to pull up the definition of a healthcare provider? Believe that's Just healthcare all providers. And I believe it's very broad. Said at the beginning it was fair.

[Sophie Sedatney (Office of Legislative Counsel)]: So I've spoken with, the state council that's in this area, and so that is what my understanding is, is that it's very broad definition, but there isn't, like, one single definition. I mean, it gets defined under different statutes. So in the original h two zero five, when it was in house commerce and economic development, there was a definition in there. So if the committee wanted to include a definition, a bullet definition of a health care provider in this, we can certainly pull that definition over. But I don't I mean, the best Jessa has a very specific statute in mind.

[Senator Alison Clarkson (Chair)]: My my understanding from initial testimony was that they included all health care provider, whether you were a home care provider or a doctor, a traveling nurse, or an anesthesiologist. I mean, like a chiropractor or a or any healthcare provider.

[Senator Kesha Ram Hinsdale (Member)]: This is something we have to know. We have to know this to pass the bill. We have to know which definition we're using. And I'd say if we're not referring to another area of statute, we should look at the Massachusetts definition or another state that has given this some thought because it doesn't sound particularly

[Senator Alison Clarkson (Chair)]: clear. I think commerce gave us a lot of thought and I think we could consider adding that to this, but Thomas

[Senator Kesha Ram Hinsdale (Member)]: didn't they have a definition? Don't know that they gave it a lot of thought. We haven't heard about this.

[Senator Alison Clarkson (Chair)]: I think they did. They spent a lot of time on this. Thanks. Thomas.

[Senator Thomas Chittenden (Member)]: So with Senator Ram Hinsdale's concern, my concern that Senator Brock and Senator Weeks are not part of this, bringing this to the floor today could

[Senator Alison Clarkson (Chair)]: be So less than

[Senator Thomas Chittenden (Member)]: what I would ask though is I would like to postpone the date certain in order to Thank you. To protect us tired of passing things over. So we could say, I think we're here next week until next Wednesday to give us all time or Thursday. Let's do Wednesday. Alright. Don't go to app to pass this over to date service. To Wednesday. Thank you. So I

[Senator Alison Clarkson (Chair)]: am happy to look at, I'm not sure we Anyway, let's look at the definition of healthcare provider that was in 02/2005. And, Gesha, if you would be kind enough to provide and work with Sophie on the best healthcare provider definition we have out of all that work that they did because they spent a ton of time on this issue in the house. So that would be great.

[Senator Thomas Chittenden (Member)]: Maybe a conference too? Mean, you just wanna do that.

[Senator Alison Clarkson (Chair)]: I don't care. We could do that, but I think this will be fine if we can

[Senator Randy Brock (Vice Chair)]: do both.

[Senator Kesha Ram Hinsdale (Member)]: I'd say no.

[Senator Alison Clarkson (Chair)]: Alright. Okay. And then

[Senator Kesha Ram Hinsdale (Member)]: I guess I I don't know. I don't think we have time for all these committees of conference.

[Senator Thomas Chittenden (Member)]: Well,

[Senator Alison Clarkson (Chair)]: we're gonna have to make time for the ones that are cold. So the second piece of this is the work with the corrections facilities, and I'm grateful to Wanda for helping move this forward. Otherwise, it was going to be a challenge for us to both to get all the parties in line at the end of session. I mean, just given our timeframe, it's a bigger issue than we thought. And I'm very grateful to Wanda for keeping this issue alive and moving it forward with the SEA and the Department of Corrections. So I'm hoping people are okay with this amendment. Okay. Fine? Okay. Kesha, do okay So

[Senator Kesha Ram Hinsdale (Member)]: what's in the bill? I'm parking, but what's in the bill that is must pass now?

[Senator Alison Clarkson (Chair)]: The labor pieces that we passed out of here. Sophie, you wanna review what's in the bill?

[Sophie Sedatney (Office of Legislative Counsel)]: Yes. Section one of the bill adds the citation to 29 CFR section 825.110c3, which is to do with the Grants on Family Leave Act. It includes the reference to teachers. Section two includes the definition of crime victim to include victims of domestic violence, sexual assault, and stalking. It does not include the under penalty perjury provision to the self attestation on documentation that was added by this committee before it went to the House. Section three is an amendment to Fair Employment Practices Act, removing the language around mandatory retirement for tenured faculty. Right, which if you recall has been not law for decades. Right, since 1994. Section three A was a new section added by House General and House, and that was to remove the elected and appointed municipal officers from the definition of employee for the purposes of Vermont's minimum wage and overtime awards. And then Section 3B, as it came over from the House, was the section that dealt with non compete. So, non competes for nonexempt employees and that included the language around contracts and agreements for healthcare providers. So, that's the version that's currently

[Senator Alison Clarkson (Chair)]: Right, in the the two amendments. The two amendments we're considering, plus looking at a definition of healthcare providers.

