Employment Law News

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Checklist for Updating Employment Policies and Practices: New Vermont laws effective July 1, 2018*

June 21, 2018, by Stephen D. Ellis, Ellis Boxer & Blake, PLLC, Burlington and Springfield

The Vermont legislature was active in the last session in the arena of labor and employment law, enacting a number of new statutory provisions that create new obligations and considerations for Vermont employers effective July 1, 2018

The following checklist is by no means exhaustive, but highlights several key points that Vermont employers should consider in reviewing and updating their Employee Handbooks, policies and procedures, job applications, and standard template documents such as job offer letters and separation/ settlement agreements, preferably with the assistance of a qualified and experienced labor and employment law attorney. 

1. Marijuana (Act 86)

Does the employer’s current drug and alcohol policy specifically address marijuana?  See https://www.ellisboxer.com/employment-law-news/vermonts-new-marijuana-law-goes-into-effect-on-july-1-employers-unions-schools-and-landlords-get-ready

2. Sexual Harassment (Act 183) 

Vermont employers:

·         Must protect independent contractors, volunteers, interns, as well as regular employees

·         Must provide individual copy of written policies to new employees upon being hired

o   and provide updates to all employees

·         Encouraged to

o   conduct education/training program for new employees w/in 1 year of commencement of employment

o   conduct annual training for all employees

o   additional training for supervisors re specific responsibilities and actions to ensure immediate and appropriate corrective actions

·         May not require employee or prospective employee, as condition of employment, to sign agreement or waiver that

o   Prohibits opposing, disclosing, reporting or participating in investigation of

o   Except as otherwise permitted by State of federal law, purports to waive a substantive or procedural right or remedy with respect to a claim of sexual harassment

·         Agreement to settle claim of sexual harassment must state that

o   It does  prohibit lodging complaint, participating, responding to discovery

o   or “exercising any right the individual may have pursuant to State or federal labor relations laws to engage in concerted activities with other employees for the purpose of collective bargaining or mutual aid and protection,

o   and does not waive any rights or claims arising after the date the agreement is executed

o   Agreement may waive claimant’s right to seek or obtain remedies for sexual harassment of the claimant

o   Note:  A settlement agreement that does not comply with these provisions is only unenforceable against the claimant; settling claimant may keep the money without being bound by the release and other provisions of the settlement agreement.

o   Note:  While these requirements only expressly apply to settlements of sexual harassment claims, agreements to settle other types of claims for discrimination that do not contain these provisions may be vulnerable.

·         Attorney General may on 48 hours notice question any person who is authorized to receive or investigate complaints, and examine employee’s policies, procedures and training materials

o   Following inspection, Attorney General must notify employer of the results and identify deficiencies, provide resources and technical assistance; if necessary, may require for 3 years training program or annual work-climate survey

·         Civil complaints under Vermont’s Fair Employment Practices must be provided to the Attorney General and Human Rights Commission w/in 14 days

o   AG/HRC may intervene or file statement addressing questions of law: 

§  Note:  This provision may be challenged as an unconstitutional usurpation of judicial authority in violation of constitutional separation of powers.

·         Department of Labor to update model policy and poster by 9/15/18

3.  Salary History (Act 294)

Employer shall not

·         Inquire or seek information from prospective employee or his or her current or past employers about prospective employee’s current or past compensation

·         Require that prospective employee’s current or past compensation meet maximum or minimum criteria;

·         Determine whether to interview based on past or current compensation.

·         If prospective employee volunteers information, employer may seek to confirm after making job offer.

·         Employer may:

o   Ask about expectations or requirements;

o   Provide information about compensation and benefits offered

4.  Crime Victims (Act 184) 

·         Adds “crime victim status” to protected attributes under FEPA, 495(a).  “Crime victim” is a person who has obtained a Relief from Abuse order, an order against stalking or sexual assault or against abuse of vulnerable adult, or a person who is identified as a crime victim in an affidavit filed by law enforcement official with prosecuting attorney, and includes the victim’s child, foster child, parent, spouse, stepchild or ward who lives with the victim, parent of victim’s spouse, unless the individual is identified in the affidavit as the defendant.

·         Requires employers to provide employees with six months continuous employment of at least 20 hours/week to take unpaid leave to attend deposition or court proceeding relating to matters in which the employee is a victim, under terms comparable to Vermont PFLA.

·         Requires employers to conspicuously post and maintain notice on form provided by DOL.

·         Provides exemption if the employee’s absence would require the employer who provides goods and services to the general public to suspend all business operations at a location open to the public.

5.  Gender Neutral Bathrooms (Act 127)

·         Single-user toilet facility in public building or place of public accommodation must be gender-neutral and designated for use by not more than one occupant, or family or assisted use without designating any specific gender.

o   20 VSA § 2730:  Public building includes “a building in which two or more persons are employed, or occasionally enter as part of their employment”

6.  Employee Rights

Provisions of new sexual harassment law relating to settlement agreements provides enhanced protections of employees’ right to engage in “concerted protective activity” from which the federal NLRB and DOL may be retreating under the current administration.

7.  Workers Compensation (Act 148) 

·         Clarifies, and possibly expands, the anti-retaliation provisions of Section 710 to cover individual who the employer knows or suspects as filed a complaint or reported a violation, “or has testified, assisted, or cooperated in any manner with the Department or other appropriate governmental agency or department in an investigation of misclassification, discrimination, or other violation of this chapter.

·         Requires citations to include proposed penalty

* This column is for educational and informational purposes only.  It is not intended to provide legal advice, and should not be relied on in lieu of consultation with an attorney. 

Oliver Abbott