[Sophie Sedatney (Office of Legislative Counsel)]: So I found the one that was in H. Two zero five, and it simply says healthcare provider means a person licensed, certified, or authorized by law to provide professional healthcare service in the state to an individual during that individual's medical care, treatment, or confinement. I can add that if you would like to, the amendment on the healthcare providers.

[Senator Alison Clarkson (Chair)]: Is that is belts and suspenders that you need, Kesha? We can add that. Think she may be walking in belts. The- Jessa- and- sorry. Tom- No, no. Jessa, how are you on that?

[Jessa Barnard (Vermont Medical Society)]: Jessa Bonner at Vermont Medical Society were supportive of that definition. That's really taken from the most common definition that's already in title 18, for healthcare providers, so we're happy to either include all the language or cross reference to that definition.

[Senator Alison Clarkson (Chair)]: And somebody who was paying, being paid as a homecare worker who was not being paid with a contractor for a company was just doing it private on private pay that there would be no compete, a non compete anyway. Right.

[Jessa Barnard (Vermont Medical Society)]: Because the bill only applies to provisions of an employment agreement. If they don't have a written employment agreement, it wouldn't apply. But if that person did have a contract, I think it could apply because it's anyone authorized by law by

[Senator Alison Clarkson (Chair)]: Hi, Randy. Sorry about your travel. So, we're talking about the healthcare provider. A patient has been interested in saving definition, which we have that the medical society is fine with. They included it in the non sugar peak bill upstairs. There is a general provision people tend to be okay with, but if we wanted to include the definition of healthcare provider, we could. And you wanna read it again for Randy?

[Sophie Sedatney (Office of Legislative Counsel)]: Yes. Healthcare provider means a person licensed, certified, or authorized by law, not provided professional healthcare service in this state for an individual during that individual's medical care, treatment, or confinement, and I can put it up if you would like from there.

[Senator Randy Brock (Vice Chair)]: Okay. Sounds good.

[Senator Alison Clarkson (Chair)]: Tandy, close.

[Senator Randy Brock (Vice Chair)]: We were in there, correct? Yes.

[Senator Alison Clarkson (Chair)]: Yeah. Yeah. Because that's the only graft that would be affected, that would have a be big enough to have a non invasive. So if we

[Sophie Sedatney (Office of Legislative Counsel)]: I can I mean I could do that this morning to get a good connection? That would be ahead of

[Senator Thomas Chittenden (Member)]: So I see two things that I'd really love to know Senator Brock and Senator Weeks are comfortable with. One, the removal of the cell detestation language which I think was important to Senator Weeks. So I just don't think would be wise for us to hear before we go to the floor. And two, you too comfortable with what we're doing with the non competes for healthcare workers? That's what my pause was, but I already sent the email. So I think it's retracted.

[Senator Randy Brock (Vice Chair)]: Retract it.

[Senator Thomas Chittenden (Member)]: Since we I I just requested to pass this over to dates certain until next Wednesday because the protest increasingly frustrated with us passing over bills this month.

[Senator Alison Clarkson (Chair)]: But we can also surprise them if we come into agreement. I mean, if every I

[Senator Randy Brock (Vice Chair)]: I guess senator Weeks would be there'd be there. I I have some flexibility in the in the issue of the noncompete. Love to hear

[Senator Alison Clarkson (Chair)]: senator Weeks. Agree. And he should be hearing

[Senator Randy Brock (Vice Chair)]: as a particular commercial non compete, but the notion of depriving a person of his or her chosen healthcare provider individually by virtue of a commercial Right.

[Senator Alison Clarkson (Chair)]: So, I, we are, I am fine with the provision so far, and I'm happy to add a definition if Kesha would like. I don't know where she is, but my guess is she is in the middle of walking to stay the house. Kesha, are you able to weigh in?

[Senator Thomas Chittenden (Member)]: I offered that just because it didn't made us stress or try to get back quickly.

[Senator Alison Clarkson (Chair)]: And why don't we're expecting David any second, in Kesha any second, instead of sitting around, why don't we go off live for five or ten minutes, and then we will be back if you're able to stay, Sophie.